CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
--------------------------------------------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2003
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
Section 1 Transactions on or Prior to the Closing Date........................
Section 2 Closing Date Actions................................................
Section 3 Conveyance of Mortgage Loans........................................
Section 4 Depositor's Conditions to Closing...................................
Section 5 Seller's Conditions to Closing......................................
Section 6 Representations and Warranties of Seller............................
Section 7 Obligations of Seller...............................................
Section 8 Crossed Loans.......................................................
Section 9 [Reserved]..........................................................
Section 10 Representations and Warranties of Depositor.........................
Section 11 Survival of Certain Representations, Warranties and Covenants.......
Section 12 [Reserved]..........................................................
Section 13 Expenses; 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 Key Bank Loans
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 Affidavit of Lost Note
Exhibit C Form of Assignment of Mortgage(s) and Assignment of Assignment of
Lessor's Interests in Leases, Rents and Profits.
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of December 1, 2003, is made by and between KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation (the "Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II. Depositor intends to deposit the Mortgage Loans
and other assets into 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 ▇▇▇▇▇
Fargo Bank Minnesota, 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 (p) in the definition of
Mortgage File (below) shall be delivered to the Master Servicer for inclusion in
the Servicer File (defined below) with a copy delivered to the Trustee for
inclusion in the Mortgage File; provided further, that the Seller shall pay (or
cause the related Borrower to pay) any costs of the assignment or amendment of
each letter of credit described under item (p) 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, the Seller will take all
necessary steps to enable the Master Servicer to draw on the related letter of
credit on behalf of the Trustee pursuant to the terms of the Pooling and
Servicing Agreement, including, if necessary, drawing on the letter of credit in
its own name pursuant to written instructions to draw from the Master Servicer
and upon receipt, immediately remitting the proceeds of such draw (or causing
such proceeds to be remitted) to the Master Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the 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, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
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 (as defined herein) 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 $94,096,925.44.
(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 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 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
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 the Servicing Rights
Purchase Agreement, dated as of December 5, 2003, between the Seller and Midland
Loan Services, Inc., 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) 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.
Each Mortgage File shall contain:
(a) 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 the Seller, and further endorsed (at the direction of the
Depositor given pursuant to this Agreement) by the 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 ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as trustee for the registered Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-C5, 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, certified copies
or 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 the Mortgage substantially in the form
of Exhibit C hereto (or an alternative form approved by the Depositor) 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 "▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-C5";
(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), substantially in the form
of Exhibit C hereto (or an alternative form approved by the Depositor) 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 "▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-C5";
(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), from the Seller or the
Mortgage Loan Originator either in blank or to "▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-C5," which assignment may be included as part of an omnibus assignment
covering other documents relating to the Mortgage Loan provided that such
omnibus assignment is effective under applicable law;
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution agreements,
together with any evidence of recording thereon or in the form submitted for
recording, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or subsequent to
the issuance of such policy), or if the policy has not yet been issued, the
original or a copy of a binding written commitment (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
by the related title insurance company) 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 prior to the Trustee) in and to the personalty of
the Borrower at the Mortgaged Property, and UCC assignments in a form suitable
for filing or recording, sufficient to assign 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 agreement (including each
Intercreditor Agreement related to a Companion Loan or B Loan) relating to such
other debt, if any, including any mezzanine loan documents or preferred equity
documents;
(n) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a copy of
the UCC-1 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 (and UCC-3 Financing Statement assignments
assigning such UCC Financing Statements to the Trustee on behalf of the
Certificateholders);
(o) an original, counterpart or copy of any Loan Agreement (if
separate from the Mortgage);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loans and amendments thereto which entitles the Trust to draw thereon;
provided that in connection with the delivery of the Mortgage File to the Trust,
such originals shall be delivered to the Master Servicer and copies thereof
shall be delivered to the Trustee;
(q) any environmental insurance policy and any environmental
guaranty or indemnity agreement or copies thereof;
(r) the original ground lease, ground lease estoppels and any
amendments, modifications or extensions thereto, if any, or copies thereof;
(s) a copy of the mortgage note evidencing the related Companion
Loan or the related B Loan;
(t) the original or copy of any property management agreement;
(u) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties;
(v) the checklist of the related Mortgage Loan Documents, if any,
that is included in the Mortgage File for the related Mortgage Loan; and
(w) any additional documents required to be added to the Mortgage
File pursuant to the Pooling and Servicing Agreement.
With respect to the Mayfair Mall Loan, the following documents on a
collective basis:
(a) the original executed Note for such Mortgage Loan, endorsed
(either on the face thereof or pursuant to a separate allonge) "Pay to the order
of ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C5, without recourse", or in blank,
without recourse and further showing a complete, unbroken chain of assignment
and endorsement from the originator (if such originator is other than the
Seller); or, alternatively, if the original executed Note has been lost, a lost
note affidavit and indemnity with a copy of such Note;
(b) a copy of the executed Mayfair Mall Intercreditor Agreement;
(c) a copy of a Mayfair Mall Servicing Agreement; and
(d) a copy of the documents that make up the "Servicing File" under
the Mayfair Mall Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, other than with respect to the Mayfair Mall Loan, the Seller
cannot deliver, or cause to be delivered, an original, counterpart or certified
copy of any of the documents 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 of
the second preceding paragraph with evidence of recording or filing thereon on
the Closing Date, solely because of a delay caused by the public recording or
filing office where such document or instrument has been delivered for
recordation or filing, the Seller shall deliver, or cause to be delivered, to
the Trustee or its designee 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.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, other than with respect to the Mayfair Mall Loan, the Seller
cannot deliver, or cause to be delivered, an original, counterpart or certified
copy of any of the documents 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 of
the third preceding paragraph 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 or its
designee on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver to the Trustee or its designee any UCC-2 or UCC-3 assignment with the
filing information of the UCC-1 financing statement with respect to any Mortgage
Loan being assigned, solely because such UCC-1 financing statement has not been
returned by the public filing office where such UCC-1 financing statement has
been delivered for filing, Seller shall deliver or cause to be delivered to the
Trustee or its designee a photocopy of such UCC-2 or UCC-3 assignment with the
filing information left blank. The Seller, promptly upon receipt of the
applicable filing information of the UCC-1 financing statement being so
assigned, shall deliver or cause to be delivered to the Trustee or its designee
the original UCC-2 or UCC-3 assignment with all appropriate filing information
set forth thereon.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, 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 of the fifth
preceding paragraph (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 the Assignments to the Trustee or its
designee as the 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 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.
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 Master Servicer or if applicable, a Primary Servicer (with a copy to the
Master Servicer) under the direction of the Master Servicer, under the Pooling
and Servicing Agreement on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each such Servicer File shall contain all documents and
records in the Seller's possession relating to such applicable Mortgage Loans
(including reserve and escrow agreements, cash management agreements, lockbox
agreements, financial statements and any other information provided by the
respective Borrower from time to time, but excluding any documents and other
writings not enumerated in this parenthetical that have been prepared by the
Seller or any of its Affiliates solely for internal credit analysis or other
internal uses or any attorney-client privileged communication) 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 Loans only one original or certified copy of any
document or instrument described in the definition of "Mortgage File" which
pertains to all of the Crossed Loans in such group of Crossed Loans, the
inclusion of the original or certified copy of such document or instrument in
the Mortgage File for any of such Crossed Loans and the inclusion of a copy of
such original or certified copy in each of the Mortgage Files for the other
Crossed Loans in such group of Crossed Loans, shall be deemed the inclusion of
such original or certified copy, as the case may be, in the Mortgage File for
each such Crossed Loan.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each 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 Master Servicer via wire transfer for deposit by the
Master Servicer into the Collection Account.
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 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 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 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 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 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 the 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, in form acceptable to the Depositor as to various corporate matters
and such other matters as shall be reasonably required by the Depositor.
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.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the General Corporation Law of the State of
Delaware, the laws of the State of New York and 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.
Such counsel shall state that, although such counsel has not
specifically considered the possible applicability to Seller of any other laws,
regulations, judgments, orders or decrees, no facts have been disclosed to such
counsel that cause such counsel to conclude that any other consent, approval or
action is required;
(i) 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
(ii) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or the 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) 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
Special Servicer empowering the Trustee and, in the event of the failure or
incapacity of the Trustee, the Special Servicer, to record, at the expense of
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. The Seller shall reasonably cooperate with
the Trustee and the Special Servicer in connection with any additional powers or
revisions thereto that are requested by such parties.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the Closing
Date, with the resolutions of Depositor authorizing the transactions set
forth therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) 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 chartered by the Office of Thrift Supervision of the
U.S. Department of the Treasury in good standing under the laws of the
United States of America. Seller has conducted and is conducting its
business so as to comply in all material respects with all applicable
statutes and regulations of regulatory bodies or agencies having
jurisdiction over it, except where the failure so to comply would not have
a materially adverse effect on the performance by Seller of this
Agreement, and there is no charge, action, suit or proceeding before or by
any court, regulatory authority or 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
certificate of incorporation, as amended, or other 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.
(iv) Seller is solvent and the sale of Mortgage Loans (1) will not
cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its creditors.
(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 (and
each agreement and 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 (and each agreement and 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) The consideration received by Seller upon the sale of the
Mortgage Loans constitutes fair consideration and reasonably equivalent
value for such 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.
(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 the reimbursement of expenses as described herein or
otherwise in connection with the transactions described in Section 2 and
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 and
the exceptions to such representations and warranties set forth on
Schedule V hereto are true and correct in all material respects as of the
date hereof with respect to the Mortgage Loans identified on Schedule II.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by the 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 the Seller pursuant to Section
6 of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing but shall
not inure to the benefit of any subsequent transferee thereafter.
If any Certificateholder, the Master Servicer, the Special Servicer
or the Trustee discovers or receives notice: of a breach of any of the
representations or warranties made by the 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) (a "Breach"); or 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"
(including the "Defects" described below) in the related Mortgage File), such
party shall give notice to the Master Servicer, the Special Servicer, the
Trustee and the Rating Agencies. If the Master Servicer or the Special Servicer
determines that such Breach or Defect materially and adversely affects the value
of any Mortgage Loan or REO Loan or the interests of the Holders of any Class of
Certificates, it shall give prompt written notice of such Breach or Defect to
the Depositor, the Trustee, the Master Servicer, the Special Servicer and the
Seller and shall request that the Seller not later than the earlier of 90 days
from the receipt by the Seller of such notice or discovery by the Seller of such
Breach or Defect (subject to the second succeeding paragraph, the "Initial
Resolution Period"), (i) cure such Breach or Defect in all material respects;
(ii) repurchase the affected Mortgage Loan at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) or (iii) substitute one or more
Qualified Substitute Mortgage Loans (as defined in the Pooling and Servicing
Agreement) for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the Master Servicer for deposit into the Collection Account any Substitution
Shortfall Amount (as defined in the Pooling and Servicing Agreement) in
connection therewith; provided, however, that if (i) such material Breach or
material Defect is capable of being cured but not within the Initial Resolution
Period, (ii) such material Breach or material Defect does not cause the related
Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the Code), (iii) 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 Master Servicer, the Special Servicer and the Trustee an Officer's
Certificate that describes the reasons that the cure was not effected within the
Initial Resolution Period and the actions that it proposes to take to effect the
cure and that states that it anticipates the cure will be effected within the
additional 90-day period, then the 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 the 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 Master Servicer, the Special Servicer, the Trustee or
the Trust Fund that are the basis of such Breach and have not been reimbursed by
the related Borrower; provided, however, that in the event any such costs and
expenses exceed $10,000, the 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, the Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the Seller shall be deemed to have cured such Breach
in all respects. With respect to any repurchase of a Mortgage Loan hereunder or
any substitution of one or more Qualified Substitute Mortgage Loans for a
Mortgage Loan hereunder, (A) no such substitution may be made in any calendar
month after the Determination Date for such month; (B) scheduled payments of
principal and interest due with respect to the Qualified Substitute Mortgage
Loan(s) after the month of substitution, and scheduled payments of principal and
interest due with respect to each Mortgage Loan being repurchased or replaced
after the related Cut-off Date and received by the Master Servicer or the
Special Servicer on behalf of the Trust on or prior to the related date of
repurchase or substitution, shall be part of the Trust Fund; and (C) scheduled
payments of principal and interest due with respect to such Qualified Substitute
Mortgage Loan(s) during or prior to the month of substitution, and scheduled
payments of principal and interest due with respect to each Mortgage Loan being
repurchased or replaced and received by the Master Servicer or the Special
Servicer on behalf of the Trust after the related date of repurchase or
substitution, shall not be part of the Trust Fund, and the Seller (or, if
applicable, any person effecting the related repurchase or substitution in the
place of the Seller) shall be entitled to receive such payments promptly
following receipt by the Master Servicer or Special Servicer, as applicable,
under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of the Holders of a Class of Certificates and the
value of a Mortgage Loan or REO 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; (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; or (e) the absence from the
Servicer File of any required original letter of credit (as required in the
provisos to Section 1 hereof), provided that such Defect may be cured by any
substitute letter of credit or cash reserve or (f) the absence from the Mortgage
File of an original or copy of any required ground lease. In addition, the
Seller shall cure any Defect described in clause (b), (c), (e) or (f) of the
immediately preceding sentence as required in Section 2.02(b) of the Pooling and
Servicing Agreement.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed to materially and adversely affect the interests of the Holders
of a Class of Certificates and the Initial Resolution Period for the affected
Mortgage Loan shall be 90 days following the earlier of the Seller's receipt of
notice pursuant to this Section 7 or its 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 Breach or Defect is not capable of being so corrected or cured within
such period, then the Seller shall purchase or substitute for the affected
Mortgage Loan as provided in this Section 7. If (i) any Mortgage Loan is
required to be repurchased or substituted for as provided above, (ii) such
Mortgage Loan is a Crossed 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 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 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 Loan(s) in the related Mortgage Group in accordance with the
provisions of this Section 7 unless such other Crossed Loans satisfy the Crossed
Loan Repurchase Criteria (as defined in the Pooling and Servicing Agreement) and
the Seller can satisfy all other criteria for substitution or repurchase of the
affected Mortgage Loan(s) set forth in the Pooling and Servicing Agreement. In
the event that one or more of such other Crossed Loans satisfy the Crossed Loan
Repurchase Criteria, the Seller may elect either to repurchase or substitute for
only the affected Crossed Loan as to which the related Breach or Defect exists
or to repurchase or substitute for all of the Crossed Loans in the related
Mortgage Group. The Seller shall be responsible for the cost of any Appraisal
required to be obtained by the Master Servicer to determine if the Crossed Loan
Repurchase Criteria have been satisfied, so long as the scope and cost of such
Appraisal 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
be obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan Documents and the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
Documents and (i) the Seller provides an opinion of counsel to the effect that
such partial release would not cause an Adverse REMIC Event (as defined in the
Pooling and Servicing Agreement) to occur, (ii) such Seller pays (or causes to
be paid) the applicable release price required under the Mortgage Loan
Documents, and to the extent not reimbursable out of the release price pursuant
to the related Mortgage Loan Documents, together with any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property which is being released and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for cure of a material Breach or material Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to the Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by the Depositor or the Trustee, as the case may be, and the
Depositor or the Trustee, as the case may be, upon receipt of such funds, shall
promptly release the related Mortgage File and Servicer File or cause them to be
released, to the Seller and shall execute and deliver such instruments of
transfer or assignment as shall be necessary to vest in the Seller the legal and
beneficial ownership of such Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan Documents.
It is understood and agreed that the obligations of the Seller set
forth in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
constitute the sole remedies available to the Depositor and its successors and
assigns respecting any Breach or Defect affecting such Mortgage Loan.
Section 8. Crossed Loans. With respect to any Crossed Loan conveyed
hereunder, to the extent that the Seller repurchases or substitutes for an
affected Crossed Loan in the manner prescribed above while the Trustee continues
to hold any related Crossed Loans, the Seller and the Depositor (on behalf of
its successors and assigns) agree to modify upon such repurchase or
substitution, the related Mortgage Loan Documents in a manner such that such
affected Crossed Loan repurchased or substituted by the Seller, on the one hand,
and any related Crossed Loans still held by the Trustee, on the other, would no
longer be cross-defaulted or cross-collateralized with one another; provided,
that the Seller shall have furnished to the Trustee, at its expense, with an
Opinion of Counsel that such modification shall not cause an Adverse REMIC
Event; provided, further, that if such Opinion of Counsel cannot be furnished,
the Seller and the Depositor hereby agree that such repurchase or substitution
of only the affected Crossed Loans, notwithstanding anything to the contrary
herein, shall not be permitted. Any reserve or other cash collateral or letters
of credit securing the Crossed Loans shall be allocated between such Mortgage
Loans in accordance with the Mortgage Loan Documents. All other terms of the
Mortgage Loans shall remain in full force and effect, without any modification
thereof.
Section 9. [Reserved]
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require the consent of or notice to, or any filing with any
person, entity or governmental body, which has not been obtained or made by
Depositor, except where, in any of the instances contemplated by clause (i)
above or this clause (ii), the failure to do so will not have a material and
adverse effect on the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 11 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. [Reserved]
Section 13. Expenses; Recording Costs. Seller agrees to reimburse
the Trustee or its designee all recording and filing fees incurred by the
Trustee or its designee in connection with the recording or filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement. In the event
Seller elects to engage a third party contractor to prepare, complete, file and
record Assignments with respect to Mortgage Loans as provided in Section 3,
Seller shall contract directly with such contractor and shall be responsible for
such contractor's compensation and reimbursement of recording and filing fees
and other reimbursable expenses pursuant to their agreement.
Section 14. Notices. All communications hereunder will be in writing
and effective only upon receipt, and, (a) if sent to Depositor, will be mailed,
delivered or telecopied and confirmed to it at Credit Suisse First Boston
Mortgage Securities Corp., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Compliance
Department, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇; (b) if sent to Seller, will be mailed,
delivered or telecopied to it at Keybank National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Attention: ▇.▇. ▇▇▇▇▇, Telecopy No.:
(▇▇▇) ▇▇▇-▇▇▇▇ (with a copy to, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇), or to such other address or telecopy number as such
party may hereafter furnish to the other party by like notice.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors,
permitted assigns and legal representatives, and nothing expressed in this
Agreement is intended or shall be construed to give any other Person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such Persons and for the benefit of no other Person; it being
understood that (a) the indemnities of Seller contained in that certain
Indemnification Agreement dated November 20, 2003 among Seller, Depositor and
the Underwriters, subject to all limitations therein contained, shall also be
for the benefit of the officers and directors of Depositor, the Underwriters and
the Initial Purchaser and any person or persons who control Depositor, the
Underwriters and the Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended,
and (b) the rights of Depositor pursuant to this Agreement, subject to all
limitations herein contained, including those set forth in Section 7 of this
Agreement, may be assigned to the Trustee, for benefit of the
Certificateholders, as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to such
rights of Depositor hereunder, provided that the Trustee shall have no right to
further assign such rights to any other Person. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assign because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and primary mortgage insurance policies
identified on the Mortgage Loan Schedule, including all replacement
Mortgage Loans, and all distributions with respect thereto payable after
the Cut-off Date;
(ii) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral described in
(i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law. The Seller at the
direction of the Depositor or its assignee, shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the proceeds thereof, such security interest would be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of this Agreement. In connection herewith, Depositor and its
assignee shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
KEYBANK NATIONAL ASSOCIATION,
as Seller
By: /s/ ▇▇▇▇ ▇. Sublett_____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Official
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.,
as Depositor
By: /s/ ▇▇▇▇▇▇▇ Altabef_____________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of December 1, 2003, among KeyBank National Association (the "Seller") and
Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor").
Capitalized terms used herein without definition have the meanings given them in
or by reference in the Agreement or, if not defined in the Agreement, in the
Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated November 20, 2003, between Depositor and the Initial Purchaser.
"Certificates" means each class of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2003-C5.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means December 5, 2003.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Loan" means any Mortgage Loan which is cross-defaulted and
cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, the applicable Due Date for each Mortgage Loan
occurring in December, 2003.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by the Seller as to the Mortgage Loans
identified on Schedule II in Section 6(a)(xii) and under the written certificate
described in Section 4(b)(iii), which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the Mortgage Loan Originator and the Borrower,
pursuant to which such Mortgage Loan was made.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 (subject to the first proviso in Section 1).
"Mortgage Group" shall have the meaning given such term in Section 7
of the Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"Mortgage Loans" means all of the mortgage loans to be sold to
Depositor pursuant to this Agreement, specifically identified on Schedule II to
this Agreement.
"Offered Certificates" means the Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class C, Class D, Class E and Class F Certificates.
"Offering Circular" means the confidential offering circular dated
November 20, 2003, describing certain classes of the Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of
December 1, 2003, among the Depositor, Midland Loan Services, Inc., as Master
Servicer, Clarion Partners, LLC, as Special Servicer, and the Trustee.
"Primary Collateral" means with respect to any Crossed Loan, that
portion of the Mortgaged Property designated as directly securing such Crossed
Loan and excluding any Mortgaged Property as to which the related lien may only
be foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Prospectus" means the Prospectus of the Depositor, dated November
10, 2003.
"Prospectus Supplement" means the Prospectus Supplement, dated
November 20, 2003, relating to the Offered Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 (subject to the first proviso in
Section 1).
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse First Boston LLC, McDonald
Investments Inc., WaMu Capital Corp., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇
Incorporated and PNC Capital Markets, Inc.
"Underwriting Agreement" means the Underwriting Agreement, dated
November 20, 2003, between Depositor and the Underwriters.
SCHEDULE II
(i) (xx) (ii)
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C5
# Crossed Sub Pool Property Name
--------------------------------------------------------------------------------
1 ▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
59 1 Tops Plaza - North Olmsted
Total/Weighted Average:
(1) Assumes a Cut-off Date in December 2003.
(2) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(3) At maturity with respect to Balloon Loans or at the ARD in the case of ARD
Loans. There can be no assurance that the value of any particular
Mortgaged Property will not have declined from the original appraisal
value.
(4) In the case of cross-collateralized and cross-defaulted Underlying
Mortgage Loans, the combined LTV is presented for each and every related
Underlying Mortgage Loan.
(5) U/W NCF reflects the Net Cash Flow after U/W Replacement Reserves, U/W
LC's and TI's and U/W FF&E.
(6) U/W DSCR is based on the amount of the monthly payments presented. In the
case of cross-collateralized and cross-defaulted Underlying Mortgage Loans
the combined U/W DSCR is presented for each and every related Underlying
Mortgage Loan.
(7) Anticipated Repayment Date.
(8) Prepayment Provision as of Origination:
Lock/(x) = Lockout or Defeasance for (x) payments
YMA/(y) = Greater of Yield Maintenance Premium and A% Prepayment for
(y) payments
A%/(x) = A% Prepayment for (x) payments
0%/(x) = Prepayable at par for (x) payments
(9) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
(10) Square footage number includes anchor spaces under ground leases.
(11) The Mall at Fairfield Commons $85,500,000 "Pooled Note" represents a pari
passu interest in a $114,000,000 Whole Loan. The remaining $28,500,000
will not be included in the Trust.
(15) Based on the $114,000,000 Mall at Fairfield Commons Whole Loan.
(20) Based on the $85,500,000 Mall at Fairfield Commons Pooled Note.
[TABLE CONTINUED]
(i) (iii)
Zip
# Address City County State Code
-----------------------------------------------------------------------------------------------------------
1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
59 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
[TABLE CONTINUED]
(i) (xi) (vi) (vii)
Units/
Sq. Ft./
Property Property Mortgage Rooms/ Original Cut-off
# Type Sub-type Loan Seller Pads Balance Balance (1)
------------------------------------------------------------------------------------------------------------------------------------
1 Retail Anchored KeyBank 1,046,726 (10) $85,500,000 (11) $85,405,532
59 Retail Anchored KeyBank 70,003 $5,760,000 $5,743,218
-----------
Total/Weighted Average: $91,148,750
===========
[TABLE CONTINUED]
(i) (xix)
Percentage of Occupancy
Initial Maturity Fee/ Year Year Rate at
# Pool Balance Balance (2) Leasehold Built Renovated U/W
------------------------------------------------------------------------------------------------------------------------------------
1 6.77% $69,414,892 Fee 1993 N/A 99%
59 0.46% $4,434,972 Leasehold 2002 N/A 100%
[TABLE CONTINUED]
(i)
Maturity/
Date of Cut-off ARD
Occupancy Appraised Date LTV Date LTV
# Rate Value Ratio (1) (4) Ratio (2) (3) (4)
------------------------------------------------------------------------------------------------------------------------------
1 8/31/2003 $171,500,000 66.4% (15) 54.0% (15)
59 8/28/2003 $7,035,000 81.6% 63.0%
[TABLE CONTINUED]
(i)
Most Recent Most Recent U/W U/W U/W
# NOI NCF NOI NCF (5) DSCR (6)
-------------------------------------------------------------------------------------------------------------------------------
1 $13,254,419 $13,254,419 $14,265,306 $13,516,797 1.75x (15)
59 $529,153 $506,886 $520,171 $497,079 1.23x
[TABLE CONTINUED]
(i)
Contractual U/W
Engineering Recurring LC & TI Contractual Recurring
Reserve at Replacement Reserve at Recurring Replacement
# Origination Reserve/FF&E Origination LC&TI Reserve/FF&E
------------------------------------------------------------------------------------------------------------------------------------
1 N/A N/A N/A N/A $214,220
59 $17,250 $10,500 N/A N/A $10,500
[TABLE CONTINUED]
(i) (ix) (ix) (viii) (iv)
Tax & Initial Orig Rem. Orig Rem.
U/W Insurance Interest Only Amort. Amort. Term to Term to Interest
# TI & LC Escrows Term Term Term (1) Maturity (2) Maturity (1) (2) Rate
--------------------------------------------------------------------------------------------------------------------------------
1 $534,289 Tax 0 360 359 132 131 5.450%
59 $12,592 Tax 0 312 310 120 118 5.170%
[TABLE CONTINUED]
(i) (xii) (x) (viii)
First Loan
Interest Calculation Monthly Payment Payment Maturity
# (30/360 / Actual/360) Payment Date Date Date (2)
------------------------------------------------------------------------------------------------------------------------------
1 Actual/360 $482,781 (20) 12/1/2003 1 11/1/2014
59 Actual/360 $33,603 11/1/2003 1 10/1/2013
[TABLE CONTINUED]
(i) (viii)(xv) (xvi)
Original Original
Original Yield Prepayment
Lockout Maintenance Premium
Prepayment Provision Period Period Period
# ARD (7) Seasoning as of Origination (8) (Months) (Months) (Months)
-----------------------------------------------------------------------------------------------------------------------------------
1 N/A 1 Lock/129_0%/3 129 0 0
59 N/A 2 Lock/117_0%/3 117 0 0
[TABLE CONTINUED]
(i) (xvi)
Original Yield Prepayment
Open Lockout Maintenance Premium Yield
Period Expiration Expiration Expiration Maintenance
# (Months) Defeasance (9) Date Date Date Spread
------------------------------------------------------------------------------------------------------------------------------------
1 3 Yes 9/1/2014 N/A N/A N/A
59 3 Yes 8/1/2013 N/A N/A N/A
[TABLE CONTINUED]
(i) (xiii) (v)
Servicing
and Utilities Subject Subject Subject
Trustee Net Mortgage Multifamily Tenant Multifamily Studio Studio Studio
# Fees Rate Pays Elevators Units Avg. Rent Max. Rent
------------------------------------------------------------------------------------------------------------------------------------
1 0.05190% 5.39810% ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
59 0.05190% 5.11810% ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
[TABLE CONTINUED]
(i)
Subject Subject Subject Subject Subject Subject Subject Subject Subject
1 BR 1 BR 1 BR 2 BR 2 BR 2 BR 3 BR 3 BR 3 BR
# Units Avg. Rent Max. Rent Units Avg. Rent Max. Rent Units Avg. Rent Max. Rent
----------------------------------------------------------------------------------------------------------------------------
1 N/A N/A N/A N/A N/A N/A N/A N/A N/A
59 N/A N/A ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
[TABLE CONTINUED]
(i)
Subject Subject Subject Subject Subject Subject Major
4 BR 4 BR 4 BR 5 BR 5BR 5 BR Tenant #1
# Units Avg. Rent Max. Rent Units Avg. Rent Max. Rent Name
----------------------------------------------------------------------------------------------------
▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ Elder ▇▇▇▇▇▇▇
▇▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇ Tops Markets, LLC
[TABLE CONTINUED]
(i)
Major Major Major Major Major
Tenant #1 Tenant #1 Lease Tenant #2 Tenant #2 Tenant #2 Lease
# Sq. Ft. Expiration Date Name Sq. Ft. Expiration Date
---------------------------------------------------------------------------------------------------------------------------------
1 150,000 10/31/2013 Lazarus 149,412 (24) 1/31/2015
59 57,357 9/30/2026 Blockbuster, Inc. 5,208 2/28/2013
[TABLE CONTINUED]
(i)
Major Major Major Initial
Tenant #3 Tenant #3 Tenant #3 Lease Other
# Name Sq. Ft. Expiration Date Reserve
-----------------------------------------------------------------------------------------------------------------
1 Parisian 130,199 1/31/2014 N/A
59 Second National Bank 4,645 11/30/2012 N/A
[TABLE CONTINUED]
(i) (xxi)
Initial Other Contractual Contractual Letter
Reserve Other Other Reserve Letter of of Credit
# Description Reserve Description Credit Description
------------------------------------------------------------------------------------------------------------------------------------
1 N/A N/A N/A $4,000,000 (i) No Event of Default; (ii) All Additional
Improvements have been completed in accordance with
the terms of the
▇▇▇▇▇▇'▇ lease; (iii) Borrower has delivered to Lender
an estoppel certificate acceptable to Lender from
▇▇▇▇▇▇'▇
▇/▇ ▇/▇ ▇/▇ ▇/▇ ▇/▇
[TABLE CONTINUED]
(i)
Earnout Additional Additional
Earnout Reserve Collateral Collateral
# Reserve Description Amount Event Date
---------------------------------------------------------------------------------------------------------
1 N/A N/A $4,000,000 10/17/2005
59 N/A N/A $250,000 9/3/2005
[TABLE CONTINUED]
(i)
Additional Existing
Collateral Secondary
# Description Financing
----------------------------------------------------------------------------------------------------------------------------
1 Release upon: (I) Completion of Additional Improvements, (ii) ▇▇▇▇▇▇'▇ open for
business and paying rent, and (iii) No Default N/A
59 Release upon: (i) Outparcel leased, (ii) Occupancy of 95%, and (iii) No Default N/A
[TABLE CONTINUED]
(i) (xvii) (xviii)
Description Initial Recurring Initial
of Existing Description Replacement Renovation/Leasing Debt Service Earthquake Environmental
# Secondary Financing of Lockbox Reserve Reserve Reserve Insurance Insurance
------------------------------------------------------------------------------------------------------------------------------------
1 N/A Springing $ - $ - $ - ▇▇ ▇▇
▇▇ ▇/▇ ▇/▇ $ - $ - $ - No No
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
[None]
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
Exception (iv):
With respect to Loan No. 10021677/Mall at Fairfield Commons, the related
Mortgage Loan is the "A-1 Loan" of an A-1/A-2 structured loan transaction. The
corresponding "A-2 Loan" is not included in the sale by Seller to Purchaser. The
related Assignment of Leases secures both the Mortgage Loan and the "A-2 Loan".
Exception (x):
With respect to Loan No. 10021677/Mall at Fairfield Commons, the
related Mortgage Loan is the "A-1 Loan" of an A-1/A-2 structured loan
transaction. The corresponding "A-2 Loan" is not included in the sale by Seller
to Purchaser. The related Mortgage secures both the Mortgage Loan and the "A-2
Loan".
Exception (xiii):
With respect to Loan No. 10021677/Mall at Fairfield Commons, the
related Mortgage Loan is the "A-1" loan in an A-1/A-2 structured loan
transaction. The corresponding "A-2 Loan" is not included in the sale by Seller
to Purchaser. The related Mortgage secures both the Mortgage Loan and the "A-2"
Loan and the related title policy is in the amount of the sum of the principal
balances of the Mortgage Loan and the corresponding "A-2 Loan".
Exception (xxxi):
____________(k) With respect to Loan ▇▇. ▇▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇▇,
the ground lease provides that is automatically terminated upon the occurrence
of a "Total Taking". The ground lease defines "Total Taking" as (a) a taking of
10% or more of tenant's building, (b) a taking of access points to a specified
road so that there shall not exist at least one access point situated to the
front of the retail buildings and one truck access point situated to the rear of
such buildings where landlord does not provide alternative access points
reasonably acceptable to tenant and such takings materially adversely affect
tenant's building, or (c) a taking of 10% or more of the land area used for
parking and an adequate alternative parking area or facility on the premises
acceptable to tenant cannot be provided.
Exception (xxxiii):
With respect to Loan No. 10021677/Mall at Fairfield Commons, the
related Mortgage Loan is the "A-1 Loan" of an A-1/A-2 structured loan. The
related Mortgage also secures the corresponding "A-2 Note" (which is not
included in the sale by Seller to Purchaser) and the related Mortgage Loan
Documents are cross-defaulted with the corresponding "A-2 Note".
Exception (xxxvi):
With respect to Loan No. 10021677/Mall at Fairfield Commons, the
related Mortgage Loan is the "A-1 Loan" of an A-1/A-2 structured loan
transaction. The corresponding "A-2 Loan" is not included in the sale by Seller
to Purchaser. The related Mortgage secures both the Mortgage Loan and the "A-2
Loan".
Exception (liv):
With respect to Loan No. 10021677/Mall at Fairfield Commons, the
related Mortgage Documents do not include a non-recourse carve-out for waste.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of the Seller" or "to the Seller's knowledge" shall mean, except
where otherwise expressly set forth below, the actual state of knowledge of the
Seller or any servicer acting on its behalf regarding the matters referred to,
in each case without having conducted any independent inquiry or due diligence
with respect to such matters and without any actual or implied obligation to
make such inquiry or perform such due diligence, other than making such inquiry
or performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of the Seller. Wherever there is
a reference to receipt by, or possession of, the Seller of any information or
documents, or to any action taken by the Seller or not taken by the Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either the Seller or any servicer acting on its behalf.
The Seller hereby represents and warrants, subject to the exceptions
set forth in the applicable Exception Report, with respect to the Mortgage Loans
that as of the date hereinbelow specified or, if no such date is specified, as
of the date of this Agreement:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to,
and was the sole owner of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(1) originated by a savings and loan association, savings
bank, commercial bank, credit union, or insurance company, which is
supervised and examined by a Federal or State authority, or by a
mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act (any of
the foregoing, including the Seller, a "Qualified Originator"); or
(2) if originated by a person which is not a Qualified
Originator (any such person, a "Non-Qualified Originator"), then:
(1) such Mortgage Loan was underwritten in accordance with
standards established by a Qualified Originator, using application
forms and related credit documents approved by the Qualified
Originator;
(2) the Qualified Originator approved each application and
related credit documents before a commitment by the Non-Qualified
Originator was issued, and no such commitment was issued until the
Qualified Originator agreed to fund such Mortgage Loan;
(3) the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship with the
Qualified Originator; and
(4) the closing documents for the Mortgage Loan were prepared
on forms approved by the Qualified Originator, and, pursuant to the
Non-Qualified Originator's ongoing, standing relationship with the
Qualified Originator, either:
a. such closing documents reflect the Qualified
Originator as the original mortgagee, and such Mortgage Loan
was actually funded by the Qualified Originator at the closing
thereof;
b. such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include assignment
documents executed by the Non-Qualified Originator in favor of
the Qualified Originator at the time of the closing of the
Mortgage Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator, and the
Mortgage Loan was funded initially by the Non-Qualified
Originator at the closing thereof and then acquired by the
Qualified Originator from such Non-Qualified Originator; or
c. such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include assignment
documents executed by the Non-Qualified Originator in favor of
the Qualified Originator at the time of the closing of the
Mortgage Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator, and the
Mortgage Loan was funded initially by the Qualified Originator
at the closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor
constitutes a legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or any other interests or security
interests of any nature encumbering such Mortgage Loan, except for
interests in servicing rights created or granted under the Pooling and
Servicing Agreement, subservicing agreements and/or servicing rights
purchase agreements being executed and delivered in connection herewith;
(v) To Seller's knowledge, based on the related borrower's
representations and covenants in the related mortgage loan documents and
such other due diligence as a reasonably prudent commercial mortgage
lender would deem appropriate, the borrower, lessee and/or operator was in
possession of all licenses, permits, and authorizations then required for
use of the Mortgaged Property which were valid and in full force and
effect as of the origination date and to Seller's actual knowledge, such
licenses, permits and authorizations are still valid and in full force and
effect;
(vi) Each related Note, Mortgage, assignment of leases (if any) and
other agreement executed by or for the benefit of the related borrower,
any guarantor or their successors or assigns in connection with such
Mortgage Loan is the legal, valid and binding obligation of the related
borrower, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or
by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and there is no right
of offset, rescission, abatement or diminution or valid defense or
counterclaim available to the related borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(vii) The Mortgage File contains an Assignment of Leases, either as
a separate instrument or incorporated into the related Mortgage. Each
related Assignment of Leases creates a valid first priority collateral
assignment of, or a valid first priority lien or security interest in,
certain rights under the related lease or leases, subject only to a
license granted to the related borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease or leases,
including the right to operate the related leased property, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law); no person other than the related borrower owns any interest in any
payments due under such lease or leases that is superior to or of equal
priority with the lender's interest therein;
(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if the
Assignment of Leases is a separate document from the Mortgage, is in
recordable form (but for the insertion of the name and address of the
assignee and any related recording information, which is not yet available
to the Seller), and such assignments and any assignment of any other
agreement executed by or for the benefit of the related borrower, any
guarantor or their successors or assigns in connection with such Mortgage
Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(ix) Since origination (a) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded in whole or in part and (b)
each related Mortgaged Property has not been released, in whole or in
part, from the lien of the related Mortgage in any manner which materially
interferes with the security intended to be provided by such Mortgage and
since September 3, 2003, no waiver, consent, modification, assumption,
alteration, satisfaction, cancellation, subordination or rescission which
changes the terms of, or the security for, the Mortgage Loan in any
material respect has occurred or been given;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as
defined below)), except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law); and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with the
lien of the related Mortgage, except those which are insured against by a
lender's title insurance policy (as described below). A UCC financing
statement has been filed and/or recorded (or sent for filing or recording)
in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property as currently
operated; and such security interest is a first priority security
interest, subject to any prior purchase money security interest in such
personal property, any personal property leases applicable to such
personal property and any other security interest in such personal
property which do not, individually or in the aggregate, materially
interfere with the security intended to be provided for such Mortgage
Loan. Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes
and creates a valid and enforceable lien on the property described
therein, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law). In the case of any Mortgage Loan secured by a hotel,
the related loan documents contain such provisions as are necessary and
UCC Financing Statements have been filed as necessary, in each case, to
perfect a valid first priority security interest in the related operating
revenues with respect to such Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the
extent that possession or control of such items or actions other than the
filing of Uniform Commercial Code financing statements are required in
order to effect such perfection;
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of
the Mortgaged Property covered thereby (as set forth in the related
Mortgage) after all advances of principal and is insured by an ALTA
lender's title insurance policy (except that if such policy is yet to be
issued, such insurance may be evidenced by a "marked up" pro forma policy
or title commitment in either case marked as binding and countersigned by
the title company or its authorized agent, either on its face or by an
acknowledged closing instruction or escrow letter), or its equivalent as
adopted in the applicable jurisdiction, insuring the lender and its
successors and assigns (as sole insured) as to such lien, subject only to
(a) the lien of current real property taxes, water charges, sewer rents
and assessments not yet delinquent or accruing interest or penalties, (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, none of which, individually or in the aggregate,
materially interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
borrower's ability to pay its obligations when they become due or the
value of the Mortgaged Property, (c) the exceptions (general and specific)
and exclusions set forth in such policy, none of which, individually or in
the aggregate, materially interferes with the current general use of the
Mortgaged Property or materially interferes with the security intended to
be provided by such Mortgage or with the related borrower's ability to pay
its obligations when they become due or the value of the Mortgaged
Property, (d) the rights of tenants, as tenants only, under leases,
including subleases, pertaining to the related Mortgaged Property, (e) if
the related Mortgage Loan is cross-collateralized with any other Mortgage
Loan in the trust fund, the lien of the mortgage instrument for that other
Mortgage Loan and (f) if the related Mortgaged Property is a unit in a
condominium, the related condominium declaration (items (a), (b), (c),
(d), (e) and (f) collectively, "Permitted Encumbrances") and with respect
to each Mortgage Loan, such Permitted Encumbrances do not, individually or
in the aggregate, materially interfere with the security intended to be
provided by the related Mortgage, the current principal use of the related
Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; the
premium for such policy was paid in full; such policy (or if it is yet to
be issued, the coverage to be afforded thereby) is issued by a title
insurance company licensed to issue policies in the state in which the
related Mortgaged Property is located (unless such state is Iowa) and is
assignable (with the related Mortgage Loan) to the Depositor and the
Trustee without the consent of or any notification to the insurer, and is
in full force and effect upon the consummation of the transactions
contemplated by the Mortgage Loan Purchase Agreement; no claims have been
made under such policy and the Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or
omission, which would impair or diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage
File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the
Mortgage Loan, as of the later of the date of origination of such Mortgage
Loan or the most recent inspection of the related Mortgaged Property by
the Seller, as applicable, and to the knowledge of Seller as of the date
hereof, each related Mortgaged Property is free of any material damage
that would affect materially and adversely the use or value of such
Mortgaged Property as security for the Mortgage Loan (normal wear and tear
excepted). If any of the inspection or engineering reports referred to
above in this Paragraph (xv) revealed any immediate repair items, then one
of the following is true: (a) the repairs and/or maintenance necessary to
correct such condition have been completed in all material respects; (b)
an escrow of funds is required or a letter of credit was obtained in an
amount reasonably estimated to be sufficient to complete the repairs
and/or maintenance necessary to correct such condition; or (c) the
reasonable estimation at the time of origination of the Mortgage Loan of
the cost to complete the repairs and/or maintenance necessary to correct
such condition represented no more than the greater of (i) $50,000 and
(ii) 2% of the value of the related Mortgaged Property as reflected in an
appraisal conducted in connection with the origination of the subject
Mortgage Loan; as of the closing date for each Mortgage Loan and, to the
Seller's knowledge, as of the date hereof, there is no proceeding pending
for the total or partial condemnation of such Mortgaged Property that
would have a material adverse effect on the use or value of the Mortgaged
Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the
originator of the Mortgage Loan inspected or caused to be inspected each
related Mortgaged Property within three months of origination of the
Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than
the ARD Loans which may have negative amortization from and after the
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to the lender or any other party;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the
date of origination with, or was exempt from, applicable state or federal
laws, regulations and other requirements pertaining to usury. Except to
the extent any noncompliance did not materially and adversely affect the
value of the related Mortgaged Property, the security provided by the
Mortgage or the related borrower's operations at the related Mortgaged
Property, any and all other requirements of any federal, state or local
laws, including, without limitation, truth-in-lending, real estate
settlement procedures, equal credit opportunity or disclosure laws,
applicable to such Mortgage Loan have been complied with as of the date of
origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process
of any Mortgage Loan and the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and prudent in accordance
with customary commercial mortgage lending standards, and no other person
has been granted or conveyed the right to service the Mortgage Loans or
receive any consideration in connection therewith, except as provided in
the Pooling and Servicing Agreement or any permitted subservicing
agreements and/or servicing rights purchase agreements being executed and
delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged
Property and that are or may become a lien of priority equal to or higher
than the lien of the related Mortgage have been paid or an escrow of funds
has been established and such escrow (including all escrow payments
required to be made prior to the delinquency of such taxes and
assessments) is sufficient to cover the payment of such taxes and
assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller
or its agent and there are no deficiencies (subject to any applicable
grace or cure periods) in connection therewith. All such escrows and
deposits are being conveyed by the Seller to the Depositor and identified
as such with appropriate detail. With respect to any disbursements made
from such escrows, any requirements for the disbursement of any such
escrows have been complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the
requirements of the Pooling and Servicing Agreement, in an amount not less
than the lesser of the principal amount of the related Mortgage Loan and
the replacement cost (with no deduction for physical depreciation) and not
less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the related Mortgaged Property; each related
Mortgaged Property is also covered by business interruption or rental loss
insurance which covers a period of not less than 12 months and
comprehensive general liability insurance in amounts generally required by
prudent commercial mortgage lenders for similar properties; all Mortgaged
Properties in California or in a seismic zone 4 or 5 have had a seismic
assessment done and earthquake insurance was obtained to the extent any
such Mortgaged Property has a probable maximum loss in the event of an
earthquake of greater than twenty percent (20%) of the replacement value
of the related improvements; if the Mortgaged Property for any Mortgage
Loan is located within Florida or within 25 miles of the coast of North
Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana or
Texas, then, such Mortgaged Property is insured by windstorm insurance in
an amount at least equal to the lesser of (i) the outstanding principal
balance of such Mortgage Loan and (ii) 100% of the insurable replacement
cost of the improvements located on the related Mortgaged Property; the
Mortgaged Properties securing all of the Mortgage Loans having a Stated
Principal Balance in excess of $3,000,000 have, as of the date hereof,
insurance policies in place with respect to acts of terrorism or damage
related thereto (excluding acts involving nuclear, biological or chemical
terrorism), except any such Mortgage Loans that are listed on the
applicable Exception Report. All premiums on such insurance policies
required to be paid as of the date hereof have been paid; such insurance
policies or the related insurance certificates require prior notice to the
insured of reduction in coverage, termination or cancellation, and no such
notice has been received by the Seller; such insurance names the lender
under the Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related
borrower to maintain all such insurance and, at such borrower's failure to
do so, authorizes the lender to maintain such insurance at the borrower's
cost and expense and to seek reimbursement therefor from such borrower;
(xxiv) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b)
event (other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of
acceleration, which default, breach, violation or event of acceleration,
in the case of either (a) or (b) would materially and adversely affect the
use or value of the Mortgage Loan or the related Mortgaged Property.
Notwithstanding the foregoing, this representation and warranty does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by
any other representation or warranty made by the Seller elsewhere in this
Exhibit A or the Exception Report;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (a) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure or, subject to applicable state law requirements,
appointment of a receiver, and (b) there is no exemption available to the
borrower which would interfere with such right to foreclose, except, in
the case of either (a) or (b), as the enforcement of the Mortgage may be
limited by bankruptcy, insolvency, reorganization, moratorium, redemption
or other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). No borrower is a debtor
in a state or federal bankruptcy or insolvency proceeding;
(xxvii) At origination, each borrower represented and warranted in
all material respects that to its knowledge, except as set forth in
certain environmental reports and, except as commonly used in the
operation and maintenance of properties of similar kind and nature to the
Mortgaged Property, in accordance with prudent management practices and
applicable law, and in a manner that does not result in any contamination
of the Mortgaged Property, it has not used, caused or permitted to exist
and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal,
state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials or other environmental laws; the related borrower agreed to
indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries,
penalties, fines, expenses, and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in
connection with such Mortgage Loan. A Phase I environmental report and
with respect to certain Mortgage Loans, a Phase II environmental report
was conducted by a reputable independent environmental consulting firm in
connection with such Mortgage Loan, which report did not indicate any
material non-compliance with applicable environmental laws or material
existence of hazardous materials or, if any material non-compliance or
material existence of hazardous materials was indicated in any such
report, then at least one of the following statements is true: (A) funds
reasonably estimated to be sufficient to cover the cost to cure any
material non-compliance with applicable environmental laws or material
existence of hazardous materials have been escrowed by the related
borrower and held by the related mortgagee; (B) if the environmental
report recommended an operations and maintenance plan, but not any
material expenditure of funds, an operations and maintenance plan has been
required to be obtained by the related borrower; (C) the environmental
condition identified in the related environmental report was remediated or
abated in all material respects prior to the date hereof; (D) a no further
action or closure letter was obtained from the applicable governmental
regulatory authority (or the environmental issue affecting the related
Mortgaged Property was otherwise listed by such governmental authority as
"closed"); (E) such conditions or circumstances identified in the Phase I
environmental report were investigated further and based upon such
additional investigation, an environmental consultant recommended no
further investigation or remediation; (F) a party unrelated to the
borrower with financial resources reasonably estimated to be adequate to
cure the condition or circumstance provided a guaranty or indemnity to the
related borrower to cover the costs of any required investigation,
testing, monitoring or remediation; (G) the expenditure of funds
reasonably estimated to be necessary to effect such remediation is not
greater than two percent (2%) of the outstanding principal balance of the
related Mortgage Loan; or (H) a lender's environmental insurance policy
was obtained and is a part of the related Mortgage File. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an
original principal balance of less than $3,000,000, no environmental
report may have been obtained, but (in such cases where a Phase I
environmental report was not obtained) a lender's secured creditor
impaired property environmental insurance policy was obtained with respect
to each such Mortgage Loan. Each of such secured creditor impaired
property environmental insurance policies is a part of the related
Mortgage File. Each of such environmental insurance policies is in full
force and effect, is in an amount not less than the 100% of the balance of
the related Mortgage Loan, has a term extending not less than 5 years
after the maturity date of the related Mortgage Loan, the premiums for
such policies have been paid in full and the Trustee is named as an
insured under each of such policies, the Seller has delivered to the
insurer all environmental reports in its possession. To the Seller's
knowledge, in reliance on such environmental reports and except as set
forth in such environmental reports, each Mortgaged Property is in
material compliance with all applicable federal, state and local
environmental laws, and to the Seller's knowledge, no notice of violation
of such laws has been issued by any governmental agency or authority,
except, in all cases, as indicated in such environmental reports or other
documents previously provided to the Rating Agencies; and the Seller has
not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining
to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage (and
the Mortgage requires the mortgagor to pay all fees and expenses
associated with obtaining such consent), the related Mortgaged Property is
directly or indirectly transferred or sold, and (2) except with respect to
transfers of certain interests in the related borrower to persons already
holding interests in the borrower, their family members, affiliated
companies and other estate planning related transfers that satisfy certain
criteria specified in the related Mortgage (which criteria is consistent
with the practices of prudent commercial mortgage lenders) or any
transfers in connection with the death or disability of owners of the
borrower, each Mortgage Loan also contains the provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage, (and
the Mortgage requires the mortgagor to pay all fees and expenses
associated with obtaining such consent) a majority interest in the related
borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments
onto adjoining parcels for which the Seller has obtained title insurance
against losses arising therefrom or that do not materially and adversely
affect the use or value of such Mortgaged Property. No improvements on
adjoining parcels encroach onto the related Mortgaged Property except for
encroachments that do not materially and adversely affect the value of
such Mortgaged Property, the security provided by the Mortgage, the
current use of the Mortgaged Property, or the related borrower's
operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the Mortgage Loan Schedule attached as an exhibit to this
Mortgage Loan Purchase Agreement is complete and accurate in all material
respects as of the dates of the information set forth therein (or, if not
set forth therein, as of the Cut-Off Date);
(xxxi) With respect to any Mortgage Loan where all or any portion of
the estate of the related borrower therein is a leasehold estate under a
ground lease, and the related Mortgage does not also encumber the related
lessor's fee interest in such Mortgaged Property, based upon the terms of
the ground lease and any estoppel received from the ground lessor, the
Seller represents and warrants that:
(1) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee,
its successors or assigns in a manner that would adversely affect
the security provided by the related Mortgage. To the Seller's
knowledge, there has been no material change in the terms of the
ground lease since its recordation, except by any written
instruments which are included in the related mortgage file;
(2) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not
be amended, modified, canceled or terminated without the prior
written consent of the lender and that any such action without such
consent is not binding on the lender, its successors or assigns;
(3) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and would be enforceable, by the
lender) that extends not less than 10 years beyond the amortization
term of the related Mortgage Loan;
(4) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to
any liens or encumbrances superior to, or of equal priority with,
the Mortgage, subject to Permitted Encumbrances and liens that
encumber the ground lessor's fee interest;
(5) Under the terms of the ground lease, the ground lease is
assignable to the lender and its assigns without the consent of the
lessor thereunder;
(6) The ground lease is in full force and effect, the Seller
has no actual knowledge that any default beyond applicable notice
and grace periods has occurred, and to the Seller's knowledge, there
is no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of the
ground lease;
(7) The ground lease or ancillary agreement, which is part of
the Mortgage File, between the lessor and the lessee requires the
lessor to give notice of any default by the lessee to the lender;
(8) The lender is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under the ground lease through legal
proceedings, or to take other action so long as the lender is
proceeding diligently) to cure any default under the ground lease
which is curable after the receipt of notice of any default before
the lessor may terminate the ground lease. All rights of the lender
under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(9) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent commercial mortgage lender. The lessor is not permitted to
disturb the possession, interest or quiet enjoyment of any subtenant
of the lessee in the relevant portion of the Mortgaged Property
subject to the ground lease for any reason, or in any manner, which
would adversely affect the security provided by the related
Mortgage;
(10) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the lender or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan, together with
any accrued interest, except that in the case of condemnation
awards, the ground lessor may be entitled to a portion of such
award;
(11) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of the
related Mortgaged Property will be applied first to the payment of
the outstanding principal balance of the Mortgage Loan, together
with any accrued interest (except as provided by applicable law or
in cases where a different allocation would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender,
taking into account the relative duration of the ground lease and
the related Mortgage and the ratio of the market value of the
related Mortgaged Property to the outstanding principal balance of
such Mortgage Loan). Until the principal balance and accrued
interest are paid in full, neither the lessee nor the lessor under
the ground lease will have an option to terminate or modify the
ground lease without the prior written consent of the lender as a
result of any casualty or partial condemnation; and
(12) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a
new lease upon termination of the ground lease for any reason,
including rejection of the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold
estate, but the related Mortgage also encumbers the related lessor's fee
interest in such Mortgaged Property: (a) such lien on the related fee
interest is evidenced by the related Mortgage, (b) such Mortgage does not
by its terms provide that it will be subordinated to the lien of any other
mortgage or encumbrance upon such fee interest, (c) upon the occurrence of
a default under the terms of such Mortgage by the related borrower, any
right of the related lessor to receive notice of, and to cure, such
default granted to such lessor under any agreement binding upon the lender
would not be considered commercially unreasonable in any material respect
by prudent commercial mortgage lenders, (d) the related lessor has agreed
in a writing included in the related Mortgage File that the related ground
lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on
the lender, its successors or assigns, and (e) the related ground lease is
in full force and effect, and the Seller has no actual knowledge that any
default beyond applicable notice and grace periods has occurred or that
there is any existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of such ground
lease;
(xxxiii) With respect to Mortgage Loans that are
cross-collateralized or cross-defaulted, all other loans that are
cross-collateralized by or cross-defaulted with such Mortgage Loans are
being transferred to the Depositor;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan,
other than contributions made on or prior to the date hereof;
(xxxv) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an appraisal
satisfying the requirements of FIRREA conducted within 12 months of the
origination of the Mortgage Loan, was at least equal to 80% of the
principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time when the Mortgage Loan
was not in default or default with respect thereto was not reasonably
foreseeable, the date of the last such modification) or (b) at the date
hereof; provided that the fair market value of the real property must
first be reduced by (A) the amount of any lien on the real property
interest that is senior to the Mortgage Loan and (B) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such
other lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by
the lender or any mezzanine debt related to such Mortgaged Property,
except as set forth in the Prospectus Supplement, this Exhibit A or in the
Exception Report to this Mortgage Loan Purchase Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection with
each Mortgage Loan having an original principal balance in excess of
$5,000,000 require that the related borrower be a single-purpose entity
(for this purpose, "single-purpose entity" shall mean an entity, other
than an individual, having organizational documents which provide
substantially to the effect that it is formed or organized solely for the
purpose of owning and operating one or more Mortgaged Properties, is
prohibited from engaging in any business unrelated to such property and
the related Mortgage Loan, does not have any assets other than those
related to its interest in the related Mortgaged Property or its
financing, or any indebtedness other than as permitted under the related
Mortgage Loan). To the Seller's actual knowledge, each borrower has fully
complied with the requirements of the related Mortgage Note and Mortgage
and borrower's organizational documents regarding Single-Purpose Entity
status;
(xxxviii) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the borrower, without the prior written
consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified in the Note or Mortgage which would be
acceptable to a reasonably prudent commercial mortgage lender, and, except
in connection with trade debt and equipment financings in the ordinary
course of borrower's business, from carrying any additional indebtedness,
except, in each case, liens contested in accordance with the terms of the
Mortgage Loans or, with respect to each Mortgage Loan having an original
principal balance of less than $4,000,000, any unsecured debt;
(xxxix) Each borrower covenants in the Mortgage Loan documents that
it shall remain in material compliance with all material licenses, permits
and other legal requirements necessary and required to conduct its
business;
(xl) Each Mortgaged Property (a) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting
ingress and egress, (b) is served by public utilities and services
generally available in the surrounding community or otherwise appropriate
for the use in which the Mortgaged Property is currently being utilized,
and (c) constitutes one or more separate tax parcels or is covered by an
endorsement with respect to the matters described in (a), (b) or (c) under
the related title insurance policy (or the binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency or the Secretary of Housing and Urban
Development as having special flood hazards categorized as Zone "A" or
Zone "V" and flood insurance is available, the terms of the Mortgage Loan
require the borrower to maintain flood insurance, or at such borrower's
failure to do so, authorizes the Lender to maintain such insurance at the
cost and expense of the borrower and such insurance is in full force and
effect in an amount not less than the lesser of (1) the replacement cost
of the material improvements on such Mortgaged Property, (2) the balance
of the Mortgage Loan and (3) the maximum amount of insurance available
under the applicable National Flood Insurance Administration Program;
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently
so serves and is named in the deed of trust or has been substituted in
accordance with applicable law or may be substituted in accordance with
applicable law by the related mortgagee, and except in connection with a
trustee's sale after a default by the related borrower, no fees are
payable to such trustee, and such fees payable are payable by the
borrower;
(xliii) Except as disclosed in the Exception Report to this Mortgage
Loan Purchase Agreement, to the knowledge of the Seller as of the date
hereof, there was no pending action, suit or proceeding, arbitration or
governmental investigation against any borrower or Mortgaged Property, an
adverse outcome of which would materially and adversely affect such
borrower's ability to perform under the related Mortgage Loan;
(xliv) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of
preferred equity interests by the preferred equity interest holder, as
disclosed in the Prospectus Supplement), and no funds have, to the
Seller's knowledge, been received from any person other than, or on behalf
of, the related borrower, for, or on account of, payments due on the
Mortgage Loan;
(xlv) To the extent required under applicable law, as of the Cut-off
Date or as of the date that such entity held the Note, each holder of the
Note was authorized to transact and do business in the jurisdiction in
which each related Mortgaged Property is located, or the failure to be so
authorized did not materially and adversely affect the enforceability of
such Mortgage Loan;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except as disclosed in the Exception Report to this Mortgage
Loan Purchase Agreement or the Prospectus Supplement with respect to the
Crossed Loans and Multiple Property Loans, no Mortgage Loan requires the
lender to release any portion of the Mortgaged Property from the lien of
the related Mortgage except upon (a) payment in full or defeasance of the
related Mortgage Loan, (b) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, which in all events include payment of a release price
at least 125% of the appraised value of the property to be released or of
the allocated loan amount of such property or (c) releases of unimproved
out-parcels or (d) releases of other portions of the Mortgaged Property
which will not have a material adverse effect on the use or value of the
collateral for the related Mortgage Loan and which were given no value in
the appraisal of the Mortgaged Property or of that portion of the
Mortgaged Property used to calculate the loan-to-value ratio of the
Mortgaged Property for underwriting purposes. No release or partial
release of any Mortgaged Property, or any portion thereof, expressly
permitted or required pursuant to the terms of any Mortgage Loan would
constitute a significant modification of the related Mortgage Loan under
Treas. Reg. Section 1.860G-2(b)(2);
(xlviii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or
part of the related Mortgaged Property, with, in the case of all casualty
losses or takings in excess of a specified amount or percentage of the
related loan amount that a prudent commercial lender would deem
satisfactory and acceptable, the lender (or a trustee appointed by it)
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in any case where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender) or (b)
to the payment of the outstanding principal balance of such Mortgage Loan
together with any accrued interest thereon;
(xlix) (l) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property and each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller was, and each Form UCC-3 assignment, if
any, of such financing statement in blank which the Trustee or its
designee is authorized to complete (but for the insertion of the name of
the assignee and any related filing information which is not yet available
to the Seller) is, in suitable form for filing in the filing office in
which such financing statement was filed;
(l) To the Seller's knowledge, (a) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original
principal balance less than $2,500,000) of the net leaseable area of the
related Mortgaged Property is in full force and effect and (b) there
exists no default under any such commercial lease either by the lessee
thereunder or by the related borrower that could give rise to the
termination of such lease;
(li) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the
improvements located on or forming part of each Mortgaged Property comply
with applicable zoning laws and ordinances, or constitute a legal
non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the
value of the related Mortgaged Property. With respect to properties with a
Stated Principal Balance of over $10,000,000, if the related Mortgaged
Property does not so comply, to the extent the Seller is aware of such
non-compliance, it has required the related borrower to obtain law and
ordinance insurance coverage in amounts customarily required by prudent
commercial mortgage lenders;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulation (as defined herein) Section 1.860G-2(f)(2)
that treats a defective obligation as a qualified mortgage or any
substantially similar successor provision), the related Mortgaged
Property, if acquired by a REMIC in connection with the default or
imminent default of such Mortgage Loan would constitute "foreclosure
property" within the meaning of Code Section 860G(a)(8) and all Prepayment
Premiums and Yield Maintenance Charges constitute "customary prepayment
penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (i) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (ii) the borrower can
pledge only United States government securities in an amount sufficient to
make all scheduled payments under the Mortgage Loan when due, (iii) the
borrower is required to provide independent certified public accountant's
certification that the collateral is sufficient to make such payments,
(iv) the loan may be required to be assumed by a single-purpose entity
designated by the holder of the Mortgage Loan, (v) the borrower is
required to provide an opinion of counsel that the trustee has a perfected
security interest in such collateral prior to any other claim or interest,
(vi) the borrower is required to pay all Rating Agency fees associated
with defeasance (if rating confirmation is a specific condition precedent
thereto) and all other reasonable expenses associated with defeasance,
including, but not limited to, accountant's fees and opinions of counsel,
(vii) with respect to any Significant Loan (as defined in the Pooling and
Servicing Agreement), the borrower is required to provide an opinion of
counsel that such defeasance will not cause any REMIC created under the
Pooling and Servicing Agreement to fail to qualify as a REMIC for federal
or applicable state tax purposes and (viii) with respect to any
Significant Loan (as defined in the Pooling and Servicing Agreement), the
borrower must obtain confirmation from each Rating Agency that the
defeasance would not result in such Rating Agency's withdrawal, downgrade
or qualification of the then current rating of any class of Certificates
rated by such Rating Agency;
(liv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the lender for any
losses incurred by the lender due to (i) the misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (ii)
any willful act of material waste, (iii) any breach of the environmental
covenants contained in the related Mortgage Loan Documents, and (iv) fraud
by the related borrower; provided that, with respect to clause (iii) of
this sentence, an indemnification against losses related to such
violations or environmental insurance shall satisfy such requirement;
(lv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (i) its Mortgage Rate
will increase by no less than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan
is an asset of the Trust Fund; (ii) its Anticipated Repayment Date is not
less than seven years following the origination of such Mortgage Loan;
(iii) no later than the related Anticipated Repayment Date, if it has not
previously done so, the related borrower is required to enter into a
"lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled
by the Master Servicer; and (iv) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in
excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvi) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same borrower and to
borrowers that are Affiliates, accounted for more than 5.0% of the
aggregate of the Stated Principal Balances of all of the mortgage loans
sold to the Depositor by Column Financial, Inc., PNC Bank, National
Association and KeyBank pursuant to those certain Mortgage Loan Purchase
Agreements, each dated as of December 1, 2003 between the Depositor and
Column Financial, Inc., PNC Bank, National Association and KeyBank,
respectively, as of the Cut-Off Date;
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or
acquisition of each Mortgage Loan, the Seller obtained an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Seller's actual knowledge, had no interest, direct or
indirect, in the borrower, the Mortgaged Property or in any loan made on
the security of the Mortgaged Property, and whose compensation was not
affected by the approval or disapproval of the Mortgage Loan; and
(lviii) Each Mortgage Loan bears interest at a rate that remains
fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of KeyBank National
Association ("KeyBank");
2. that KeyBank is the owner and holder of a mortgage loan in the
original principal amount of $ secured by a mortgage (the "Mortgage") on the
premises known as ________________ located in ____________________;
3. (a) that KeyBank, after having conducted a diligent investigation
of its records and files, has been unable to locate the following original note
and believes that said original note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a note in the original sum of $____________ made by _____________,
to KeyBank, under date of ______________ (the "Note");
4. that the Note is now owned and held by KeyBank;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except KeyBank; and
7. upon assignment of the Note by KeyBank to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor") and subsequent assignment by
the Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2003-C5 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by KeyBank to the Trustee) KeyBank
covenants and agrees (a) promptly to deliver to the Trustee the original Note if
it is subsequently found, and (b) to indemnify and hold harmless the Trustee and
its successors and assigns from and against any and all costs, expenses and
monetary losses arising as a result of KeyBank's failure to deliver said
original Note to the Trustee.
KEYBANK NATIONAL ASSOCIATION
By:_______________________________________
Name:
Title:
Sworn to before me this
day of December 5, 2003
EXHIBIT C
FORM OF
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KNOW ALL MEN BY THESE PRESENTS:
THAT, as of ____, Keybank National Association, a national banking
association, whose address is ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ("ASSIGNOR") in consideration of ten and 00/100 ($10.00) dollars and other
good and valuable consideration, paid by ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
trustee for Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2003-C5, whose address is ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("ASSIGNEE"), receipt of which is
acknowledged by ASSIGNOR, hereby sells, assigns, transfers, sets over and
conveys unto the ASSIGNEE certain mortgage(s) and assignments of leases, rents
and profits and other collateral documents as follows:
See Schedule "A" attached hereto and incorporated
herein by this reference.
TOGETHER with the note(s), debt(s) and claim(s) secured by said
mortgage(s) and the covenants contained in said mortgage(s), together with all
amendments, supplements and modifications thereto and all liens, financing
statements, guaranties and security interests securing the payment of such
notes, including, without limitation, any other documents recorded in the real
property records of the jurisdiction in which the real property covered by the
mortgage(s) is located with respect to such notes, and any other documents,
agreements, instruments or property relating to such loan(s) and all right,
title, interest, claims, demands, causes of action and judgments securing or
relating to such loan(s); TO HAVE AND TO HOLD the same unto the ASSIGNEE and to
the successors, legal representatives and assigns of the ASSIGNEE forever.
THIS ASSIGNMENT is made without recourse or representation or
warranty of any kind or nature, express or implied except as expressly set forth
in that certain Mortgage Loan Purchase Agreement, dated as of December 1, 2003
among ASSIGNOR and Credit Suisse First Boston Mortgage Securities Corp.
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment
the __ day of ________ 2003.
IN PRESENCE OF:
[corporate seal]
KEYBANK NATIONAL ASSOCIATION
By:___________________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On this __________ day of ____________, 2003, before me the
undersigned, a NOTARY PUBLIC OF ________________________, personally appeared
_______________, as ________ of KeyBank National Association, a national banking
association, who, I am satisfied, was the maker of the foregoing instrument and
who then stated and acknowledged to me that, as such officer and maker (1) he
was authorized to execute the foregoing instrument on behalf of said company and
(2) he executed said instrument as the act and deed of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in ________________________________________ the day
and year last above written.
_____________________________________
Signature
_____________________________________
Print Name
Residing at ________________________
________________________
________________________
A NOTARY PUBLIC OF __________________
[AFFIX SEAL] My Commission expires on ____________
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KEYBANK NATIONAL ASSOCIATION
TO
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., AS TRUSTEE
RECORD AND RETURN TO: