MORTGAGE LOAN PURCHASE AGREEMENT Dated as of June 1, 2005

 

                                                                     EXHIBIT 4.5

 

                                                                  Execution Copy

 

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              CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.

                                   (Depositor)

 

 

                                       and

 

 

                         PNC BANK, NATIONAL ASSOCIATION

                                    (Seller)

 

 

                               ------------------

 

                        MORTGAGE LOAN PURCHASE AGREEMENT

 

                            Dated as of June 1, 2005

 

 

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                                TABLE OF CONTENTS

 

 

Section 1.     Transactions on or Prior to the Closing Date..................

Section 2.     Closing Date Actions..........................................

Section 3.     Conveyance of Mortgage Loans..................................

Section 4.     Depositor's Conditions to Closing.............................

Section 5.     Seller's Conditions to Closing................................

Section 6.     Representations and Warranties of Seller......................

Section 7.     Obligations of Seller.........................................

Section 8.     Crossed Mortgage Loans........................................

Section 9.     Rating Agency Fees; Costs and Expenses Associated with a

               Defeasance...................................................

Section 10.    Representations and Warranties of Depositor...................

Section 11.    Survival of Certain Representations, Warranties and

               Covenants....................................................

Section 12.    Transaction Expenses..........................................

Section 13.    Recording Costs...............................................

Section 14.    Notices.......................................................

Section 15.    Examination of Mortgage Files.................................

Section 16.    Successors....................................................

Section 17.    Governing Law.................................................

Section 18.    Severability..................................................

Section 19.    Further Assurances............................................

Section 20.    Counterparts..................................................

Section 21.    Treatment as Security Agreement...............................

Section 22.    Recordation of Agreement......................................

 

Schedule I     Schedule of Transaction Terms

 

Schedule II    Mortgage Loan Schedule for PNC Bank Loans

 

Schedule III   Mortgage Loans Constituting Mortgage Groups

 

Schedule IV    Mortgage Loans with Lost Notes

 

Schedule V     Exceptions with Respect to Seller's Representations and Warranties

 

Exhibit A      Representations and Warranties of Seller Regarding the Mortgage

              Loans

 

Exhibit B      Form of Lost Note Affidavit

 

 

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                        MORTGAGE LOAN PURCHASE AGREEMENT

 

            This Mortgage Loan Purchase Agreement (this "Agreement"), dated as

of June 1, 2005, 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 or elsewhere in this Agreement, in the Pooling and Servicing

Agreement.

 

            II. On the Closing Date, and on the terms set forth herein, Seller

has agreed to sell to Depositor and Depositor has agreed to purchase from Seller

the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")

annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,

collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage

Loans and other assets into a trust fund (the "Trust Fund") created pursuant to

the Pooling and Servicing Agreement and to cause the issuance of the

Certificates.

 

                                    AGREEMENT

 

            NOW, THEREFORE, on the terms and conditions set forth below and for

good and valuable consideration, the receipt and adequacy of which is hereby

acknowledged, Depositor and Seller agree as follows:

 

            Section 1. Transactions on or Prior to the Closing Date. On or prior

to the Closing Date, Seller shall have delivered the Mortgage Files with respect

to each Mortgage Loan to Wells Fargo Bank, N.A., as trustee (the "Trustee"),

against receipt by Seller of a trust receipt, pursuant to an arrangement between

Seller and the Trustee; provided, however, that item (p) in the definition of

Mortgage File (below) shall be delivered to the applicable Master Servicer for

inclusion in the Servicer File (defined below) with a copy delivered to the

Trustee for inclusion in the Mortgage File.

 

            Section 2. Closing Date Actions. The sale of the Mortgage Loans

shall take place on the Closing Date, subject to and simultaneously with the

deposit of the Mortgage Loans into the Trust Fund, the issuance of the

Certificates and the sale of (a) the Publicly Offered Certificates by Depositor

to the Underwriters pursuant to the Underwriting Agreement and (b) the Private

Certificates by Depositor to the Initial Purchaser pursuant to the Certificate

Purchase Agreement. The closing (the "Closing") shall take place at the offices

of Cadwalader, Wickersham & Taft LLP, One World Financial Center, New York, New

York 10281, or such other location as agreed upon between the parties hereto. On

the Closing Date, the following actions shall take place in sequential order on

the terms set forth herein:

 

            (i) Seller shall sell to Depositor, and Depositor shall purchase

      from Seller, the Mortgage Loans pursuant to this Agreement for the

      Mortgage Loan Purchase Price (as defined herein). The Mortgage Loan

      Purchase Price shall be paid by Depositor to Seller by wire transfer in

      immediately available funds to an account designated by Seller on or prior

      to the Closing Date (or, by such other method as shall be mutually

      acceptable to Depositor and Seller). The "Mortgage Loan Purchase Price"

      paid by Depositor shall be equal to the amount that the Depositor and the

      Seller have mutually agreed upon as the Seller's share of the net

      securitization proceeds from the sale of the Publicly Offered Certificates

      and the Private Certificates as set forth in the Closing Statement (which

      amount includes, without limitation, accrued interest).

 

            (ii) Pursuant to the terms of the Pooling and Servicing Agreement,

      Depositor shall sell all of its right, title and interest in and to the

       Mortgage Loans to the Trustee for the benefit of the Holders of the

      Certificates.

 

            (iii) Depositor shall sell to the Underwriters, and the Underwriters

      shall purchase from Depositor, the Publicly Offered Certificates pursuant

       to the Underwriting Agreement, and Depositor shall sell to the Initial

      Purchaser, and the Initial Purchaser shall purchase from Depositor, the

      Private Certificates pursuant to the Certificate Purchase Agreement.

 

            (iv) The Underwriters will offer the Publicly Offered Certificates

      for sale to the public pursuant to the Prospectus and the Prospectus

      Supplement and the Initial Purchaser will privately place certain classes

      of the Private Certificates pursuant to the Offering Circular.

 

            Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller

shall sell, convey, assign and transfer, without recourse except as provided

herein, to Depositor, free and clear of any liens, claims or other encumbrances,

all of Seller's right, title and interest in, to and under: (i) each of the

Mortgage Loans identified on the Mortgage Loan Schedule; and (ii) all property

of Seller described in Section 21(b) of this Agreement, including, without

limitation, (A) all scheduled payments of interest and principal due on or with

respect to the Mortgage Loans after the Cut-off Date and (B) all other payments

of interest, principal or yield maintenance charges received on or with respect

to the Mortgage Loans after the Cut-off Date, other than any such payments of

interest or principal or yield maintenance charges that were due on or prior to

the Cut-off Date. In connection with such transfer and assignment, the Seller

shall remit to the Depositor for deposit into the Collection Account that

portion of the Closing Date Deposit Amount that pertains to those Mortgage Loans

originated in June 2005 that do not have their first Monthly Payment due until

August 2005. The parties acknowledge that such assignment, conveyance and

transfer of the Mortgage Loans 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 June 1, 2005 between

Seller and Midland Loan Services, Inc. The Mortgage File for each Mortgage Loan

shall consist of the following documents:

 

            (a) each original Note (or with respect to those Mortgage Loans

listed in Schedule IV hereto, a "lost note affidavit" substantially in the form

of Exhibit B hereto and a true and complete copy of the Note), bearing, or

accompanied by, all prior and intervening endorsements, assignments or allonges

showing a complete chain of endorsement or assignment from the Mortgage Loan

Originator either in blank or to the Seller, and further endorsed by the Seller,

on its face or by allonge attached thereto, without recourse, in blank or to the

order of the Trustee in the following form: "Pay to the order of Wells Fargo

Bank, N.A., as trustee for the registered Holders of Credit Suisse First Boston

Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series

2005-C3, without recourse, representation or warranty, express or implied";

 

            (b) a duplicate original Mortgage or a counterpart thereof or, if

such Mortgage has been returned by the related recording office, (A) an

original, (B) a certified copy or (C) a copy thereof from the applicable

recording office, and originals or counterparts (or originals or copies of

certified copies from the applicable recording office) of any intervening

assignments thereof from the Mortgage Loan Originator to the Seller, in each

case in the form submitted for recording or, if recorded, with evidence of

recording indicated thereon;

 

            (c) an original assignment of Mortgage, in recordable form (except

for any missing recording information and, if applicable, completion of the name

of the assignee), from the Seller (or the Mortgage Loan Originator), either in

blank or to "Wells Fargo Bank, N.A., as trustee for the registered Holders of

Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage

Pass-Through Certificates, Series 2005-C3";

 

            (d) an original, counterpart or copy of any related Assignment of

Leases (if such item is a document separate from the Mortgage), and the

originals, counterparts or copies of any intervening assignments thereof from

the Mortgage Loan Originator of the Loan to the Seller, in each case in the form

submitted for recording or, if recorded, with evidence of recording thereon;

 

            (e) an original assignment of any related Assignment of Leases (if

such item is a document separate from the Mortgage and to the extent not already

assigned pursuant to clause (c) above), in recordable form (except for any

missing recording information and, if applicable, completion of the name of the

assignee), from the Seller (or the Mortgage Loan Originator), either in blank or

to "Wells Fargo Bank, N.A., as trustee for the registered Holders of Credit

Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through

Certificates, Series 2005-C3";

 

            (f) an original or true and complete copy of any related Security

Agreement (if such item is a document separate from the Mortgage), and the

originals or copies of any intervening assignments thereof from the Mortgage

Loan Originator to the Seller;

 

            (g) an original assignment of any related Security Agreement (if

such item is a document separate from the Mortgage and to the extent not already

assigned pursuant to clause (c) above), from the Seller (or the Mortgage Loan

Originator), either in blank or to "Wells Fargo Bank, N.A., as trustee for the

registered Holders of Credit Suisse First Boston Mortgage Securities Corp.,

Commercial Mortgage Pass-Through Certificates, Series 2005-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);

 

             (h) originals or copies of all (A) assumption agreements, (B)

modifications, (C) written assurance agreements and (D) substitution agreements,

together with any evidence, when appropriate, of recording thereon or in the

form submitted for recording, in those instances where the terms or provisions

of the Mortgage, Note or any related security document have been modified or the

Mortgage Loan has been assumed;

 

            (i) the original lender's title insurance policy or a copy thereof

(together with all endorsements or riders that were issued with or subsequent to

the issuance of such policy), or if the policy has not yet been issued, the

original or a copy of a binding written commitment (which may be a pro forma or

specimen title insurance policy which has been accepted or approved in writing

by the related title insurance company or escrow instructions binding on the

title insurer irrevocably obligating the title insurer to issue such title

insurance policy) or interim binder that is marked as binding and countersigned

by the title company, insuring the priority of the Mortgage as a first lien on

the related Mortgaged Property, relating to such Mortgage Loan;

 

            (j) the original or a counterpart of any guaranty of the obligations

of the Borrower under the Mortgage Loan;

 

            (k) certified or other copies of all UCC Financing Statements and

continuation statements which show the filing or recording thereof or copies

thereof in the form submitted for filing or recording sufficient to perfect (and

maintain the perfection of) the security interest held by the Mortgage Loan

Originator (and each assignee of record prior to the Trustee) in and to the

personalty of the Borrower at the Mortgaged Property that is described in the

related Mortgage or a separate security agreement, and original UCC Financing

Statement assignments in a form suitable for filing or recording, sufficient to

transfer such UCC Financing Statements to the Trustee;

 

            (l) the original or copy of the power of attorney (with evidence of

recording thereon) granted by the Borrower if the Mortgage, Note or other

document or instrument referred to above was not signed by the Borrower;

 

            (m) with respect to any debt of a Borrower permitted under the

related Mortgage Loan, an original or copy of a subordination agreement,

standstill agreement or other intercreditor, co-lender or similar agreement

relating to such other debt, if any, including (as applicable) any Intercreditor

Agreement, mezzanine loan documents or preferred equity documents, together

with, if the Mortgage Loan is an A Loan, a copy of the Note for each related B

Loan;

 

            (n) with respect to any Cash Collateral Accounts and Lock-Box

Accounts, an original or copy of any related cash collateral control agreement

or lock-box control agreement, as applicable, and a copy of the UCC Financing

Statements, if any, submitted for filing with respect to the Seller's security

interest in the Cash Collateral Accounts and Lock-Box Accounts and all funds

contained therein (together with UCC Financing Statement assignments in a form

suitable for filing or recording, sufficient to transfer such UCC Financing

Statements to the Trustee on behalf of the Certificateholders);

 

            (o) an original or copy of any related Loan Agreement (if separate

from the related Mortgage);

 

            (p) the originals of letters of credit, if any, relating to the

Mortgage Loan, provided that in connection with deliveries of the Mortgage File

to the Trust, such originals shall be delivered to the applicable Master

Servicer and copies thereof shall be delivered to the Trustee;

 

            (q) any related environmental insurance policies and any

environmental guaranty or indemnity agreements or copies thereof;

 

             (r) the original ground lease, if any, and any amendments,

modifications or extensions thereto, and any ground lease estoppel, or a copy of

any of the foregoing;

 

            (s) copies of franchise agreements and franchisor comfort letters,

if any, for hospitality properties; and

 

            (t) if applicable (and not for purposes of the Seller's delivery

obligations), the original or a counterpart of any post-closing agreement

relating to any modification, waiver or amendment of any term of any Mortgage

Loan (including fees charged the Borrower) required to be added to the Mortgage

File pursuant to Section 3.20(j) of the Pooling and Servicing Agreement.

 

            Notwithstanding the foregoing, in the event that, in connection with

any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an

original, counterpart or certified copy, as applicable, of any of the documents

and/or instruments required to be delivered pursuant to clauses (b), (d), (h),

(k) (other than assignments of UCC Financing Statements to be recorded or filed

in accordance with the transfer contemplated by this Agreement), (l) and (n)

(other than assignments of UCC Financing Statements to be recorded or filed in

accordance with the transfer contemplated by this Agreement) above with evidence

of recording or filing thereon on the Closing Date, solely because of a delay

caused by the public recording or filing office where such document or

instrument has been delivered for recordation or filing, then the Seller: (i)

shall deliver, or cause to be delivered, to the Trustee a duplicate original or

true copy of such document certified by the applicable public recording or

filing office, the applicable title insurance company or the Seller to be a true

and complete duplicate original or copy of the original thereof submitted for

recording or filing; and (ii) shall deliver, or cause to be delivered, to the

Trustee either the original of such non-delivered document or instrument, or a

photocopy thereof (certified by the appropriate public recording or filing

office to be a true and complete copy of the original thereof submitted for

recording or filing), with evidence of recording or filing thereon (with a copy

to the applicable Master Servicer), within 365 days of the Closing Date, which

period may be extended up to two times, in each case for an additional period of

90 days (provided that the Seller, as certified in writing to the Trustee prior

to each such 90-day extension, is in good faith attempting to obtain from the

appropriate county recorder's office such original or photocopy). Compliance

with this paragraph will satisfy the Seller's delivery requirements under this

Section 3 with respect to the subject document(s).

 

            Notwithstanding the foregoing, in the event that, in connection with

any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an

original, counterpart or certified copy, as applicable, of any of the documents

and/or instruments required to be delivered pursuant to clauses (b), (d), (h),

(k) (other than assignments of UCC Financing Statements to be recorded or filed

in accordance with the transfer contemplated by this Agreement), (l) and (n)

(other than assignments of UCC Financing Statements to be recorded or filed in

accordance with the transfer contemplated by this Agreement) above with evidence

of recording or filing thereon, for any other reason, including without

limitation, that such non-delivered document has been lost, the delivery

requirements of this Agreement shall be deemed to have been satisfied and such

non-delivered document shall be deemed to have been included in the related

Mortgage File if a photocopy of such non-delivered document (with evidence of

recording or filing thereon and certified by the appropriate recording or filing

office to be a true and complete copy of the original thereof as filed or

recorded) is delivered to the Trustee (with a copy to the applicable Master

Servicer) on or before the Closing Date.

 

            Notwithstanding the foregoing, in the event that the Seller cannot

deliver any UCC Financing Statement assignment with the filing information of

the related UCC Financing Statement with respect to any Mortgage Loan, solely

because such UCC Financing Statement has not been returned by the public filing

office where such UCC Financing Statement has been delivered for filing, the

Seller shall so notify the Trustee and shall not be in breach of its obligations

with respect to such delivery, provided that the Seller promptly forwards such

UCC Financing Statement to the Trustee (with a copy to the applicable Master

Servicer) upon its return, together with the related original UCC Financing

Statement assignment in a form appropriate for filing or recording.

 

            The Seller may, at its sole cost and expense, but is not obligated

to, engage a third party contractor to prepare or complete in proper form for

filing or recording any and all assignments of Mortgage, assignments of

Assignments of Leases and assignments of UCC Financing Statements to the Trustee

to be delivered pursuant to clauses (c), (e), (k) and (n) above (collectively,

the "Assignments"), to submit the Assignments for filing and recording, as the

case may be, in the applicable public filing and recording offices and to

deliver those Assignments to the Trustee (with a copy to the applicable Master

Servicer) or its designee as those Assignments (or certified copies thereof) are

received from the applicable filing and recording offices with evidence of such

filing or recording indicated thereon. In the event the Seller engages a third

party contractor as contemplated in the immediately preceding sentence, the

rights, duties and obligations of the Seller pursuant to this Agreement remain

binding on the Seller; and, if the Seller does not engage a third party as

contemplated by the immediately preceding sentence, then the Seller will still

be liable for recording and filing fees and expenses of the Assignments as and

to the extent contemplated by Section 13 hereof.

 

            Within ten (10) Business Days after the Closing Date, the Seller

shall deliver the Servicer Files with respect to each of the Mortgage Loans to

the applicable Master Servicer under the Pooling and Servicing Agreement on

behalf of the Trustee in trust for the benefit of the Certificateholders. Each

such Servicer File shall contain all documents and records in the Seller's

possession relating to such applicable Mortgage Loans (including reserve and

escrow agreements, rent rolls, leases, environmental and engineering reports,

third-party underwriting reports, appraisals, surveys, legal opinions,

estoppels, financial statements, operating statements and any other information

provided by the respective Borrower from time to time, but excluding any draft

documents, attorney/client communications, which are privileged or constitute

legal or other due diligence analyses, and documents prepared by the Seller or

any of its Affiliates solely for internal communication, credit underwriting or

due diligence analyses (other than the underwriting information contained in the

related underwriting memorandum or asset summary report prepared by the Seller

in connection with the preparation of Exhibit A-1 to the Prospectus Supplement))

that are not required to be a part of a Mortgage File in accordance with the

definition thereof, together with copies of all instruments and documents which

are required to be a part of the related Mortgage File in accordance with the

definition thereof.

 

            In addition, with respect to each Mortgage Loan as to which any

Additional Collateral is in the form of a letter of credit as of the Closing

Date, the Seller shall cause to be prepared, executed and delivered to the

issuer of each such letter of credit such notices, assignments and

acknowledgements as are required under such letter of credit to assign, without

recourse, to, and vest in, the Trustee (in care of the applicable Master

Servicer) (whether by actual assignment or by amendment of the letter of credit)

the Seller's rights as the beneficiary thereof and drawing party thereunder. The

designated beneficiary under each letter of credit referred to in the preceding

sentence shall be the Trustee (in care of the applicable Master Servicer).

 

            For purposes of this Section 3, and notwithstanding any contrary

provision hereof or of the definition of "Mortgage File", if there exists with

respect to any group of Crossed Mortgage Loans only one original or certified

copy of any document or instrument described in the definition of "Mortgage

File" which pertains to all of the Crossed Mortgage Loans in such group of

Crossed Mortgage Loans, the inclusion of the original or certified copy of such

document or instrument in the Mortgage File for any of such Crossed Mortgage

Loans and the inclusion of a copy of such original or certified copy in each of

the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed

Mortgage Loans, shall be deemed the inclusion of such original or certified

copy, as the case may be, in the Mortgage File for each such Crossed Mortgage

Loan.

 

            The Seller shall, promptly after the Closing Date, but in all events

within three (3) Business Days after the Closing Date, cause all funds on

deposit in escrow accounts maintained with respect to the Mortgage Loans in the

name of the Seller or any other name, to be transferred to the applicable Master

Servicer (or a Sub-Servicer at the direction of the applicable Master Servicer)

for deposit into Servicing Accounts.

 

            The Trustee, as assignee or transferee of Depositor, shall be

entitled to all scheduled principal payments due after the Cut-off Date, all

other payments of principal due and collected after the Cut-off Date, and all

payments of interest on the Mortgage Loans due after the Cut-off Date, minus

that portion of any such payment which is allocable to the period on or prior to

the Cut-off Date. All scheduled payments of principal due on or before the

Cut-off Date and collected after the Cut-off Date, together with the

accompanying interest payments, shall belong to Seller.

 

            Upon the sale of the Mortgage Loans from Seller to Depositor

pursuant hereto, the ownership of each Note, the Mortgage and the contents of

the related Mortgage File shall be vested in Depositor and the ownership of all

records and documents with respect to the related Mortgage Loan prepared by or

which come into the possession of Seller as seller of the Mortgage Loans

hereunder, exclusive in each case of records and documents that are not required

to be delivered hereunder by Seller, shall immediately vest in Depositor. All

Monthly Payments, Principal Prepayments and other amounts received by Seller and

not otherwise belonging to Seller pursuant to this Agreement shall be sent by

Seller within three (3) Business Days after Seller's receipt thereof to the

applicable Master Servicer via wire transfer for deposit by the applicable

Master Servicer into the Collection Account.

 

            Upon sale of Certificates representing at least 10% of the fair

value of all the Certificates to unaffiliated third parties, Seller shall, under

generally accepted accounting principles ("GAAP"), report its transfer of the

Mortgage Loans to the Depositor, as provided herein, as a sale of the Mortgage

Loans to the Depositor in exchange for the consideration specified in Section 2

hereof. In connection with the foregoing, upon sale of Certificates representing

at least 10% of the fair value of all the Certificates to unaffiliated third

parties, Seller shall cause all of its financial and accounting records to

reflect such transfer as a sale (as opposed to a secured loan). With respect to

its treatment of the transfer of the Mortgage Loans to the Depositor under GAAP,

Seller shall at all times following the Closing Date cause all of its records

and financial statements and any relevant consolidated financial statements of

any direct or indirect parent to clearly reflect that the Mortgage Loans have

been transferred to the Depositor and are no longer available to satisfy claims

of Seller's creditors.

 

            After Seller's transfer of the Mortgage Loans to Depositor, as

provided herein, Seller shall not take any action inconsistent with Depositor's

ownership (or the ownership by any of the Depositor's assignees) of the Mortgage

Loans. Except for actions that are the express responsibility of another party

hereunder or under the Pooling and Servicing Agreement, and further except for

actions that Seller is expressly permitted to complete subsequent to the Closing

Date, Seller shall, on or before the Closing Date, take all actions required

under applicable law to effectuate the transfer of the Mortgage Loans by Seller

to Depositor.

 

            Section 4. Depositor's Conditions to Closing. The obligations of

Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase

Price at the Closing Date under the terms of this Agreement are subject to the

satisfaction of each of the following conditions at or before the Closing:

 

            (a) Each of the obligations of the Seller required to be performed

by it on or prior to the Closing Date pursuant to the terms of this Agreement

shall have been duly performed and complied with in all material respects; all

of the representations and warranties of Seller under this Agreement (subject to

the exceptions in the Exception Report) shall be true and correct in all

material respects as of the Closing Date; and no event shall have occurred with

respect to the Seller or any of the Mortgage Loans and related Mortgage Files

which, with notice or the passage of time, would constitute a material default

under this Agreement; and Depositor shall have received certificates to the

foregoing effect signed by authorized officers of Seller.

 

            (b) Depositor, or if directed by Depositor, the Trustee or the

Depositor's attorneys, shall have received in escrow, all of the following

closing documents, in such forms as are agreed upon and reasonably acceptable to

the Depositor and the Seller, duly executed by all signatories other than

Depositor, as required pursuant to the respective terms thereof:

 

            (i) the Mortgage Files, subject to the proviso to the first sentence

      of Section 1 of this Agreement, which shall have been delivered to and

      held by the Trustee on behalf of Seller;

 

             (ii) the Mortgage Loan Schedule;

 

            (iii) the certificate of the Seller confirming its representations

      and warranties set forth in Section 6 (subject to the exceptions in the

      Exception Report) as of the Closing Date;

 

             (iv) an opinion or opinions of Seller's counsel, dated the Closing

      Date, covering various corporate matters and such other matters as shall

      be reasonably required by the Depositor;

 

            (v) such other certificates of Seller's officers or others and such

      other documents to evidence fulfillment of the conditions set forth in

      this Agreement as Depositor or its counsel may reasonably request; and

 

            (vi) all other information, documents, certificates, or letters with

      respect to the Mortgage Loans or Seller and its Affiliates as are

      reasonably requested by the Depositor in order for the Depositor to

      perform any of it obligations or satisfy any of the conditions on its part

      to be performed or satisfied pursuant to any sale of Mortgage Loans by the

      Depositor as contemplated herein.

 

            (c) The Seller shall have performed or complied with all other terms

and conditions of this Agreement which it is required to perform or comply with

at or before the Closing and shall have the ability to perform or comply with

all duties, obligations, provisions and terms which it is required to perform or

comply with after the Closing.

 

            (d) If requested, the Seller shall have delivered to the Trustee, on

or before the Closing Date, five limited powers of attorney in favor of the

Trustee and the applicable Special Servicer empowering the Trustee and, in the

event of the failure or incapacity of the Trustee, the applicable Special

Servicer, to record, at the expense of the Seller, any Mortgage Loan Documents

required to be recorded and any intervening assignments with evidence of

recording thereon that are required to be included in the Mortgage Files. If

requested by the Trustee or the applicable Special Servicer after the Closing

Date, the Seller shall deliver to the Trustee or the applicable Special

Servicer, as applicable, the powers of attorney described in the prior sentence

in form and substance reasonably acceptable to the requesting party.

 

            (e) The Seller shall have paid or caused to be paid upfront all the

annual fees of each Rating Agency allocable to the Mortgage Loans.

 

            Section 5. Seller's Conditions to Closing. The obligations of Seller

under this Agreement shall be subject to the satisfaction, on the Closing Date,

of the following conditions:

 

            (a) Each of the obligations of Depositor required to be performed by

it on or prior to the Closing Date pursuant to the terms of this Agreement shall

have been duly performed and complied with in all material respects; and all of

the representations and warranties of Depositor under this Agreement shall be

true and correct in all material respects as of the Closing Date; and no event

shall have occurred with respect to Depositor which, with notice or the passage

of time, would constitute a material default under this Agreement, and Seller

shall have received certificates to that effect signed by authorized officers of

Depositor.

 

            (b) Seller shall have received all of the following closing

documents, in such forms as are agreed upon and reasonably acceptable to Seller

and Depositor, duly executed by all signatories other than Seller, as required

pursuant to the respective terms thereof:

 

                   (A) an officer's certificate of Depositor, dated as of the

            Closing Date, with the resolutions of Depositor authorizing the

            transactions set forth therein, together with copies of the charter,

            by-laws and certificate of good standing dated as of a recent date

            of Depositor; and

 

                  (B) such other certificates of its officers or others, such

            opinions of Depositor's counsel and such other documents required to

            evidence fulfillment of the conditions set forth in this Agreement

            as Seller or its counsel may reasonably request.

 

            (c) The Depositor shall have performed or complied with all other

terms and conditions of this Agreement which it is required to perform or comply

with at or before the Closing and shall have the ability to perform or comply

with all duties, obligations, provisions and terms which it is required to

perform or comply with after Closing.

 

            Section 6. Representations and Warranties of Seller. (a) Seller

represents and warrants to Depositor as of the date hereof, as follows:

 

            (i) Seller is duly organized and is validly existing as a national

      banking association in good standing under the laws of the United States

      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, investigation, action, suit or proceeding before or by any court,

      regulatory authority or governmental agency or body pending or, to the

      knowledge of Seller, threatened, which is reasonably likely to materially

      and adversely affect the performance by Seller of this Agreement or the

      consummation of transactions contemplated by this Agreement.

 

            (ii) Seller has the full power, authority and legal right to hold,

      transfer and convey the Mortgage Loans owned by it and to execute and

      deliver this Agreement (and all agreements and documents executed and

      delivered by Seller in connection herewith) and to perform all

      transactions of Seller contemplated by this Agreement (and all agreements

      and documents executed and delivered by Seller in connection herewith).

      Seller has duly authorized the execution, delivery and performance of this

      Agreement (and all agreements and documents executed and delivered by

      Seller in connection herewith), and has duly executed and delivered this

      Agreement (and all agreements and documents executed and delivered by

      Seller in connection herewith). This Agreement (and each agreement and

      document executed and delivered by Seller in connection herewith),

      assuming due authorization, execution and delivery thereof by each other

      party thereto, constitutes the legal, valid and binding obligation of

      Seller enforceable in accordance with its terms, except as such

      enforcement may be limited by bankruptcy, fraudulent transfer, insolvency,

      reorganization, receivership, moratorium or other laws relating to or

      affecting the rights of creditors generally, by general principles of

      equity (regardless of whether such enforcement is considered in a

      proceeding in equity or at law) and by considerations of public policy.

 

            (iii) Neither the execution, delivery and performance of this

      Agreement, nor the fulfillment of or compliance with the terms and

      conditions of this Agreement by Seller, will (A) conflict with or result

      in a breach of any of the terms, conditions or provisions of Seller's

      organizational documents; (B) conflict with, result in a breach of, or

      constitute a default or result in an acceleration under, any agreement or

      instrument to which Seller is now a party or by which it (or any of its

      properties) is bound if compliance therewith is necessary (1) to ensure

      the enforceability of this Agreement or (2) for Seller to perform its

      duties and obligations under this Agreement (or any agreement or document

      executed and delivered by Seller in connection herewith); (C) conflict

      with or result in a breach of any legal restriction if compliance

      therewith is necessary (1) to ensure the enforceability of this Agreement

      or (2) for Seller to perform its duties and obligations under this

      Agreement (or any agreement or document executed and delivered by Seller

      in connection herewith); (D) result in the violation of any law, rule,

      regulation, order, judgment or decree to which Seller or its property is

      subject if compliance therewith is necessary (1) to ensure the

      enforceability of this Agreement or (2) for Seller to perform its duties

      and obligations under this Agreement (or any agreement or document

       executed and delivered by Seller in connection herewith); or (E) result in

      the creation or imposition of any lien, charge or encumbrance that would

      have a material adverse effect upon Seller's ability to perform its duties

      and obligations under this Agreement (or any agreement or document

      executed and delivered by Seller in connection herewith), or materially

      impair the ability of the Depositor to realize on the Mortgage Loans owned

      by Seller.

 

            (iv) Seller is solvent and the sale of 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 the

      Seller are pending or contemplated.

 

            (v) No consent, approval, authorization or order of, or registration

      or filing with, or notice to, any court or governmental agency or body

      having jurisdiction or regulatory authority over Seller is required for

      (A) Seller's execution, delivery and performance of this Agreement (or any

      agreement or document executed and delivered by Seller in connection

      herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or

      (C) the consummation by Seller of the transactions contemplated by this

      Agreement (or any agreement or document executed and delivered by Seller

      in connection herewith) or, to the extent so required, such consent,

      approval, authorization, order, registration, filing or notice has been

      obtained, made or given (as applicable), except for the filing or

      recording of assignments and other Mortgage Loan Documents contemplated by

      the terms of this Agreement and except that Seller may not be duly

      qualified to transact business as a foreign corporation or licensed in one

      or more states if such qualification or licensing is not necessary to

      ensure the enforceability of this Agreement (or any agreement or document

      executed and delivered by Seller in connection herewith).

 

            (vi) In connection with its sale of the Mortgage Loans, Seller is

      receiving new value. The consideration received by Seller upon the sale of

      the Mortgage Loans owned by it constitutes at least fair consideration and

      reasonably equivalent value for the Mortgage Loans.

 

            (vii) Seller does not believe, nor does it have any reason or cause

      to believe, that it cannot perform each and every covenant of Seller

      contained in this Agreement (or any agreement or document executed and

      delivered by Seller in connection herewith).

 

            (viii) There are no actions, suits or proceedings pending or, to

      Seller's knowledge, threatened in writing against Seller which are

      reasonably likely to draw into question the validity of this Agreement (or

      any agreement or document executed and delivered by Seller in connection

      herewith) or which, either in any one instance or in the aggregate, are

      reasonably likely to materially impair the ability of Seller to perform

       its duties and obligations under this Agreement (or any agreement or

      document executed and delivered by Seller in connection herewith).

 

            (ix) Seller's performance of its duties and obligations under this

      Agreement (and each agreement or document executed and delivered by Seller

      in connection herewith) is in the ordinary course of business of Seller

      and Seller's transfer, assignment and conveyance of the Mortgage Loans

      pursuant to this Agreement are not subject to the bulk transfer or similar

      statutory provisions in effect in any applicable jurisdiction. The

      Mortgage Loans do not constitute all or substantially all of Seller's

      assets.

 

            (x) Seller has not dealt with any Person that may be entitled, by

      reason of any act or omission of Seller, to any commission or compensation

      in connection with the sale of the Mortgage Loans to the Depositor

      hereunder except for (A) the reimbursement of expenses as described herein

       or otherwise in connection with the transactions described in Section 2

      hereof and (B) the commissions or compensation owed to the Underwriters or

      the Initial Purchaser.

 

            (xi) Seller is not in default or breach of any agreement or

      instrument to which Seller is now a party or by which it (or any of its

      properties) is bound which breach or default would materially and

      adversely affect the ability of Seller to perform its obligations under

      this Agreement.

 

             (xii) The representations and warranties contained in Exhibit A

      hereto, subject to the exceptions in the Exception Report, are true and

      correct in all material respects as of the date hereof (or, in each case,

      as of such other date specifically set forth in the subject representation

      and warranty) with respect to the Mortgage Loans identified on Schedule

      II.

 

            (b) The Seller hereby agrees that it shall be deemed to make, as of

the date of substitution, to and for the benefit of the Trustee as the holder of

the Mortgage Loan to be replaced, with respect to any replacement mortgage loan

(a "Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected

by a Material Defect or a Material Breach, pursuant to Section 7 of this

Agreement, each of the representations and warranties set forth in Exhibit A

hereto (subject to exceptions disclosed at such time) (references therein to

"Closing Date" being deemed to be references to the "date of substitution" and

references therein to "Cut-off Date" being deemed to be references to the "due

date for the subject Replacement Mortgage Loan during the month of

substitution"). From and after the date of substitution, each Replacement

Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder

for all purposes.

 

            Section 7. Obligations of Seller. Each of the representations and

warranties contained in or required to be made by Seller pursuant to Section 6

of this Agreement shall survive the sale of the Mortgage Loans and shall

continue in full force and effect, notwithstanding any restrictive or qualified

endorsement on the Notes and notwithstanding subsequent termination of this

Agreement or the Pooling and Servicing Agreement. The representations and

warranties contained in or required to be made by Seller pursuant to Section 6

of this Agreement shall not be impaired by any review or examination of the

Mortgage Files or other documents evidencing or relating to the Mortgage Loans

or any failure on the part of Depositor to review or examine such documents and

shall inure to the benefit of the initial transferee of the Mortgage Loans from

Depositor including, without limitation, the Trustee for the benefit of the

Holders of the Certificates, notwithstanding any restrictive or qualified

endorsement on any Note, assignment of Mortgage or reassignment of Assignment of

Leases but shall not inure to the benefit of any subsequent transferee

thereafter.

 

            If the Seller receives notice of a breach of any of the

representations or warranties contained in Exhibit A hereto and made by the

Seller with respect to any Mortgage Loan listed on Schedule II hereto, as of the

date hereof in Section 6(a)(xii) or as of the Closing Date pursuant to Section

4(b)(iii) (in either case, subject to the exceptions to such representations and

warranties set forth in the Exception Report), or with respect to any

Replacement Mortgage Loan, as of the date of substitution pursuant to Section

6(b) (in any such case, a "Breach"), or receives notice that (A) any document

required to be included in the Mortgage File related to any Mortgage Loan is not

in the Trustee's possession within the time period required herein or (B) such

document has not been properly executed or is otherwise defective on its face

(the circumstances in the foregoing clauses (A) and (B), in each case, a

"Defect" (including the "Defects" described below) in the related Mortgage

File), and if such Breach or Defect, as the case may be, materially and

adversely affects the value of the related Mortgage Loan or the interests of the

Certificateholders therein (any Breach or Defect that materially and adversely

affects the value of the related Mortgage Loan or the interests of the

Certificateholders therein, a "Material Breach" or a "Material Defect",

respectively), then the Seller shall, upon request of the Depositor, the

Trustee, the applicable Master Servicer or the applicable Special Servicer, not

later than 90 days from the receipt by the Seller of such request (subject to

the second succeeding paragraph, the "Initial Resolution Period"): (i) cure such

Material Breach or Material Defect, as the case may be, in all material

respects; (ii) repurchase the affected Mortgage Loan at the applicable Purchase

Price (as defined in the Pooling and Servicing Agreement); or (iii) substitute,

in accordance with the Pooling and Servicing Agreement, one or more Qualified

Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)

for such affected Mortgage Loan (provided that in no event shall any

substitution occur later than the second anniversary of the Closing Date) and

pay the applicable Master Servicer for deposit into the Collection Account any

Substitution Shortfall Amount (as defined in the Pooling and Servicing

Agreement) in connection therewith; provided, however, that if (i) such Material

Breach or Material Defect is capable of being cured but not within the Initial

Resolution Period, (ii) such Material Breach or Material Defect does not cause

the related Mortgage Loan not to be a "qualified mortgage" (within the meaning

of Section 860G(a)(3) of the Code), (iii) the Seller has commenced and is

diligently proceeding with the cure of such Material Breach or Material Defect

within the Initial Resolution Period and (iv) the Seller has delivered to the

Rating Agencies, the applicable Master Servicer, the applicable Special Servicer

and the Trustee an Officer's Certificate that describes the reasons that the

cure was not effected within the Initial Resolution Period and the actions that

it proposes to take to effect the cure and that states that it anticipates the

cure will be effected within the additional 90-day period, then the Seller shall

have an additional 90 days to cure such Material Defect or Material Breach. 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 the 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 applicable

Master Servicer, the applicable Special Servicer, the Trustee or the Trust Fund

that are the basis of such Breach and have not been reimbursed by the related

Borrower; provided, however, that in the event such costs and expenses exceed

$10,000, the Seller shall have the option to either repurchase such Mortgage

Loan at the applicable Purchase Price, replace such Mortgage Loan and pay any

applicable Substitution Shortfall Amount or pay such costs and expenses. Except

as provided in the proviso to the immediately preceding sentence, Seller shall

remit the amount of such costs and expenses and upon its making such remittance,

Seller shall be deemed to have cured such Breach in all respects. Provided such

payment is made, the second preceding sentence describes the sole remedy

available to the Certificateholders and the Trustee on their behalf regarding

any such Breach, and Seller shall not be obligated to repurchase, substitute or

otherwise cure such Breach under any circumstances. With respect to any

repurchase of a Mortgage Loan hereunder or with respect to any substitution of

one or more Qualified Substitute Mortgage Loans for a Mortgage Loan hereunder,

(A) no such substitution may be made in any calendar month after the

Determination Date for such month; (B) scheduled payments of principal and

interest due with respect to the Qualified Substitute Mortgage Loan(s) after the

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 applicable Master Servicer or

the applicable Special Servicer on behalf of the Trust on or prior to the

related date of repurchase or substitution shall be part of the Trust Fund; and

(C) scheduled payments of principal and interest due with respect to each such

Qualified Substitute Mortgage Loan on or prior to the Due Date in the month of

substitution, and scheduled payments of principal and interest due with respect

to each Mortgage Loan being repurchased or replaced and received by the

applicable Master Servicer or the applicable Special Servicer on behalf of the

Trust after the related date of repurchase or substitution shall not be part of

the Trust Fund, and the Seller shall be entitled to receive such payments

promptly following receipt by the applicable Master Servicer or applicable

Special Servicer, as applicable, under the Pooling and Servicing Agreement.

 

            Any of the following will cause a document in the Mortgage File to

be deemed to have a "Defect" and to be conclusively presumed to materially and

adversely affect the interests of Certificateholders in and the value of a

Mortgage Loan: (a) the absence from the Mortgage File of the original signed

Note, unless the Mortgage File contains a signed lost note affidavit and

indemnity; (b) the absence from the Mortgage File of the original signed

Mortgage, unless there is included in the Mortgage File a certified copy of the

Mortgage as recorded or as sent for recordation, together with a certificate

stating that the original signed Mortgage was sent for recordation, or a copy of

the Mortgage and the related recording information; (c) the absence from the

Mortgage File of the item called for by clause (i) of the definition of Mortgage

File in Section 3; (d) the absence from the Mortgage File of any intervening

assignments required to create an effective assignment to the Trustee on behalf

of the Trust, unless there is included in the Mortgage File a certified copy of

the intervening assignment and a certificate stating that the original

intervening assignments were sent for recordation; (e) the absence from the

Mortgage File of any required original letter of credit (unless such original

has been delivered to the applicable Master Servicer and copy thereof is part of

the Mortgage File), provided that such Defect may be cured by any substitute

letter of credit or cash reserve on behalf of the related Borrower; or (f) the

absence from the Mortgage File of the original or a copy of any required ground

lease.

 

            Any Defect or Breach which causes any Mortgage Loan not to be a

"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)

shall be deemed to materially and adversely affect the interest of

Certificateholders therein and the Initial Resolution Period for the affected

Mortgage Loan shall be 90 days following the earlier of (a) Seller's receipt of

notice to Seller of the discovery of such Defect or Breach by any party to the

Pooling and Servicing Agreement and (b) Seller's discovery of such Defect or

Breach (which period shall not be subject to extension).

 

            If the Seller does not, as required by this Section 7, correct or

cure a Material Breach or a Material Defect in all material respects within the

applicable Initial Resolution Period (as extended pursuant to this Section 7),

or if such Material Breach or Material Defect is not capable of being so

corrected or cured within such period, then the Seller shall repurchase or

substitute for the affected Mortgage Loan as provided in this Section 7. If (i)

any Mortgage Loan is required to be repurchased or substituted for as provided

above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a

Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does

not constitute a Breach or Defect, as the case may be, as to any other Crossed

Mortgage Loan in such Mortgage Group (without regard to this paragraph), then

the applicable Breach or Defect, as the case may be, will be deemed to

constitute a Breach or Defect, as the case may be, as to any other Crossed

Mortgage Loan in the Mortgage Group for purposes of the above provisions, and

the Seller will be required to repurchase or substitute for such other Crossed

Mortgage Loan(s) in the related Mortgage Group in accordance with the provisions

of this Section 7 unless the Crossed Mortgage Loan Repurchase Criteria would be

satisfied if Seller were to repurchase or substitute for only the affected

Crossed Mortgage Loans as to which a Material Breach or Material Defect had

occurred without regard to this paragraph, and in the case of either such

repurchase or substitution, all of the other requirements set forth in the

Pooling and Servicing Agreement applicable to a repurchase or substitution, as

the case may be, would be so satisfied. In the event that the Crossed Mortgage

Loan Repurchase Criteria would be so satisfied, the Mortgage Loan Seller may

elect either to repurchase or substitute for only the affected Crossed Mortgage

Loan as to which the Material Defect or Material Breach exists or to repurchase

or substitute for all of the Crossed Mortgage Loans in the related Mortgage

Group. The determination of the applicable Special Servicer as to whether the

Crossed Mortgage Loan Repurchase Criteria have been satisfied shall be

conclusive and binding in the absence of manifest error. The Seller shall be

responsible for the cost of (and, if so directed by the applicable Special

Servicer, obtaining) any Appraisal required for the applicable Special Servicer

to determine if the Crossed Mortgage Loan Repurchase Criteria have been

satisfied, so long as the scope and cost of such Appraisal has been approved by

the Seller (such approval not to be unreasonably withheld). For purposes of this

paragraph, a "Mortgage Group" is any group of Mortgage Loans identified as a

Mortgage Group on Schedule III to this Agreement.

 

            Notwithstanding the foregoing, if there is a Material Breach or

Material Defect with respect to one or more Mortgaged Properties (but not all of

the Mortgaged Properties) with respect to a Mortgage Loan, the Seller will not

b