EXHIBIT 4.4
Execution Copy
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
NATIONAL CONSUMER COOPERATIVE BANK
(Seller)
-------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of June 1, 2005
-------------------------------------
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<PAGE>
TABLE OF CONTENTS
Section 1. Transactions on
or Prior to the Closing Date....................
Section 2. Closing Date
Actions............................................
Section 3. Conveyance of
Mortgage Loans....................................
Section 4. Depositor's
Conditions to Closing...............................
Section 5. Seller's
Conditions to Closing..................................
Section 6. Representations
and Warranties of Seller........................
Section 7. Obligations of
Seller...........................................
Section 8. Crossed Mortgage
Loans..........................................
Section 9. Rating Agency
Fees; Costs and Expenses Associated with a
Defeasance
.....................................................
Section 10. Representations and
Warranties of Depositor.....................
Section 11. Survival of Certain
Representations, Warranties and Covenants...
Section 12. Transaction
Expenses............................................
Section 13. Recording Costs and
Expenses....................................
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
Schedule III Mortgage Loans Constituting
Mortgage 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
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of June 1, 2005, is made by and between
NATIONAL CONSUMER COOPERATIVE BANK, a
federally chartered corporation ("Seller"),
and CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP., a Delaware
corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule
of Transaction Terms attached hereto
as Schedule I, which is incorporated herein
by this reference, or, if not
defined therein or elsewhere in this
Agreement, 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
applicable 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 said
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. In addition, prior to
such assignment or amendment of a letter of
credit, Seller will take all
necessary steps to enable the applicable
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
applicable Master Servicer and upon
receipt, immediately remitting the proceeds
of such draw (or causing such proceeds to
be remitted) to the applicable 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 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 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 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,
subject to any related servicing rights
of any applicable Master Servicer under,
and/or any applicable Primary Servicer
contemplated by, the Pooling and Servicing
Agreement, 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
prepayment premiums received on or with
respect to the Mortgage Loans after the
Cut-off Date, other than any such
payments of interest or principal or
prepayment premiums that were due on or
prior to the Cut-off Date. The 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
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 2005-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 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 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";
(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 Mortgage Loan Originator of the Loan
to
Seller, in
each case in the form submitted for recording or, if recorded,
with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such
item is a document separate from the Mortgage), in recordable
form
(except for any missing recording information and, if
applicable,
completion
of the name of the assignee), from Seller (or the 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";
(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 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
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);
(viii) 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;
(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
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;
(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) 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, 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) an original or copy of any subordination agreement,
standstill
agreement or other intercreditor, co-lender or similar
agreement
relating to subordinate indebtedness, 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
and a copy of the UCC Financing Statements, if any, submitted
for filing
with respect to Seller's security interest in the Cash
Collateral
Accounts and Lock-Box Accounts and all funds contained therein
(together
with UCC Financing Statement assignments in a form suitable for
filing or
recording, sufficient to transfer such security interest to the
Trustee on
behalf of the Certificateholders);
(xv) an original or copy of any related Loan Agreement (if
separate
from the related Mortgage);
(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
applicable
Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement or copies
thereof;
(xviii) the original or a copy of the ground lease, ground
lease
memorandum and ground lease estoppels, if any, and any
amendments,
modifications or extensions thereto, if any, or certified copies
thereof;
(xix) copies of franchise agreements and franchisor comfort
letters,
if any, for hospitality properties and any applicable
transfer/assignment documents; and
(xx) 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, 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), (iv), (viii),
(xi) (other than assignments of UCC
Financing Statements to be recorded or filed
in accordance with the transfer
contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC Financing
Statements to be filed in accordance
with the transfer contemplated by the
related Mortgage Loan Purchase Agreement)
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, Seller: (i) shall
deliver, or cause to be delivered, to the
Trustee or its designee 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 copy of the original
thereof submitted for recording or filing;
and (ii) shall deliver, or cause to
be delivered, to the Trustee or its
designee 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 after the Closing Date,
which period may be extended up to two
times, in each case for an additional
period of 90 days (provided that 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 recording or filing
office such original or photocopy).
Compliance with this paragraph will satisfy
Seller's delivery requirements under this
Section 3 with respect to the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver,
or cause to be delivered, an original,
counterpart or certified copy, as
applicable, of any of the documents and/or
instruments required to be delivered
pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC
Financing Statements to be recorded or filed
in accordance with the transfer
contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC Financing
Statements to be filed in accordance
with the transfer contemplated by the
related Mortgage Loan Purchase Agreement)
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 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 (with a copy
to the applicable Master Servicer) or its
designee on or before the Closing
Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement
assignment with the filing or recording
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 or recording office where
such UCC Financing Statement has been
delivered for filing or recording, Seller
has so notified the Trustee and shall
not be in breach of its obligations with
respect to such delivery, provided that
Seller promptly forwards such UCC Financing
Statement to the Trustee (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.
Notwithstanding the foregoing, 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 (iii), (v) and
(xi) of the last sentence of the first
paragraph of this Section 3
(collectively, the "Assignments"), to
submit those Assignments for filing and
recording, as the case may be, in the
applicable public filing and recording
offices and to deliver those Assignments to
the Trustee or its designee as those
Assignments (or certified copies thereof)
are received from the applicable
filing and recording offices with evidence
of such filing or recording indicated
thereon. 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 the Seller;
and, if Seller does not engage a third
party as contemplated by the immediately
preceding sentence, then Seller will still
be liable for recording and filing
fees and expenses of the Assignments as and
to the extent contemplated by
Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller
shall
deliver the Servicer Files with respect to
each of the Mortgage Loans to the
applicable Master Servicer (or, if
applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the
direction of 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
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.
For purposes of this Section 3, and notwithstanding any
contrary
provision hereof or of the definition of
"Mortgage File," if there exists with
respect to any group of Crossed Mortgage
Loans only one original or certified
copy of any document or instrument
described in the definition of "Mortgage
File" which pertains to all of the Crossed
Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of
the original or certified copy of such
document or instrument in the Mortgage File
for any of such Crossed Mortgage
Loans and the inclusion of a copy of such
original or certified copy in each of
the Mortgage Files for the other Crossed
Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the
inclusion of such original or certified
copy, as the case may be, in the Mortgage
File for each such Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all
events
within three (3) Business Days after the
Closing Date, cause all funds on
deposit in escrow accounts maintained with
respect to the Mortgage Loans in the
name of Seller or any other name, to be
transferred to or at the direction of
the applicable Master Servicer (or, if
applicable, to a Sub-Servicer at the
direction of the applicable 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
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 related 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 documents prepared by Seller
or any of its Affiliates solely for
internal credit analysis or other internal
uses or any attorney-client privileged
communication, 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.
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.
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(a) (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; provided that (A) such
opinion
may
express its reliance as to factual matters on, among other
things
specified
in such opinion, the representations and warranties made
herein,
and on
certificates or other documents furnished by officers of Seller
and
(B) in
rendering the opinions expressed above, such counsel may limit
such
opinions
to matters governed by the laws of the State of New York and
the
laws of
the United States and shall not be required to express any
opinion
with
respect to the registration or qualification of the
Certificates
under any
applicable state or federal securities laws;
(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.
(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
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 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
applicable 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.
(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
federally
chartered corporation 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, investigation, 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 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.
(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).
(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.
(b) Seller hereby agrees that it shall be deemed to make, as of
the
date of substitution, to and for the
benefit of the Trustee as the holder of the
Mortgage Loan to be replaced, with respect
to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is
substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach,
pursuant to Section 7 of this Agreement,
each of the representations and warranties
set forth in Exhibit A hereto
(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 (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 Seller 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(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 in the
case of 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 (or its
designee's) possession within the time
period required herein or (b) such document
has not been properly executed or is
otherwise defective on its face (clause (a)
and clause (b) each, a "Defect"
(which term shall include the "Defects"
detailed in the immediately following
paragraph) in the related Mortgage File),
and if such Breach or Defect, as the
case may be, materially and adversely
affects, or is deemed hereby to materially
and adversely affect, the value of any
Mortgage Loan or any successor REO Loan
with respect thereto 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),
then Seller shall, upon written request
of Depositor, the Trustee, the applicable
Master Servicer or the applicable
Special Servicer, not later than 90 days
after the receipt by Seller of such
written request (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 applicable Master Servicer for
deposit into the applicable Collection
Account any Substitution Shortfall Amount
(as defined in the Pooling and
Servicing Agreement) in connection
therewith; provided, however, that if (i)
such Material Breach or Material Defect is
capable of being cured but not within
the Initial Resolution Period, (ii) such
Material Breach or Material Defect does
not cause the related Mortgage Loan not to
be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code),
(iii) Seller has commenced and is
diligently proceeding with the cure of such
Material Breach or Material Defect
within the Initial Resolution Period and
(iv) Seller has delivered to the Rating
Agencies, the 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 Seller shall have an
additional 90 days to cure such Material
Defect or Material Breach . If any
Breach pertains to a 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) 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 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
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 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 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
applicable Master Servicer or the 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 "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) 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, or a copy of the intervening
assignment and the related recording
information; or (e) the absence from the
Servicer File of any required original
letter of credit, provided that such
Defect may be cured by any substitute
letter of credit or cash reserve on behalf
of the related Borrower; or (f) the absence
from the Mortgage File of the
original or a copy of any required ground
lease. 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.
Notwithstanding anything herein to the
contrary, the failure to include a
document checklist in a Mortgage File shall
in no event constitute a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code)
shall be deemed 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
or its discovery of such Def
