EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
PNC BANK, NATIONAL ASSOCIATION
(Seller)
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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.
Transactions on or Prior to the Closing Date.....................1
Section 2.
Closing Date Actions.............................................1
Section 3.
Conveyance of Mortgage Loans.....................................2
Section 4.
Depositor's Conditions to Closing................................8
Section 5.
Seller's Conditions to Closing..................................10
Section 6.
Representations and Warranties of Seller........................10
Section 7.
Obligations of Seller...........................................13
Section 8.
Crossed Mortgage Loans..........................................17
Section 9.
Representations and Warranties of Depositor.....................17
Section 10.
Survival of Certain Representations, Warranties and Covenants...18
Section 11.
Transaction Expenses............................................18
Section 12.
Recording Costs and Expenses....................................18
Section 13.
Notices.........................................................19
Section 14.
Examination of Mortgage Files...................................19
Section 15.
Successors......................................................19
Section 16.
Governing Law...................................................19
Section 17.
Severability....................................................20
Section 18.
Further Assurances..............................................20
Section 19.
Counterparts....................................................20
Section 20.
Treatment as Security Agreement.................................20
Section 21.
Recordation of Agreement........................................21
Schedule I
Schedule of Transaction Terms
Schedule II
Mortgage Loan Schedule
Schedule III
Mortgage Loans Constituting Crossed Groups
Schedule IV
Mortgage Loans with Lost Notes
Schedule V
Exceptions to Seller's Representations and Warranties
Exhibit A
Representations and Warranties Regarding the Mortgage Loans
Exhibit B
Form of Lost Note Affidavit
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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 PNC BANK, 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 specified on such
Schedule of
Transaction Terms.
II. On the Closing Date, and on the terms set forth herein, Seller
has
agreed to sell to Depositor and Depositor has agreed to purchase
from Seller the
mortgage loans identified on the schedule (the "Mortgage Loan
Schedule") annexed
hereto as Schedule II (each such mortgage loan, a "Mortgage Loan"
and,
collectively, the "Mortgage Loans"). Depositor intends to deposit
the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created
pursuant to
the Pooling and Servicing Agreement and to cause the issuance of
the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which
is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or
prior to
the Closing Date, Seller shall have delivered the Mortgage Files
with respect to
each of the Mortgage Loans listed in the Mortgage Loan Schedule to
Wells Fargo
Bank, N.A. as trustee (the "Trustee") or its designee, against
receipt by Seller
of a written receipt, pursuant to an arrangement between Seller and
the Trustee;
provided, however, that, item (xvi) in the definition of Mortgage
File (below)
shall be delivered to the Master Servicer for inclusion in the
Servicer File
(defined below) with a copy delivered to the Trustee for inclusion
in the
Mortgage File; and provided, further, that Seller shall pay (or
cause the
related Borrower to pay) any costs of the assignment or amendment
of each letter
of credit described under such item (xvi) required in order for the
Trustee to
draw on such letter of credit pursuant to the terms of the Pooling
and Servicing
Agreement and shall deliver the related assignment or amendment
documents within
thirty (30) days after the Closing Date, which period may be
extended by thirty
(30) days as provided in the Pooling and Servicing Agreement. In
addition, prior
to such assignment or amendment of a letter of credit, Seller will
take all
necessary steps to enable the Master Servicer to draw on the
related letter of
credit on behalf of the Trustee pursuant to the terms of the
Pooling and
Servicing Agreement, including, if necessary, drawing on the letter
of credit in
its own name pursuant to written instructions to draw from the
Master Servicer
and upon receipt, immediately remitting the proceeds of such draw
(or causing
such proceeds to be remitted) to the Master Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall
take place on the Closing Date, subject to and simultaneously with
the deposit
of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates, the
sale of the Publicly Offered Certificates by Depositor to the
Underwriters
pursuant to the Underwriting Agreement and the sale of the Private
Certificates
by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase
Agreement. The closing (the "Closing") shall take place at the
offices of 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 Loans pursuant to this Agreement
for
the Mortgage Loan Purchase Price payable in accordance with
instructions previously provided to Depositor by Seller. The
Mortgage
Loan Purchase Price shall be paid by Depositor to Seller or at its
direction by wire transfer in immediately available funds to an
account
designated by Seller on or prior to the Closing Date. The "Mortgage
Loan Purchase Price" paid by Depositor shall be equal to the amount
that Depositor and Seller have mutually agreed upon as the "Net
Securitization Proceeds/Fees" under the heading "PNC Bank Share" in
the
Closing Statement (which amount includes, without limitation,
accrued
interest and is less those costs and expenses to be paid by Seller,
including those expenses to be paid pursuant to Section 11 hereof).
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement, Depositor shall transfer all of its right, title and
interest in, to and under the Mortgage Loans to the Trustee (for
the
benefit of the Holders of the Certificates) in exchange for the
issuance of the Certificates to or at the direction of Depositor.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters shall purchase from Depositor, the Publicly Offered
Certificates pursuant to the Underwriting Agreement, and Depositor
shall sell to the Initial Purchaser, and the Initial Purchaser
shall
purchase from Depositor, the Private Certificates pursuant to the
Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered
Certificates for sale to the public pursuant to the Prospectus and
the
Prospectus Supplement and the Initial Purchaser will privately
place
certain classes of the Private Certificates pursuant to the
Offering
Circular.
Section 3. Conveyance of Mortgage Loans. Effective as of the
Closing
Date, subject only to Seller's receipt of the Mortgage Loan
Purchase Price,
Seller does hereby assign, transfer, set over and otherwise convey,
without
recourse, to Depositor, free and clear of any liens, claims or
other
encumbrances, all of Seller's right, title and interest in, to and
under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule
and (ii) all
property of Seller described in Section 20(b) of this Agreement,
including,
without limitation, (A) all scheduled payments of interest and
principal due on
or with respect to the Mortgage Loans after the Cut-off Date, (B)
all other
payments of interest, principal or prepayment premiums received on
or with
respect to the Mortgage Loans after the Cut-off Date, other than
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any such payments of interest or principal or prepayment premiums
that were due
on or prior to the Cut-off Date and (C) with respect to the
Mortgage Loans
identified as Fountain Valley Town Center and Westcliff Office
Plaza on Schedule
II attached hereto, prepaid interest collected at the origination
thereof for
the period from and including the related date of origination to,
but not
including, September 1, 2004. In connection with such transfer and
assignment,
the Seller shall remit to the Depositor for deposit into the
Collection Account
the Interest Deposit Amount. 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. The Mortgage
File for each
Mortgage Loan shall contain the following documents on a collective
basis:
(i) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially
in
the form of Exhibit B hereto and a true and complete copy of the
Note),
bearing, or accompanied by, all prior and intervening endorsements
or
assignments showing a complete chain of endorsement or assignment
from
the applicable Mortgage Loan Originator either in blank or to
Seller,
and further endorsed (at the direction of Depositor given pursuant
to
this Agreement) by Seller, on its face or by allonge attached
thereto,
without recourse, either in blank or to the order of the Trustee in
the
following form: "Pay to the order of Wells Fargo Bank, N.A., as
trustee
for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series
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) 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 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
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missing recording information and, if applicable, completion of the
name of the assignee), from Seller (or the applicable Mortgage Loan
Originator), either in blank or to "Wells Fargo Bank, N.A., as
trustee
for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series
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 and in
recordable
form under applicable law);
(vi) an original or true and complete copy of any related
Security Agreement (if such item is a document separate from the
Mortgage), and the originals or copies of any intervening
assignments
thereof from the applicable Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), from
Seller
(or the applicable Mortgage Loan Originator) either in blank or to
"Wells Fargo Bank, N.A., as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 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 such
Mortgage
Loan;
(x) the original or a counterpart of any guaranty of the
obligations of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the
filing
or recording thereof (including the filing number or other similar
filing information) or, alternatively, other evidence of filing or
recording (including the filing number or other similar filing
information) acceptable to the Trustee (including, without
limitation,
evidence of such filed or recorded UCC Financing Statement as shown
on
a written UCC search report
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from a reputable search firm, such as CSC/LexisNexis Document
Solutions, Corporation Service Company, CT Corporation System and
the
like or printouts of on-line confirmations from such UCC filing or
recording offices or authorized agents thereof), sufficient to
perfect
(and maintain the perfection of) the security interest held by the
applicable Mortgage Loan Originator (and each assignee of record
prior
to the Trustee) in and to the personalty of the Borrower at the
Mortgaged Property, and original UCC Financing Statement
assignments,
in a form suitable for filing or recording, sufficient to assign
each
such UCC Financing Statement to the Trustee;
(xii) the original or copy of the power of attorney (with
evidence of recording thereon) granted by the Borrower if the
Mortgage,
Note or other document or instrument referred to above was not
signed
by the Borrower;
(xiii) with respect to any debt of a Borrower permitted under
the related Mortgage Loan, an original or copy of a subordination
agreement, standstill agreement or other intercreditor, co-lender
or
similar agreement relating to such other debt, if any, including
any
mezzanine loan documents or preferred equity documents;
(xiv) with respect to any Cash Collateral Accounts and
Lock-Box Accounts, an original or copy of any related account
control
agreement;
(xv) an original or copy of any related Loan Agreement (if
separate from the related Mortgage), and an original or copy of any
related Lock-Box Agreement or Cash Collateral Account Agreement (if
separate from the related Mortgage and Loan Agreement);
(xvi) the originals and copies of letters of credit, if any,
relating to the Mortgage Loans and amendments thereto which
entitles
the Trust to draw thereon; provided that in connection with the
delivery of the Mortgage File to the Trust, such originals shall be
delivered to the Master Servicer and copies thereof shall be
delivered
to the Trustee;
(xvii) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies thereof;
(xviii) the original or a copy of the ground lease and ground
lease estoppels, if any, and of any amendments, modifications or
extensions thereto, if any;
(xix) the original or copy of any property management
agreement;
(xx) without duplication with clause (xiii) above, a copy of
the mortgage note evidencing the related Junior Loan, if any;
(xxi) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties; and (xxii) a checklist
of
the related Mortgage Loan Documents included in the subject
Mortgage
File;
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Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered,
an original,
counterpart or certified copy, as applicable, of any of the
documents and/or
instruments required to be delivered pursuant to clauses (ii)
(relating to
Mortgages), (iv) (relating to Assignments of Leases), (viii)
(relating to
assumption agreements, modifications, written assurance agreements
and
substitution agreements), (xi) (relating to UCC Financing
Statements and related
documents)(other than assignments of UCC Financing Statements to be
recorded or
filed in accordance with the transfer contemplated by this
Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first
paragraph of
this Section 3, with evidence of recording or filing thereon on the
Closing
Date, solely because of a delay caused by the public recording or
filing office
where such document or instrument has been delivered for
recordation or filing,
the delivery requirements of such last sentence of such first
paragraph of this
Section 3 should be deemed to have been satisfied and such
non-delivered
document or instrument shall be deemed to have been included in the
Mortgage
File; provided that Seller: (i) shall deliver, or cause to be
delivered, to the
Trustee or its designee and the Master Servicer a duplicate
original or true
copy of such document or instrument (certified by the applicable
public
recording or filing office, the applicable title insurance company
or Seller to
be a true and complete duplicate original or photocopy of the
original thereof
submitted for recording or filing) on the Closing Date; and (ii)
shall deliver,
or cause to be delivered, to the Trustee or its designee (with a
copy thereof to
the Master Servicer) either the original of such non-delivered
document or
instrument, or a photocopy thereof (certified by the appropriate
public
recording or filing office to be a true and complete copy of the
original
thereof submitted for recording or filing), with evidence of
recording or filing
thereon within 120 days of the Closing Date, which period may be
extended up to
two times, in each case for an additional period of 45 days
provided that
Seller, as certified in writing to the Trustee prior to each such
45-day
extension, is in good faith attempting to obtain from the
appropriate county
recorder's office such original or photocopy.
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered,
an original,
counterpart or certified copy, as applicable, of any of the
documents and/or
instruments required to be delivered pursuant to clauses (ii)
(relating to
Mortgages), (iv) (relating to Assigments of Leases), (viii)
(relating to
assumption agreements, modifications, written assurance agreements
and
substitution agreements), (xi) (relating to UCC Financing
Statements and related
documents) (other than assignments of UCC Financing Statements to
be recorded or
filed in accordance with the transfer contemplated by this
Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first
paragraph of
this Section 3, with evidence of recording or filing thereon for
any other
reason, including without limitation, that such non-delivered
document or
instrument has been lost, the delivery requirements of this
Agreement shall be
deemed to have been satisfied and such non-delivered document or
instrument
shall be deemed to have been included in the related Mortgage File
if a
photocopy or duplicate original of such non-delivered document or
instrument
(with evidence of recording or filing thereon and certified by the
appropriate
recording or filing office to be a true and complete copy of the
original
thereof as filed or recorded) is delivered to the Trustee or its
designee on or
before the Closing Date.
Notwithstanding the foregoing, in the event that Seller fails, as
to
any Mortgage Loan, to deliver any UCC Financing Statement
assignment with the
filing or recording information of the related UCC Financing
Statement, solely
because such UCC Financing
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Statement has not been returned to Seller by the applicable public
filing or
recording office where such UCC Financing Statement has been
delivered for
filing or recording, Seller shall not be in breach of its
obligations with
respect to such delivery, provided that Seller promptly forwards
such UCC
Financing Statement to the Trustee or its designee (with a copy to
the Master
Servicer) upon its return from the applicable filing or recording
office,
together with the related original UCC Financing Statement
assignment in a form
appropriate for filing or recording.
Notwithstanding the foregoing, Seller may elect, at its sole cost
and
expense, to engage a third-party contractor to prepare or complete
in proper
form for filing or recording any and all of the assignments of
Mortgage,
assignments of Assignments of Leases and assignments of UCC
Financing Statements
to the Trustee to be delivered pursuant to clauses (iii), (v), and
(xi) of the
last sentence of the first paragraph of this Section 3
(collectively, the
"Assignments"), to submit such Assignments for filing and
recording, as the case
may be, in the applicable public filing and recording offices and
to deliver
such Assignments to the Trustee or its designee (with a copy to the
Master
Servicer) as such Assignments (or certified copies thereof) are
received from
the applicable filing and recording offices with evidence of such
filing or
recording indicated thereon. However, in the event Seller engages a
third-party
contractor as contemplated in the immediately preceding sentence,
the rights,
duties and obligations of Seller pursuant to this Agreement remain
binding on
Seller.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage
Loans to the
Master Servicer (or, if applicable, to a Sub-Servicer (with a copy
to the Master
Servicer) at the direction of the Master Servicer), under the
Pooling and
Servicing Agreement on behalf of the Trustee in trust for the
benefit of the
Certificateholders. Each such Servicer File shall contain all
documents and
records in Seller's possession relating to the Mortgage Loans and
constituting
the related Servicing Files (as defined in the Pooling and
Servicing Agreement).
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File", if there
exists with
respect to any group of Crossed Loans only one original or
certified copy of any
document or instrument described in the definition of "Mortgage
File" which
pertains to all of the Crossed Loans in such group of Crossed
Loans, the
inclusion of the original or certified copy of such document or
instrument in
the Mortgage File for any of such Crossed Loans and the inclusion
of a copy of
such original or certified copy in each of the Mortgage Files for
the other
Crossed Loans in such group of Crossed Loans, shall be deemed to
constitute the
inclusion of such original or certified copy, as the case may be,
in the
Mortgage File for each such Crossed Loan.
In connection with the transfer and assignment of the Mortgage
Loans to
the Depositor hereunder, on the Closing Date, Seller shall pay
Depositor (for
deposit in the Collection Account on behalf of the Trust) an amount
with respect
to each of the two Mortgage Loans described in clause (C) of the
first sentence
of the first paragraph of this Section 3, which in each case
represents the
aggregate amount of interest that would have accrued at the related
Mortgage
Rate on the original Stated Principal Balance of such Mortgage Loan
had such
Mortgage Loan been originated on August 1, 2004, for the period
from and
including August 1, 2004 to, but not including, the related date of
origination
of such Mortgage Loan. The parties
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hereby agree that such amounts will be included in Seller's
remittance of the
Interest Deposit Amount described in the second sentence of the
first paragraph
of this Section 3.
Seller shall, promptly after the Closing Date, but in all events
within
three (3) Business Days after the Closing Date, cause all funds on
deposit in
escrow accounts maintained with respect to the Mortgage Loans in
the name of
Seller or any other name, to be transferred to or at the direction
of the Master
Servicer (or, if applicable, to a Sub-Servicer at the direction of
the Master
Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled
to all scheduled principal payments due after the Cut-off Date, all
other
payments of principal due and collected after the Cut-off Date, and
all payments
of interest on the Mortgage Loans, minus that portion of any such
payment which
is allocable to the period on or prior to the Cut-off Date. All
scheduled
payments of principal due on or before the Cut-off Date and
collected after the
Cut-off Date, together with the accompanying interest payments,
shall belong to
Seller; provided, however, that the prepaid interest with respect
to two
Mortgage Loans described in clause (C) of the first sentence of the
first
paragraph of this Section 3 shall belong to the Trust and shall be
remitted by
Seller to the Depositor for deposit in the Collection Account on
the Closing
Date; provided, further, that such prepaid interest will be
included in Seller's
remittance of the Interest Deposit Amount described in the second
sentence of
the first paragraph of this Section 3.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant
hereto, the ownership of each Note, the related Mortgage and the
contents of the
related Mortgage File shall be vested in Depositor and the
ownership of all
records and documents that constitute the Servicer File with
respect to the
related Mortgage Loan shall immediately vest in Depositor. All
Monthly Payments,
Principal Prepayments and other amounts received by Seller and not
otherwise
belonging to Seller pursuant to this Agreement shall be sent by
Seller within
three (3) Business Days after Seller's receipt thereof to the
Master Servicer
via wire transfer for deposit by the Master Servicer into the
Collection
Account.
Seller shall, under generally accepted accounting principles
("GAAP"),
report its transfer of the Mortgage Loans to Depositor, as provided
herein, as a
sale of the Mortgage Loans to Depositor in exchange for the
consideration
specified in Section 2 hereof. In connection with the foregoing,
Seller shall
cause all of its financial and accounting records to reflect such
transfer as a
sale (as opposed to a secured loan). Seller shall at all times
following the
Closing Date cause all of its records and financial statements and
any relevant
consolidated financial statements of any direct or indirect parent
to clearly
reflect that the Mortgage Loans have been transferred to Depositor
and are no
longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided
herein, Seller shall not take any action inconsistent with
Depositor's ownership
(or the ownership by any of Depositor's assignees) of the Mortgage
Loans. Except
for actions that are the express responsibility of another party
hereunder or
under the Pooling and Servicing Agreement, and further except for
actions that
Seller is expressly permitted to complete subsequent to the Closing
Date, Seller
shall, on or before the Closing Date, take all actions required
under applicable
law to effectuate the transfer of the Mortgage Loans by Seller to
Depositor.
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Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan
Purchase
Price at the Closing Date under the terms of this Agreement are
subject to the
satisfaction of each of the following conditions at or before the
Closing:
(a) Each of the obligations of Seller required to be performed by
it on
or prior to the Closing Date pursuant to the terms of this
Agreement shall have
been duly performed and complied with in all material respects; all
of the
representations and warranties of Seller under this Agreement
(subject to the
exceptions set forth in the Exception Report) shall be true and
correct in all
material respects as of the Closing Date; no event shall have
occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage
Files which,
with notice or the passage of time, would constitute a material
default under
this Agreement; and Depositor shall have received certificates to
the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's
attorneys or other designee, shall have received in escrow, all of
the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to
Depositor and Seller, duly executed by all signatories other than
Depositor, as
required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1
of this Agreement, which shall have been delivered to and held by
the
Trustee or its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations
and warranties set forth in Section 6 (subject to the exceptions
set
forth in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing Date, covering various corporate matters and such other
matters
as shall be reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and
such other documents to evidence fulfillment of the conditions set
forth in this Agreement as Depositor or its counsel may reasonably
request; and
(vi) all other information, documents, certificates, or
letters with respect to the Mortgage Loans or Seller and its
Affiliates
as are reasonably requested by Depositor in order for Depositor to
perform any of it obligations or satisfy any of the conditions on
its
part to be performed or satisfied pursuant to any sale of Mortgage
Loans by Depositor as contemplated herein.
(c) Seller shall have performed or complied with all other terms
and
conditions of this Agreement which it is required to perform or
comply with at
or before the Closing and shall have the ability to perform or
comply with all
duties, obligations, provisions and terms which it is required to
perform or
comply with after the Closing.
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(d) Seller shall have delivered to the Trustee, on or before the
Closing Date, five limited powers of attorney in favor of the
Trustee and
Special Servicer empowering the Trustee and, in the event of the
failure or
incapacity of the Trustee, the Special Servicer, to record, at the
expense of
Seller, any Mortgage Loan Documents required to be recorded and any
intervening
assignments with evidence of recording thereon that are required to
be included
in the Mortgage Files. Seller shall reasonably cooperate with the
Trustee and
the Special Servicer in connection with any additional powers or
revisions
thereto that are requested by such parties.
Section 5. Seller's Conditions to Closing. The obligations of
Seller
under this Agreement shall be subject to the satisfaction, on the
Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed
by it
on or prior to the Closing Date pursuant to the terms of this
Agreement shall
have been duly performed and complied with in all material
respects; and all of
the representations and warranties of Depositor under this
Agreement shall be
true and correct in all material respects as of the Closing Date;
and no event
shall have occurred with respect to Depositor which, with notice or
the passage
of time, would constitute a material default under this Agreement,
and Seller
shall have received certificates to that effect signed by
authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents,
in such forms as are agreed upon and reasonably acceptable to
Seller and
Depositor, duly executed by all signatories other than Seller, as
required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the
charter,
by-laws and certificate of good standing dated as of a recent date
of
Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required
to
evidence fulfillment of the conditions set forth in this Agreement
as
Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and
conditions of this Agreement which it is required to perform or
comply with at
or before the Closing and shall have the ability to perform or
comply with all
duties, obligations, provisions and terms which it is required to
perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.
Seller represents and warrants to Depositor as of the date hereof,
as
follows:
(i) Seller is duly organized and is validly existing as a
national banking association in good standing under the laws of the
United States of America. 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
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governmental agency or body pending or, to the knowledge of Seller,
threatened, which is reasonably likely to materially and adversely
affect the performance by Seller of this Agreement or the
consummation
of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to
hold, transfer and convey the Mortgage Loans and to execute and
deliver
this Agreement (and all agreements and documents executed and
delivered
by Seller in connection herewith) and to perform all transactions
of
Seller contemplated by this Agreement (and all agreements and
documents
executed and delivered by Seller in connection herewith). Seller
has
duly authorized the execution, delivery and performance of this
Agreement (and all agreements and documents executed and delivered
by
Seller in connection herewith), and has duly executed and delivered
this Agreement (and all agreements and documents executed and
delivered
by Seller in connection herewith). This Agreement (and each
agreement
and document executed and delivered by Seller in connection
herewith),
assuming due authorization, execution and delivery thereof by each
other party thereto, constitutes the legal, valid and binding
obligation of Seller enforceable in accordance with its terms,
except
as such enforcement may be limited by bankruptcy, fraudulent
transfer,
insolvency, reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally, by
general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and by
considerations
of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or
result in a breach of any of the terms, conditions or provisions of
Seller's articles or certificate of incorporation and bylaws or
similar
type organizational documents, as applicable; (B) conflict with,
result
in a breach of, or constitute a default or result in an
acceleration
under, any agreement or instrument to which Seller is now a party
or by
which it (or any of its properties) is bound if compliance
therewith is
necessary (1) to ensure the enforceability of this Agreement or (2)
for
Seller to perform its duties and obligations under this Agreement
(or
any agreement or document executed and delivered by Seller in
connection herewith); (C) conflict with or result in a breach of
any
legal restriction if compliance therewith is necessary (1) to
ensure
the enforceability of this Agreement or (2) for Seller to perform
its
duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith);
(D)
result in the violation of any law, rule, regulation, order,
judgment
or decree to which Seller or its property is subject if compliance
therewith is necessary (1) to ensure the enforceability of this
Agreement or (2) for Seller to perform its duties and obligations
under
this Agreement (or any agreement or document executed and delivered
by
Seller in connection herewith); or (E) result in the creation or
imposition of any lien, charge or encumbrance that would have a
material adverse effect upon Seller's ability to perform its duties
and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith), or materially
impair
the ability of Depositor to realize on the Mortgage Loans.
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(iv) Seller is solvent and the sale of the Mortgage Loans (1)
will not cause Seller to become insolvent and (2) is not intended
by
Seller to hinder, delay or defraud any of its present or future
creditors. After giving effect to its transfer of the Mortgage
Loans,
as provided herein, the value of Seller's assets, either taken at
their
present fair saleable value or at fair valuation, will exceed the
amount of Seller's debts and obligations, including contingent and
unliquidated debts and obligations of Seller, and Seller will not
be
left with unreasonably small assets or capital with which to engage
in
and conduct its business. Seller does not intend to, and does not
believe that it will, incur debts or obligations beyond its ability
to
pay such debts and obligations as they mature. No proceedings
looking
toward liquidation, dissolution or bankruptcy of Seller are pending
or
contemplated.
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to, any court or
governmental
agency or body having jurisdiction or regulatory authority over
Seller
is required for (A) Seller's execution, delivery and performance of
this Agreement (or any agreement or document executed and delivered
by
Seller in connection herewith), (B) Seller's transfer and
assignment of
the Mortgage Loans, or (C) the consummation by Seller of the
transactions contemplated by this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith)
or,
to the extent so required, such consent, approval, authorization,
order, registration, filing or notice has been obtained, made or
given
(as applicable), except for the filing or recording of assignments
and
other Mortgage Loan Documents contemplated by the terms of this
Agreement and except that Seller may not be duly qualified to
transact
business as a foreign corporation or licensed in one or more states
if
such qualification or licensing is not necessary to ensure the
enforceability of this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller
is receiving new value. The consideration received by Seller upon
the
sale of the Mortgage Loans constitutes at least fair consideration
and
reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant of
Seller contained in this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to Seller's knowledge, threatened in writing against Seller which
are
reasonably likely to draw into question the validity of this
Agreement
(or any agreement or document executed and delivered by Seller in
connection herewith) or which, either in any one instance or in the
aggregate, are reasonably likely to materially impair the ability
of
Seller to perform its duties and obligations under this Agreement
(or
any agreement or document executed and delivered by Seller in
connection herewith).
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(ix) Seller's performance of its duties and obligations under
this Agreement (and each agreement or document executed and
delivered
by Seller in connection herewith) is in the ordinary course of
business
of Seller and Seller's transfer, assignment and conveyance of the
Mortgage Loans pursuant to this Agreement are not subject to the
bulk
transfer or similar statutory provisions in effect in any
applicable
jurisdiction. The Mortgage Loans do not constitute all or
substantially
all of Seller's assets.
(x) Seller has not dealt with any Person that may be entitled,
by reason of any act or omission of Seller, to any commission or
compensation in connection with the sale of the Mortgage Loans to
Depositor hereunder except for (A) the reimbursement of expenses as
described herein or otherwise in connection with the transactions
described in Section 2 hereof and (B) the commissions or
compensation
owed to the Underwriters or the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of
its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations
under
this Agreement.
(xii) The representations and warranties contained in Exhibit
A hereto, subject to the exceptions to such representations and
warranties set forth on Schedule V hereto, are true and correct in
all
material respects as of the date hereof with respect to the
Mortgage
Loans identified on Schedule II.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and
shall
continue in full force and effect, notwithstanding any restrictive
or qualified
endorsement on the Notes and notwithstanding subsequent termination
of this
Agreement or the Pooling and Servicing Agreement. The
representations and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall not be impaired by any review or
examination of the
Mortgage Files or other documents evidencing or relating to the
Mortgage Loans
or any failure on the part of Depositor to review or examine such
documents and
shall inure to the benefit of the initial transferee of the
Mortgage Loans from
Depositor including, without limitation, the Trustee for the
benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment of
Assignment of
Leases or (2) any termination of this Agreement prior to the
Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If any Certificateholder, the Master Servicer, the Special Servicer
or
the Trustee discovers or receives notice of a breach of any of the
representations or warranties made by Seller with respect to the
Mortgage Loans
(subject to the exceptions to such representations and warranties
set forth in
the Exception Report), as of the date hereof in Section 6(xii) or
as of the
Closing Date pursuant to Section 4(b)(iii) (in any such case, a
"Breach"), or
discovers or receives notice that (a) any document required to be
included in
the Mortgage File related to any Mortgage Loan is not in the
Trustee's (or its
designee's) possession within the time period
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required herein or (b) such document has not been properly executed
or is
otherwise defective on its face (clause (a) and clause (b) each, a
"Defect"
(which term shall include the "Defects" described in the
immediately following
paragraph) in the related Mortgage File), such party shall give
notice to the
Master Servicer, the Special Servicer, the Trustee and the Rating
Agencies. If
the Master Servicer or the Special Servicer determines that such
Breach or
Defect materially and adversely affects the value of any Mortgage
Loan or REO
Loan or the interests of the Holders of any Class of Certificates
(in which case
such Breach or Defect shall be a "Material Breach" or a "Material
Defect", as
applicable), it shall give prompt written notice of such Breach or
Defect to the
Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Seller
and shall request that the Seller not later than the earlier of 90
days from the
receipt by the Seller of such notice or discovery by the Seller of
such Breach
or Defect (subject to the second succeeding paragraph, the "Initial
Resolution
Period"): (i) cure such Breach or Defect in all material respects;
(ii)
repurchase the affected Mortgage Loan at the applicable Purchase
Price (as
defined in the Pooling and Servicing Agreement); or (iii)
substitute, in
accordance with the Pooling and Servicing Agreement, one or more
Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing
Agreement)
for such affected Mortgage Loan (provided that in no event shall
any
substitution occur later than the second anniversary of the Closing
Date) and
pay the Master Servicer for deposit into the Collection Account any
Substitution
Shortfall Amount (as defined in the Pooling and Servicing
Agreement) in
connection therewith; provided, however, that Seller shall have an
additional 90
days to cure such Material Breach or Material Defect if all of the
following
conditions are satisfied: (i) such Material Breach or Material
Defect is capable
of being cured but not within the Initial Resolution Period; (ii)
such Material
Breach or Material Defect does not cause the related Mortgage Loan
not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of
the Code);
(iii) Seller has commenced and is diligently proceeding with the
cure of such
Material Breach or Material Defect within the Initial Resolution
Period; and
(iv) Seller has delivered to the Rating Agencies, the Master
Servicer, the
Special Servicer and the Trustee an Officer's Certificate that
describes the
reasons that the cure was not effected within the Initial
Resolution Period and
the actions that it proposes to take to effect the cure and that
states that it
anticipates the cure will be effected within the additional 90-day
period. If
there exists a Breach of any representation or warranty that the
related
Mortgage Loan Documents or any particular Mortgage Loan Document
requires the
related Borrower to bear the costs and expenses associated with any
particular
action or matter under such Mortgage Loan Document(s), then Seller
shall cure
such Breach within the Initial Resolution Period by reimbursing the
Trust Fund
(by wire transfer of immediately available funds to the Collection
Account) the
reasonable amount of any such costs and expenses incurred by the
Master
Servicer, the Special Servicer, the Trustee or the Trust Fund that
are the basis
of such Breach and have not been reimbursed by the related
Borrower; provided,
however, that in the event any such costs and expenses exceed
$10,000, Seller
shall have the option to either repurchase the related Mortgage
Loan at the
applicable Purchase Price, replace such Mortgage Loan and pay any
applicable
Substitution Shortfall Amount or pay such costs and expenses.
Except as provided
in the proviso to the immediately preceding sentence, Seller shall
remit the
amount of such costs and expenses and upon its making such
remittance, Seller
shall be deemed to have cured such Breach in all respects. With
respect to any
repurchase of a Mortgage Loan hereunder or any substitution of one
or more
Qualified Substitute Mortgage Loans for a Mortgage Loan hereunder,
(A) no such
substitution may be made in any calendar month after the
Determination Date for
such month; (B) scheduled payments of principal and interest due
with respect to
the Qualified
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Substitute Mortgage Loan(s) after the Due Date in the month of
substitution, and
scheduled payments of principal and interest due with respect to
each Mortgage
Loan being repurchased or replaced after the related Cut-off Date
and received
by the Master Servicer or the Special Servicer on behalf of the
Trust on or
prior to the related date of repurchase or substitution, shall be
part of the
Trust Fund; and (C) scheduled payments of principal and interest
due with
respect to each such Qualified Substitute Mortgage Loan on or prior
to the Due
Date in the month of substitution, and scheduled payments of
principal and
interest due with respect to each Mortgage Loan being repurchased
or replaced
and received by the Master Servicer or the Special Servicer on
behalf of the
Trust after the related date of repurchase or substitution, shall
not be part of
the Trust Fund, and Seller (or, if applicable, any person effecting
the related
repurchase or substitution in the place of Seller) shall be
entitled to receive
such payments promptly following receipt by the Master Servicer or
the Special
Servicer, as applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be
deemed to have a "Material Defect": (a) the absence from the
Mortgage File of
the original signed Note, unless the Mortgage File contains a
signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of
the original
signed Mortgage, unless there is included in the Mortgage File a
certified copy
of the Mortgage as recorded or as sent for recordation, together
with a
certificate stating that the original signed Mortgage was sent for
recordation,
or a copy of the Mortgage and the related recording information;
(c) the absence
from the Mortgage File of the item called for by clause (ix)
(relating to
evidence of title insurance) of the last sentence of the first
paragraph of
Section 3 hereof; (d) the absence from the Mortgage File of any
intervening
assignments required to create an effective assignment to the
Trustee on behalf
of the Trust, unless there is included in the Mortgage File a
certified copy of
the intervening assignment as recorded or as sent for recordation,
together with
a certificate stating that the original intervening assignment was
sent for
recordation; (e) the absence from the Mortgage File (or the
Servicer File) of
any required original letter of credit (as required in the provisos
of Section 1
hereof), provided that such Defect may be cured by any substitute
letter of
credit or cash reserve on behalf of the related Borrower; (f) the
absence from
the Mortgage File of the original or a copy of any required ground
lease; or (g)
solely in the case of a Mortgage Loan secured by a Mortgaged
Property operated
as a hospitality property, the absence from the Mortgage File of
the related
franchise agreement and/or franchisor comfort letter. In addition,
Seller shall
cure any Defect described in clause (b), (c), (e) or (f) of the
immediately
preceding sentence as required in Section 2.02(b) of the Pooling
and Servicing
Agreement.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of
the Code)
shall be deemed a "Material Defect" or "Material Breach", as
applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be
90 days
following the earlier of Seller's receipt of notice (pursuant to
this Section 7)
with respect to, or its discovery of, such Defect or Breach (which
period shall
not be subject to extension).
If Seller does not, as required by this Section 7, correct or cure
a
Material Breach or a Material Defect in all material respects
within the
applicable Initial Resolution Period (as extended pursuant to this
Section 7),
or if such Material Breach or Material Defect is not capable of
being so
corrected or cured within such period, then Seller shall repurchase
or
substitute for
-15-
the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage
Loan is required to be repurchased or substituted for as provided
above, (ii)
such Mortgage Loan is a Crossed Loan that is a part of a Crossed
Group (as
defined below) and (iii) the applicable Breach or Defect does not
otherwise
constitute a Breach or Defect, as the case may be, as to any other
Crossed Loan
in such Crossed Group (without regard to this paragraph), then the
applicable
Breach or Defect, as the case may be, will be deemed to constitute
a Breach or
Defect, as the case may be, as to any other Crossed Loan in the
Crossed Group
for purposes of the above provisions, and Seller will be required
to repurchase
or substitute for such other Crossed Loan(s) in the related Crossed
Group in
accordance with the provisions of this Section 7 unless such other
Crossed Loans
satisfy the Crossed Loan Repurchase Criteria (as defined in the
Pooling and
Servicing Agreement) and Seller can satisfy all other criteria for
substitution
or repurchase of the affected Mortgage Loan(s) set forth in the
Pooling and
Servicing Agreement. In the event that one or more of such other
Crossed Loans
satisfy the Crossed Loan Repurchase Criteria, Seller may elect
either to
repurchase or substitute for only the affected Crossed Loan as to
which the
related Breach or Defect exists or to repurchase or substitute for
all of the
Crossed Loans in the related Crossed Group. Seller shall be
responsible for the
cost of any Appraisal required to be obtained by the Master
Servicer to
determine if the Crossed Loan Repurchase Criteria have been
satisfied, so long
as the scope and cost of such Appraisal have been approved by
Seller (such
approval not to be unreasonably withheld). For purposes of this
paragraph, a
"Crossed Group" is any group of Mortgage Loans identified as a
Crossed Group on
Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties
(but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller
will not be
obligated to repurchase or substitute for the Mortgage Loan if the
affected
Mortgaged Property may be released pursuant to the terms of any
partial release
provisions in the related Mortgage Loan Documents and the remaining
Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the
Mortgage Loan
Documents and (i) Seller provides an opinion of counsel to the
effect that such
partial release would not cause an Adverse REMIC Event (as defined
in the
Pooling and Servicing Agreement) to occur, (ii) Seller pays (or
causes to be
paid) the applicable release price required under the Mortgage Loan
Documents
and, to the extent not reimbursable out of the release price
pursuant to the
related Mortgage Loan Documents, any additional amounts necessary
to cover all
reasonable out-of-pocket expenses reasonably incurred by the Master
Servicer,
the Special Servicer, the Trustee or the Trust Fund in connection
therewith,
including any unreimbursed advances and interest thereon made with
respect to
the Mortgaged Property that is being released, and (iii) such cure
by release of
such Mortgaged Property is effected within the time periods
specified for a cure
of a Material Breach or Material Defect in this Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased
or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the
assignment of 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
Seller and
shall execute and deliver such instruments of transfer or
assignment as shall be
necessary to vest in Seller the legal and beneficial ownership of
such Mortgage
Loan (including any property
-16-
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 Seller 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 a Mortgage Loan.
Section 8. Crossed Loans. With respect to any Crossed Loan conveyed
hereunder, to the extent that Seller repurchases or substitutes for
an affected
Crossed Loan in the manner prescribed above while the Trustee
continues to hold
any related Crossed Loans, Seller and Depositor (on behalf of its
successors and
assigns) agree to modify, upon such repurchase or substitution, the
related
Mortgage Loan Documents in a manner such that such affected Crossed
Loan
repurchased or substituted by Seller, on the one hand, and any
related Crossed
Loans still held by the Trustee, on the other, would no longer be
cross-defaulted or cross-collateralized with one another; provided
that Seller
shall have furnished the Trustee, at Seller's expense, with an
Opinion of
Counsel that such modification shall not cause an Adverse REMIC
Event; and
provided, further, that if such Opinion of Counsel cannot be
furnished, Seller
and Depositor hereby agree that such repurchase or substitution of
only the
affected Crossed Loans, notwithstanding an
