EXHIBIT 4.5
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2004
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TABLE OF CONTENTS
Section 1. Transactions on or Prior to the Closing Date..................
Section 2. Closing Date Actions..........................................
Section 3. Conveyance of Mortgage Loan...................................
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. Reserved......................................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance...................................................
Section 10. Representations and Warranties of Depositor...................
Section 11. Survival of Certain Representations, Warranties and
Covenants....................................................
Section 12. Transaction Expenses..........................................
Section 13. Recording Costs...............................................
Section 14. Notices.......................................................
Section 15. Examination of Mortgage File..................................
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 ▇▇▇▇▇▇ Loan
Schedule III Exceptions with Respect to Seller's Representations and
Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage
Loan
Exhibit B Form of Lost Mortgage Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of December 1, 2004, is made by and between ▇▇▇▇▇▇ BROTHERS HOLDINGS INC., a
Delaware corporation ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement as in effect on the
Closing Date.
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
50% of one co-originated mortgage loan identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Schedule II (such co-originated mortgage loan,
the "Whole Loan" or the "Time Warner Whole Loan"; the 50% of the Whole Loan
being sold hereunder, the "Mortgage Loan"; and the remaining 50% of the Whole
Loan, the "Other Loan"). Depositor intends to deposit the Mortgage Loan and
other assets into a trust fund (the "Trust Fund") created pursuant to the
Pooling and Servicing Agreement and to cause the issuance of the Certificates.
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, together with Column Financial, Inc. ("Column"),
shall have delivered the Mortgage File with respect to the Mortgage Loan to
▇▇▇▇▇ Fargo Bank, N.A., as trustee (the "Trustee"), against receipt by Seller of
a trust receipt, pursuant to an arrangement between Seller, Column and the
Trustee. The Depositor hereby acknowledges that it has entered into a separate
mortgage loan purchase agreement with Column to purchase a pool of multifamily
commercial mortgage loans that includes the Other Loan. The parties hereto
acknowledge and agree that the Mortgage Loan Documents identified in clauses (b)
through (r) of Section 3 will relate to the entire Whole Loan, and a single set
of such Mortgage Loan Documents will be delivered with respect to both the
Mortgage Loan and the Other Loan.
Section 2. Closing Date Actions. The sale of the Mortgage Loan shall
take place on the Closing Date, subject to and simultaneously with the deposit
of the Mortgage Loan into the Trust Fund, the issuance of the Certificates and
the sale of (a) the Publicly Offered Certificates by Depositor to the
Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ 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 Loan pursuant to this Agreement for the Mortgage
Loan Purchase Price (as defined herein). The Mortgage Loan Purchase Price
shall be paid by Depositor to Seller by wire transfer in immediately
available funds to an account designated by Seller on or prior to the
Closing Date (or, by such other method as shall be mutually acceptable to
Depositor and Seller). The "Mortgage Loan Purchase Price" paid by
Depositor shall be equal to the amount that the Depositor and the Seller
have mutually agreed upon (which amount includes, without limitation,
accrued interest).
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loan to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loan. On the Closing Date, Seller
shall sell, convey, assign and transfer, without recourse except as expressly
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)
the Mortgage Loan; and (ii) all property of Seller described in Section 21(b) of
this Agreement, including, without limitation, (A) all scheduled payments of
interest and principal due on or9 with respect to the Mortgage Loan after the
Cut-off Date and (B) all other payments of interest, principal or yield
maintenance charges received on or with respect to the Mortgage Loan after the
Cut-off Date, other than any such payments of interest or principal or yield
maintenance charges that were due on or prior to the Cut-off Date. The Mortgage
File for the Mortgage Loan shall consist of the following documents:
(a) an original Note (or 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 by the Seller, on its
face or by allonge attached thereto, without recourse, in blank or to the order
of the Trustee in the following form: "Pay to the order of ▇▇▇▇▇ Fargo Bank,
N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-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 or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to the Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(c) an original assignment of Mortgage, in recordable form (except
for any missing recording information, execution by Column as the other
assignor, 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, N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-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 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), in recordable form (except
for any missing recording information, execution by Column as the other assignor
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, N.A., as
trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-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, N.A., as
trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-C5," which assignment will be subject to execution by Column as the other
assignor and 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 (if applicable) 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) or interim binder that is marked as
binding and countersigned by the title company, insuring the priority of the
Mortgage lien on the Mortgaged Property relating to the 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 that is described in the related Mortgage
or a separate security agreement, and original UCC Financing Statement
assignments in a form suitable for filing or recording, sufficient to transfer
such security interest to the Trustee (subject, however, to any required action
on the part of Column as the other assignor);
(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
Mortgage Loan, an original or copy of a subordination agreement, standstill
agreement or other intercreditor, co-lender or similar agreement relating to
such other debt, if any;
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related cash collateral control agreement
or lock-box control agreement, as applicable, and a copy of the UCC Financing
Statements, if any, submitted for filing with respect to the Seller's security
interest in the Cash Collateral Accounts and Lock-Box Accounts and all funds
contained therein (together with UCC Financing Statement assignments in a form
suitable for filing or recording, sufficient to transfer such security interest
to the Trustee on behalf of the Certificateholders);
(o) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related Lock-Box
Agreement or Cash Collateral Agreement (if separate from the related Mortgage
and Loan Agreement);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loan;
(q) any related environmental insurance policies and any
environmental guaranty or indemnity agreements or copies thereof; and
(r) if applicable post-Closing (and not for purposes of the Seller's
delivery obligations), any additional documents required to be added to the
Mortgage File pursuant to Section 3.20(i) of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, in the event that, in connection with
the Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the documents
and/or instruments required to be delivered pursuant to clauses (b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (l) and (n)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with
(provided that with respect to clause (h)(B) above, if applicable) evidence of
recording or filing thereon on the Closing Date, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, then the Seller or
Column: (i) shall deliver, or cause to be delivered, to the Trustee a duplicate
original or true copy of such document certified by the applicable public
recording or filing office, the applicable title insurance company, or the
Seller or Column, as applicable, to be a true and complete duplicate original or
copy of the original thereof submitted for recording or filing; and (ii) shall
deliver, or cause to be delivered, to the Trustee, if and when received, either
the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate public recording or filing office to be a
true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, within 120 days of the
Closing Date, which period may be extended up to two times, in each case for an
additional period of 45 days (provided that the Seller, as certified in writing
to the Trustee prior to each such 45-day extension, is in good faith attempting
to obtain from the appropriate county recorder's office such original or
photocopy). Compliance with this paragraph will satisfy the Seller's delivery
requirements under this Section 3 with respect to the subject document(s).
Notwithstanding the foregoing, in the event that, in connection with
the Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the documents
and/or instruments required to be delivered pursuant to clauses (b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be recorded or filed
other than in accordance with the transfer contemplated by this Agreement), (l)
and (n) (other than assignments of UCC Financing Statements to be recorded or
filed in accordance with the transfer contemplated by this Agreement) above with
(provided that with respect to clause (h)(B) above, if applicable) 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 on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver any UCC Financing Statement assignment with the filing information of
the related UCC Financing Statement with respect to the Mortgage Loan, solely
because such UCC Financing Statement has not been returned by the public filing
office where such UCC Financing Statement has been delivered for filing, the
Seller shall so notify the Trustee and shall not be in breach of its obligations
with respect to such delivery, provided that the Seller promptly forwards such
UCC Financing Statement to the Trustee upon its return, together with the
related original UCC Financing Statement assignment in a form appropriate for
filing.
The Seller or Column may, at its sole cost and expense, but is not
obligated to, engage a third party contractor to prepare or complete in proper
form for filing or recording any and all assignments of Mortgage, assignments of
Assignments of Leases and assignments of UCC Financing Statements to the Trustee
to be delivered pursuant to clauses (c), (e), (k) and (n) above (collectively,
the "Assignments"), to submit the Assignments for filing and recording, as the
case may be, in the applicable public filing and recording offices and to
deliver those Assignments to the Trustee or its designee as those Assignments
(or certified copies thereof) are received from the applicable filing and
recording offices with evidence of such filing or recording indicated thereon.
In the event the Seller engages a third party contractor as contemplated in the
immediately preceding sentence, the rights, duties and obligations of the Seller
pursuant to this Agreement remain binding on such Seller; and, if the Seller
does not engage a third party as contemplated by the immediately preceding
sentence, then the Seller will still be liable for 50% of the recording and
filing fees and expenses of the Assignments as and to the extent contemplated by
Section 13 hereof.
Within ten (10) Business Days after the Closing Date, the Seller
shall (subject to the performance by Column of any required action on its part)
deliver the Servicer File with respect to the Mortgage Loan to the Master
Servicer under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. The Servicer File shall contain
all documents and records in the Seller's possession relating to the Mortgage
Loan (including reserve and escrow agreements, rent rolls, leases, environmental
and engineering reports, third-party underwriting reports, appraisals, surveys,
legal opinions, estoppels, financial statements, operating statements and any
other information provided by the respective Borrower from time to time, but
excluding any attorney/client privileged communications and documents prepared
by the Seller or any of its Affiliates solely for internal communication or any
draft documents, correspondence, credit underwriting or due diligence analyses
or information, credit committee briefs or memoranda or other internal approval
documents or data or internal worksheets, memoranda, communications or
evaluations).
In addition, if any Additional Collateral with respect to the
Mortgage Loan is in the form of a letter of credit as of the Closing Date, the
Seller (subject to the performance by Column of any required action on its part)
shall cause to be prepared, executed and delivered to the issuer of each such
letter of credit such notices, assignments and acknowledgements as are required
under such letter of credit to assign, without recourse, to, and vest in, the
Trustee (whether by actual assignment or by amendment of the letter of credit)
the Seller's rights as the beneficiary thereof and drawing party thereunder. The
designated beneficiary under each letter of credit referred to in the preceding
sentence shall be the Trustee.
The Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, subject to the
performance by Column of any required action on its part, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loan in the
name of the Seller (if any), to be transferred to the Master Servicer (or a
Sub-Servicer at the direction of the Master Servicer) for deposit into Servicing
Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loan, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loan from Seller to Depositor pursuant
hereto, the ownership of the Note, the 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 Mortgage Loan prepared by or which come into the
possession of Seller as seller of the Mortgage Loan hereunder, exclusive in each
case of records and documents that are not required to be delivered hereunder by
Seller, shall immediately vest in Depositor. All Monthly Payments, Principal
Prepayments and other amounts received by Seller and not otherwise belonging to
Seller pursuant to this Agreement shall be sent by Seller within three (3)
Business Days after Seller's receipt thereof to the Master Servicer via wire
transfer for deposit by the Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loan to the Depositor, as provided
herein, as a sale of the Mortgage Loan to the Depositor in exchange for the
consideration specified in Section 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Regardless of its treatment
of the transfer of the Mortgage Loan to the Depositor under GAAP, Seller shall
at all times following the Closing Date cause all of its records and financial
statements and any relevant consolidated financial statements of any direct or
indirect parent to clearly reflect that the Mortgage Loan has been transferred
to the Depositor and is no longer available to satisfy claims of Seller's
creditors.
After Seller's transfer of the Mortgage Loan to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of the Depositor's assignees) of the Mortgage
Loan. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loan by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loan and pay the Mortgage Loan Purchase Price
at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of the Seller required to be performed
by it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects; all
of the representations and warranties of Seller under this Agreement (subject to
the exceptions in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; and no event shall have occurred with
respect to the Seller or the Mortgage Loan and the Mortgage File which, with
notice or the passage of time, would constitute a material default under this
Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or the
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Depositor and the Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage File which shall have been delivered to and held by
the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of the Seller confirming its representations
and warranties set forth in Section 6 (subject to the exceptions in the
Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by the Depositor;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loan or Seller and its Affiliates as are
reasonably requested by the Depositor in order for the Depositor to
perform any of it obligations or satisfy any of the conditions on its part
to be performed or satisfied pursuant to a sale of the Mortgage Loan by
the Depositor as contemplated herein.
(c) The Seller shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) If requested, the Seller shall have delivered to the Trustee, on
or before the Closing Date, five limited powers of attorney in favor of the
Trustee and 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 and Column, the Mortgage Loan Documents required to be
recorded and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage File. If requested by the Trustee or
the Special Servicer after the Closing Date, the Seller shall deliver to the
Trustee or the Special Servicer, as applicable, the powers of attorney described
in the prior sentence in form and substance reasonably acceptable to the
requesting party.
(e) The Seller shall have paid or caused to be paid upfront all the
annual fees of each Rating Agency allocable to the Mortgage Loan.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(B) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
(c) The Depositor shall have performed or complied with all other
terms and conditions of this Agreement which it is required to perform or comply
with at or before the Closing and shall have the ability to perform or comply
with all duties, obligations, provisions and terms which it is required to
perform or comply with after Closing.
Section 6. Representations and Warranties of Seller. (a) Seller
represents and warrants to Depositor as of the date hereof, as follows:
(i) Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
Seller has conducted and is conducting its business so as to comply in all
material respects with all applicable statutes and regulations of
regulatory bodies or agencies having jurisdiction over it, except where
the failure so to comply would not have a materially adverse effect on the
performance by Seller of this Agreement, and there is no charge,
investigation, action, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to materially
and adversely affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey all of its right, title and interest in, to and under
the Mortgage Loan and to execute and deliver this Agreement (and all
agreements and documents executed and delivered by Seller in connection
herewith) and to perform all obligations of Seller contemplated by this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith). Seller has duly authorized the execution,
delivery and performance of this Agreement (and all agreements and
documents executed and delivered by Seller in connection herewith), and
has duly executed and delivered this Agreement (and all agreements and
documents executed and delivered by Seller in connection herewith). This
Agreement (and each agreement and document executed and delivered by
Seller in connection herewith), assuming due authorization, execution and
delivery thereof by each other party thereto, constitutes the legal, valid
and binding obligation of Seller enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, fraudulent
transfer, insolvency, reorganization, receivership, moratorium or other
laws relating to or affecting the rights of creditors generally, by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and by considerations of
public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
organizational documents; (B) conflict with, result in a breach of, or
constitute a default or result in an acceleration under, any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound if compliance therewith is necessary (1) to ensure
the enforceability of this Agreement or (2) for Seller to perform its
duties and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (C) conflict
with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of the Depositor to realize on the Mortgage Loan.
(iv) Seller is solvent and the sale of the Mortgage Loan (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loan, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of the
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loan, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except that Seller may not be
duly qualified to transact business as a foreign corporation or licensed
in one or more states if such qualification or licensing is not necessary
to ensure the enforceability of this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loan, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loan constitutes at least fair consideration and reasonably
equivalent value for the Mortgage Loan.
(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 Loan
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loan does not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loan to the Depositor
hereunder except for (A) the reimbursement of expenses as described herein
or otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions in the Exception Report, are true and
correct in all material respects as of the date hereof (or, in each case,
as of such other date specifically set forth in the subject representation
and warranty) with respect to the Mortgage Loan identified on Schedule II.
(b) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Trustee as the holder of
the Mortgage Loan to be replaced, with respect to any replacement mortgage loan
(the "Replacement Mortgage Loan") that is substituted for the Mortgage Loan as a
result of the existence of a Material Defect or a Material Breach, pursuant to
Section 7 of this Agreement, each of the representations and warranties set
forth in Exhibit A hereto (subject to exceptions disclosed at such time)
(references therein to "Closing Date" being deemed to be references to the "date
of substitution" and references therein to "Cut-off Date" being deemed to be
references to the "most recent due date for the subject Replacement Mortgage
Loan on or before the date of substitution"). From and after the date of
substitution, the Replacement Mortgage Loan, if any, shall be deemed to
constitute the "Mortgage Loan" hereunder for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loan and shall continue
in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage File or other documents evidencing or relating to the Mortgage Loan or
any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loan from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases but shall not inure to the benefit of any subsequent transferee
thereafter.
If the Seller receives notice of a breach of any of the
representations or warranties contained in Exhibit A hereto and made by the
Seller with respect to the Mortgage Loan, as of the date hereof in Section
6(a)(xii) or as of the Closing Date pursuant to Section 4(b)(iii), or with
respect to a Replacement Mortgage Loan, as of the date of substitution pursuant
to Section 6(b) (in any such case, a "Breach"), or receives notice that (A) any
document required to be included in the Mortgage File related to the Mortgage
Loan has not been delivered to the Trustee within the time period required
herein or (B) any such document has not been properly executed or is otherwise
defective on its face (the circumstances in the foregoing clauses (A) and (B),
in each case, a "Defect" (including the "Defects" described below) in the
related Mortgage File), and if such Breach or Defect, as the case may be,
materially and adversely affects the value of the Mortgage Loan or the interests
of the Certificateholders therein (any Breach or Defect that materially and
adversely affects the value of the Mortgage Loan or the interests of the
Certificateholders therein, a "Material Breach" and a "Material Defect",
respectively), then the Seller shall, upon request of the Depositor, the
Trustee, the Master Servicer or the Special Servicer, not later than the earlier
of 90 days from the receipt by the Seller of such request (subject to the second
succeeding paragraph, the "Initial Resolution Period"): (i) cure such Breach or
Defect in all material respects; (ii) repurchase the affected Mortgage Loan at a
price equal to 50% of the applicable Purchase Price for the Whole Loan; or (iii)
substitute, in accordance with the Pooling and Servicing Agreement, one or more
Qualified Substitute Mortgage Loans for the Mortgage Loan (provided that in no
event shall any substitution occur later than the second anniversary of the
Closing Date) and pay any Substitution Shortfall Amount (which Substitution
Shortfall Amount shall be calculated based on a "Purchase Price" equal to 50% of
the applicable Purchase Price for the Whole Loan) 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 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. With respect to any substitution of one or more Qualified
Substitute Mortgage Loans for the Mortgage Loan hereunder, (A) no such
substitution may be made in any calendar month after the Determination Date for
such month; (B) scheduled payments of principal and interest due with respect to
the Qualified Substitute Mortgage Loan(s) after the related date of 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) on or
prior to the related date of substitution shall not be part of the Trust Fund,
and 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 Certificateholders in and the value of the
Mortgage Loan: (a) the absence from the Mortgage File of the original signed
Note, unless the Mortgage File contains a signed lost note affidavit and
indemnity; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a certified copy of the
Mortgage as recorded or as sent for recordation, together with a certificate
stating that the original signed Mortgage was sent for recordation, or a copy of
the Mortgage and the related recording information; (c) the absence from the
Mortgage File of the item called for by clause (i) of the definition of Mortgage
File in Section 3; (d) the absence from the Mortgage File of any intervening
assignments required to create an effective assignment to the Trustee on behalf
of the Trust, unless there is included in the Mortgage File a certified copy of
the intervening assignment, together with a certificate stating that the
original intervening assignments were sent for recordation, or a copy of the
assignment and the related recording information; or (e) the absence from the
Mortgage File of any required original letter of credit, provided that such
Defect may be cured by any substitute letter of credit or cash reserve on behalf
of the Borrower.
Any Defect or Breach which causes the Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed to materially and adversely affect the interest of
Certificateholders therein and the Initial Resolution Period for the affected
Mortgage Loan shall be 90 days following the earlier of the discovery of such
Defect or Breach by any party to the Pooling and Servicing Agreement (so long as
Seller received prompt notice thereof pursuant to this Section 7) or Seller's
discovery of such Defect or Breach (which period shall not be subject to
extension).
If the Seller does not, as required by this Section 7, correct or
cure a Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such 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.
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 the Mortgage Loan, the Seller will not
be obligated to repurchase or substitute for the entire Mortgage Loan if the
Mortgaged Loan may, pursuant to the terms of the Mortgage Loan Documents, be
severed to allow for the repurchase of a portion of the Mortgage Loan
representing the affected Mortgaged Property and the Mortgage Loan remaining
after such severance satisfies 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 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 Mortgage Loan Documents, any additional
amounts necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by the Master Servicer, the Special Servicer, the Trustee or the Trust
Fund in connection therewith, including any unreimbursed advances and interest
thereon made with respect to the Mortgaged Property that is being released, and
(iii) such cure by release of such Mortgaged Property is effected within the
time periods specified for 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 Loan 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 (and,
in the case of a substitution, the Mortgage File for the related Qualified
Substitute Mortgage Loan), shall promptly release the Mortgage File, Servicer
File, escrow funds and reserves for such Mortgage Loan (if any), or cause them
to be released, to Seller and shall execute and deliver such instruments of
transfer or assignment as shall be necessary to vest in the Seller the legal and
beneficial ownership of the Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the 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 the Mortgage Loan
constitute the sole remedies available to the Depositor and its successors and
assigns against Seller respecting any Breach or Defect affecting the Mortgage
Loan.
Notwithstanding the foregoing, if the Seller is required to
repurchase the Mortgage Loan as provided in this Section 7, then the Seller
shall have the option (in its sole discretion) to purchase the Whole Loan at the
Purchase Price, provided that Column does not repurchase the Other Loan. In
addition, if the Seller repurchases the Mortgage Loan as provided in this
Section 7 and the Other Loan remains in the Trust Fund because Column does not
repurchase the Other Loan, then the Trust Fund shall reasonably negotiate a
co-lender agreement with the Seller in form and substance satisfactory to both
the Trust Fund and the Seller, subject to any Rating Agency confirmation
pursuant to the Pooling and Servicing Agreement.
Section 8. Reserved.
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. The Seller shall pay 50% of all Rating Agency fees (for the Whole
Loan) associated with an assumption of the Mortgage Loan to the extent such fees
have not been paid by the Borrower and the Borrower is not required to pay them
under the terms of the Mortgage Loan Documents in effect on or before the
Closing Date, the payment of which fees shall constitute the sole remedy of any
breach by a Seller of representation (xxviii)(1) set forth on Exhibit A hereto.
The Seller shall pay 50% of all reasonable costs and expenses (for the Whole
Loan) associated with a defeasance of the Mortgage Loan to the extent such costs
and expenses have not been paid by the Borrower and the Borrower is not required
to pay them under the terms of the Mortgage Loan Documents in effect on or
before the Closing Date, the payment of which fees shall constitute the sole
remedy of any breach by a Seller of representation (liv)(F) set forth on Exhibit
A hereto.
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, 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 9 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. Transaction Expenses. Whether or not this Agreement is
terminated, both the Depositor and the Seller agree to pay the transaction
expenses incurred in connection with the transactions herein contemplated as set
forth in the Closing Statement.
Section 13. Recording Costs. Seller agrees to reimburse the Trustee
or its designee 50% of all recording and filing fees and expenses 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, including
Assignments. In the event Seller or Column elects to engage a third party
contractor to prepare, complete, file and record Assignments with respect to the
Mortgage Loan as provided in Section 3 of this Agreement, Seller or Column 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 demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, by
overnight mail or courier service, or transmitted by facsimile and confirmed by
similar mailed writing, if to the Depositor, addressed to the Depositor at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ (with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq., Legal &
Compliance Department, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address or
telecopy number as may be designated by the Depositor to the Seller in writing,
or, if to the Seller, addressed to the Seller at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇, or such
other address or telecopy number as may be designated by the Seller to the
Depositor in writing.
Section 15. Examination of Mortgage File. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage File 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 File 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 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
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. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE SELLER AND THE DEPOSITOR EACH HEREBY IRREVOCABLY (I) SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK
CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE
BROUGHT, HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS (UNLESS
THEY REFUSE JURISDICTION); (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE
DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
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 Loan by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loan by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loan 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 Loan is
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 Loan:
(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 Loan, including the related
Notes, Mortgages and title, hazard and other insurance policies, or any
Replacement Mortgage Loan, 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
clauses (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 Loan 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 and may execute and file such UCC Financing
Statements as may be necessary or appropriate to accomplish the foregoing.
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 of the date first
above written.
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
as Seller
By:____________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:____________________________________
Name:
Title:
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, 2004, between ▇▇▇▇▇▇ Brothers Holdings Inc. (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 as in effect on the Closing Date.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Borrower" means the borrower under the Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated December 16, 2004, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2004-C5,
issued in multiple classes.
"Closing Date" means December 28, 2004.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means the Due Date for the Mortgage Loan occurring in
December 2004.
"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 exceptions with respect to the
representations and warranties made by the Seller as to the Mortgage Loan in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of the Agreement, which exceptions are set forth in Schedule III
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"Loan Agreement" means, with respect to the Mortgage Loan, the loan
agreement, if any, between the Mortgage Loan Originator and the Borrower,
pursuant to which the Mortgage Loan was made.
"Mortgage": With respect to the Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or other instrument securing the Note and creating a
lien on the related Mortgaged Property.
"Mortgage File" means, collectively, the documents and instruments
pertaining to the Mortgage Loan required to be included in the Mortgage File
pursuant to Section 3 (subject to the proviso in Section 1 of the Agreement).
"Mortgage Loan Documents" means the documents and instruments
pertaining to the Mortgage Loan to be included in either the Mortgage File or
the Servicer File.
"Mortgage Loan Originator" means the institution which originated
the Mortgage Loan for the Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Note": The original executed note (or, if applicable, multiple
notes collectively) evidencing the indebtedness of the Borrower solely under the
Mortgage Loan (but not the Other Loan), together with any rider, addendum or
amendment thereto.
"Offering Circular" means the confidential offering circular dated
December 16, 2004, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of
December 1, 2004, among the Master Servicer, the Special Servicer, the
Depositor, the Trustee and the Certificate Administrator, including, without
limitation, the exhibits and schedules annexed thereto, as in effect on the
Closing Date.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus, dated December 16, 2004, that is
a part of the Depositor's registration statement on Form S-3 (File No.
333-116258).
"Prospectus Supplement" means the Prospectus Supplement, dated
December 16, 2004, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class A-AB, Class A-4, Class A-1-A, Class A-J, Class B, Class C and
Class D Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to the Mortgage Loan which are required to be included in the
Servicer File pursuant to Section 3 thereof.
"Underwriters" means Credit Suisse First Boston LLC, KeyBanc Capital
Markets, a Division of McDonald Investments Inc., ABN AMRO Incorporated and ▇.▇.
▇▇▇▇▇▇ Securities Inc.
"Underwriting Agreement" means the Underwriting Agreement, dated
December 16, 2004, between the Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Loan Group Zip
# Crossed # Property Name Address City State Code
--- ------- ---------- ------------------ ------------------ -------- ----- -----
1 1 Time Warner Retail ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Sq. Ft./ Percentage of
Mortgage Rooms/ Original Cut-off Initial Fee/
# Property Seller Pads Balance Balance (1) Pool Balance Leasehold
--- ---------------------------------------------------- -------- ------------ ------------ ------------- ---------
1 Column Financial, Inc. and ▇▇▇▇▇▇ Brothers Bank, FSB 343,161 $320,000,000 $320,000,000 17.1% Fee
Orig Rem. Orig Rem.
Amort. Amort. Term to Term to Interest Monthly Primary
# Term Term (1) Maturity (6) Maturity (1) (6) Rate Payment ARD (7) Defeasance (9) Servicing Fee
--- ------ -------- ------------ ---------------- -------- ---------- ------- -------------- -------------
1 360 360 120 120 5.7670% $1,870,890 N/A Yes 0.0200%
Master Administration Letter of
# Servicing Fee Fees Credit
--- ------------- -------------- ---------
1 0.0100% 0.0313% N/A
SCHEDULE III
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 to paragraph (i)
Time Warner Retail
▇▇▇▇▇▇ Brothers Holdings Inc. owns 50% of the Time Warner Whole Loan.
Exception to paragraph (xviii)
Time Warner Retail
▇▇▇▇▇▇ Brothers Holdings Inc. owns 50% of the Time Warner Whole Loan.
Exception to paragraph (xxviii)
Time Warner Retail
A majority interest in the Borrower can be directly or indirectly transferred or
sold without the consent of the lender, provided that, following such transfer,
certain person already holding indirect interests in the Borrower owns 12.5% or
more of the membership interests in and controls managing members of the
Borrower and, provided further that, prior to such transfer to persons other
than those certain persons already holding indirect interests in the Borrower,
the applicable rating agencies must approve such transfer and a substantive
non-consolidation opinion must be provided by outside counsel reasonably
acceptable to the lender and the applicable rating agencies, and such opinion
must be in form, scope and substance reasonably acceptable to the lender and the
applicable rating agencies.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOAN
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, neither the Note nor 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 Mortgage Loan;
(ii) RESERVED.
(iii) The Seller has full right and authority to sell, assign and
transfer the Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of the Mortgage Loan;
(iv) The Seller is transferring the Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering the Mortgage Loan;
(v) As of origination, to Seller's knowledge, based on the
Borrower's representations and covenants in the Mortgage Loan Documents, 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;
(vi) The Note, Mortgage, Assignment of Leases (if any) and other
agreement executed by or for the benefit of the Borrower, any guarantor or their
successors or assigns in connection with the Mortgage Loan is the legal, valid
and binding obligation of the 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 valid offset, defense, counterclaim, or right of rescission available to the
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 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 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 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) The assignment of Mortgage from the Seller to the Depositor
and related assignment of the Assignment of Leases, if any, or assignment of any
other agreement executed by or for the benefit of the Borrower, any guarantor or
their successors or assigns in connection with the 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 mortgage file,
the Mortgage Loan has not been modified, altered, satisfied, canceled,
subordinated or rescinded and (B) the Mortgaged Property has not been released
from the lien of the Mortgage in any manner which materially interferes with the
security intended to be provided by the Mortgage;
(x) The Mortgage is a valid and enforceable first lien on the
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 of the Borrower located at and necessary to
operate the Mortgaged Property; 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 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);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the Borrower in the Mortgage Loan
Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the Borrower in the Mortgage Loan Documents are not true
in any material respect;
(xiii) The lien of the Mortgage is a first priority lien on the fee
and/or leasehold interest of the Borrower in the principal amount of the
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 (or a
binding commitment therefor), or its equivalent as adopted in the applicable
jurisdiction, insuring the Seller and its successors and assigns as to such
lien, subject only to (A) the lien of current real property taxes, ground rents,
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 and (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 Borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property (items (A), (B) and (C)
collectively, "Permitted Encumbrances"); 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 Mortgaged Property is located (unless such state is Iowa)
and is assignable (with the 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 this
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 the 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 the Mortgage Loan or the
most recent inspection of the Mortgaged Property by the Seller, as applicable,
and to the knowledge of Seller as of the date hereof, the 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) or reserves have been established to cover the costs to
remediate such damage and, as of the closing date for the 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 the
Mortgaged Property within the past twelve months, or the originator of the
Mortgage Loan inspected or caused to be inspected the Mortgaged Property within
three months of origination of the Mortgage Loan;
(xvii) The Mortgage Loan does not have 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) The Mortgage Loan is a whole loan and contains no equity
participation by Seller;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of the 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 Mortgaged
Property, the security provided by the Mortgage or the Borrower's operations at
the 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 the Mortgage Loan have been complied with as of the date of origination of
the Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of the
Mortgage Loan, and no other person has been granted or conveyed the right to
service the Mortgage Loan or receive any consideration in connection therewith,
except as provided in the Pooling and Servicing Agreement or any permitted
subservicing agreements;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to the 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 the
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 and all such escrows and deposits are being
conveyed by the Seller to the Depositor and identified as such with appropriate
detail;
(xxiii) The 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 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 Mortgaged
Property; the 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 premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of 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; the Mortgage Loan obligates the 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 Mortgage Loan; and, to the Seller's knowledge,
there is no (A) non-monetary default, breach, violation or event of acceleration
existing under the 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 and does 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) materially and
adversely affects the use or value of the Mortgage Loan or the Mortgaged
Property; provided, however, that 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 in any of the other
paragraphs of this Exhibit A; and provided, further that a breach by the
Borrower of any representation or warranty contained in the Mortgage Loan
Document shall not constitute a non-monetary default, breach, violation or event
of acceleration for purposes of this representation and warranty if the subject
matter of such representation or warranty contained in the Mortgage Loan
Document is also covered by any other representation or warranty made by the
Seller in this Exhibit A;
(xxv) The Mortgage Loan has not been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date, the
Mortgage Loan is not 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). To the Seller's knowledge, no Borrower is a debtor in a state or federal
bankruptcy or insolvency proceeding;
(xxvii) At origination, the 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 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 Borrower or an affiliate thereof 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 the Mortgage Loan. A Phase I
environmental report and a Phase II environmental report were conducted by a
reputable environmental consulting firm in connection with the 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 Borrower and held by
the related mortgagee; (B) an operations or maintenance plan has been required
to be obtained by the 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 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 with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the 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 Mortgage Loan; or (H) a lender's environmental insurance policy
was obtained and is a part of the related mortgage file. Such environmental
insurance policy, if any, is in full force and effect, the premiums for such
policy has been paid in full and the Trustee is named as an insured under such
policy. To the best of the Seller's knowledge, in reliance on such environmental
reports and except as set forth in such environmental reports, the Mortgaged
Property is in material compliance with all applicable federal, state and local
environmental laws, and to the best of 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) The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of the 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 Mortgaged Property is directly or indirectly transferred or sold,
and (2) except with respect to transfers of certain interests in the 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), the Mortgage Loan
also contains the provisions for the acceleration of the payment of the unpaid
principal balance of the 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
Borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the appraisal are within the
boundaries of the 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
Mortgaged Property except for encroachments that do not materially and adversely
affect the value of such Mortgaged Property, the security provided by the
Mortgage or the Borrower's operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loan which is set
forth in the mortgage loan schedule attached as an exhibit to this 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) Reserved;
(xxxii) Reserved;
(xxxiii) Reserved;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any Borrower under the Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) 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 (1) 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 (2) at the
date hereof; provided that the fair market value of the real property must first
be reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan;
(xxxvi) There are no subordinate mortgages encumbering the Mortgaged
Property, nor are there any preferred equity interests held by the Seller 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
Agreement;
(xxxvii) The Mortgage Loan Documents require that the 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 Mortgage Loan,
does not have any assets other than those related to its interest in the
Mortgaged Property or its financing, or any indebtedness other than as permitted
under the Mortgage Loan);
(xxxviii) The Mortgage Loan prohibits the Borrower from mortgaging
or otherwise encumbering the Mortgaged Property without the prior written
consent of the mortgagee or the satisfaction of debt service coverage or similar
criteria specified therein 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 Loan;
(xxxix) The 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) The 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
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 the
Borrower's failure to do so, authorizes the Lender to maintain such insurance at
the cost and expense of the Borrower;
(xlii) RESERVED.
(xliii) RESERVED.
(xliv) Except as disclosed in the Exception Report to this
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
Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the
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 Borrower, for, or on
account of, payments due on the Mortgage Loan;
(xlvi) 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
the Mortgaged Property is located, or the failure to be so authorized did not
materially and adversely affect the enforceability of the Mortgage Loan;
(xlvii) All collateral for the Mortgage Loan is being transferred as
part of the Mortgage Loan;
(xlviii) Except as disclosed in the Exception Report to this
Agreement or the Prospectus Supplement with respect to the Mortgage Loan, the
Mortgage Loan does not require the lender to release any portion of the
Mortgaged Property from the lien of the Mortgage except upon (A) payment in full
or defeasance of the Mortgage Loan, (B) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, (C) releases of unimproved out-parcels or (D) releases of
portions of the Mortgaged Property which will not have a material adverse effect
on the use or value of the collateral for the Mortgage Loan;
(xlix) 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 Mortgaged Property, with, in the case of all casualty losses or takings in
excess of a specified amount or percentage 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 the Mortgage Loan together with any accrued
interest thereon;
(l) Each Form UCC-1 financing statement, if any, filed with respect
to personal property constituting a part of the 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
execution by Column and 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;
(li) To the Seller s knowledge, (A) each commercial lease covering
more than 10% of the net leaseable area of the 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 Borrower that could give rise to the
termination of such lease;
(lii) 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 Mortgaged Property. If
the Mortgaged Property does not so comply, to the extent the Seller is aware of
such non-compliance, it has required the Borrower to obtain law and ordinance
insurance coverage in amounts customarily required by prudent commercial
mortgage lenders;
(liii) The 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 Section 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury Regulation
Section 1.860G-1(b)(2);
(liv) With respect to the Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the Borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) 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, (F) 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, (G) with respect to any Significant Trust Mortgage Loan, 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 (H) with respect to
any Significant Trust Mortgage Loan, the Borrower must obtain Rating Agency
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 Certificate rated by such Rating Agency;
(lv) The Mortgage Loan Documents for the Mortgage Loan provide that
the Borrower thereunder shall be liable to the Seller for any losses incurred by
the Seller due to (A) the misapplication or misappropriation of rents, insurance
proceeds or condemnation awards, (B) any willful act of material waste, (C) any
breach of the environmental covenants contained in the Mortgage Loan Documents,
and (D) fraud by the Borrower; provided that, with respect to clause (C) of this
sentence, an indemnification against losses related to such violations or
environmental insurance shall satisfy such requirement;
(lvi) Reserved;
(lvii) Reserved; and
(lviii) The Seller has delivered to the Trustee or a custodian
appointed thereby, with respect to the Mortgage Loan, in accordance with
Section 3 of this Agreement, a complete Mortgage File.
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 ▇▇▇▇▇▇ Brothers Holdings
Inc. ("▇▇▇▇▇▇");
2. that ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ , 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 ▇▇▇▇▇▇ Brothers Holdings Inc.,
under date of ______________ (the "Note");
4. that the Note is now owned and held by ▇▇▇▇▇▇;
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 ▇▇▇▇▇▇; and
7. upon assignment of the Note by ▇▇▇▇▇▇ 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 2004-C5 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by ▇▇▇▇▇▇ to the Trustee), ▇▇▇▇▇▇
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 ▇▇▇▇▇▇'▇ failure to deliver said original
Note to the Trustee.
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:____________________________________
Name:
Title:
Sworn to before me
this ________ day of [ ], 2004