CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
COLUMN FINANCIAL, INC.
(Seller)
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2007
TABLE OF CONTENTS
Page
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Section 1. Transactions on or Prior to the Closing Date....................
Section 2. Closing Date Actions............................................
Section 3. Conveyance of Mortgage Loans....................................
Section 4. Depositor's Conditions to Closing...............................
Section 5. Seller's Conditions to Closing..................................
Section 6. Representations and Warranties of Seller........................
Section 7. Obligations of Seller...........................................
Section 8. Crossed Loans...................................................
Section 9. Representations and Warranties of Depositor.....................
Section 10. Survival of Certain Representations, Warranties and Covenants...
Section 11. Transaction Expenses............................................
Section 12. Recording Costs and Expenses....................................
Section 13. Notices.........................................................
Section 14. Examination of Mortgage Files...................................
Section 15. Successors......................................................
Section 16. Governing Law...................................................
Section 17. Severability....................................................
Section 18. Further Assurances..............................................
Section 19. Counterparts....................................................
Section 20. Treatment as Security Agreement.................................
Section 21. Recordation of Agreement........................................
Section 22. Notice of Exchange Act Reportable Events........................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Crossed Groups
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of September 1, 2007, is made by and between COLUMN FINANCIAL, 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 specified on such
Schedule of Transaction Terms.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or
prior to the Closing Date, Seller shall have delivered the Mortgage Files with
respect to each of the Mortgage Loans listed in the Mortgage Loan Schedule to
Wells Fargo Bank, N.A. as trustee (the "Trustee") or its designee, against
receipt by Seller of a written receipt, pursuant to an arrangement between
Seller and the Trustee; provided, however, that, item (xvi) in the definition of
Mortgage File (below) shall be delivered to the applicable Master Servicer for
inclusion in the Servicer File (defined below) with a copy delivered to the
Trustee for inclusion in the Mortgage File; and provided, further, that Seller
shall pay (or cause the related Borrower to pay) any costs of the assignment or
amendment of each letter of credit described under such item (xvi) required in
order for the Trustee to draw on such letter of credit pursuant to the terms of
the Pooling and Servicing Agreement and shall deliver the related assignment or
amendment documents within thirty (30) days after the Closing Date, which period
may be extended by thirty (30) days as provided in the Pooling and Servicing
Agreement. In addition, prior to such assignment or amendment of a letter of
credit, Seller will take all necessary steps to enable the applicable Master
Servicer to draw on the related letter of credit on behalf of the Trustee
pursuant to the terms of the Pooling and Servicing Agreement, including, if
necessary, drawing on the letter of credit in its own name pursuant to written
instructions to draw from the applicable Master Servicer and upon receipt,
immediately remitting the proceeds of such draw (or causing such proceeds to be
remitted) to the applicable Master Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates, the sale of the Publicly Offered Certificates by Depositor to the
Underwriters pursuant to the Underwriting Agreement and the sale of the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Wickersham & Taft LLP, One World Financial Center, New York, New
York 10281, or such other location as agreed upon between the parties hereto. On
the Closing Date, the following actions shall take place in sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price shall be paid by Depositor to Seller or at its direction by wire
transfer in immediately available funds to an account designated by Seller
on or prior to the Closing Date. The "Mortgage Loan Purchase Price" paid
by Depositor shall be equal to the amount that Depositor and Seller have
mutually agreed upon as the "Net Securitization Proceeds/Fees" under the
heading "Column Financial Share" in the Closing Statement (which amount
includes, without limitation, accrued interest and is less those costs and
expenses to be paid by Seller, including those expenses to be paid
pursuant to Section 11 hereof).
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall transfer all of its right, title and interest in, to and
under the Mortgage Loans to the Trustee (for the benefit of the Holders of
the Certificates) in exchange for the issuance of the Certificates to or
at the direction of Depositor.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to Seller's receipt of the Mortgage Loan Purchase Price,
Seller does hereby assign, transfer, set over and otherwise convey, without
recourse, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule and (ii) all
property of Seller described in Section 20(b) of this Agreement, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or prepayment premiums received on or with
respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal or prepayment premiums that were due on or
prior to the Cut-off Date. The parties acknowledge that such assignment,
transfer, setting over and other conveyance shall not be construed to limit any
obligation of Seller and any servicing rights of Wachovia Bank, National
Association under that certain servicing rights purchase agreement, dated as of
September 1, 2007, between Seller and Wachovia Bank, National Association, or of
KeyCorp Real Estate Capital Markets, Inc. under that certain servicing rights
purchase agreement, dated as of September 1, 2007, between Seller and KeyCorp
Real Estate Capital Markets, Inc. The Mortgage File for each Mortgage Loan shall
contain the following documents on a collective basis:
(i) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the
form of Exhibit B hereto and a true and complete copy of the Note),
bearing, or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment from the
applicable Mortgage Loan Originator either in blank or to Seller, and
further endorsed (at the direction of Depositor given pursuant to this
Agreement) by Seller, on its face or by allonge attached thereto, without
recourse, either in blank or to the order of the Trustee in the following
form: "Pay to the order of Wells Fargo Bank, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C4,
without recourse, representation or warranty, express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals, certified
copies or copies from the applicable recording office) of any intervening
assignments thereof from the applicable Mortgage Loan Originator to
Seller, in each case in the form submitted for recording or, if recorded,
with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the applicable
Mortgage Loan Originator) either in blank or to "Wells Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2007-C4";
(iv) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof
from the applicable Mortgage Loan Originator of the Mortgage Loan to
Seller, in each case in the form submitted for recording or, if recorded,
with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the applicable
Mortgage Loan Originator), either in blank or to "Wells Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2007-C4", which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
(provided that such omnibus assignment is effective and in recordable form
under applicable law);
(vi) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the
applicable Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from Seller (or the
applicable Mortgage Loan Originator) either in blank or to "Wells Fargo
Bank, N.A., as trustee for the registered Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2007-C4," which assignment may be included as part of
an omnibus assignment covering other documents relating to the Mortgage
Loan (provided that such omnibus assignment is effective under applicable
law);
(viii) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence of recording thereon or in the form
submitted for recording, in those instances where the terms or provisions
of the Mortgage, Note or any related security document have been modified
or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has not yet
been issued, the original or a copy of a binding written commitment (which
may be a pro forma or specimen title insurance policy which has been
accepted or approved in writing by the related title insurance company, or
an interim binder that is "marked up" as binding and countersigned by the
title company, which in any case is binding on the title insurance
company), insuring the priority of the Mortgage as a first lien on the
related Mortgaged Property, relating to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or recording
(including the filing number or other similar filing information)
acceptable to the Trustee (including, without limitation, evidence of such
filed or recorded UCC Financing Statement as shown on a written UCC search
report from a reputable search firm, such as CSC/LexisNexis Document
Solutions, Corporation Service Company, CT Corporation System and the like
or printouts of on-line confirmations from such UCC filing or recording
offices or authorized agents thereof), sufficient to perfect (and maintain
the perfection of) the security interest held by the applicable Mortgage
Loan Originator (and each assignee of record prior to the Trustee) in and
to the personalty of the Borrower at the Mortgaged Property, and original
UCC Financing Statement assignments, in a form suitable for filing or
recording, sufficient to assign each such UCC Financing Statement to the
Trustee;
(xii) the original or copy of the power of attorney (with evidence
of recording thereon) granted by the Borrower if the Mortgage, Note or
other document or instrument referred to above was not signed by the
Borrower;
(xiii) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement relating to such other debt, if any, including any mezzanine
loan documents or preferred equity documents;
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement;
(xv) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related
Lock-Box Agreement or Cash Collateral Account Agreement (if separate from
the related Mortgage and Loan Agreement);
(xvi) the originals and copies of letters of credit, if any,
relating to the Mortgage Loans and amendments thereto which entitles the
Trust to draw thereon; provided that in connection with the delivery of
the Mortgage File to the Trust, such originals shall be delivered to the
applicable Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies thereof;
(xviii) the original or a copy of the ground lease and ground lease
estoppels, if any, and of any amendments, modifications or extensions
thereto, if any;
(xix) the original or copy of any property management agreement;
(xx) without duplication with clause (xiii) above, a copy of the
mortgage note evidencing the related Junior Loan, if any;
(xxi) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties; and
(xxii) a checklist of the related Mortgage Loan Documents included
in the subject Mortgage File.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii) (relating to
Mortgages), (iv) (relating to Assignments of Leases), (viii) (relating to
assumption agreements, modifications, written assurance agreements and
substitution agreements), (xi) (relating to UCC Financing Statements and related
documents)(other than assignments of UCC Financing Statements to be recorded or
filed in accordance with the transfer contemplated by this Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first paragraph of
this Section 3, with evidence of recording or filing thereon on the Closing
Date, solely because of a delay caused by the public recording or filing office
where such document or instrument has been delivered for recordation or filing,
the delivery requirements of such last sentence of such first paragraph of this
Section 3 should be deemed to have been satisfied and such non-delivered
document or instrument shall be deemed to have been included in the Mortgage
File; provided that Seller: (i) shall deliver, or cause to be delivered, to the
Trustee or its designee and the applicable Master Servicer a duplicate original
or true copy of such document or instrument (certified by the applicable public
recording or filing office, the applicable title insurance company or Seller to
be a true and complete duplicate original or photocopy of the original thereof
submitted for recording or filing) on the Closing Date; and (ii) shall deliver,
or cause to be delivered, to the Trustee or its designee (with a copy thereof to
the applicable Master Servicer) either the original of such non-delivered
document or instrument, or a photocopy thereof (certified by the appropriate
public recording or filing office to be a true and complete copy of the original
thereof submitted for recording or filing), with evidence of recording or filing
thereon within 120 days of the Closing Date, which period may be extended up to
two times, in each case for an additional period of 45 days provided that
Seller, as certified in writing to the Trustee prior to each such 45-day
extension, is in good faith attempting to obtain from the appropriate county
recorder's office such original or photocopy.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii) (relating to
Mortgages), (iv) (relating to Assigments of Leases), (viii) (relating to
assumption agreements, modifications, written assurance agreements and
substitution agreements), (xi) (relating to UCC Financing Statements and related
documents) (other than assignments of UCC Financing Statements to be recorded or
filed in accordance with the transfer contemplated by this Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first paragraph of
this Section 3, with evidence of recording or filing thereon for any other
reason, including without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Agreement shall be
deemed to have been satisfied and such non-delivered document or instrument
shall be deemed to have been included in the related Mortgage File if a
photocopy or duplicate original of such non-delivered document or instrument
(with evidence of recording or filing thereon and certified by the appropriate
recording or filing office to be a true and complete copy of the original
thereof as filed or recorded) is delivered to the Trustee or its designee on or
before the Closing Date.
Notwithstanding the foregoing, in the event that Seller fails, as to
any Mortgage Loan, to deliver any UCC Financing Statement assignment with the
filing or recording information of the related UCC Financing Statement, solely
because such UCC Financing Statement has not been returned to Seller by the
applicable public filing or recording office where such UCC Financing Statement
has been delivered for filing or recording, Seller shall not be in breach of its
obligations with respect to such delivery, provided that Seller promptly
forwards such UCC Financing Statement to the Trustee or its designee (with a
copy to the applicable Master Servicer) upon its return from the applicable
filing or recording office, together with the related original UCC Financing
Statement assignment in a form appropriate for filing or recording.
Notwithstanding the foregoing, Seller may elect, at its sole cost
and expense, to engage a third-party contractor to prepare or complete in proper
form for filing or recording any and all of the assignments of Mortgage,
assignments of Assignments of Leases and assignments of UCC Financing Statements
to the Trustee to be delivered pursuant to clauses (iii), (v), and (xi) of the
last sentence of the first paragraph of this Section 3 (collectively, the
"Assignments"), to submit such Assignments for filing and recording, as the case
may be, in the applicable public filing and recording offices and to deliver
such Assignments to the Trustee or its designee (with a copy to the applicable
Master Servicer) as such Assignments (or certified copies thereof) are received
from the applicable filing and recording offices with evidence of such filing or
recording indicated thereon. However, in the event Seller engages a third-party
contractor as contemplated in the immediately preceding sentence, the rights,
duties and obligations of Seller pursuant to this Agreement remain binding on
Seller.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to the
Mortgage Loans and constituting the related Servicing Files (as defined in the
Pooling and Servicing Agreement).
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File", if there exists with
respect to any group of Crossed Loans only one original or certified copy of any
document or instrument described in the definition of "Mortgage File" which
pertains to all of the Crossed Loans in such group of Crossed Loans, the
inclusion of the original or certified copy of such document or instrument in
the Mortgage File for any of such Crossed Loans and the inclusion of a copy of
such original or certified copy in each of the Mortgage Files for the other
Crossed Loans in such group of Crossed Loans, shall be deemed to constitute the
inclusion of such original or certified copy, as the case may be, in the
Mortgage File for each such Crossed Loan.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents that constitute the Servicer File with
respect to the related Mortgage Loan shall immediately vest in Depositor. All
Monthly Payments, Principal Prepayments and other amounts received by Seller and
not otherwise belonging to Seller pursuant to this Agreement shall be sent by
Seller within three (3) Business Days after Seller's receipt thereof to the
applicable Master Servicer via wire transfer for deposit by the applicable
Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles, report
its transfer of the Mortgage Loans to Depositor, as provided herein, as a sale
of the Mortgage Loans to Depositor in exchange for the consideration specified
in Section 2 hereof. In connection with the foregoing, Seller shall cause all of
its financial and accounting records to reflect such transfer as a sale (as
opposed to a secured loan). Seller shall at all times following the Closing Date
cause all of its records and financial statements and any relevant consolidated
financial statements of any direct or indirect parent to clearly reflect that
the Mortgage Loans have been transferred to Depositor and are no longer
available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of this
Agreement, which shall have been delivered to and held by the Trustee or
its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations and
warranties set forth in Section 6 (subject to the exceptions set forth in
the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by Depositor in order for Depositor to perform any of
it obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to any sale of Mortgage Loans by Depositor
as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before the
Closing Date, five limited powers of attorney in favor of the Trustee and
applicable Special Servicer empowering the Trustee and, in the event of the
failure or incapacity of the Trustee, the applicable Special Servicer, to
record, at the expense of Seller, any Mortgage Loan Documents required to be
recorded and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage Files. Seller shall reasonably
cooperate with the Trustee and the applicable Special Servicer in connection
with any additional powers or revisions thereto that are requested by such
parties.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the Closing
Date, with the resolutions of Depositor authorizing the transactions set
forth therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller. 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, action,
suit or proceeding before or by any court, regulatory authority or
governmental agency or body pending or, to the knowledge of Seller,
threatened, which is reasonably likely to materially and adversely affect
the performance by Seller of this Agreement or the consummation of
transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans and to execute and deliver this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents executed
and delivered by Seller in connection herewith). Seller has duly
authorized the execution, delivery and performance of this Agreement (and
all agreements and documents executed and delivered by Seller in
connection herewith), and has duly executed and delivered this Agreement
(and all agreements and documents executed and delivered by Seller in
connection herewith). This Agreement (and each agreement and document
executed and delivered by Seller in connection herewith), assuming due
authorization, execution and delivery thereof by each other party thereto,
constitutes the legal, valid and binding obligation of Seller enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, fraudulent transfer, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of creditors
generally, by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
articles or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result in a
breach of, or constitute a default or result in an acceleration under, any
agreement or instrument to which Seller is now a party or by which it (or
any of its properties) is bound if compliance therewith is necessary (1)
to ensure the enforceability of this Agreement or (2) for Seller to
perform its duties and obligations under this Agreement (or any agreement
or document executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of Depositor to realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except for the filing or
recording of assignments and other Mortgage Loan Documents contemplated by
the terms of this Agreement and except that Seller may not be duly
qualified to transact business as a foreign corporation or licensed in one
or more states if such qualification or licensing is not necessary to
ensure the enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans constitutes at least fair consideration and reasonably
equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform
its duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller
in connection herewith) is in the ordinary course of business of Seller
and Seller's transfer, assignment and conveyance of the Mortgage Loans
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loans to Depositor hereunder
except for (A) the reimbursement of expenses as described herein or
otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions to such representations and warranties
set forth on Schedule V hereto, are true and correct in all material
respects as of the date hereof with respect to the Mortgage Loans
identified on Schedule II.
(xiii) At the Time of Sale (as defined in the Indemnification
Agreement), the information set forth in any Disclosure Information (as
defined in the Indemnification Agreement), as last forwarded to each
prospective investor at or prior to the date on which a contract for sale
was entered into with such prospective investor, (i) does not contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complies with the
requirements of and contains all of the applicable information required by
Regulation AB (as defined in the Indemnification Agreement); but only to
the extent that (i) such information regards the Mortgage Loans and is
contained in the Loan Detail (as defined in the Indemnification Agreement)
or, to the extent consistent therewith, the Diskette (as defined in the
Indemnification Agreement) or (ii) such information regarding the Seller
or the Mortgage Loans was contained in the Confidential Offering Circular
or the Prospectus Supplement under the headings "Summary of Prospectus
Supplement--Relevant Parties/Entities--Sponsors and Mortgage Loan
Sellers," "--Relevant Parties/Entities--Originators," "--The Underlying
Mortgage Loans" and "--Source of the Underlying Mortgage Loans," "Risk
Factors," "Description of the Sponsors and Mortgage Loan Sellers" and
"Description of the Underlying Mortgage Loans" and such information does
not represent an incorrect restatement or an incorrect aggregation of
correct information regarding the Mortgage Loans contained in the Loan
Detail (as defined in the Indemnification Agreement); provided that, the
Seller makes no representation or warranty to the extent that any such
untrue statement or omission or alleged untrue statement or omission was
made as a result of an error in the manipulation of, or an error in any
calculations based upon, or an error in any aggregation (other than an
aggregation made in the Loan Detail by the Seller) of, the numerical,
financial and/or statistical information regarding the Mortgage Loan
Seller Information (as defined in the Indemnification Agreement).
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If any Certificateholder, the applicable Master Servicer, the
applicable Special Servicer or the Trustee discovers or receives notice of a
breach of any of the representations or warranties made by Seller with respect
to the Mortgage Loans (subject to the exceptions to such representations and
warranties set forth in the Exception Report), as of the date hereof in Section
6(xii) or as of the Closing Date pursuant to Section 4(b)(iii) (in any such
case, a "Breach"), or discovers or receives notice that (a) any document
required to be included in the Mortgage File related to any Mortgage Loan is not
in the Trustee's (or its designee's) possession within the time period required
herein or (b) such document has not been properly executed or is otherwise
defective on its face (clause (a) and clause (b) each, a "Defect" (which term
shall include the "Defects" described in the immediately following paragraph) in
the related Mortgage File), such party shall give notice to the applicable
Master Servicer, the applicable Special Servicer, the Trustee and the Rating
Agencies. If the applicable Master Servicer or the applicable Special Servicer
determines that such Breach or Defect materially and adversely affects the value
of any Mortgage Loan or REO Loan or the interests of the Holders of any Class of
Certificates (in which case such Breach or Defect shall be a "Material Breach"
or a "Material Defect", as applicable), it shall give prompt written notice of
such Breach or Defect to the Depositor, the Trustee, the applicable Master
Servicer, the applicable Special Servicer and the Seller and shall request that
the Seller not later than the earlier of 90 days from the receipt by the Seller
of such notice or discovery by the Seller of such Breach or Defect (subject to
the second succeeding paragraph, the "Initial Resolution Period"): (i) cure such
Breach or Defect in all material respects; (ii) repurchase the affected Mortgage
Loan at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement); or (iii) substitute, in accordance with the Pooling and Servicing
Agreement, one or more Qualified Substitute Mortgage Loans (as defined in the
Pooling and Servicing Agreement) for such affected Mortgage Loan (provided that
in no event shall any substitution occur later than the second anniversary of
the Closing Date) and pay the applicable Master Servicer for deposit into the
Collection Account any Substitution Shortfall Amount (as defined in the Pooling
and Servicing Agreement) in connection therewith; provided, however, that Seller
shall have an additional 90 days to cure such Material Breach or Material Defect
if all of the following conditions are satisfied: (i) such Material Breach or
Material Defect is capable of being cured but not within the Initial Resolution
Period; (ii) such Material Breach or Material Defect does not cause the related
Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the Code); (iii) Seller has commenced and is diligently proceeding
with the cure of such Material Breach or Material Defect within the Initial
Resolution Period; and (iv) Seller has delivered to the Rating Agencies, the
applicable Master Servicer, the applicable Special Servicer and the Trustee an
Officer's Certificate that describes the reasons that the cure was not effected
within the Initial Resolution Period and the actions that it proposes to take to
effect the cure and that states that it anticipates the cure will be effected
within the additional 90-day period. If there exists a Breach of any
representation or warranty that the related Mortgage Loan Documents or any
particular Mortgage Loan Document requires the related Borrower to bear the
costs and expenses associated with any particular action or matter under such
Mortgage Loan Document(s), then Seller shall cure such Breach within the Initial
Resolution Period by reimbursing the Trust Fund (by wire transfer of immediately
available funds to the Collection Account) the reasonable amount of any such
costs and expenses incurred by the applicable Master Servicer, the applicable
Special Servicer, the Trustee or the Trust Fund that are the basis of such
Breach and have not been reimbursed by the related Borrower; provided, however,
that in the event any such costs and expenses exceed $10,000, Seller shall have
the option to either repurchase the related Mortgage Loan at the applicable
Purchase Price, replace such Mortgage Loan and pay any applicable Substitution
Shortfall Amount or pay such costs and expenses. Except as provided in the
proviso to the immediately preceding sentence, Seller shall remit the amount of
such costs and expenses and upon its making such remittance, Seller shall be
deemed to have cured such Breach in all respects. With respect to any repurchase
of a Mortgage Loan hereunder or any substitution of one or more Qualified
Substitute Mortgage Loans for a Mortgage Loan hereunder, (A) no such
substitution may be made in any calendar month after the Determination Date for
such month; (B) scheduled payments of principal and interest due with respect to
the Qualified Substitute Mortgage Loan(s) after the Due Date in the month of
substitution, and scheduled payments of principal and interest due with respect
to each Mortgage Loan being repurchased or replaced after the related Cut-off
Date and received by the applicable Master Servicer or the applicable Special
Servicer on behalf of the Trust on or prior to the related date of repurchase or
substitution, shall be part of the Trust Fund; and (C) scheduled payments of
principal and interest due with respect to each such Qualified Substitute
Mortgage Loan on or prior to the Due Date in the month of substitution, and
scheduled payments of principal and interest due with respect to each Mortgage
Loan being repurchased or replaced and received by the applicable Master
Servicer or the applicable Special Servicer on behalf of the Trust after the
related date of repurchase or substitution, shall not be part of the Trust Fund,
and Seller (or, if applicable, any person effecting the related repurchase or
substitution in the place of Seller) shall be entitled to receive such payments
promptly following receipt by the applicable Master Servicer or the applicable
Special Servicer, as applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (ix) (relating to
evidence of title insurance) of the last sentence of the first paragraph of
Section 3 hereof; (d) the absence from the Mortgage File of any intervening
assignments required to create an effective assignment to the Trustee on behalf
of the Trust, unless there is included in the Mortgage File a certified copy of
the intervening assignment as recorded or as sent for recordation, together with
a certificate stating that the original intervening assignment was sent for
recordation; (e) the absence from the Mortgage File (or the Servicer File) of
any required original letter of credit (as required in the provisos of Section 1
hereof), provided that such Defect may be cured by any substitute letter of
credit or cash reserve on behalf of the related Borrower; (f) the absence from
the Mortgage File of the original or a copy of any required ground lease; or (g)
solely in the case of a Mortgage Loan secured by a Mortgaged Property operated
as a hospitality property, the absence from the Mortgage File of the related
franchise agreement and/or franchisor comfort letter. In addition, Seller shall
cure any Defect described in clause (b), (c), (e) or (f) of the immediately
preceding sentence as required in Section 2.02(b) of the Pooling and Servicing
Agreement.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach", as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice (pursuant to this Section 7)
with respect to, or its discovery of, such Defect or Breach (which period shall
not be subject to extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Loan that is a part of a Crossed
Group (as defined below) and (iii) the applicable Breach or Defect does not
otherwise constitute a Breach or Defect, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Breach or Defect, as the case may be, will be deemed to constitute a
Breach or Defect, as the case may be, as to any other Crossed Loan in the
Crossed Group for purposes of the above provisions, and Seller will be required
to repurchase or substitute for such other Crossed Loan(s) in the related
Crossed Group in accordance with the provisions of this Section 7 unless such
other Crossed Loans satisfy the Crossed Loan Repurchase Criteria (as defined in
the Pooling and Servicing Agreement) and Seller can satisfy all other criteria
for substitution or repurchase of the affected Mortgage Loan(s) set forth in the
Pooling and Servicing Agreement. In the event that one or more of such other
Crossed Loans satisfy the Crossed Loan Repurchase Criteria, Seller may elect
either to repurchase or substitute for only the affected Crossed Loan as to
which the related Breach or Defect exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Group. Seller shall be responsible
for the cost of any Appraisal required to be obtained by the applicable Master
Servicer to determine if the Crossed Loan Repurchase Criteria have been
satisfied, so long as the scope and cost of such Appraisal have been approved by
Seller (such approval not to be unreasonably withheld). For purposes of this
paragraph, a "Crossed Group" is any group of Mortgage Loans identified as a
Crossed Group on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not be
obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan Documents and the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
Documents and (i) Seller provides an opinion of counsel to the effect that such
partial release would not cause an Adverse REMIC Event (as defined in the
Pooling and Servicing Agreement) to occur, (ii) Seller pays (or causes to be
paid) the applicable release price required under the Mortgage Loan Documents
and, to the extent not reimbursable out of the release price pursuant to the
related Mortgage Loan Documents, any additional amounts necessary to cover all
reasonable out-of-pocket expenses reasonably incurred by the applicable Master
Servicer, the applicable Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property that is being released, and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for a cure of a Material Breach or Material Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds, shall promptly release
the related Mortgage File and Servicer File or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer or assignment
as shall be necessary to vest in Seller the legal and beneficial ownership of
such Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto) and the related Mortgage
Loan Documents.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
constitute the sole remedies available to Depositor and its successors and
assigns respecting any Breach or Defect affecting a Mortgage Loan.
Section 8. Crossed Loans. With respect to any Crossed Loan conveyed
hereunder, to the extent that Seller repurchases or substitutes for an affected
Crossed Loan in the manner prescribed above while the Trustee continues to hold
any related Crossed Loans, Seller and Depositor (on behalf of its successors and
assigns) agree to modify, upon such repurchase or substitution, the related
Mortgage Loan Documents in a manner such that such affected Crossed Loan
repurchased or substituted by Seller, on the one hand, and any related Crossed
Loans still held by the Trustee, on the other, would no longer be
cross-defaulted or cross-collateralized with one another; provided that Seller
shall have furnished the Trustee, at Seller's expense, with an Opinion of
Counsel that such modification shall not cause an Adverse REMIC Event; and
provided, further, that if such Opinion of Counsel cannot be furnished, Seller
and Depositor hereby agree that such repurchase or substitution of only the
affected Crossed Loans, notwithstanding anything to the contrary herein, shall
not be permitted. Any reserve or other cash collateral or letters of credit
securing the subject Crossed Loans shall be allocated between such Mortgage
Loans in accordance with the Mortgage Loan Documents. All other terms of such
Mortgage Loans shall remain in full force and effect, without any modification
thereof.
Section 9. 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 any consent of, notice to, or 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 10. 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 12 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 11. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 12 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
an expense shall be paid by the party incurring such expense).
Section 12. Recording Costs and Expenses. Seller agrees to reimburse
the Trustee or its designee 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 elects to engage a third-party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 13. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed to it at
Credit Suisse First Boston Mortgage Securities Corp., 11 Madison Avenue, 5th
Floor, New York, New York 10010, Attention: Edmund Taylor, Telecopy No.: (212)
743-4756 (with a copy to Tessa Peters, Telecopy No.: (212) 325-8282), or such
other address or telecopy number as may be designated by Depositor to Seller in
writing, or (b) if sent to Seller, will be mailed, delivered or telecopied and
confirmed to it at 3414 Peachtree Road, N.E., Suite 1140, Atlanta, Georgia
30326, Attention: Robert Barnes, Telecopy No.: (404) 239-0419, or such other
address or telecopy number as may be designated by Seller to Depositor in
writing.
Section 14. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 15. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and permitted assigns, 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 Seller and
Depositor and their respective successors and permitted assigns and for the
benefit of no other Person; it being understood that (a) the indemnities of
Seller contained in that certain Indemnification Agreement dated August 24,
2007, among Seller, Depositor, the Initial Purchaser and the Underwriters,
relating to, among other things, information regarding the Mortgage Loans in the
Prospectus Supplement and the Offering Circular, subject to all limitations
therein contained, shall also be for the benefit of the officers and directors
of Depositor, the Underwriters and the Initial Purchaser and any person or
persons who control Depositor, the Underwriters and the Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended, and (b) the rights of Depositor pursuant to
this Agreement, subject to all limitations herein contained, including those set
forth in Section 7 of this Agreement, may be assigned to the Trustee, for
benefit of the Certificateholders, as may be required to effect the purposes of
the Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to such rights of Depositor hereunder; provided that the Trustee shall
have no right to further assign such rights to any other Person. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assign because of such ownership.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 17. 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 18. 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 19. 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 20. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and other insurance policies,
identified on the Mortgage Loan Schedule, 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 clause (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;
(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; and
(e) Seller at the direction of Depositor or its assignee, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, Depositor and its assignee shall have all of the rights and remedies
of a secured party and creditor under the Uniform Commercial Code as in force in
the relevant jurisdiction and may prepare and file such UCC Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
Section 21. 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.
Section 22. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Depositor and the Trustee any disclosure
information relating to any event reasonably determined in good faith by the
Depositor as required to be reported on Form 8-K, Form 10-D or Form 10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in such form),
including, without limitation, the disclosure required under Items 1117 and 1119
of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use commercially
reasonable efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Depositor within one (1) Business Day of become aware of
such event giving rise to such disclosure and in any event no later than two (2)
Business Days of the Seller becoming aware of such event, and shall provide
disclosure relating to any other event reasonably determined by the Depositor as
required to be disclosed on Form 8-K, Form 10-D or Form 10-K within two (2)
Business Days following the Depositor's request for such disclosure language.
The obligation of the Seller to provide the above-referenced disclosure
materials will terminate upon the filing of the Form 15 with respect to the
Trust Fund as to that fiscal year in accordance with Section 12.10(a) of the
Pooling and Servicing Agreement. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Exchange Act.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
COLUMN FINANCIAL, INC.,
as Seller
By: /s/ Jeffrey A. Altabef
------------------------------------
Name: Jeffrey A. Altabef
Title: Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Jeffrey A. Altabef
------------------------------------
Name: Jeffrey A. Altabef
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of September 1, 2007, between Column Financial, Inc. and Credit Suisse First
Boston Mortgage Securities Corp. Capitalized terms used herein without
definition have the meanings given them in or by reference in the Agreement or,
if not defined in the Agreement, in the Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated August 24, 2007, among, Column Financial, Inc. (solely with
respect to its obligations under Section 11 thereof), Depositor and the Initial
Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C4.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means September 7, 2007.
"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 Loan" means any Mortgage Loan which is cross-defaulted and
cross-collateralized with any other Mortgage Loan.
"Crossed Group" shall have the meaning given such term in Section 7
of this Agreement.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in September 2007.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Depositor" shall have the meaning given such term in the first
sentence of this Agreement.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(xii) and under the written certificate described in Section 4(b)(iii)
of this Agreement, which exceptions are set forth in Schedule V attached hereto
and made a part hereof.
"Initial Purchaser" means Credit Suisse Securities (USA) LLC.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"Offering Circular" means the confidential offering circular dated
August 24, 2007, 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
September 1, 2007, among Depositor, the Master Servicers, the Special Servicers
and the Trustee, including, without limitation, the exhibits and schedules
annexed thereto.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus dated August 13, 2007, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-141613).
"Prospectus Supplement" means the Prospectus Supplement, dated
August 24, 2007, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-1-A, Class A-M, Class A-1-AM, Class
A-J, Class A-1-AJ and Class A-SP Certificates.
"Seller" shall have the meaning given such term in the first
sentence of this Agreement.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan that are required to be included in the
related Servicer File pursuant to Section 3 (subject to the first proviso in
Section 1).
"Trust Fund" shall have the meaning given such term in Recital II of
this Agreement.
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse Securities (USA) LLC, Greenwich
Capital Markets, Inc. and PNC Capital Markets LLC.
"Underwriting Agreement" means the Underwriting Agreement, dated
August 24, 2007, among Depositor, Column Financial, Inc. (solely with respect to
its obligations under Section 12 thereof) and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2007-C4
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2007-C4
134 1
136 1
139 1
140 1
140.1 1
140.2 1
141 1
142 1
142.1 1
142.2 1
143 1
145 1
147 1
148 2
149 1
150 1
154 1
155 2
157 1
158 1
161 1
164 1
165 1
166 2
167 1
168 2
169 1
171 2
172 2
173 1
174 2
175 2
178 1
179 1
181 1
182 1
184 1
185 1
186 1
188 1
190 1
193 2
195 2
197 2
199 1
200 1
201 1
206 2
208 1
209 1
210 1
211 1
Total/Weighted Average:
# Property Name
------------------------ ----------------------------------------------
1 Shutters on the Beach & Casa Del Mar Portfolio
1.1 Shutters on the Beach
1.2 Casa Del Mar
2 245 Fifth Avenue
3 City Tower
4 2600 Michelson
5 Meyberry House
6 Hamburg Trust Portfolio
6.1 Caribbean Isle
6.2 Forest Park
6.3 Wind Tree
6.4 Warwick Apartments
6.5 Coulter Landing
7 St. Luke's At Cypress Woods
8 Lakeview Plaza
9 Esquire Portfolio
9.1 3489 Broadway
9.2 548 West 164th Street
9.3 610 West 163rd Street
9.4 519 West 143rd Street
10 Artisan Las Vegas Multifamily Portfolio
10.1 Meadow Ridge
10.2 Spanish Oaks
11 Sweetwater Crossings
13 Grove Square Shopping Center
14 Crystal Corporate Center
15 Hillside Village Shopping Center
17 Wellington Tower Retail
18 Egizii Portfolio
18.1 Egizii Portfolio-Bucari Building
18.2 Egizii Portfolio-Ridgely Building
18.3 Egizii Portfolio-Pana Warehouse
18.4 Egizii Portfolio 400 North Fifth Street
18.5 Egizii Portfolio-700 North MacArthur
18.6 Egizii Portfolio-Bell Building
18.7 Egizii Portfolio-Edwards Building
19 Paradise Bay
20 Hampton Inn Downtown Dallas
21 W 125th St & 1645 Pitkin Portfolio
21.1 West 125th St Portfolio
21.2 1645 Pitkin St
23 Champions Park Apartments
25 The Madison Hotel
26 University Square
27 Mokena Retail
28 University Centre I
30 Champions Centre Apartments
31 Cranbrook Plaza
32 Temescal Plaza
33 82 Totowa Road
34 565 Metro Place
35 Park Village
36 RV Dakota Ridge RV Park
37 RV Elk Meadows RV Park
38 RV Spruce Lake RV Park
39 Pegasus Place
40 The Fairways Apartments
41 Parks at Walnut
42 Sprouts Center Surprise
45 St. Charles Place
46 Whole Foods - Alexandria
48 Bullard Crossing
49 Curry Junction Apartments
50 Crown Acquisitions
52 Northridge Shopping Center
56 Trade Center
58 Shilo Tacoma Washington
59 Prime One Office Building
60 Holiday Inn Express - Flagstaff Arizona
61 Bullard Creek
62 Catoosa Shopping Center
63 Wexford Homes
64 Center Pointe Apartments
65 Farmville Apartment Portfolio
67 Viewridge Industrial
68 Country Inn & Suites Elgin, IL
69 Holiday Inn Express Winnemucca
71 Alliance Commerce Center
72 Pleasant Hill Station
73 Ravine Bluff Apartments
74 Holiday Inn Express Carson City
76 Drug Mart Plaza A - ROLLUP
76.1 Drug Mart Plaza - Upper Sandusky
76.2 Drug Mart Plaza - Parma Heights
78 Best Storage Portfolio
78.1 Best Storage Dripping Springs
78.2 Best Storage Bastrop
78.3 Best Storage Lockhart
78.4 Best Storage San Marcos
79 488 Main Avenue
80 Muhlenberg Square
82 Gateway Center
83 Northside Plaza
84 Design Market
86 Troy Marketplace
87 Fountain Court
88 City Center MOB
90 Plaza Medical & Research Center I
91 Prominence Shops at Liberty Park
92 Ray's On The River
93 4355 Montgomery Road
94 Golden Enterprises Apartment Portfolio
94.1 4315 Coldwater Canyon
94.2 4320 Coldwater Canyon
94.3 13504 Burbank Boulevard
94.4 4652 Fulton Avenue
94.5 13009 Moorpark Street
95 Best Buy - Owasso
96 Shoppes at Taylor Ranch
98 Main & 8th Street Retail
101 Mound Road Commons
102 7733 South Shore Drive
103 112 York Road
105 Warwick Place
106 Westport Landing Shopping Center
107 Old Hickory
108 Marshall Office Park
109 Ramada Inn Austin
110 Mountain Meadows MHC
112 Screenland Office
113 Comfort Inn & Suites Mansfield
114 Hobby Lobby Retail Center
115 127 & 4000 Church Road
115.1 127 Church Road
115.2 4000 Church Road
116 Holiday Inn Express Hillsborough
117 1800 6th Street
118 Santa Fe Trails Apartments
119 Sleep Inn & Suites Metairie
120 Hampton Inn Horse Cave
121 Cranberry Hill & Norberry
121.1 Cranberry Hill Apartments
121.2 Norberry Condominiums
122 Autumn Springs Office Building
123 Holiday Inn Express Yankton
124 Goshen Commercial
126 412 S. Wall St. & 319 Winston St.
129 Marina Marketplace
130 Deerwood Village Executive Center
131 Shockoe Cary Building
132 Tower Storage
133 Clearpoint Crossing
134 Jackson Plaza-Edinburg
136 Skyline 1998
139 Oakridge Square Shopping Center
140 Lakeside Portfolio
140.1 20282 Garrett Highway
140.2 13227 Garrett Highway
141 Everett Retail
142 Providence Plaza & Shoppes at Midtown
142.1 Providence Plaza
142.2 Shoppes at Midtown
143 Dunn Commons
145 James Madison Square
147 180-184 Sunrise Highway
148 River Rose MHC
149 10620 Metcalf Avenue
150 Millennium Plaza
154 3100 University Boulevard
155 Vista Woods MHP
157 Naperville Executive Center
158 Concentra Medical Building
161 CVS Woodstock
164 Crabapple Place
165 Prairie Village
166 Castle Hills Apartments
167 Desoto Self Storage
168 Enfield Apartments
169 Tifton Mini Warehouse
171 Forest Creek MHP
172 Brunswick Apartments
173 5741 Bayside Road
174 1912 R Street, NW
175 Southwind Village MHP
178 353 Nassau Street
179 Office Depot Greensboro
181 Atrium Office Building
182 Airport Plaza
184 Fairfield Square Shopping Center
185 Citizens Bank Plaza
186 953-963 West Belmont
188 Kilby Place
190 McColl Plaza
193 Medical Center Apartments
195 Fiesta Mobile Home Park
197 Windy Hill Apartments
199 Ponca City Plaza SC
200 Update Center
201 Little Elm Self Storage
206 Nottingham Estates MHC
208 Lakeside Marketplace
209 Armor Self Storage
210 Kelly Plaza
211 Boiling Springs Center
Total/Weighted Average:
# Address
------------------------ -----------------------------------------------------------------------
1
1.1 One Pico Boulevard
1.2 1910 Ocean Way
2 245 Fifth Avenue
3 333 City Boulevard West
4 2600 Michelson Drive
5 220 East 63rd Street
6
6.1 3503 Bonaire Boulevard
6.2 2829 South Oakland Forest Drive
6.3 3630 Brennan Boulevard
6.4 2400 Arrowhead Drive
6.5 7208 West 34th Street
7 15655 Cypress Woods Medical Drive
8 1505-1515 Route 22
9
9.1 3489 Broadway
9.2 548 West 164th Street
9.3 610 West 163rd Street
9.4 519 West 143rd Street
10
10.1 5055 Lindell Road
10.2 2301 South Valley View Boulevard
11 1502-1910 Sweetwater Road
13 13601 Grove Drive
14 2500 North Military Trail
15 6401 East Mockingbird Lane
17 350 East 82nd Street
18
18.1 509 South Sixth Street
18.2 500 East Monroe
18.3 2285 East 350 North Road
18.4 400-424 North Fifth Street
18.5 700 North MacArthur Boulevard
18.6 424 South 5th Street
18.7 528 South Fifth Street
19 5901 Weber Road
20 1015 Elm Street
21
21.1 112-118 West 125th Street, 250 West 125th Street, 117 West 124th Street
21.2 1645 Pitkin Street
23 13050 Champions Park Drive
25 One Convent Road
26 Northeast Corner University Parkway & Lockwood Ridge Road
27 11244 and 11310 West Lincoln Highway
28 1300 South University Drive
30 13222 Champions Centre Drive
31 532-598 Cranbrook Road, 10400-10402 Ridgeland Road
32 4869-5095 Telegraph Avenue
33 82 Totowa Road
34 565 Metro Place South
35 7575 South Westmoreland Road
36 17800 West Colfax Avenue
37 1665 Colorado Highway 66
38 1050 Mary's Lake Road
39 2504 Larkin Road
40 1450 North State Highway 360
41 10000 Walnut Street
42 13757-13761 West Bell Road
45 2000 Old Minden Road
46 1700 Duke Street
48 5105 Old Bullard Road
49 3549 Curry Lane
50 1240, 1310, 1502 West Ajo Way
52 8329 Roswell Road
56 100 Trade Centre Drive
58 7414 South Hosmer Street
59 20601 North 19th Avenue
60 2320 East Lucky Lane
61 5621 Old Bullard Road
62 2500 North Highway 66
63 600 Wembley Circle
64 460 North Arthur Street
65 408 High Street
67 4520 Viewridge Avenue
68 2270 Point Boulevard
69 1987 West Winnemucca Boulevard
71 615 West Wilshire Boulevard
72 2442 Pleasant Hill Road
73 5454 Ponderosa Drive
74 4055 North Carson Street
76
76.1 1155 East Wyandot Avenue
76.2 6476 York Road
78
78.1 26552 Ranch Road 12
78.2 770 Highway 71 West
78.3 1414 South Colorado Street
78.4 2406 Interstate 35 South
79 488 Main Avenue
80 3417 North 5th Street
82 991 South State Road 7
83 132-01 14th Avenue
84 501 Northeast 122nd Street
86 1225-1265 Highway 231
87 1-31 Fountain Court
88 3610 Michelle Wittmer Memorial Drive
90 13128 North 94th Drive
91 8000 Liberty Parkway
92 6700 Powers Ferry Road
93 4355 Montgomery Road
94
94.1 4315 Coldwater Canyon Avenue
94.2 4320 Coldwater Canyon
94.3 13504 Burbank Boulevard
94.4 4652 Fulton Avenue
94.5 13009 Moorpark Street
95 9055 North 121st Avenue E
96 4801 Montano Road Northwest
98 800-813 South Main Street and 100-118 8th Street
101 56692-56848 Mound Road
102 7733 South Shore Drive
103 112 York Road
105 33 Lambert Lind Highway
106 534-552 Westport Road
107 Northeast Corner Old Hickory Tree Road & U.S. Highway 192
108 6385 and 6425 West 52nd Avenue
109 9121 North Interstate Highway 35
110 8628 Huffine Lane
112 1656 Washington Street
113 175 North Highway 287
114 901 South Interstate 35
115
115.1 127 Church Road
115.2 4000 Church Road
116 202 Cardinal Drive
117 1800 6th Street
118 6347 Melody Lane & 6318 Ridgecrest Road
119 4601 North IH 10 Service Road (Utica Street) and 4708 Trenton Street
120 750 Flint Ridge Road
121
121.1 101-135 West Water Street
121.2 1200 & 1201 Dutilh Road
122 512 Autumn Springs Court
123 2607 Broadway Avenue
124 100 Canal Street
126 412 South Wall Street & 319 Winston Street
129 1495 East Prater Way
130 9770 Baymeadows Road
131 19-21 South 13th Street
132 4310 Highway 45 East
133 11510 Space Center Boulevard
134 2404 West University Drive
136 16050 North 76th Street
139 1600 Babcock Road
140
140.1 20282 & 20294 Garret Highway
140.2 13227 Garrett Highway
141 711 112th Street Southeast
142
142.1 6601 Airport Boulevard
142.2 1500 Government Street
143 10210 Couloak Drive
145 1306 Hillside Avenue
147 180-184 Sunrise Higway
148 2601 North Barker Road
149 10620 Metcalf Avenue
150 2235 Empire Boulevard
154 3100 University Boulevard
155 5887 Deerfield Road
157 1555 North Naperville Wheaton Road
158 1617 South Third Street
161 1600 Towne Lake Parkway
164 24 East Crossville Road
165 6105-6139 East 13th Street North
166 6014 Blanco Road
167 2274 Highway 51 North
168 1200 and 1208 Enfield Road
169 2202 Leslie Locke Road, 96 Vernon Drive, 98 Cypress Street
171 2267 Berry Road
172 3205 Brunswick Street
173 5741 Bayside Road
174 1912 R Street Northwest
175 1269 River Road
178 353 Nassau Street
179 920 North Church Street
181 13313 Southwest Freeway
182 762-770 Route 3
184 1201 West Vernon Avenue
185 2170 Matlock Road
186 953-963 West Belmont Avenue
188 101 North 40th Street
190 4120 South McColl Road
193 400, 404, 408 and 412 Paladin Drive
195 102 Amigo Lane
197 120 Chalfont Drive
199 910 East Prospect Avenue
200 9909 224th Street East
201 150 Lobo Lane
206 4400 Daleview Avenue
208 131 Elams Road
209 5804 North Denton Highway
210 22441-22445 Kelly Road
211 3906 Boiling Springs Road
Total/Weighted Average:
Zip Property
# City County State Code Type
------------------------ ---------------- -------------------- ----- ----- ------------
1
1.1 Santa Monica Los Angeles CA 90405 Hotel
1.2 Santa Monica Los Angeles CA 90405 Hotel
2 New York New York NY 10016 Office
3 Orange Orange CA 92868 Office
4 Irvine Orange CA 92612 Office
5 New York New York NY 10065 Multifamily
6
6.1 Kissimmee Osceola FL 34741 Multifamily
6.2 Oakland Park Broward FL 33309 Multifamily
6.3 Amarillo Randall TX 79121 Multifamily
6.4 Abilene Taylor TX 79606 Multifamily
6.5 Amarillo Randall TX 79109 Multifamily
7 Houston Harris TX 77014 Office
8 Southeast Putnam NY 10509 Retail
9
9.1 New York New York NY 10031 Multifamily
9.2 New York New York NY 10032 Multifamily
9.3 New York New York NY 10032 Multifamily
9.4 New York New York NY 10031 Multifamily
10
10.1 Las Vegas Clark NV 89118 Multifamily
10.2 Las Vegas Clark NV 89102 Multifamily
11 National City San Diego CA 91950 Retail
13 Maple Grove Hennepin MN 55311 Retail
14 Boca Raton Palm Beach FL 33431 Office
15 Dallas Dallas TX 75214 Retail
17 New York New York NY 10028 Retail
18
18.1 Springfield Sangamon IL 62701 Office
18.2 Springfield Sangamon IL 62701 Office
18.3 Pana Christian IL 62557 Industrial
18.4 Springfield Sangamon IL 62702 Office
18.5 Springfield Sangamon IL 62702 Industrial
18.6 Springfield Sangamon IL 62701 Office
18.7 Springfield Sangamon IL 62705 Office
19 Corpus Christi Nueces TX 78413 Multifamily
20 Dallas Dallas TX 75202 Hotel
21
21.1 New York New York NY 10027 Retail
21.2 Brooklyn Kings NY 11212 Retail
23 Houston Harris TX 77069 Multifamily
25 Morris Township Morris NJ 07960 Hotel
26 Sarasota Sarasota FL 34243 Retail
27 Mokena Will IL 60448 Retail
28 Ft. Worth Tarrant TX 76107 Office
30 Houston Harris TX 77069 Multifamily
31 Cockeysville Baltimore MD 21030 Retail
32 Oakland Alameda CA 94609 Retail
33 Wayne Passaic NJ 07470 Industrial
34 Dublin Franklin OH 43017 Office
35 Dallas Dallas TX 75237 Multifamily
36 Golden Jefferson CO 80401 Multifamily
37 Estes Park Larimer CO 80517 Multifamily
38 Estes Park Larimer CO 80517 Multifamily
39 Lexington Fayette KY 40503 Multifamily
40 Grand Prairie Tarrant TX 75050 Multifamily
41 Dallas Dallas TX 75243 Multifamily
42 Surprise Maricopa AZ 85374 Retail
45 Bossier City Bossier LA 71111 Multifamily
46 Alexandria Alexandria City VA 22314 Retail
48 Tyler Smith TX 75703 Multifamily
49 Abilene Taylor TX 79606 Multifamily
50 Tucson Pima AZ 85713 Multifamily
52 Sandy Springs Fulton GA 30350 Retail
56 Champaign Champaign IL 61820 Office
58 Tacoma Pierce WA 98408 Hotel
59 Phoenix Maricopa AZ 85027 Industrial
60 Flagstaff Coconino AZ 86004 Hotel
61 Tyler Smith TX 75703 Multifamily
62 Catoosa Rogers OK 74015 Retail
63 Duncanville Dallas TX 75137 Multifamily
64 Kennewick Benton WA 99336 Multifamily
65 Farmville Prince Edward VA 23901 Multifamily
67 San Diego San Diego CA 92123 Industrial
68 Elgin Kane IL 60123 Hotel
69 Winnemucca Humboldt NV 89445 Hotel
71 Oklahoma City Oklahoma OK 73116 Mixed Use
72 Duluth Gwinnett GA 30096 Retail
73 Columbus Franklin OH 43231 Multifamily
74 Carson City Carson City NV 89706 Hotel
76
76.1 Upper Sandusky Wyandot OH 43351 Retail
76.2 Parma Heights Cuyahoga OH 44130 Retail
78
78.1 Dripping Springs Hays TX 78620 Self Storage
78.2 Bastrop Bastrop TX 78602 Self Storage
78.3 Lockhart Caldwell TX 78644 Self Storage
78.4 San Marcos Hays TX 78666 Self Storage
79 Norwalk Fairfield CT 06851 Office
80 Muhlenberg Berks PA 19605 Retail
82 Plantation Broward FL 33317 Industrial
83 College Point Queens NY 11356 Retail
84 Oklahoma City Oklahoma OK 73114 Industrial
86 Troy Pike AL 36081 Retail
87 Bartonsville Monroe PA 18321 Retail
88 New Berlin Waukesha WI 53151 Office
90 Peoria Maricopa AZ 85381 Office
91 Vestavia Hills Jefferson AL 35242 Retail
92 Atlanta Fulton GA 30339 Retail
93 Naperville Du Page IL 60564 Office
94
94.1 Studio City Los Angeles CA 91604 Multifamily
94.2 Studio City Los Angeles CA 91604 Multifamily
94.3 Sherman Oaks Los Angeles CA 91401 Multifamily
94.4 Sherman Oaks Los Angeles CA 91423 Multifamily
94.5 Studio City Los Angeles CA 91604 Multifamily
95 Owasso Tulsa OK 74055 Retail
96 Albuquerque Bernalillo NM 87120 Retail
98 Los Angeles Los Angeles CA 90014 Retail
101 Shelby Township Macomb MI 48316 Industrial
102 Chicago Cook IL 60649 Multifamily
103 Elmhurst Dupage IL 60126 Mixed Use
105 Warwick Kent RI 02886 Mixed Use
106 Kansas City Jackson MO 64111 Retail
107 St. Cloud Osceola FL 34771 Retail
108 Arvada Jefferson CO 80002 Industrial
109 Austin Travis TX 78753 Hotel
110 Bozeman Gallatin MT 59718 Multifamily
112 Kansas City Jackson MO 64108 Office
113 Mansfield Tarrant TX 76063 Hotel
114 Georgetown Williamson TX 78626 Retail
115
115.1 Marlton Burlington NJ 08053 Office
115.2 Mount Laurel Burlington NJ 08054 Office
116 Hillsborough Orange NC 27278 Hotel
117 Los Angeles Los Angeles CA 90057 Retail
118 Dallas Dallas TX 75231 Multifamily
119 Metairie Jefferson LA 70006 Hotel
120 Horse Cave Hart KY 42749 Hotel
121
121.1 Slippery Rock Butler PA 16057 Multifamily
121.2 Cranberry Butler PA 16066 Multifamily
122 Franklin Williamson TN 37067 Office
123 Yankton Yankton SD 57078 Hotel
124 Goshen Orange NY 10924 Office
126 Los Angeles Los Angeles CA 90013 Retail
129 Sparks Washoe NV 89434 Retail
130 Jacksonville Duval FL 32256 Office
131 Richmond Henrico VA 23219 Mixed Use
132 Fayetteville Washington AR 72703 Self Storage
133 Houston Harris TX 77059 Retail
134 Edinburg Hidalgo TX 78541 Retail
136 Scottsdale Maricopa AZ 85260 Mixed Use
139 San Antonio Bexar TX 78229 Retail
140
140.1 Oakland Garrett MD 21550 Retail
140.2 Oakland Garrett MD 21550 Retail
141 Everett Snohomish WA 98208 Retail
142
142.1 Mobile Mobile AL 36695 Retail
142.2 Mobile Mobile AL 36606 Retail
143 Charlotte Mecklenburg NC 28216 Retail
145 Harrisonburg Harrisonburg City VA 22801 Retail
147 Rockville Center Nassau NY 11570 Office
148 Otis Orchards Spokane WA 99027 Multifamily
149 Overland Park Johnson KS 66212 Retail
150 Webster Monroe NY 14580 Mixed Use
154 Jacksonville Duval FL 32216 Office
155 Milford Clermont OH 45150 Multifamily
157 Naperville DuPage IL 60563 Office
158 Saint Louis Saint Louis City MO 63104 Office
161 Woodstock Cherokee GA 30189 Retail
164 Roswell Fulton GA 30075 Retail
165 Wichita Sedgwick KS 67208 Retail
166 San Antonio Bexar TX 78216 Multifamily
167 Hernando DeSoto MS 38632 Self Storage
168 Austin Travis TX 78703 Multifamily
169 Tifton Tift GA 31793 Self Storage
171 Amelia Clermont OH 45102 Multifamily
172 Danville Vermilion IL 61832 Multifamily
173 Virginia Beach Virginia Beach City VA 23455 Mixed Use
174 Washington District of Columbia DC 20009 Multifamily
175 North Fort Myers Lee FL 33903 Multifamily
178 Princeton Mercer NJ 08540 Office
179 Greensboro Guilford NC 27401 Retail
181 Sugar Land Fort Bend TX 77478 Office
182 Plattsburgh Clinton NY 12901 Retail
184 Kinston Lenoir NC 28501 Retail
185 Mansfield Tarrant TX 76063 Mixed Use
186 Chicago Cook IL 60657 Retail
188 Omaha Douglas NE 68131 Retail
190 Edinburg Hidalgo TX 78539 Retail
193 Greenville Pitt NC 27834 Multifamily
195 Dickinson Galveston TX 77539 Multifamily
197 Athens Clarke GA 30606 Multifamily
199 Ponca City Kay OK 74601 Retail
200 Graham Pierce WA 98338 Retail
201 Little Elm Denton TX 75068 Self Storage
206 Dayton Montgomery OH 45405 Multifamily
208 Littleton Warren NC 27850 Retail
209 Haltom City Tarrant TX 76148 Self Storage
210 Eastpointe Macomb MI 48021 Retail
211 Boiling Springs Spartanburg SC 29316 Retail
Total/Weighted Average:
Units/
Sq. Ft./
Property Mortgage Rooms/ Original
# Sub-type Property Seller Pads Balance
------------------------ ------------------------- ---------------------- -------- -------------- ---
1 Column Financial, Inc. 327 $310,000,000 (11)
1.1 Full Service 198 $185,614,308
1.2 Full Service 129 $124,385,692
2 Central Business District Column Financial, Inc. 303,139 $140,000,000 (12)
3 Central Business District Column Financial, Inc. 410,068 $115,000,000 (13)
4 Suburban Column Financial, Inc. 307,271 $95,000,000 (14)
5 Conventional Column Financial, Inc. 180 $90,000,000 (15)
6 Column Financial, Inc. 1,209 $72,000,000
6.1 Conventional 448 $30,581,000
6.2 Conventional 188 $21,290,000
6.3 Conventional 276 $9,600,000
6.4 Conventional 152 $6,271,000
6.5 Conventional 145 $4,258,000
7 Suburban Column Financial, Inc. 144,415 $31,800,000
8 Anchored Column Financial, Inc. 185,006 $31,200,000
9 Column Financial, Inc. 214 $31,000,000 (18)
9.1 Conventional 79 $13,494,118
9.2 Conventional 56 $6,929,412
9.3 Conventional 54 $6,418,824
9.4 Conventional 25 $4,157,646
10 Column Financial, Inc. 448 $30,300,000 (20)
10.1 Conventional 232 $16,500,000
10.2 Conventional 216 $13,800,000
11 Anchored Column Financial, Inc. 199,078 $29,000,000
13 Anchored Column Financial, Inc. 191,095 $26,000,000
14 Suburban Column Financial, Inc. 126,602 $23,500,000
15 Anchored Column Financial, Inc. 166,625 $23,200,000
17 Unanchored Column Financial, Inc. 41,193 $22,500,000
18 Column Financial, Inc. 395,199 $21,920,000
18.1 Central Business District 89,056 $6,730,200
18.2 Central Business District 57,185 $3,800,600
18.3 N/A 110,000 $3,487,200
18.4 Central Business District 34,802 $3,088,800
18.5 N/A 65,067 $2,012,800
18.6 Central Business District 20,448 $1,614,400
18.7 Central Business District 18,641 $1,186,000
19 Conventional Column Financial, Inc. 783 $21,500,000
20 Full Service Column Financial, Inc. 309 $21,500,000
21 Column Financial, Inc. 23,625 $19,200,000
21.1 Unanchored 13,225 $14,580,000
21.2 Unanchored 10,400 $4,620,000
23 Conventional Column Financial, Inc. 246 $15,300,000
25 Full Service Column Financial, Inc. 186 $14,725,000
26 Unanchored Column Financial, Inc. 68,057 $13,750,000
27 Unanchored Column Financial, Inc. 44,632 $13,400,000
28 Suburban Column Financial, Inc. 99,267 $13,400,000
30 Conventional Column Financial, Inc. 192 $13,000,000
31 Unanchored Column Financial, Inc. 138,558 $12,800,000
32 Anchored Column Financial, Inc. 44,632 $12,700,000
33 N/A Column Financial, Inc. 138,000 $12,600,000
34 Suburban Column Financial, Inc. 118,192 $12,235,000
35 Conventional Column Financial, Inc. 350 $12,100,000
36 RV Park Column Financial, Inc. 141 $5,980,000
37 RV Park Column Financial, Inc. 240 $3,941,500
38 RV Park Column Financial, Inc. 116 $2,047,500
39 Conventional Column Financial, Inc. 312 $11,600,000
40 Conventional Column Financial, Inc. 297 $11,600,000
41 Conventional Column Financial, Inc. 308 $11,320,000
42 Anchored Column Financial, Inc. 44,885 $11,100,000
45 Conventional Column Financial, Inc. 226 $9,960,000
46 Anchored Column Financial, Inc. 42,243 $9,932,000
48 Conventional Column Financial, Inc. 192 $9,600,000
49 Conventional Column Financial, Inc. 228 $9,600,000
50 Conventional Column Financial, Inc. 236 $9,550,000
52 Anchored Column Financial, Inc. 75,199 $8,800,000
56 Suburban Column Financial, Inc. 106,138 $8,500,000
58 Limited Service Column Financial, Inc. 132 $8,400,000
59 N/A Column Financial, Inc. 57,731 $8,250,000
60 Limited Service Column Financial, Inc. 155 $8,100,000
61 Conventional Column Financial, Inc. 200 $7,840,000
62 Anchored Column Financial, Inc. 70,223 $7,575,000
63 Conventional Column Financial, Inc. 122 $7,500,000
64 Conventional Column Financial, Inc. 134 $7,450,000
65 Conventional Column Financial, Inc. 93 $7,225,000
67 N/A Column Financial, Inc. 48,203 $6,750,000
68 Limited Service Column Financial, Inc. 98 $6,700,000
69 Limited Service Column Financial, Inc. 72 $6,700,000
71 Warehouse/Office Column Financial, Inc. 216,604 $6,400,000
72 Unanchored Column Financial, Inc. 24,500 $6,240,000
73 Conventional Column Financial, Inc. 316 $6,200,000
74 Limited Service Column Financial, Inc. 85 $6,000,000
76 Column Financial, Inc. 69,574 $5,775,000
76.1 Anchored 37,280 $3,065,000
76.2 Anchored 32,294 $2,710,000
78 Column Financial, Inc. 179,925 $5,498,750
78.1 N/A 51,925 $1,950,000
78.2 N/A 50,350 $1,806,250
78.3 N/A 48,500 $1,147,500
78.4 N/A 29,150 $595,000
79 Suburban Column Financial, Inc. 35,843 $5,400,000
80 Unanchored Column Financial, Inc. 46,179 $5,350,000
82 N/A Column Financial, Inc. 88,177 $5,259,000
83 Unanchored Column Financial, Inc. 16,994 $5,000,000
84 N/A Column Financial, Inc. 89,184 $5,000,000
86 Anchored Column Financial, Inc. 139,355 $4,800,000
87 Unanchored Column Financial, Inc. 42,500 $4,686,000
88 Suburban Column Financial, Inc. 25,465 $4,662,000
90 Suburban Column Financial, Inc. 33,681 $4,550,000
91 Unanchored Column Financial, Inc. 25,203 $4,268,000
92 Unanchored Column Financial, Inc. 11,515 $4,200,000
93 Suburban Column Financial, Inc. 16,000 $4,100,000
94 Column Financial, Inc. 49 $4,100,000
94.1 Conventional 12 $1,105,000
94.2 Conventional 12 $969,600
94.3 Conventional 9 $700,500
94.4 Conventional 8 $669,500
94.5 Conventional 8 $655,400
95 Anchored Column Financial, Inc. 30,038 $4,068,000
96 Anchored Column Financial, Inc. 51,939 $4,000,000
98 Unanchored Column Financial, Inc. 45,658 $4,000,000
101 N/A Column Financial, Inc. 70,200 $3,775,000
102 Conventional Column Financial, Inc. 65 $3,735,000
103 Retail/Office Column Financial, Inc. 24,500 $3,725,000
105 Retail/Warehouse Column Financial, Inc. 52,227 $3,692,000
106 Anchored Column Financial, Inc. 25,538 $3,675,000
107 Unanchored Column Financial, Inc. 29,419 $3,600,000
108 N/A Column Financial, Inc. 49,390 $3,600,000
109 Limited Service Column Financial, Inc. 156 $3,600,000
110 Manufactured Housing Column Financial, Inc. 134 $3,500,000
112 Central Business District Column Financial, Inc. 47,329 $3,480,000
113 Limited Service Column Financial, Inc. 59 $3,480,000
114 Anchored Column Financial, Inc. 72,613 $3,377,000
115 Column Financial, Inc. 22,960 $3,300,000
115.1 Suburban 11,975 $1,841,860
115.2 Suburban 10,985 $1,458,140
116 Limited Service Column Financial, Inc. 83 $3,250,000
117 Unanchored Column Financial, Inc. 16,576 $3,241,000
118 Conventional Column Financial, Inc. 176 $3,230,000
119 Limited Service Column Financial, Inc. 70 $3,100,000
120 Limited Service Column Financial, Inc. 101 $3,100,000
121 Column Financial, Inc. 34 $3,064,000
121.1 Conventional 21 $2,010,000
121.2 Conventional 13 $1,054,000
122 Central Business District Column Financial, Inc. 22,996 $3,000,000
123 Limited Service Column Financial, Inc. 58 $3,000,000
124 Central Business District Column Financial, Inc. 17,662 $2,992,000
126 Unanchored Column Financial, Inc. 31,700 $2,900,000
129 Unanchored Column Financial, Inc. 15,985 $2,750,000
130 Suburban Column Financial, Inc. 25,241 $2,704,000
131 Multifamily/Retail Column Financial, Inc. 16 $2,700,000
132 N/A Column Financial, Inc. 69,815 $2,675,000
133 Unanchored Column Financial, Inc. 14,908 $2,626,000
134 Unanchored Column Financial, Inc. 20,870 $2,600,000
136 Office/Industrial Column Financial, Inc. 23,923 $2,500,000
139 Unanchored Column Financial, Inc. 26,569 $2,418,000
140 Column Financial, Inc. 21,058 $2,408,000
140.1 Unanchored 8,100 $1,275,000
140.2 Unanchored 12,958 $1,133,000
141 Unanchored Column Financial, Inc. 12,570 $2,400,000
142 Column Financial, Inc. 6,600 $2,400,000
142.1 Unanchored 4,850 $1,700,000
142.2 Unanchored 1,750 $700,000
143 Unanchored Column Financial, Inc. 9,948 $2,360,000
145 Unanchored Column Financial, Inc. 11,844 $2,300,000
147 Suburban Column Financial, Inc. 12,300 $2,285,000
148 Manufactured Housing Column Financial, Inc. 111 $2,250,000
149 Unanchored Column Financial, Inc. 27,500 $2,200,000
150 Retail/Multifamily Column Financial, Inc. 24,400 $2,200,000
154 Suburban Column Financial, Inc. 42,564 $2,051,000
155 Manufactured Housing Column Financial, Inc. 102 $2,032,000
157 Suburban Column Financial, Inc. 25,133 $2,015,000
158 Central Business District Column Financial, Inc. 9,000 $2,000,000
161 Unanchored Column Financial, Inc. 10,125 $2,000,000
164 Unanchored Column Financial, Inc. 8,732 $1,909,000
165 Anchored Column Financial, Inc. 81,774 $1,907,722
166 Conventional Column Financial, Inc. 60 $1,900,000
167 N/A Column Financial, Inc. 55,050 $1,880,000
168 Conventional Column Financial, Inc. 28 $1,851,000
169 N/A Column Financial, Inc. 88,420 $1,850,000
171 Manufactured Housing Column Financial, Inc. 130 $1,760,000
172 Conventional Column Financial, Inc. 80 $1,750,000
173 Warehouse/Office Column Financial, Inc. 33,800 $1,720,000
174 Conventional Column Financial, Inc. 6 $1,700,000
175 Manufactured Housing Column Financial, Inc. 84 $1,657,500
178 Suburban Column Financial, Inc. 8,624 $1,607,000
179 Anchored Column Financial, Inc. 18,400 $1,600,000
181 Suburban Column Financial, Inc. 36,303 $1,600,000
182 Anchored Column Financial, Inc. 48,005 $1,600,000
184 Unanchored Column Financial, Inc. 22,483 $1,530,000
185 Office/Retail Column Financial, Inc. 8,180 $1,500,000
186 Unanchored Column Financial, Inc. 14,882 $1,500,000
188 Unanchored Column Financial, Inc. 8,461 $1,470,000
190 Unanchored Column Financial, Inc. 7,600 $1,446,000
193 Conventional Column Financial, Inc. 56 $1,415,000
195 Manufactured Housing Column Financial, Inc. 76 $1,392,000
197 Conventional Column Financial, Inc. 41 $1,341,000
199 Unanchored Column Financial, Inc. 10,600 $1,303,000
200 Unanchored Column Financial, Inc. 7,889 $1,250,000
201 N/A Column Financial, Inc. 28,008 $1,250,000
206 Manufactured Housing Column Financial, Inc. 99 $1,050,000
208 Unanchored Column Financial, Inc. 10,000 $1,000,000
209 N/A Column Financial, Inc. 39,950 $1,000,000
210 Unanchored Column Financial, Inc. 10,640 $1,000,000
211 Unanchored Column Financial, Inc. 6,180 $925,000
Total/Weighted Average: $1,792,161,972
Percentage of
Cut-off Initial Net Maturity Fee/ Year
# Balance (1) Pool Balance Balance (2) Leasehold Built
------------------------ -------------- --- ------------- -------------- --- ------------- -----
1 $310,000,000 (11) 14.9% $310,000,000 (11)
1.1 $185,614,308 8.9% $185,614,308 Fee 1993
1.2 $124,385,692 6.0% $124,385,692 Fee 1925
2 $140,000,000 (12) 6.7% $140,000,000 (12) Fee 1926
3 $115,000,000 (13) 5.5% $115,000,000 (13) Fee 1988
4 $95,000,000 (14) 4.6% $95,000,000 (14) Fee 1986
5 $90,000,000 (15) 4.3% $90,000,000 (15) Fee 1963
6 $72,000,000 3.46% $67,126,206
6.1 $30,581,000 1.5% $28,510,924 Fee 1990
6.2 $21,290,000 1.0% $19,848,846 Fee 1995
6.3 $9,600,000 0.5% $8,950,161 Fee 1979
6.4 $6,271,000 0.3% $5,846,506 Fee 1982
6.5 $4,258,000 0.2% $3,969,769 Fee 1971
7 $31,800,000 1.5% $31,800,000 Fee 2005
8 $31,200,000 1.5% $31,200,000 Fee 1972
9 $31,000,000 (18) 1.5% $31,000,000 (18)
9.1 $13,494,118 0.6% $13,494,118 Fee 1910
9.2 $6,929,412 0.3% $6,929,412 Fee 1910
9.3 $6,418,824 0.3% $6,418,824 Fee 1930
9.4 $4,157,646 0.2% $4,157,646 Fee 1920
10 $30,300,000 (20) 1.5% $30,300,000 (20)
10.1 $16,500,000 0.8% $16,500,000 Fee 1990
10.2 $13,800,000 0.7% $13,800,000 Fee 1976
11 $29,000,000 1.4% $26,058,450 Fee 1976
13 $26,000,000 1.2% $26,000,000 Fee 1986
14 $23,500,000 1.1% $23,500,000 Fee 1986
15 $23,200,000 1.1% $23,200,000 Fee 1954
17 $22,500,000 1.1% $22,500,000 Fee 1999
18 $21,865,363 1.1% $18,748,516
34 N/A
35 N/A
36 N/A
37 N/A
38 N/A
39 N/A
40 N/A
41 Provided No Event of Default (i) First Release Amount is
Released if DSCR has increased 5 basis points from Closing
Pro-Forma DSCR, (ii) Second Release Amount is Released if
DSCR has increased 10 basis points from Closing Pro-Forma
DSCR, (iii) Third Release Amount is Released if DSCR has
increased 15 basis points from Closing Pro-Forma DSCR, (iv)
Final Release Amount is Released if DSCR has increased 20
basis points from Closing Pro-Forma DSCR
42 $1,3, shall be release upon Suprise Massage NV, LLC
at the property and $8, shall be release once the property
achieve 95% occupancy
45 Subsequent to the five year anniversary of the first payment
date, the Mortgagee shall have the right to (i) Retain the
balance as additional security for the loan or (ii) apply a
portion of the account towards the repayment of the loan in
an amount equal to the amount that would cause the Pro-Forma
DSCR to exceed the Closing DSCR by twenty basis points
46 N/A
48 Released in 4 equal disbursements upon writted request
to 1.18x for first release (iii) the DSCR has increased by
1.23x for second release (iv) the DSCR has increased by
1.28x for third release (iv) the DSCR has increased by 1.48x
for fourth and final release
49 N/A
50 N/A
52 N/A
56 N/A
58 N/A
59 N/A
60 N/A
61 N/A
62 N/A
63 N/A
64 Release upon: (i) DSCR>=1.20, (ii) Occupancy >=90% and (iii)
no event of default
65 N/A
67 N/A
68 N/A
69 N/A
71 N/A
72 N/A
73 N/A
74 N/A
76 N/A
76.1
76.2
78 N/A
78.1
78.2
78.3
78.4
79 N/A
80 N/A
82 Release upon: (i) DSCR >= 1.20 and (ii) Occupancy >= 95%
83 N/A
84 N/A
86 N/A
87 N/A
88 N/A
90 N/A
91 N/A
92 N/A
93 N/A
94 N/A
94.1
94.2
94.3
94.4
94.5
95 N/A
96 N/A
98 N/A
101 N/A
102 N/A
103 N/A
105 N/A
106 N/A
107 Release upon (i) No Event of Default, (ii) DSCR>=1.20x,
(iii) Occupancy >=90% for 3 full calender months prior to
Earnout Disbursement Date
108 N/A
109 N/A
110 N/A
112 N/A
113 N/A
114 N/A
115 N/A
115.1
115.2
116 N/A
117 N/A
118 N/A
119 N/A
120 N/A
121 N/A
121.1
121.2
122 N/A
123 N/A
124 N/A
126 N/A
129 N/A
130 N/A
131 N/A
132 N/A
133 N/A
134 Release upon (i) No Event of Default, (ii) DSCR>=1.20x,
(iii) vacant space at property leased at no less than $12.00
per square foot for a minimum of a five year term
136 N/A
139 N/A
140 N/A
140.1
140.2
141 N/A
142 Release upon: (i) occupancy = 100% (4,850 SF leased at
$24/SF for a minimum of 3 years), (ii) LTV=<80% and (iii)
DSCR=>1.20
142.1
142.2
143 N/A
145 N/A
147 N/A
148 N/A
149 N/A
150 N/A
154 N/A
155 N/A
157 N/A
158 N/A
161 N/A
164 N/A
165 N/A
166 N/A
167 N/A
168 N/A
169 N/A
171 N/A
172 N/A
173 N/A
174 N/A
175 N/A
178 N/A
179 N/A
181 N/A
182 N/A
184 N/A
185 N/A
186 N/A
188 N/A
190 N/A
193 N/A
195 N/A
197 N/A
199 N/A
200 N/A
(A) The Underlying Mortgage Loans secured by RV Dakota Ridge RV Park, RV Elk
Meadows RV Park and RV Spruce Lake RV Park are cross-collateralized and
cross-defaulted.
(1) Based on a Cut-off date in September 2007.
(2) At maturity with respect to Balloon Loans or at the anticipated repayment
date in the case of ARD Loans, there can be no assurance that the value of
any particular Mortgaged Property will not have declined from the original
appraisal value.
(3) For hospitality properties, the occupancy presented above is the occupancy
concluded by the respective loan seller at underwriting based on
historical performance and future outlook. For further description of the
underwriting criteria, please see "Description of the Sponsors" in the
accompanying free writing prospectus.
(4) In the case of cross-collateralized and cross-defaulted underlying
mortgage loans, the combined LTV is presented for each and every related
underlying mortgage loan.
(5) U/W NCF reflects the net cash flow after underwritten replacement
reserves, underwritten LC's & TI's and underwritten FF&E.
(6) DSCR is based on the amount of the monthly payments presented. In the case
of cross-collateralized and cross-defaulted underlying mortgage loans the
combined DSCR is presented for each and every related underlying mortgage
loan.
(7) At maturity with respect to Balloon Loans or at the anticipated repayment
date in the case of ARD Loans.
(8) Anticipated Repayment Date.
(9) Prepayment Provision as of Origination:
Lock/(x) = Lockout or Defeasance for (x) payments
YMA/(y) = Greater of Yield Maintenance Premium and A% Prepayment for (y)
payments
A%/(y) = A% Prepayment for (y) payments
0.0%/(z) = Prepayable at par for (z) payments
(10) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
(11) The Shutters on the Beach & Casa Del Mar Portfolio Loan is evidenced by a
$310 million mortgage loan and a subordinate mezzanine loan in the amount
of $72 million. The mezzanine loan is secured by a pledge of ownership
interest in the borrower, has standard lender protection, and is subject
to standard intercreditor agreements. All calculations are based on the
$310 million mortgage loan.
(12) The 245 Fifth Avenue Loan is evidenced by a $140 million mortgage loan and
a subordinate mezzanine loan in the amount of $53 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $140 million mortgage loan.
(13) The City Tower Loan is evidenced by a $115 million mortgage loan and a
subordinate mezzanine loan in the amount of $25 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $115 million mortgage loan.
(14) The 2600 Michelson Loan is evidenced by a $95 million mortgage loan and a
subordinate mezzanine loan in the amount of $15 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $95 million mortgage loan.
(15) The Meyberry House Loan is evidenced by a $90 million mortgage loan and a
subordinate mezzanine loan in the amount of $34 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $90 million mortgage loan.
(16) The underwriting projects that 80% of the units are unregulated, 19.4% are
regulated and 0.6% are employee units.
(17) Beginning on the three month anniversary of the first payment date of the
loan, the borrower will also have the option to obtain a release of: (i)
the Parking Garage by paying the Parking Garage Release Amount
($8,800,000) and/or (ii) the Medical Office Space by paying the Medical
Office Space Release Amount ($8,800,000). In connection with the release
of either parcel, the borrower is not obligated to pay Required Yield
Maintenance.
(18) The Esquire Portfolio Loan is evidenced by a $31 million mortgage loan and
a subordinate mezzanine loan in the amount of $3.17 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $31 million mortgage loan.
(19) The underwriting projects that 49.1% of the units are unregulated, 49.1%
are regulated and 1.8% are employee units.
(20) The Artisan Las Vegas Portfolio Loan is evidenced by a $30.3 million
mortgage loan and a subordinate mezzanine loan in the amount of $9.47
million. The mezzanine loan is secured by a pledge of ownership interest
in the borrower, has standard lender protection, and is subject to
standard intercreditor agreements. All calculations are based on the $30.3
million mortgage loan.
(21) Commencing on the second anniversary of the REMIC start-up date as defined
in the relevant loan documents, the borrower will also have the option to
obtain a release of the mortgaged real property from the lien of the
mortgage loan through defeasance.
(22) Prior to the Defeasance Lockout Date, the borrower has the right to
partially prepay the mortgage loan and obtain release of an Individual
Property for up to 25% of the original principal amount of the mortgage
loan by paying the Adjusted Release Amount plus the Required Yield
Maintenance. After the Defeasance Lockout Date, the borrower can obtain a
release of such parcels only through defeasing the applicable portion of
the mortgage loan.
(23) With respect to the St. Luke's at Cypress Woods Loan, the Cut-Off LTV,
Maturity LTV, and Appraised Value are based upon the appraiser's concluded
As Is value. In addition, the appraiser also concluded a prospective As
Stabilized value of $41,500,000 as of September 1, 2008, resulting in a
Cut-Off LTV of 76.6% and a Maturity LTV of 76.6.%.
(24) The underlying mortgage loan is structured with an earnout/holdback or
stabilization reserve. The Cut-Off LTV and Maturity LTV for the loan is
shown net of its reserve.
(25) With respect to the Champions Centre Apartments Loan, the Cut-Off LTV,
Maturity LTV, and Appraised Value are based upon the appraiser's concluded
As Is value. In addition, the appraiser also concluded a prospective As
Stabilized value of $16,350,000 as of October 4, 2007, resulting in a
Cut-Off LTV of 79.5% and a Maturity LTV of 79.5%.
(26) With respect to the 1208B VFW Parkway Loan, the Cut-Off LTV, Maturity LTV,
and Appraised value are based upon stabilized values. The As is Appraised
value is $6,200,000 (as of 1/3/2007).
(27) With respect to the 1250B Auburn Road Loan, the Cut-Off LTV, Maturity LTV,
and Appraised value are based upon stabilized values. The As is Appraised
value is $2,250,000 (as of 3/10/2007).
(28) With respect to the Tower Professional Loan, the Cut-Off LTV, Maturity
LTV, and Appraised value are based upon stabilized values. The As is
Appraised value is $4,700,000 (as of 12/7/2006).
(29) The borrower has the obligation to prepay the loan, to the extent
necessary, upon the State of Illinois exercising its option to purchase
certain two parcels, which the State of Illinois currently leases. If the
State of Illinois exercises such purchase option during the defeasance
lockout period, or if the borrower is otherwise unable to defease due to
REMIC restrictions, then the borrower must prepay the loan, to the extent
necessary, with the Required Yield Maintenance plus 1%. After the
defeasance lockout period, the loan can only be defeased unless the
borrower is otherwise unable to defease the loan due to REMIC
restrictions.
(30) Commencing on the second anniversary of the REMIC start-up date as defined
in the relevant loan documents, the borrower will also have the option to
obtain a release of the of either: (i) the Drug Mart Plaza - Upper
Sandusky mortgaged real property from the lien of the mortgage by
prepaying 125% of the Minimum Release Payment or, (ii) the Drug Mart Plaza
- Parma Heights mortgaged real property by prepaying 140% of Minimum
Release Payment. In addition to such partial prepayment amount, the
borrower is also obligated to pay a prepayment penalty in the amount of
the Required Yield Maintenance.
(31) Commencing on the second anniversary of the REMIC start-up date as defined
in the relevant loan documents, the borrower will also have the option to
obtain a release of the Shoppes at Midtown mortgaged real property from
the lien of the mortgage by (i) prepaying 29% of the outstanding loan
balance if the earnout reserve has been released, or (ii) 35% of the
outstanding loan balance, if the earnout has not been released. In
addition to such partial prepayment amount, the borrower is also obligated
to pay a prepayment penalty in the amount of the Required Yield
Maintenance.
SCHEDULE III
MORTGAGE LOANS CONSTITUTING CROSSED GROUPS
(1) RV Dakota Ridge RV Park, RV Elk Meadows RV Park and RV Spruce Lake RV Park.
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in Exhibit A
attached hereto corresponding to the paragraph numbers set forth below:
See Attached
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 representation (i)
Wellington Tower Retail - The borrower delivered a temporary
certificate of occupancy with respect to the Mortgaged Property. The borrower is
required to deliver a replacement temporary certificate of occupancy prior to
the expiration of the temporary certificate of occupancy then in force, until
such time as the lender receives a true, correct and complete copy of the
permanent certificate of occupancy.
Exception to representation (x)
Comfort Inn & Suites Mansfield - The Mortgage and UCC financing
statement are second liens as to those certain furniture items listed on the
schedule attached to the lease with Vendor Capital Group. The recourse carveout
guarantor is liable for any losses resulting from the borrower's failure to
perform under the lease with Vendor Capital Group.
Exception to representation (xiii)
Comfort Inn & Suites Mansfield - The Mortgaged Property is subject
to a title exception with respect to a UCC filing by Vendor Capital Group
covering those certain furniture items listed on the schedule attached to the
lease with Vendor Capital Group. The recourse carveout guarantor is liable for
any losses resulting from the borrower's failure to perform under the lease with
Vendor Capital Group.
Exception to representation (xxvii)
Artisan Las Vegas Multis - Pursuant to the Mortgage Loan Documents,
VRP Meadow Ridge, LLC, one of the two borrower's, covenants and agrees to use
commercially reasonable efforts to obtain a "No Further Action" letter and/or
its equivalents with respect to the leaking transformer fluid and impacted soils
identified in the related Phase I Environmental Report. Upon receipt thereof,
the related borrower is required to promptly deliver the same to the lender.
Paradise Bay - The borrower is required to continue monitoring of
the progress of and involvement with the Texas Commission on Environmental
Quality with respect to the Voluntary Cleanup Program case relating to a former
dry cleaner to the south of the Mortgaged Property. The environmental consultant
recommended that the borrower enroll in the Innocent Owner/Operator Program
(IOP). The environmental consultant reviewed maps indicating that the
groundwater sampled from two groundwater monitoring wells near building 5 of the
Mortgaged Property are contaminated above the action levels set by the State of
Texas with respect to chlorinated solvents. In addition, the noted a minor area
of mold (approximately 4 square feet) in one apartment ceiling above the bath
tub from a leak from an upstairs apartment. The manager of the Mortgaged
Property should promptly identify and repair or remediate the source of the
moisture infiltration/buildup supporting the mold growth. Any damaged materials
in these areas are required to be removed and replaced.
Exception to representation (xxxi)(4)
Trade Center - As of the date of origination (June 1, 2007), the
ground lease (only covering the parking lot across the street from main
collateral) is subject to assignment to the borrower after origination. The
borrower is required to cause such assignment to be recorded within 60 days of
origination. In addition, the loan will be fully recourse the recourse carveout
guarantor until such an assignment is recorded. Finally, the title insurance
company (Chicago Title) has insured leasehold title in the borrower as of the
date of origination.
Exception to representation (xxxvi)
St Luke's At Cypress Woods - The borrower has obtained an unsecured
loan from an affiliate (L&S Capital Holdings, LLC), not to exceed $565,000.00
(the "L&S Loan") to pay certain costs and expenses related to the transaction.
The debt, if any, is evidenced by an unsecured promissory note, which note is
subject to a subordination and standstill agreement approved by the lender.
Eqizii Portfolio 400 N. 5th St./ Egizii Portfolio Combined - This
Loan is part of an "A/B" loan structure consistent with the program implemented
between Column Financial, Inc. and CBA Mezzanine Capital. The B Loan on this
transaction is in the amount of $1,420,000.00. The holder of the A Loan serves a
collateral agent for both lenders. The relationship between the lenders is
governed by an Intercreditor Agreement entered into consistent with the
Column/CBA-Mezz Program.
Hillside Village Shopping Center - This Loan is part of an "A/B"
loan structure consistent with the program implemented between Column Financial,
Inc. and CBA Mezzanine Capital. The B Loan on this transaction is in the amount
of $1,400,000.00. The holder of the A Loan serves a collateral agent for both
lenders. The relationship between the lenders is governed by an Intercreditor
Agreement entered into consistent with the Column/CBA-Mezz Program.
Exception to representation (xlviii)
Hamburg Trust/Alliance Portfolio - If the amount of proceeds is less
than $250,000 and the costs of restoration are less than $250,000, proceeds
shall be disbursed to Borrower to be used for restoration.
Exception to representation (xl)
St Luke's At Cypress Woods- The tax lot on which the Mortgaged
Property is located contains an outparcel (which may be released upon
subdivision) in addition to the Mortgaged Property. A separate tax lot
application has been made and the entire tax lot's assessments are taken into
account in calculating the impound account deposits.
Clearpoint Crossing -As of the closing date, the Mortgaged Property
does not constitute a separate tax parcel for purposed of ad valorem taxation
but is part of a combined parcel with other property currently owned by the
seller. Not later than May 1, 2008 the borrower is required to obtain a
subdivision of the Mortgaged Property from the remainder of the parcel and
obtain a separate tax parcel number. The Mortgaged Property has its own legal
description which has been recorded with Harris County, Texas.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of the Seller" or "to the Seller's knowledge" shall mean, except
where otherwise expressly set forth below, the actual state of knowledge of the
Seller or any servicer acting on its behalf regarding the matters referred to,
in each case without having conducted any independent inquiry or due diligence
with respect to such matters and without any actual or implied obligation to
make such inquiry or perform such due diligence, other than making such inquiry
or performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of the Seller. Wherever there is
a reference to receipt by, or possession of, the Seller of any information or
documents, or to any action taken by the Seller or not taken by the Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either the Seller or any servicer acting on its behalf.
The Seller hereby represents and warrants, subject to the exceptions
set forth in the applicable Exception Report, with respect to the Mortgage Loans
that as of the date herein below specified or, if no such date is specified, as
of the date of this Agreement:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to,
and was the sole owner of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(1) originated by a savings and loan association, savings
bank, commercial bank, credit union, or insurance company, which is
supervised and examined by a Federal or State authority, or by a
mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act (any of
the foregoing, including the Seller, a "Qualified Originator"); or
(2) if originated by a person which is not a Qualified
Originator (any such person, a "Non-Qualified Originator"), then:
(a) such Mortgage Loan was underwritten in accordance
with standards established by a Qualified Originator, using
application forms and related credit documents approved by the
Qualified Originator;
(b) the Qualified Originator approved each application
and related credit documents before a commitment by the
Non-Qualified Originator was issued, and no such commitment
was issued until the Qualified Originator agreed to fund such
Mortgage Loan;
(c) the Mortgage Loan was originated by the
Non-Qualified Originator pursuant to an ongoing, standing
relationship with the Qualified Originator; and
(d) the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator, and,
pursuant to the Non-Qualified Originator's ongoing, standing
relationship with the Qualified Originator, either:
i. such closing documents reflect the Qualified
Originator as the original mortgagee, and such Mortgage
Loan was actually funded by the Qualified Originator at
the closing thereof;
ii. such closing documents reflect the
Non-Qualified Originator as the original mortgagee, but
include assignment documents executed by the
Non-Qualified Originator in favor of the Qualified
Originator at the time of the closing of the Mortgage
Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator,
and the Mortgage Loan was funded initially by the
Non-Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such
Non-Qualified Originator; or
iii. such closing documents reflect the
Non-Qualified Originator as the original mortgagee, but
include assignment documents executed by the
Non-Qualified Originator in favor of the Qualified
Originator at the time of the closing of the Mortgage
Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator,
and the Mortgage Loan was funded initially by the
Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such
Non-Qualified Originator.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor
constitutes a legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or any other interests or security
interests of any nature encumbering such Mortgage Loan, except for
interests in servicing rights created or granted under the Pooling and
Servicing Agreement, subservicing agreements and/or servicing rights
purchase agreements being executed and delivered in connection herewith;
(v) To Seller's knowledge, based on the related borrower's
representations and covenants in the related mortgage loan documents and
such other due diligence as a reasonably prudent commercial mortgage
lender would deem appropriate, the borrower, lessee and/or operator was in
possession of all licenses, permits, and authorizations then required for
use of the Mortgaged Property which were valid and in full force and
effect as of the origination date and to Seller's actual knowledge, such
licenses, permits and authorizations are still valid and in full force and
effect;
(vi) Each related Note, Mortgage, assignment of leases (if any) and
other agreement executed by or for the benefit of the related borrower,
any guarantor or their successors or assigns in connection with such
Mortgage Loan is the legal, valid and binding obligation of the related
borrower, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or
by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and there is no right
of offset, rescission, abatement or diminution or valid defense or
counterclaim available to the related borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(vii) The Mortgage File contains an Assignment of Leases, either as
a separate instrument or incorporated into the related Mortgage. Each
related Assignment of Leases creates a valid first priority collateral
assignment of, or a valid first priority lien or security interest in,
certain rights under the related lease or leases, subject only to
Permitted Encumbrances (as defined below) and to a license granted to the
related borrower to exercise certain rights and to perform certain
obligations of the lessor under such lease or leases, including the right
to operate the related leased property, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); no person other than the
related borrower owns any interest in any payments due under such lease or
leases that is superior to or of equal priority with the lender's interest
therein;
(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if the
Assignment of Leases is a separate document from the Mortgage, is in
recordable form (but for the insertion of the name and address of the
assignee and any related recording information, which is not yet available
to the Seller), and such assignments and any assignment of any other
agreement executed by or for the benefit of the related borrower, any
guarantor or their successors or assigns in connection with such Mortgage
Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(ix) Since origination (a) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded in whole or in part and (b)
each related Mortgaged Property has not been released, in whole or in
part, from the lien of the related Mortgage in any manner which materially
interferes with the security intended to be provided by such Mortgage and
since August 24, 2007, no waiver, consent, modification, assumption,
alteration, satisfaction, cancellation, subordination or rescission which
changes the terms of, or the security for, the Mortgage Loan in any
material respect has occurred or been given;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as
defined below)), except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law); and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with the
lien of the related Mortgage, except those which are insured against by a
lender's title insurance policy (as described below). A UCC financing
statement has been filed and/or recorded (or sent for filing or recording)
in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property as currently
operated; and such security interest is a first priority security
interest, subject to any prior purchase money security interest in such
personal property, any personal property leases applicable to such
personal property and any other security interest in such personal
property which do not, individually or in the aggregate, materially
interfere with the security intended to be provided for such Mortgage
Loan. Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes
and creates a valid and enforceable lien on the property described
therein, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law). In the case of any Mortgage Loan secured by a hotel,
the related loan documents contain such provisions as are necessary and
UCC Financing Statements have been filed as necessary, in each case, to
perfect a valid first priority security interest in the related operating
revenues with respect to such Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the
extent that possession or control of such items or actions other than the
filing of Uniform Commercial Code financing statements are required in
order to effect such perfection;
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of
the Mortgaged Property covered thereby (as set forth in the related
Mortgage) after all advances of principal and is insured by an ALTA
lender's title insurance policy (except that if such policy is yet to be
issued, such insurance may be evidenced by a "marked up" pro forma policy,
specimen policy or title commitment in any case marked as binding and
countersigned by the title company or its authorized agent, either on its
face or by an acknowledged closing instruction or escrow letter), or its
equivalent as adopted in the applicable jurisdiction, insuring the lender
and its successors and assigns (as sole insured) as to such lien, subject
only to (a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or
penalties, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which, individually
or in the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property, (c) the exceptions
(general and specific) and exclusions set forth in such policy, none of
which, individually or in the aggregate, materially interferes with the
current general use of the Mortgaged Property or materially interferes
with the security intended to be provided by such Mortgage or with the
related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property, (d) the rights of tenants, as tenants
only, under leases, including subleases, pertaining to the related
Mortgaged Property, (e) if the related Mortgage Loan is
cross-collateralized with any other Mortgage Loan in the trust fund, the
lien of the mortgage instrument for that other Mortgage Loan, (f) if the
related Mortgaged Property is a unit in a condominium, the related
condominium declaration and (g) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property (items (a), (b), (c), (d), (e), (f) and (g)
collectively, "Permitted Encumbrances") and with respect to each Mortgage
Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided
by the related Mortgage, the current principal use of the related
Mortgaged Property, the value of the Mortgaged Property or the or the
current ability of the related Mortgaged Property to generate income
sufficient to service such Mortgage Loan; the premium for such policy was
paid in full; such policy (or if it is yet to be issued, the coverage to
be afforded thereby) is issued by a title insurance company licensed to
issue policies in the state in which the related Mortgaged Property is
located (unless such state is Iowa) and is assignable (with the related
Mortgage Loan) to the Depositor and the Trustee without the consent of or
any notification to the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement; no claims have been made under such policy and the
Seller has not undertaken any action or omitted to take any action, and
has no knowledge of any such act or omission, which would impair or
diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage
File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the
Mortgage Loan, as of the later of the date of origination of such Mortgage
Loan or the most recent inspection of the related Mortgaged Property by
the Seller, as applicable, and to the knowledge of Seller as of the date
hereof, each related Mortgaged Property is free of any material damage
that would affect materially and adversely the use or value of such
Mortgaged Property as security for the Mortgage Loan (normal wear and tear
excepted). If any of the inspection or engineering reports referred to
above in this Paragraph (xv) revealed any immediate repair items, then one
of the following is true: (a) the repairs and/or maintenance necessary to
correct such condition have been completed in all material respects; (b)
an escrow of funds is required or a letter of credit was obtained in an
amount reasonably estimated to be sufficient to complete the repairs
and/or maintenance necessary to correct such condition; or (c) the
reasonable estimation at the time of origination of the Mortgage Loan of
the cost to complete the repairs and/or maintenance necessary to correct
such condition represented no more than the greater of (i) $50,000 and
(ii) 2% of the value of the related Mortgaged Property as reflected in an
appraisal conducted in connection with the origination of the subject
Mortgage Loan; as of the closing date for each Mortgage Loan and, to the
Seller's knowledge, as of the date hereof, there is no proceeding pending
for the total or partial condemnation of such Mortgaged Property that
would have a material adverse effect on the use or value of the Mortgaged
Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the
originator of the Mortgage Loan inspected or caused to be inspected each
related Mortgaged Property within three months of origination of the
Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than
the ARD Loans which may have negative amortization from and after the
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to the lender or any other party;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the
date of origination with, or was exempt from, applicable state or federal
laws, regulations and other requirements pertaining to usury. Except to
the extent any noncompliance did not materially and adversely affect the
value of the related Mortgaged Property, the security provided by the
Mortgage or the related borrower's operations at the related Mortgaged
Property, any and all other requirements of any federal, state or local
laws, including, without limitation, truth-in-lending, real estate
settlement procedures, equal credit opportunity or disclosure laws,
applicable to such Mortgage Loan have been complied with as of the date of
origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process
of any Mortgage Loan and the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and prudent in accordance
with customary commercial mortgage lending standards, and no other person
has been granted or conveyed the right to service the Mortgage Loans or
receive any consideration in connection therewith, except as provided in
the Pooling and Servicing Agreement or any permitted subservicing
agreements and/or servicing rights purchase agreements being executed and
delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged
Property and that are or may become a lien of priority equal to or higher
than the lien of the related Mortgage have been paid or an escrow of funds
has been established and such escrow (including all escrow payments
required to be made prior to the delinquency of such taxes and
assessments) is sufficient to cover the payment of such taxes and
assessments (for purposes of this representation and warranty, taxes and
assessments shall not be considered due and owing until the date on which
interest and/or penalties would be payable thereon);
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller
or its agent and there are no deficiencies (subject to any applicable
grace or cure periods) in connection therewith. All such escrows and
deposits are being conveyed by the Seller to the Depositor and identified
as such with appropriate detail. With respect to any disbursements made
from such escrows, any requirements for the disbursement of any such
escrows have been complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the
requirements of the Pooling and Servicing Agreement, in an amount not less
than the lesser of the principal amount of the related Mortgage Loan and
the replacement cost (with no deduction for physical depreciation) and not
less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the related Mortgaged Property; each related
Mortgaged Property is also covered by business interruption or rental loss
insurance which covers a period of not less than 12 months and
comprehensive general liability insurance in amounts generally required by
prudent commercial mortgage lenders for similar properties; all Mortgaged
Properties in California or in a seismic zone 4 or 5 have had a seismic
assessment done and earthquake insurance was obtained to the extent any
such Mortgaged Property has a probable maximum loss in the event of an
earthquake of greater than twenty percent (20%) of the replacement value
of the related improvements; if the Mortgaged Property for any Mortgage
Loan is located within Florida or within 25 miles of the coast of North
Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana or
Texas, then, such Mortgaged Property is insured by windstorm insurance in
an amount at least equal to the lesser of (i) the outstanding principal
balance of such Mortgage Loan and (ii) 100% of the insurable replacement
cost of the improvements located on the related Mortgaged Property; the
Mortgaged Properties securing all of the Mortgage Loans having a Stated
Principal Balance in excess of $3,000,000 have, as of the date hereof,
insurance policies in place with respect to acts of terrorism or damage
related thereto (excluding acts involving nuclear, biological or chemical
terrorism), except any such Mortgage Loans that are listed on the
applicable Exception Report. All premiums on such insurance policies
required to be paid as of the date hereof have been paid; such insurance
policies or the related insurance certificates require prior notice to the
insured of reduction in coverage, termination or cancellation, and no such
notice has been received by the Seller; such insurance names the lender
under the Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related
borrower to maintain all such insurance and, at such borrower's failure to
do so, authorizes the lender to maintain such insurance at the borrower's
cost and expense and to seek reimbursement therefor from such borrower;
(xxiv) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b)
event (other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of
acceleration, which default, breach, violation or event of acceleration,
in the case of either (a) or (b) would materially and adversely affect the
use or value of the Mortgage Loan or the related Mortgaged Property.
Notwithstanding the foregoing, this representation and warranty does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by
any other representation or warranty made by the Seller elsewhere in this
Exhibit A or the Exception Report;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (a) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure or, subject to applicable state law requirements,
appointment of a receiver, and (b) there is no exemption available to the
borrower which would interfere with such right to foreclose, except, in
the case of either (a) or (b), as the enforcement of the Mortgage may be
limited by bankruptcy, insolvency, reorganization, moratorium, redemption
or other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). No borrower is a debtor
in a state or federal bankruptcy or insolvency proceeding;
(xxvii) At origination, each borrower represented and warranted in
all material respects that to its knowledge, except as set forth in
certain environmental reports and, except as commonly used in the
operation and maintenance of properties of similar kind and nature to the
Mortgaged Property, in accordance with prudent management practices and
applicable law, and in a manner that does not result in any contamination
of the Mortgaged Property, it has not used, caused or permitted to exist
and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal,
state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials or other environmental laws; the related borrower agreed to
indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries,
penalties, fines, expenses, and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in
connection with such Mortgage Loan. A Phase I environmental report and/or
with respect to certain Mortgage Loans, a Phase II environmental report
was conducted by a reputable independent environmental consulting firm in
connection with such Mortgage Loan, which report did not indicate any
material non-compliance with applicable environmental laws or material
existence of hazardous materials or, if any material non-compliance or
material existence of hazardous materials was indicated in any such
report, then at least one of the following statements is true: (A) funds
reasonably estimated to be sufficient to cover the cost to cure any
material non-compliance with applicable environmental laws or material
existence of hazardous materials have been escrowed, or a letter of credit
in such amount has been provided, by the related borrower and held by the
related mortgagee; (B) if the environmental report recommended an
operations and maintenance plan, but not any material expenditure of
funds, an operations and maintenance plan has been required to be obtained
by the related borrower; (C) the environmental condition identified in the
related environmental report was remediated or abated in all material
respects prior to the date hereof; (D) a no further action or closure
letter was obtained from the applicable governmental regulatory authority
(or the environmental issue affecting the related Mortgaged Property was
otherwise listed by such governmental authority as "closed"); (E) such
conditions or circumstances identified in the Phase I environmental report
were investigated further and based upon such additional investigation, an
environmental consultant recommended no further investigation or
remediation; (F) a party unrelated to the borrower with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related borrower to
cover the costs of any required investigation, testing, monitoring or
remediation; (G) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is not greater than two percent (2%)
of the outstanding principal balance of the related Mortgage Loan; or (H)
a lender's environmental insurance policy was obtained and is a part of
the related Mortgage File. Notwithstanding the preceding sentence, with
respect to certain Mortgage Loans with an original principal balance of
less than $3,500,000, no environmental report may have been obtained, but
(in such cases where a Phase I environmental report was not obtained) a
lender's environmental insurance policy was obtained with respect to each
such Mortgage Loan. Each of such lender's environmental insurance policies
is a part of the related Mortgage File. Each of such environmental
insurance policies is in full force and effect, is in an amount not less
than the 100% of the balance of the related Mortgage Loan, has a term
extending not less than 5 years after the maturity date of the related
Mortgage Loan, the premiums for such policies have been paid in full and
the Trustee is named as an insured under each of such policies, the Seller
has delivered to the insurer all environmental reports in its possession.
To the Seller's knowledge, in reliance on such environmental reports and
except as set forth in such environmental reports, each Mortgaged Property
is in material compliance with all applicable federal, state and local
environmental laws, and to the Seller's knowledge, no notice of violation
of such laws has been issued by any governmental agency or authority,
except, in all cases, as indicated in such environmental reports or other
documents previously provided to the Rating Agencies; and the Seller has
not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining
to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage (and
the Mortgage requires the mortgagor to pay all fees and expenses
associated with obtaining such consent), the related Mortgaged Property is
directly or indirectly transferred or sold, and (2) except with respect to
transfers of certain direct or indirect interests in the related borrower
to persons already holding direct or indirect interests in the borrower,
their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent
commercial mortgage lenders) or any transfers in connection with the death
or disability of owners of the borrower, each Mortgage Loan also contains
the provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the consent of the holder of the
Mortgage, (and the Mortgage requires the mortgagor to pay all fees and
expenses associated with obtaining such consent) a majority interest in
the related borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments
onto adjoining parcels for which the Seller has obtained title insurance
against losses arising therefrom or that do not materially and adversely
affect the use or value of such Mortgaged Property. No improvements on
adjoining parcels encroach onto the related Mortgaged Property except for
encroachments that do not materially and adversely affect the value of
such Mortgaged Property, the security provided by the Mortgage, the
current use of the Mortgaged Property, or the related borrower's
operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the Mortgage Loan Schedule attached as an exhibit to this
Mortgage Loan Purchase Agreement is complete and accurate in all material
respects as of the dates of the information set forth therein (or, if not
set forth therein, as of the Cut-Off Date);
(xxxi) With respect to any Mortgage Loan where all or any material
portion of the estate of the related borrower therein is a leasehold
estate under a ground lease, and the related Mortgage does not also
encumber the related lessor's fee interest in such Mortgaged Property,
based upon the terms of the ground lease and any estoppel received from
the ground lessor, the Seller represents and warrants that:
(1) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee,
its successors or assigns in a manner that would materially and
adversely affect the security provided by the related Mortgage. To
the Seller's knowledge, there has been no material change in the
terms of the ground lease since its recordation, except by any
written instruments which are included in the related mortgage file;
(2) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not
be amended, modified, canceled or terminated without the prior
written consent of the lender and that any such action without such
consent is not binding on the lender, its successors or assigns;
(3) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and would be enforceable, by the
lender) that extends not less than 10 years beyond the amortization
term of the related Mortgage Loan;
(4) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to
any liens or encumbrances superior to, or of equal priority with,
the Mortgage, subject to Permitted Encumbrances and liens that
encumber the ground lessor's fee interest;
(5) Under the terms of the ground lease, the ground lease is
assignable to the lender and its assigns without the consent of the
lessor thereunder;
(6) The ground lease is in full force and effect, the Seller
has no actual knowledge that any default beyond applicable notice
and grace periods has occurred, and to the Seller's knowledge, there
is no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of the
ground lease;
(7) The ground lease or ancillary agreement, which is part of
the Mortgage File, between the lessor and the lessee requires the
lessor to give notice of any default by the lessee to the lender;
(8) The lender is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under the ground lease through legal
proceedings, or to take other action so long as the lender is
proceeding diligently) to cure any default under the ground lease
which is curable after the receipt of notice of any default before
the lessor may terminate the ground lease. All rights of the lender
under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(9) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent commercial mortgage lender. The lessor is not permitted to
disturb the possession, interest or quiet enjoyment of any subtenant
of the lessee in the relevant portion of the Mortgaged Property
subject to the ground lease for any reason, or in any manner, which
would adversely affect the security provided by the related
Mortgage;
(10) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the lender or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan, together with
any accrued interest, except that in the case of condemnation
awards, the ground lessor may be entitled to a portion of such
award;
(11) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of the
related Mortgaged Property will be applied first to the payment of
the outstanding principal balance of the Mortgage Loan, together
with any accrued interest (except as provided by applicable law or
in cases where a different allocation would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender,
taking into account the relative duration of the ground lease and
the related Mortgage and the ratio of the market value of the
related Mortgaged Property to the outstanding principal balance of
such Mortgage Loan). Until the principal balance and accrued
interest are paid in full, neither the lessee nor the lessor under
the ground lease will have an option to terminate or modify the
ground lease without the prior written consent of the lender as a
result of any casualty or partial condemnation; and
(12) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a
new lease upon termination of the ground lease for any reason,
including rejection of the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold
estate, but the related Mortgage also encumbers the related lessor's fee
interest in such Mortgaged Property: (a) such lien on the related fee
interest is evidenced by the related Mortgage, (b) such Mortgage does not
by its terms provide that it will be subordinated to the lien of any other
mortgage or encumbrance upon such fee interest, (c) upon the occurrence of
a default under the terms of such Mortgage by the related borrower, any
right of the related lessor to receive notice of, and to cure, such
default granted to such lessor under any agreement binding upon the lender
would not be considered commercially unreasonable in any material respect
by prudent commercial mortgage lenders, (d) the related lessor has agreed
in a writing included in the related Mortgage File that the related ground
lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on
the lender, its successors or assigns, and (e) the related ground lease is
in full force and effect, and the Seller has no actual knowledge that any
default beyond applicable notice and grace periods has occurred or that
there is any existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of such ground
lease;
(xxxiii) With respect to Mortgage Loans that are senior or pari
passu in right of payment and cross-collateralized or cross-defaulted, all
other loans that are cross-collateralized by or cross-defaulted with such
Mortgage Loans are being transferred to the Depositor;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan,
other than contributions made on or prior to the date hereof;
(xxxv) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an appraisal
satisfying the requirements of FIRREA conducted within 12 months of the
origination of the Mortgage Loan, was at least equal to 80% of the
principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time when the Mortgage Loan
was not in default or default with respect thereto was not reasonably
foreseeable, the date of the last such modification) or (b) at the date
hereof; provided that the fair market value of the real property must
first be reduced by (A) the amount of any lien on the real property
interest that is senior to the Mortgage Loan and (B) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such
other lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by
the lender or any mezzanine debt related to such Mortgaged Property,
except as set forth in the Prospectus Supplement, this Exhibit A or in the
Exception Report to this Mortgage Loan Purchase Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection with
each Mortgage Loan having an original principal balance in excess of
$5,000,000 require that the related borrower be a single-purpose entity
(for this purpose, "single-purpose entity" shall mean an entity, other
than an individual, having organizational documents which provide
substantially to the effect that it is formed or organized solely for the
purpose of owning and operating one or more Mortgaged Properties, is
prohibited from engaging in any business unrelated to such property and
the related Mortgage Loan, does not have any assets other than those
related to its interest in the related Mortgaged Property or its
financing, or any indebtedness other than as permitted under the related
Mortgage Loan). To the Seller's actual knowledge, each borrower has fully
complied with the requirements of the related Mortgage Note and Mortgage
and borrower's organizational documents regarding single-purpose entity
status;
(xxxviii) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the borrower, without the prior written
consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified in the Note or Mortgage which would be
acceptable to a reasonably prudent commercial mortgage lender, and, except
in connection with trade debt and equipment financings in the ordinary
course of borrower's business, from carrying any additional indebtedness,
except, in each case, liens contested in accordance with the terms of the
Mortgage Loan or, with respect to each Mortgage Loan having an original
principal balance of less than $4,000,000, any unsecured debt;
(xxxix) Each borrower covenants in the Mortgage Loan documents that
it shall remain in material compliance with all material licenses, permits
and other legal requirements necessary and required to conduct its
business;
(xl) Each Mortgaged Property (a) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting
ingress and egress, (b) is served by public utilities and services
generally available in the surrounding community or otherwise appropriate
for the use in which the Mortgaged Property is currently being utilized,
and (c) constitutes one or more separate tax parcels or is covered by an
endorsement with respect to the matters described in (a), (b) or (c) under
the related title insurance policy (or the binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency or the Secretary of Housing and Urban
Development as having special flood hazards categorized as Zone "A" or
Zone "V" and flood insurance is available, the terms of the Mortgage Loan
require the borrower to maintain flood insurance, or at such borrower's
failure to do so, authorizes the lender to maintain such insurance at the
cost and expense of the borrower and such insurance is in full force and
effect in an amount not less than the lesser of (1) the replacement cost
of the material improvements on such Mortgaged Property, (2) the balance
of the Mortgage Loan and (3) the maximum amount of insurance available
under the applicable National Flood Insurance Administration Program;
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently
so serves and is named in the deed of trust or has been substituted in
accordance with applicable law or may be substituted in accordance with
applicable law by the related mortgagee, and except in connection with a
trustee's sale after a default by the related borrower, no fees are
payable to such trustee, and such fees payable are payable by the
borrower;
(xliii) Except as disclosed in the Exception Report to this Mortgage
Loan Purchase Agreement, to the knowledge of the Seller as of the date
hereof, there was no pending action, suit or proceeding, arbitration or
governmental investigation against any borrower or Mortgaged Property, an
adverse outcome of which would materially and adversely affect such
borrower's ability to perform under the related Mortgage Loan;
(xliv) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of
preferred equity interests by the preferred equity interest holder, as
disclosed in the Prospectus Supplement), and no funds have, to the
Seller's knowledge, been received from any person other than, or on behalf
of, the related borrower, for, or on account of, payments due on the
Mortgage Loan;
(xlv) To the extent required under applicable law, as of the Cut-off
Date or as of the date that such entity held the Note, each holder of the
Note was authorized to transact and do business in the jurisdiction in
which each related Mortgaged Property is located, or the failure to be so
authorized did not materially and adversely affect the enforceability of
such Mortgage Loan;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except as disclosed in the Exception Report to this Mortgage
Loan Purchase Agreement or the Prospectus Supplement with respect to the
Crossed Loans and Multiple Property Loans, no Mortgage Loan requires the
lender to release any portion of the Mortgaged Property from the lien of
the related Mortgage except upon (a) payment in full or defeasance of the
related Mortgage Loan, (b) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, which in all events include payment of a release price
at least 125% of the appraised value of the property to be released or of
the allocated loan amount of such property, (c) releases of unimproved
out-parcels or (d) releases of other portions of the Mortgaged Property
which will not have a material adverse effect on the use or value of the
collateral for the related Mortgage Loan and which were given no value in
the appraisal of the Mortgaged Property or of that portion of the
Mortgaged Property used to calculate the loan-to-value ratio of the
Mortgaged Property for underwriting purposes. No release or partial
release of any Mortgaged Property, or any portion thereof, expressly
permitted or required pursuant to the terms of any Mortgage Loan would
constitute a significant modification of the related Mortgage Loan under
Treas. Reg. Section 1.860G-2(b)(2);
(xlviii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or
part of the related Mortgaged Property, with, in the case of all casualty
losses or takings in excess of a specified amount or percentage of the
related loan amount that a prudent commercial lender would deem
satisfactory and acceptable, the lender (or a trustee appointed by it)
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in any case where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender) or (b)
to the payment of the outstanding principal balance of such Mortgage Loan
together with any accrued interest thereon;
(xlix) (l) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property and each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller was, and each Form UCC-3 assignment, if
any, of such financing statement in blank which the Trustee or its
designee is authorized to complete (but for the insertion of the name of
the assignee and any related filing information which is not yet available
to the Seller) is, in suitable form for filing in the filing office in
which such financing statement was filed;
(l) To the Seller's knowledge, (a) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original
principal balance less than $2,500,000) of the net leaseable area of the
related Mortgaged Property is in full force and effect and (b) there
exists no default under any such commercial lease either by the lessee
thereunder or by the related borrower that could give rise to the
termination of such lease;
(li) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the
improvements located on or forming part of each Mortgaged Property comply
with applicable zoning laws and ordinances, or constitute a legal
non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the
value of the related Mortgaged Property. With respect to properties with a
Stated Principal Balance of over $10,000,000, if the related Mortgaged
Property does not so comply, to the extent the Seller is aware of such
non-compliance, it has required the related borrower to obtain law and
ordinance insurance coverage in amounts customarily required by prudent
commercial mortgage lenders;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulation (as defined herein) Section 1.860G-2(f)(2)
that treats a defective obligation as a qualified mortgage or any
substantially similar successor provision), the related Mortgaged
Property, if acquired by a REMIC in connection with the default or
imminent default of such Mortgage Loan would constitute "foreclosure
property" within the meaning of Code Section 860G(a)(8) and all Prepayment
Premiums and Yield Maintenance Charges constitute "customary prepayment
penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (i) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (ii) the borrower can
pledge only United States government securities in an amount sufficient to
make all scheduled payments under the Mortgage Loan when due, (iii) the
borrower is required to provide independent certified public accountant's
certification that the collateral is sufficient to make such payments,
(iv) the loan may be required to be assumed by a single-purpose entity
designated by the holder of the Mortgage Loan, (v) the borrower is
required to provide an opinion of counsel that the trustee has a perfected
security interest in such collateral prior to any other claim or interest,
(vi) the borrower is required to pay all Rating Agency fees associated
with defeasance (if rating confirmation is a specific condition precedent
thereto) and all other reasonable expenses associated with defeasance,
including, but not limited to, accountant's fees and opinions of counsel,
(vii) with respect to any Significant Loan (as defined in the Pooling and
Servicing Agreement), the borrower is required to provide an opinion of
counsel that such defeasance will not cause any REMIC created under the
Pooling and Servicing Agreement to fail to qualify as a REMIC for federal
or applicable state tax purposes and (viii) with respect to any
Significant Loan (as defined in the Pooling and Servicing Agreement), the
borrower must obtain confirmation from each Rating Agency that the
defeasance would not result in such Rating Agency's withdrawal, downgrade
or qualification of the then current rating of any class of Certificates
rated by such Rating Agency;
(liv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the lender for any
losses incurred by the lender due to (i) the misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (ii)
any willful act of material waste, (iii) any breach of the environmental
covenants contained in the related Mortgage Loan Documents, and (iv) fraud
by the related borrower; provided that, with respect to clause (iii) of
this sentence, an indemnification against losses related to such
violations or environmental insurance shall satisfy such requirement;
(lv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (i) its Mortgage Rate
will increase by no less than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan
is an asset of the Trust Fund; (ii) its Anticipated Repayment Date is not
less than seven years following the origination of such Mortgage Loan;
(iii) no later than the related Anticipated Repayment Date, if it has not
previously done so, the related borrower is required to enter into a
"lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled
by the Master Servicer; and (iv) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in
excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvi) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same borrower and to
borrowers that are Affiliates, accounted for more than 5.0% of the
aggregate of the Stated Principal Balances of all of the mortgage loans
sold to the Depositor by Column Financial, Inc., PNC Bank, National
Association and NCB,FSB pursuant to those certain Mortgage Loan Purchase
Agreements, each dated as of September 1, 2007, between the Depositor and
Column Financial, Inc., between the Depositor and PNC Bank, National
Association and between the Depositor and NCB, FSB, respectively, as the
Cut-Off Date;
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or
acquisition of each Mortgage Loan, the Seller obtained an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Seller's actual knowledge, had no interest, direct or
indirect, in the borrower, the Mortgaged Property or in any loan made on
the security of the Mortgaged Property, and whose compensation was not
affected by the approval or disapproval of the Mortgage Loan; and
(lviii) Each Mortgage Loan bears interest at a rate that remains
fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of Column Financial, Inc.
("Column");
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. 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 _______________, under date of ______________
(the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. 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;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by 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 2007-C4 (the "Trustee") (which assignment may,
at the discretion of 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
_______________'s failure to deliver said original Note to the Trustee.
Sworn to before me this _____
day of __________, 2007
Exhibit 10.2
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
PNC BANK, NATIONAL ASSOCIATION
(Seller)
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2007
TABLE OF CONTENTS
Page
----
Section 1. Transactions on or Prior to the Closing Date....................
Section 2. Closing Date Actions............................................
Section 3. Conveyance of Mortgage Loans....................................
Section 4. Depositor's Conditions to Closing...............................
Section 5. Seller's Conditions to Closing..................................
Section 6. Representations and Warranties of Seller........................
Section 7. Obligations of Seller...........................................
Section 8. Crossed Mortgage Loans..........................................
Section 9. Representations and Warranties of Depositor.....................
Section 10. Survival of Certain Representations, Warranties and Covenants...
Section 11. Transaction Expenses............................................
Section 12. Recording Costs and Expenses....................................
Section 13. Notices.........................................................
Section 14. Examination of Mortgage Files...................................
Section 15. Successors......................................................
Section 16. Governing Law...................................................
Section 17. Severability....................................................
Section 18. Further Assurances..............................................
Section 19. Counterparts....................................................
Section 20. Treatment as Security Agreement.................................
Section 21. Recordation of Agreement........................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Crossed Groups
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of September 1, 2007, is made by and between PNC BANK, NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement specified on such
Schedule of Transaction Terms.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or
prior to the Closing Date, Seller shall have delivered the Mortgage Files with
respect to each of the Mortgage Loans listed in the Mortgage Loan Schedule to
Wells Fargo Bank, N.A. as trustee (the "Trustee") or its designee, against
receipt by Seller of a written receipt, pursuant to an arrangement between
Seller and the Trustee; provided, however, that, item (xvi) in the definition of
Mortgage File (below) shall be delivered to the applicable Master Servicer for
inclusion in the Servicer File (defined below) with a copy delivered to the
Trustee for inclusion in the Mortgage File; and provided, further, that Seller
shall pay (or cause the related Borrower to pay) any costs of the assignment or
amendment of each letter of credit described under such item (xvi) required in
order for the Trustee to draw on such letter of credit pursuant to the terms of
the Pooling and Servicing Agreement and shall deliver the related assignment or
amendment documents within thirty (30) days after the Closing Date, which period
may be extended by thirty (30) days as provided in the Pooling and Servicing
Agreement. In addition, prior to such assignment or amendment of a letter of
credit, Seller will take all necessary steps to enable the applicable Master
Servicer to draw on the related letter of credit on behalf of the Trustee
pursuant to the terms of the Pooling and Servicing Agreement, including, if
necessary, drawing on the letter of credit in its own name pursuant to written
instructions to draw from the applicable Master Servicer and upon receipt,
immediately remitting the proceeds of such draw (or causing such proceeds to be
remitted) to the applicable Master Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates, the sale of the Publicly Offered Certificates by Depositor to the
Underwriters pursuant to the Underwriting Agreement and the sale of the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Wickersham & Taft LLP, One World Financial Center, New York, New
York 10281, or such other location as agreed upon between the parties hereto. On
the Closing Date, the following actions shall take place in sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price shall be paid by Depositor to Seller or at its direction by wire
transfer in immediately available funds to an account designated by Seller
on or prior to the Closing Date. The "Mortgage Loan Purchase Price" paid
by Depositor shall be equal to the amount that Depositor and Seller have
mutually agreed upon as the "Net Securitization Proceeds/Fees" under the
heading "PNC Bank Share" in the Closing Statement (which amount includes,
without limitation, accrued interest and is less those costs and expenses
to be paid by Seller, including those expenses to be paid pursuant to
Section 11 hereof).
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall transfer all of its right, title and interest in, to and
under the Mortgage Loans to the Trustee (for the benefit of the Holders of
the Certificates) in exchange for the issuance of the Certificates to or
at the direction of Depositor.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to Seller's receipt of the Mortgage Loan Purchase Price,
Seller does hereby assign, transfer, set over and otherwise convey, without
recourse, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule and (ii) all
property of Seller described in Section 20(b) of this Agreement, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or prepayment premiums received on or with
respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal or prepayment premiums that were due on or
prior to the Cut-off Date. The parties acknowledge that such assignment,
transfer, setting over and other conveyance shall not be construed to limit any
obligation of Seller and any servicing rights of Midland Loan Services, Inc.
under that certain servicing rights purchase agreement, dated as of September 1,
2007, between Seller and Midland Loan Services, Inc. The Mortgage File for each
Mortgage Loan shall contain the following documents on a collective basis:
(i) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the
form of Exhibit B hereto and a true and complete copy of the Note),
bearing, or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment from the
applicable Mortgage Loan Originator either in blank or to Seller, and
further endorsed (at the direction of Depositor given pursuant to this
Agreement) by Seller, on its face or by allonge attached thereto, without
recourse, either in blank or to the order of the Trustee in the following
form: "Pay to the order of Wells Fargo Bank, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C4,
without recourse, representation or warranty, express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals, certified
copies or copies from the applicable recording office) of any intervening
assignments thereof from the applicable Mortgage Loan Originator to
Seller, in each case in the form submitted for recording or, if recorded,
with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the applicable
Mortgage Loan Originator) either in blank or to "Wells Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2007-C4";
(iv) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof
from the applicable Mortgage Loan Originator of the Mortgage Loan to
Seller, in each case in the form submitted for recording or, if recorded,
with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the applicable
Mortgage Loan Originator), either in blank or to "Wells Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2007-C4", which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
(provided that such omnibus assignment is effective and in recordable form
under applicable law);
(vi) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the
applicable Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from Seller (or the
applicable Mortgage Loan Originator) either in blank or to "Wells Fargo
Bank, N.A., as trustee for the registered Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2007-C4," which assignment may be included as part of
an omnibus assignment covering other documents relating to the Mortgage
Loan (provided that such omnibus assignment is effective under applicable
law);
(viii) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence of recording thereon or in the form
submitted for recording, in those instances where the terms or provisions
of the Mortgage, Note or any related security document have been modified
or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has not yet
been issued, the original or a copy of a binding written commitment (which
may be a pro forma or specimen title insurance policy which has been
accepted or approved in writing by the related title insurance company, or
an interim binder that is "marked up" as binding and countersigned by the
title company, which in any case is binding on the title insurance
company), insuring the priority of the Mortgage as a first lien on the
related Mortgaged Property, relating to such Mortgage Loan;
(x) the original or a copy of any guaranty of the obligations of the
Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or recording
(including the filing number or other similar filing information)
acceptable to the Trustee (including, without limitation, evidence of such
filed or recorded UCC Financing Statement as shown on a written UCC search
report from a reputable search firm, such as CSC/LexisNexis Document
Solutions, Corporation Service Company, CT Corporation System and the like
or printouts of on-line confirmations from such UCC filing or recording
offices or authorized agents thereof), sufficient to perfect (and maintain
the perfection of) the security interest held by the applicable Mortgage
Loan Originator (and each assignee of record prior to the Trustee) in and
to the personalty of the Borrower at the Mortgaged Property, and original
UCC Financing Statement assignments, in a form suitable for filing or
recording, sufficient to assign each such UCC Financing Statement to the
Trustee;
(xii) the original or copy of the power of attorney (with evidence
of recording thereon) granted by the Borrower if the Mortgage, Note or
other document or instrument referred to above was not signed by the
Borrower;
(xiii) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement relating to such other debt, if any, including any mezzanine
loan documents or preferred equity documents;
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement;
(xv) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related
Lock-Box Agreement or Cash Collateral Account Agreement (if separate from
the related Mortgage and Loan Agreement);
(xvi) the originals and copies of letters of credit, if any,
relating to the Mortgage Loans and amendments thereto which entitles the
Trust to draw thereon; provided that in connection with the delivery of
the Mortgage File to the Trust, such originals shall be delivered to the
applicable Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies thereof;
(xviii) the original or a copy of the ground lease and ground lease
estoppels, if any, and of any amendments, modifications or extensions
thereto, if any;
(xix) the original or copy of any property management agreement;
(xx) without duplication with clause (xiii) above, a copy of the
mortgage note evidencing the related Junior Loan, if any;
(xxi) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties; and
(xxii) a checklist of the related Mortgage Loan Documents included
in the subject Mortgage File.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii) (relating to
Mortgages), (iv) (relating to Assignments of Leases), (viii) (relating to
assumption agreements, modifications, written assurance agreements and
substitution agreements), (xi) (relating to UCC Financing Statements and related
documents)(other than assignments of UCC Financing Statements to be recorded or
filed in accordance with the transfer contemplated by this Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first paragraph of
this Section 3, with evidence of recording or filing thereon on the Closing
Date, solely because of a delay caused by the public recording or filing office
where such document or instrument has been delivered for recordation or filing,
the delivery requirements of such last sentence of such first paragraph of this
Section 3 should be deemed to have been satisfied and such non-delivered
document or instrument shall be deemed to have been included in the Mortgage
File; provided that Seller: (i) shall deliver, or cause to be delivered, to the
Trustee or its designee and the applicable Master Servicer a duplicate original
or true copy of such document or instrument (certified by the applicable public
recording or filing office, the applicable title insurance company or Seller to
be a true and complete duplicate original or photocopy of the original thereof
submitted for recording or filing) on the Closing Date, with evidence of
recording or filing thereon within 120 days of the Closing Date, which period
may be extended up to two times, in each case for an additional period of 45
days provided that Seller, as certified in writing to the Trustee prior to each
such 45-day extension, is in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii) (relating to
Mortgages), (iv) (relating to Assigments of Leases), (viii) (relating to
assumption agreements, modifications, written assurance agreements and
substitution agreements), (xi) (relating to UCC Financing Statements and related
documents) (other than assignments of UCC Financing Statements to be recorded or
filed in accordance with the transfer contemplated by this Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first paragraph of
this Section 3, with evidence of recording or filing thereon for any other
reason, including without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Agreement shall be
deemed to have been satisfied and such non-delivered document or instrument
shall be deemed to have been included in the related Mortgage File if a
photocopy or duplicate original of such non-delivered document or instrument
(with evidence of recording or filing thereon and certified by the appropriate
recording or filing office to be a true and complete copy of the original
thereof as filed or recorded) is delivered to the Trustee or its designee on or
before the Closing Date.
Notwithstanding the foregoing, in the event that Seller fails, as to
any Mortgage Loan, to deliver any UCC Financing Statement assignment with the
filing or recording information of the related UCC Financing Statement, solely
because such UCC Financing Statement has not been returned to Seller by the
applicable public filing or recording office where such UCC Financing Statement
has been delivered for filing or recording, Seller shall not be in breach of its
obligations with respect to such delivery, provided that Seller promptly
forwards such UCC Financing Statement to the Trustee or its designee (with a
copy to the applicable Master Servicer) upon its return from the applicable
filing or recording office, together with the related original UCC Financing
Statement assignment in a form appropriate for filing or recording.
Notwithstanding the foregoing, Seller may elect, at its sole cost
and expense, to engage a third-party contractor to prepare or complete in proper
form for filing or recording any and all of the assignments of Mortgage,
assignments of Assignments of Leases and assignments of UCC Financing Statements
to the Trustee to be delivered pursuant to clauses (iii), (v), and (xi) of the
last sentence of the first paragraph of this Section 3 (collectively, the
"Assignments"), to submit such Assignments for filing and recording, as the case
may be, in the applicable public filing and recording offices and to deliver
such Assignments to the Trustee or its designee (with a copy to the applicable
Master Servicer) as such Assignments (or certified copies thereof) are received
from the applicable filing and recording offices with evidence of such filing or
recording indicated thereon. However, in the event Seller engages a third-party
contractor as contemplated in the immediately preceding sentence, the rights,
duties and obligations of Seller pursuant to this Agreement remain binding on
Seller.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to the
Mortgage Loans and constituting the related Servicing Files (as defined in the
Pooling and Servicing Agreement).
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File", if there exists with
respect to any group of Crossed Loans only one original or certified copy of any
document or instrument described in the definition of "Mortgage File" which
pertains to all of the Crossed Loans in such group of Crossed Loans, the
inclusion of the original or certified copy of such document or instrument in
the Mortgage File for any of such Crossed Loans and the inclusion of a copy of
such original or certified copy in each of the Mortgage Files for the other
Crossed Loans in such group of Crossed Loans, shall be deemed to constitute the
inclusion of such original or certified copy, as the case may be, in the
Mortgage File for each such Crossed Loan.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, 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, and be promptly remitted to, Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents that constitute the Servicer File with
respect to the related Mortgage Loan shall immediately vest in Depositor. All
Monthly Payments, Principal Prepayments and other amounts received by Seller and
not otherwise belonging to Seller pursuant to this Agreement shall be sent by
Seller within three (3) Business Days after Seller's receipt thereof to the
applicable Master Servicer via wire transfer for deposit by the applicable
Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Depositor, as provided
herein, as a sale of the Mortgage Loans to Depositor in exchange for the
consideration specified in Section 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at all times
following the Closing Date cause all of its records and financial statements and
any relevant consolidated financial statements of any direct or indirect parent
to clearly reflect that the Mortgage Loans have been transferred to Depositor
and are no longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of this
Agreement, which shall have been delivered to and held by the Trustee or
its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations and
warranties set forth in Section 6 (subject to the exceptions set forth in
the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by Depositor in order for Depositor to perform any of
it obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to any sale of Mortgage Loans by Depositor
as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) If Seller does not engage a third-party contractor for recording
the applicable Mortgage Loan Documents, Seller shall have delivered to the
Trustee, on or before the Closing Date, five limited powers of attorney in favor
of the Trustee and applicable Special Servicer empowering the Trustee and, in
the event of the failure or incapacity of the Trustee, the applicable Special
Servicer, to record, at the expense of Seller, any Mortgage Loan Documents
required to be recorded and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files. Seller
shall reasonably cooperate with the Trustee and the applicable Special Servicer
in connection with any additional powers or revisions thereto that are requested
by such parties.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the Closing
Date, with the resolutions of Depositor authorizing the transactions set
forth therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller. Seller
represents and warrants to Depositor as of the date hereof, as follows:
(i) Seller is duly organized and is validly existing as a national
banking association in good standing under the laws of the United States
of America. Seller has conducted and is conducting its business so as to
comply in all material respects with all applicable statutes and
regulations of regulatory bodies or agencies having jurisdiction over it,
except where the failure so to comply would not have a materially adverse
effect on the performance by Seller of this Agreement, and there is no
charge, action, suit or proceeding before or by any court, regulatory
authority or governmental agency or body pending or, to the knowledge of
Seller, threatened, which is reasonably likely to materially and adversely
affect the performance by Seller of this Agreement or the consummation of
transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans and to execute and deliver this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents executed
and delivered by Seller in connection herewith). Seller has duly
authorized the execution, delivery and performance of this Agreement (and
all agreements and documents executed and delivered by Seller in
connection herewith), and has duly executed and delivered this Agreement
(and all agreements and documents executed and delivered by Seller in
connection herewith). This Agreement (and each agreement and document
executed and delivered by Seller in connection herewith), assuming due
authorization, execution and delivery thereof by each other party thereto,
constitutes the legal, valid and binding obligation of Seller enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, fraudulent transfer, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of creditors
generally, by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
articles or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result in a
breach of, or constitute a default or result in an acceleration under, any
agreement or instrument to which Seller is now a party or by which it (or
any of its properties) is bound if compliance therewith is necessary (1)
to ensure the enforceability of this Agreement or (2) for Seller to
perform its duties and obligations under this Agreement (or any agreement
or document executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of Depositor to realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except for the filing or
recording of assignments and other Mortgage Loan Documents contemplated by
the terms of this Agreement and except that Seller may not be duly
qualified to transact business as a foreign corporation or licensed in one
or more states if such qualification or licensing is not necessary to
ensure the enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans constitutes at least fair consideration and reasonably
equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform
its duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller
in connection herewith) is in the ordinary course of business of Seller
and Seller's transfer, assignment and conveyance of the Mortgage Loans
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loans to Depositor hereunder
except for (A) the reimbursement of expenses as described herein or
otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions to such representations and warranties
set forth on Schedule V hereto, are true and correct in all material
respects as of the date hereof with respect to the Mortgage Loans
identified on Schedule II.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If any Certificateholder, the applicable Master Servicer, the
applicable Special Servicer or the Trustee discovers or receives notice of a
breach of any of the representations or warranties made by Seller with respect
to the Mortgage Loans (subject to the exceptions to such representations and
warranties set forth in the Exception Report), as of the date hereof in Section
6(xii) or as of the Closing Date pursuant to Section 4(b)(iii) (in any such
case, a "Breach"), or discovers or receives notice that (a) any document
required to be included in the Mortgage File related to any Mortgage Loan is not
in the Trustee's (or its designee's) possession within the time period required
herein or (b) such document has not been properly executed or is otherwise
defective on its face (clause (a) and clause (b) each, a "Defect" (which term
shall include the "Defects" described in the immediately following paragraph) in
the related Mortgage File), such party shall give notice to the applicable
Master Servicer, the applicable Special Servicer, the Trustee and the Rating
Agencies. If the applicable Master Servicer or the applicable Special Servicer
determines that such Breach or Defect materially and adversely affects the value
of any Mortgage Loan or REO Loan or the interests of the Holders of any Class of
Certificates (in which case such Breach or Defect shall be a "Material Breach"
or a "Material Defect", as applicable), it shall give prompt written notice of
such Breach or Defect to the Depositor, the Trustee, the applicable Master
Servicer, the applicable Special Servicer and the Seller and shall request that
the Seller not later than the earlier of 90 days from the receipt by the Seller
of such notice or discovery by the Seller of such Breach or Defect (subject to
the second succeeding paragraph, the "Initial Resolution Period"): (i) cure such
Breach or Defect in all material respects; (ii) repurchase the affected Mortgage
Loan at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement); or (iii) substitute, in accordance with the Pooling and Servicing
Agreement, one or more Qualified Substitute Mortgage Loans (as defined in the
Pooling and Servicing Agreement) for such affected Mortgage Loan (provided that
in no event shall any substitution occur later than the second anniversary of
the Closing Date) and pay the applicable Master Servicer for deposit into the
Collection Account any Substitution Shortfall Amount (as defined in the Pooling
and Servicing Agreement) in connection therewith; provided, however, that Seller
shall have an additional 90 days to cure such Material Breach or Material Defect
if all of the following conditions are satisfied: (i) such Material Breach or
Material Defect is capable of being cured but not within the Initial Resolution
Period; (ii) such Material Breach or Material Defect does not cause the related
Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the Code); (iii) Seller has commenced and is diligently proceeding
with the cure of such Material Breach or Material Defect within the Initial
Resolution Period; and (iv) Seller has delivered to the Rating Agencies, the
applicable Master Servicer, the applicable Special Servicer and the Trustee an
Officer's Certificate that describes the reasons that the cure was not effected
within the Initial Resolution Period and the actions that it proposes to take to
effect the cure and that states that it anticipates the cure will be effected
within the additional 90-day period. If there exists a Breach of any
representation or warranty that the related Mortgage Loan Documents or any
particular Mortgage Loan Document requires the related Borrower to bear the
costs and expenses associated with any particular action or matter under such
Mortgage Loan Document(s), then Seller shall cure such Breach within the Initial
Resolution Period by reimbursing the Trust Fund (by wire transfer of immediately
available funds to the Collection Account) the reasonable amount of any such
costs and expenses incurred by the applicable Master Servicer, the applicable
Special Servicer, the Trustee or the Trust Fund that are the basis of such
Breach and have not been reimbursed by the related Borrower; provided, however,
that in the event any such costs and expenses exceed $10,000, Seller shall have
the option to either repurchase the related Mortgage Loan at the applicable
Purchase Price, replace such Mortgage Loan and pay any applicable Substitution
Shortfall Amount or pay such costs and expenses. Except as provided in the
proviso to the immediately preceding sentence, Seller shall remit the amount of
such costs and expenses and upon its making such remittance, Seller shall be
deemed to have cured such Breach in all respects. With respect to any repurchase
of a Mortgage Loan hereunder or any substitution of one or more Qualified
Substitute Mortgage Loans for a Mortgage Loan hereunder, (A) no such
substitution may be made in any calendar month after the Determination Date for
such month; (B) scheduled payments of principal and interest due with respect to
the Qualified Substitute Mortgage Loan(s) after the Due Date in the month of
substitution, and scheduled payments of principal and interest due with respect
to each Mortgage Loan being repurchased or replaced after the related Cut-off
Date and received by the applicable Master Servicer or the applicable Special
Servicer on behalf of the Trust on or prior to the related date of repurchase or
substitution, shall be part of the Trust Fund; and (C) scheduled payments of
principal and interest due with respect to each such Qualified Substitute
Mortgage Loan on or prior to the Due Date in the month of substitution, and
scheduled payments of principal and interest due with respect to each Mortgage
Loan being repurchased or replaced and received by the applicable Master
Servicer or the applicable Special Servicer on behalf of the Trust after the
related date of repurchase or substitution, shall not be part of the Trust Fund,
and Seller (or, if applicable, any person effecting the related repurchase or
substitution in the place of Seller) shall be entitled to receive such payments
promptly following receipt by the applicable Master Servicer or the applicable
Special Servicer, as applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (ix) (relating to
evidence of title insurance) of the last sentence of the first paragraph of
Section 3 hereof; (d) the absence from the Mortgage File of any intervening
assignments required to create an effective assignment to the Trustee on behalf
of the Trust, unless there is included in the Mortgage File a certified copy of
the intervening assignment as recorded or as sent for recordation, together with
a certificate stating that the original intervening assignment was sent for
recordation; (e) the absence from the Mortgage File (or the Servicer File) of
any required original letter of credit (as required in the provisos of Section 1
hereof), provided that such Defect may be cured by any substitute letter of
credit or cash reserve on behalf of the related Borrower; (f) the absence from
the Mortgage File of the original or a copy of any required ground lease; or (g)
solely in the case of a Mortgage Loan secured by a Mortgaged Property operated
as a hospitality property, the absence from the Mortgage File of the related
franchise agreement and/or franchisor comfort letter. In addition, Seller shall
cure any Defect described in clause (b), (c), (e) or (f) of the immediately
preceding sentence as required in Section 2.02(b) of the Pooling and Servicing
Agreement.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach", as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice (pursuant to this Section 7)
with respect to, or its discovery of, such Defect or Breach (which period shall
not be subject to extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Loan that is a part of a Crossed
Group (as defined below) and (iii) the applicable Breach or Defect does not
otherwise constitute a Breach or Defect, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Breach or Defect, as the case may be, will be deemed to constitute a
Breach or Defect, as the case may be, as to any other Crossed Loan in the
Crossed Group for purposes of the above provisions, and Seller will be required
to repurchase or substitute for such other Crossed Loan(s) in the related
Crossed Group in accordance with the provisions of this Section 7 unless such
other Crossed Loans satisfy the Crossed Loan Repurchase Criteria (as defined in
the Pooling and Servicing Agreement) and Seller can satisfy all other criteria
for substitution or repurchase of the affected Mortgage Loan(s) set forth in the
Pooling and Servicing Agreement. In the event that one or more of such other
Crossed Loans satisfy the Crossed Loan Repurchase Criteria, Seller may elect
either to repurchase or substitute for only the affected Crossed Loan as to
which the related Breach or Defect exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Group. Seller shall be responsible
for the cost of any Appraisal required to be obtained by the applicable Master
Servicer to determine if the Crossed Loan Repurchase Criteria have been
satisfied, so long as the scope and cost of such Appraisal have been approved by
Seller (such approval not to be unreasonably withheld). For purposes of this
paragraph, a "Crossed Group" is any group of Mortgage Loans identified as a
Crossed Group on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not be
obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan Documents and the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
Documents and (i) Seller provides an opinion of counsel to the effect that such
partial release would not cause an Adverse REMIC Event (as defined in the
Pooling and Servicing Agreement) to occur, (ii) Seller pays (or causes to be
paid) the applicable release price required under the Mortgage Loan Documents
and, to the extent not reimbursable out of the release price pursuant to the
related Mortgage Loan Documents, any additional amounts necessary to cover all
reasonable out-of-pocket expenses reasonably incurred by the applicable Master
Servicer, the applicable Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property that is being released, and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for a cure of a Material Breach or Material Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds, shall promptly release
the related Mortgage File and Servicer File or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer or assignment
as shall be necessary to vest in Seller the legal and beneficial ownership of
such Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto) and the related Mortgage
Loan Documents.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
constitute the sole remedies available to Depositor and its successors and
assigns respecting any Breach or Defect affecting a Mortgage Loan.
Section 8. Crossed Loans. With respect to any Crossed Loan conveyed
hereunder, to the extent that Seller repurchases or substitutes for an affected
Crossed Loan in the manner prescribed above while the Trustee continues to hold
any related Crossed Loans, Seller and Depositor (on behalf of its successors and
assigns) agree to modify, upon such repurchase or substitution, the related
Mortgage Loan Documents in a manner such that such affected Crossed Loan
repurchased or substituted by Seller, on the one hand, and any related Crossed
Loans still held by the Trustee, on the other, would no longer be
cross-defaulted or cross-collateralized with one another; provided that Seller
shall have furnished the Trustee, at Seller's expense, with an Opinion of
Counsel that such modification shall not cause an Adverse REMIC Event; and
provided, further, that if such Opinion of Counsel cannot be furnished, Seller
and Depositor hereby agree that such repurchase or substitution of only the
affected Crossed Loans, notwithstanding anything to the contrary herein, shall
not be permitted. Any reserve or other cash collateral or letters of credit
securing the subject Crossed Loans shall be allocated between such Mortgage
Loans in accordance with the Mortgage Loan Documents. All other terms of such
Mortgage Loans shall remain in full force and effect, without any modification
thereof.
Section 9. 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 any consent of, notice to, or 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 10. 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 12 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 11. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 12 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
an expense shall be paid by the party incurring such expense).
Section 12. Recording Costs and Expenses. Seller agrees to reimburse
the Trustee or its designee 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 elects to engage a third-party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 13. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed to it at
Credit Suisse First Boston Mortgage Securities Corp., 11 Madison Avenue, 5th
Floor, New York, New York 10010, Attention: Edmund Taylor, Telecopy No.: (212)
743-4756 (with a copy to Tessa Peters, Telecopy No.: (212) 325-8282), or such
other address or telecopy number as may be designated by Depositor to Seller in
writing, or (b) if sent to Seller, will be mailed, delivered or telecopied and
confirmed to it at PNC Bank, National Association, 10851 Mastin, Suite 300,
Overland Park, Kansas 66210 (for deliveries or courier), and P.O. Box 25965,
Shawnee Mission, Kansas 66225-5965 (for United States mail), Attention: Harry
Funk, Telecopy No.: (913) 253-9001, with a copy to it at One PNC Plaza, 249
Fifth Avenue, 21st Floor, Pittsburgh, Pennsylvania 15222, Attention: Gretchen
Lengel Kelly, Telecopy No.: (412) 762-4334, or such other address or telecopy
number as may be designated by Seller to Depositor in writing.
Section 14. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 15. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and permitted assigns, 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 Seller and
Depositor and their respective successors and permitted assigns and for the
benefit of no other Person; it being understood that (a) the indemnities of
Seller contained in that certain Indemnification Agreement dated August 24,
2007, among Seller, Depositor, the Initial Purchaser and the Underwriters,
relating to, among other things, information regarding the Mortgage Loans in the
Prospectus Supplement and the Offering Circular, subject to all limitations
therein contained, shall also be for the benefit of the officers and directors
of Depositor, the Underwriters and the Initial Purchaser and any person or
persons who control Depositor, the Underwriters and the Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended, and (b) the rights of Depositor pursuant to
this Agreement, subject to all limitations herein contained, including those set
forth in Section 7 of this Agreement, may be assigned to the Trustee, for
benefit of the Certificateholders, as may be required to effect the purposes of
the Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to such rights of Depositor hereunder; provided that the Trustee shall
have no right to further assign such rights to any other Person. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assign because of such ownership.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 17. 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 18. 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 19. 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 20. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and other insurance policies,
identified on the Mortgage Loan Schedule, 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 clause (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;
(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; and
(e) Seller at the direction of Depositor or its assignee, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, Depositor and its assignee shall have all of the rights and remedies
of a secured party and creditor under the Uniform Commercial Code as in force in
the relevant jurisdiction and may prepare and file such UCC Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
Section 21. 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.
Section 22. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Depositor and the Trustee the disclosure
required, as to the Seller itself, under Items 1117 and 1119 of Regulation AB
and Item 1.03 to Form 8-K (in formatting reasonably appropriate for inclusion in
such form). The Seller shall use commercially reasonable efforts to deliver
proposed disclosure language relating to any such event described under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to the Trustee and the
Depositor within one (1) Business Day of become aware of such event giving rise
to such disclosure and in any event no later than two (2) Business Days of the
Seller becoming aware of such event. The obligation of the Seller to provide the
above-referenced disclosure materials will terminate upon the filing of the Form
15 with respect to the Trust Fund as to that fiscal year in accordance with
Section 12.10(a) of the Pooling and Servicing Agreement. The Seller hereby
acknowledges that the information to be provided by it pursuant to this Section
will be used in the preparation of reports meeting the reporting requirements of
the Trust under Section 13(a) and/or Section 15(d) of the Exchange Act.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Harry J. Funk
------------------------------------
Name: Harry J. Funk
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Jeffrey A. Altabef
------------------------------------
Name: Jeffrey A. Altabef
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of September 1, 2007, between PNC Bank, National Association and Credit Suisse
First Boston Mortgage Securities Corp. Capitalized terms used herein without
definition have the meanings given them in or by reference in the Agreement or,
if not defined in the Agreement, in the Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated August 24, 2007, among, Column Financial, Inc. (solely with
respect to its obligations under Section 11 thereof), Depositor and the Initial
Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C4.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means September 7, 2007.
"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 Loan" means any Mortgage Loan which is cross-defaulted and
cross-collateralized with any other Mortgage Loan.
"Crossed Group" shall have the meaning given such term in Section 7
of this Agreement.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in September 2007.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Depositor" shall have the meaning given such term in the first
sentence of this Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(xii) and under the written certificate described in Section 4(b)(iii)
of this Agreement, which exceptions are set forth in Schedule V attached hereto
and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"Offering Circular" means the confidential offering circular dated
August 24, 2007, 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
September 1, 2007, among Depositor, the Master Servicers, the Special Servicers
and the Trustee, including, without limitation, the exhibits and schedules
annexed thereto.
"Primary Collateral" means with respect to any Crossed Loan, that
portion of the Mortgaged Property designated as directly securing such Crossed
Loan and excluding any Mortgaged Property as to which the related lien may only
be foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus dated August 13, 2007 that is a
part of Depositor's registration statement on Form S-3 (File No. 333-141613).
"Prospectus Supplement" means the Prospectus Supplement, dated
August 24, 2007, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-1-A, Class A-M, Class A-1-AM, Class
A-J and Class A-1-AJ Certificates.
"Seller" shall have the meaning given such term in the first
sentence of this Agreement.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan that are required to be included in the
related Servicer File pursuant to Section 3 (subject to the first proviso in
Section 1).
"Trust Fund" shall have the meaning given such term in Recital II of
this Agreement.
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse Securities (USA) LLC, Greenwich
Capital Markets, Inc. and PNC Capital Markets LLC.
"Underwriting Agreement" means the Underwriting Agreement, dated
August 24, 2007, among Depositor, Column Financial, Inc. (solely with respect to
its obligations under Section 12 thereof) and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2007-C4
Loan Group
# Crossed # Property Name
----------------------- ------- ---------- ------------------------------------
12 2 Stone Lake Apartment Homes
16 1 The Can Company
22 2 Timberlakes at Atascocita Apartments
24 1 Lone Tree Retail Center
29 1 University Center West - San Diego
43 1 268 Summer Street
44 2 Villas at Bailey Ranch III
47 1 Corpus Christi Medical Tower
51 1 Patton Forest
53 1 Quality Inn - Toms River
54 1 Arapahoe Service Center 2
70 1 Paramount Plaza
77 1 Holiday Inn Express - Louisville
89 1 "L" Street Office
97 2 Edinboro College Park Apartments
125 1 Creekside Plaza I, II, III
127 1 Irmar Center
135 2 Cinnamon Square Apartments
138 1 Winn Dixie - Bay Minette
153 1 Ontario Warehouse Building
191 1 Wornall Plaza Shopping Center
194 1 Bank of the West
202 1 Big O Tires - Ankeny
Total/Weighted Average:
Zip Property
# Address City County State Code Type
----------------------- ------------------------------------------ -------------- -------------- ----- ----- -----------
12 2651 Stone Lake Drive Grand Prairie Tarrant TX 75050 Multifamily
16 2400 Boston Street Baltimore Baltimore MD 21224 Mixed Use
22 18551 Timber Forest Drive Humble Harris TX 77346 Multifamily
24 5007 Lone Tree Way Antioch Contra Costa CA 94531 Retail
29 9380 Judicial Drive San Diego San Diego CA 92121 Industrial
43 268 Summer Street Boston Suffolk MA 02210 Office
44 8751 N. 97th East Avenue Owasso Tulsa OK 74055 Multifamily
47 1521 South Staples Corpus Christi Nueces TX 78404 Office
51 2520, 2525, 2515 and 2505 Green Tech Drive State College Centre PA 16803 Office
53 815 Route 37 W Toms River Ocean NJ 08755 Hotel
54 6446 South Kenton Street Centennial Arapahoe CO 80111 Office
70 14502 North Dale Mabry Highway Tampa Hillsborough FL 33618 Office
77 3711 Chamberlain Lane Louisville Jefferson KY 40241 Hotel
89 2617 East L Street Tacoma Pierce WA 98421 Office
97 103 Brora Drive Edinboro Erie PA 16412 Multifamily
125 920-1108 S. 77 Sunshine Strip Harlingen Cameron TX 78550 Retail
127 13626-13648 Vanowen Street Van Nuys Los Angeles CA 91405 Retail
135 6624 S May Avenue Oklahoma City Oklahoma OK 73159 Multifamily
138 710 McMeans Avenue Bay Minette Baldwin AL 36507 Retail
153 1137-1155 W Brooks Street Ontario San Bernardino CA 91762 Industrial
191 7960 - 7970 Wornall Road Kansas City Jackson MO 64114 Retail
194 2199 NW 159th Street Clive Dallas IA 50325 Office
202 2605 SE Delaware Ave Ankeny Polk IA 50021 Retail
Total/Weighted Average:
Units/
Sq. Ft./
Property Mortgage Rooms/ Original Cut-off
# Sub-type Property Seller Pads Balance Balance (1)
----------------------- ------------------------- ----------------------------- -------- ------------ ------------
12 Conventional PNC Bank National Association 334 $28,450,000 $28,450,000
16 Office/Retail PNC Bank National Association 195,694 $22,640,000 $22,640,000
22 Conventional PNC Bank National Association 312 $18,000,000 $18,000,000
24 Anchored PNC Bank National Association 41,941 $15,276,000 $15,276,000
29 N/A PNC Bank National Association 43,023 $13,200,000 $13,163,445
43 Central Business District PNC Bank National Association 67,848 $10,000,000 $10,000,000
44 Conventional PNC Bank National Association 156 $10,000,000 $10,000,000
47 Suburban PNC Bank National Association 105,021 $9,800,000 $9,800,000
51 Suburban PNC Bank National Association 73,128 $9,000,000 $9,000,000
53 Limited Service PNC Bank National Association 100 $8,700,000 $8,700,000
54 Suburban PNC Bank National Association 79,200 $8,562,000 $8,562,000
70 Suburban PNC Bank National Association 62,000 $6,450,000 $6,450,000
77 Limited Service PNC Bank National Association 81 $5,500,000 $5,495,908
89 Suburban PNC Bank National Association 30,160 $4,640,000 $4,640,000
97 Conventional PNC Bank National Association 57 $4,000,000 $3,996,702
125 Unanchored PNC Bank National Association 45,706 $2,950,000 $2,945,732
127 Unanchored PNC Bank National Association 14,550 $2,873,000 $2,873,000
135 Conventional PNC Bank National Association 192 $2,550,000 $2,542,773
138 Unanchored PNC Bank National Association 44,000 $2,500,000 $2,498,135
153 N/A PNC Bank National Association 47,000 $2,100,000 $2,096,333
191 Unanchored PNC Bank National Association 13,320 $1,440,000 $1,437,537
194 Suburban PNC Bank National Association 3,600 $1,400,000 $1,400,000
202 Unanchored PNC Bank National Association 6,148 $1,189,000 $1,189,000
Total/Weighted Average: $191,220,000 $191,156,566
Percentage of Occupancy
Initial Net Maturity Fee/ Year Year Rate at Occupancy Appraised
# Pool Balance Balance (2) Leasehold Built Renovated U/W (3) Date (3) Value
----------------------- ------------- ----------- --------- ----- --------- --------- --------- -----------
12 1.4% $26,472,790 Fee 2006 N/A 82% 3/7/2007 $35,900,000
16 1.1% $22,640,000 Fee 1895 1998 99% 5/17/2007 $28,300,000
22 0.9% $16,781,515 Fee 1999 N/A 89% 5/17/2007 $21,850,000
24 0.7% $15,276,000 Fee 2007 N/A 100% 7/2/2007 $22,770,000
29 0.6% $11,143,844 Fee 2000 N/A 100% 3/1/2007 $18,900,000
43 0.5% $10,000,000 Fee 1898 2001 95% 5/18/2007 $18,100,000
44 0.5% $9,598,136 Fee 2006 N/A 95% 6/25/2007 $12,600,000
47 0.5% $9,189,009 Fee 1985 2005 97% 5/29/2007 $13,400,000
51 0.4% $8,164,899 Fee 1990 2001 100% 6/1/2007 $13,000,000
53 0.4% $7,732,963 Fee 1989 N/A 73% N/A $11,600,000
54 0.4% $7,793,830 Fee 1999 N/A 100% 6/19/2007 $11,500,000
70 0.3% $5,774,603 Fee 1985 N/A 100% 6/1/2007 $8,100,000
77 0.3% $4,719,546 Fee 2000 2006 71% N/A $9,500,000
89 0.2% $4,196,577 Fee 1972 2006 96% 6/26/2007 $5,800,000
97 0.2% $3,394,963 Fee 1972 2007 93% 5/14/2007 $6,550,000
125 0.1% $2,539,553 Fee 1980 2007 90% 6/1/2007 $4,215,000
127 0.1% $2,684,367 Fee 1965 N/A 100% 6/15/2007 $4,000,000
135 0.1% $2,146,306 Fee 1971 N/A 98% 6/25/2007 $5,250,000
138 0.1% $2,144,642 Fee 1995 N/A 100% 5/30/2007 $3,350,000
153 0.1% $1,771,431 Fee 1963 N/A 100% 5/20/2007 $3,500,000
191 0.1% $1,217,614 Fee 2000 N/A 100% 5/15/2007 $1,900,000
194 0.1% $1,106,254 Fee 2001 N/A 100% 5/1/2007 $1,875,000
202 0.1% $1,066,415 Fee 2003 N/A 100% 6/1/2007 $1,654,000
Total/Weighted Average: 9.2% $177,555,258
Maturity/
ARD
Cut-Off Date LTV Maturity LTV Most Recent Most Recent Most Recent Most Recent
# Ratio (1) (4) Ratio (2) (4) EGI (6) Expenses NOI Period Ending
----------------------- ---------------- ------------- ------------- ------------- ------------- -------------
12 79.2% 73.7% $2,991,900 $1,043,820 $1,948,080 2/28/2007
16 80.0% 80.0% $3,668,824 $1,790,180 $1,878,644 3/31/2007
22 82.4% 76.8% $2,522,717 $1,102,539 $1,420,178 2/28/2007
24 67.1% 67.1% N/A N/A N/A N/A
29 69.6% 59.0% $1,588,164 $183,803 $1,404,361 12/31/2006
43 55.2% 55.2% $1,264,807 $678,970 $585,837 12/31/2006
44 79.4% 76.2% $619,786 $307,118 $312,667 4/30/2007
47 73.1% 68.6% $2,064,522 $932,205 $1,132,317 2/28/2007
51 69.2% 62.8% $1,110,670 $249,267 $861,403 12/31/2006
53 75.0% 66.7% $4,454,825 $3,276,865 $1,177,961 4/30/2007
54 74.5% 67.8% $1,401,198 $385,225 $1,015,973 12/31/2006
70 79.6% 71.3% $1,123,616 $383,913 $739,704 4/30/2007
77 57.90% 49.7% $1,900,358 $990,798 $909,561 4/30/2007
89 80.0% 72.4% $162,771 $112,679 $50,091 4/30/2007
97 61.0% 51.8% $719,125 $319,785 $399,340 4/30/2007
125 69.9% 60.3% $257,181 $52,677 $204,504 12/31/2006
127 71.8% 67.1% $282,082 $51,603 $230,479 5/31/2007
135 48.4% 40.9% $1,117,713 $683,169 $434,544 2/28/2007
138 74.6% 64.0% N/A N/A N/A N/A
153 59.9% 50.6% $229,484 $77,625 $151,860 12/31/2006
191 75.7% 64.1% $207,602 $65,614 $141,988 12/31/2006
194 74.7% 59.0% N/A N/A N/A N/A
202 71.9% 64.5% N/A N/A N/A N/A
Total/Weighted Average: 73.5% 68.4%
2nd 2nd 2nd 2nd 3rd 3rd 3rd
Most Recent Most Recent Most Recent Most Recent Most Recent Most Recent Most Recent
# EGI Expenses NOI Period Ending EGI Expenses NOI
----------------------- ----------- ----------- ----------- ------------- ----------- ----------- -----------
12 N/A N/A N/A N/A N/A N/A N/A
16 $4,228,151 $1,696,801 $2,531,350 12/31/2006 $3,452,954 $1,688,982 $1,763,972
22 $2,371,244 $1,256,467 $1,114,777 12/31/2006 $2,300,974 $1,176,431 $1,124,544
24 N/A N/A N/A N/A N/A N/A N/A
29 $1,562,182 $182,860 $1,379,322 12/31/2005 $1,508,795 $188,423 $1,320,372
43 $789,165 $666,092 $123,074 12/31/2005 N/A N/A N/A
44 $1,987,482 $784,936 $1,202,547 12/31/2006 N/A N/A N/A
47 $1,977,222 $959,097 $1,018,125 12/31/2006 $1,777,893 $936,094 $841,799
51 $1,126,339 $248,944 $877,395 12/31/2005 N/A N/A N/A
53 $4,433,712 $3,264,513 $1,169,199 12/31/2006 $4,183,175 $3,093,820 $1,089,356
54 N/A N/A N/A N/A N/A N/A N/A
70 $1,061,392 $404,268 $657,125 12/31/2006 $1,065,409 $384,841 $680,567
77 $1,801,440 $972,088 $829,352 12/31/2006 $1,685,759 $917,796 $767,963
89 $140,813 $117,739 $23,074 12/31/2006 N/A N/A N/A
97 $688,945 $332,924 $356,021 12/31/2006 $643,176 $278,415 $364,761
125 $269,193 $74,306 $194,887 12/31/2005 N/A N/A N/A
127 $256,705 $55,633 $201,073 12/31/2006 N/A N/A N/A
135 $1,113,633 $703,111 $410,522 12/31/2006 $1,037,630 $661,009 $376,621
138 N/A N/A N/A N/A N/A N/A N/A
153 $235,754 $70,915 $164,838 12/31/2005 N/A N/A N/A
191 $268,166 $57,587 $210,578 12/31/2005 N/A N/A N/A
194 N/A N/A N/A N/A N/A N/A N/A
202 N/A N/A N/A N/A N/A N/A N/A
Total/Weighted Average:
3rd Engineering
Most Recent U/W U/W U/W U/W U/W Reserve at
# Period Ending EGI Expenses NOI NCF (5) DSCR (6) Origination
----------------------- ------------- ---------- ---------- ---------- ---------- -------- -----------
12 N/A $3,838,991 $1,372,698 $2,466,294 $2,466,294 1.26x $400,000
16 12/31/2005 $3,798,867 $1,996,146 $1,802,721 $1,651,066 1.24x N/A
22 12/31/2005 $2,948,743 $1,409,525 $1,539,218 $1,461,218 1.16x $239,000
24 N/A $1,714,364 $376,189 $1,338,175 $1,294,380 1.33x N/A
29 12/31/2004 $1,555,317 $188,494 $1,366,824 $1,298,785 1.39x N/A
43 N/A $1,559,698 $712,680 $847,018 $737,620 1.20x N/A
44 N/A $1,279,156 $408,307 $870,849 $831,849 1.22x N/A
47 12/31/2005 $2,035,395 $978,587 $1,056,808 $920,885 1.28x $195,000
51 N/A $1,168,814 $245,958 $922,856 $856,177 1.29x N/A
53 12/31/2005 $4,454,825 $3,418,587 $1,036,238 $858,045 1.35x N/A
54 N/A $1,136,872 $344,008 $792,864 $737,806 1.15x N/A
70 12/31/2005 $1,195,440 $485,075 $710,365 $631,375 1.30x N/A
77 12/31/2005 $1,900,358 $1,026,370 $873,988 $797,975 1.93x N/A
89 N/A $560,100 $143,698 $416,402 $385,517 1.15x N/A
97 12/31/2005 $746,764 $337,786 $408,978 $390,772 1.35x N/A
125 N/A $455,515 $107,959 $347,557 $315,531 1.41x N/A
127 N/A $340,012 $85,901 $254,111 $241,607 1.18x N/A
135 12/31/2005 $1,111,645 $700,000 $411,645 $363,645 2.04x N/A
138 N/A $309,040 $35,799 $273,241 $247,142 1.32x N/A
153 N/A $274,025 $75,886 $198,139 $179,832 1.21x $9,375
191 N/A $193,620 $61,993 $131,826 $123,511 1.21x $15,294
194 N/A $154,207 $4,626 $149,581 $148,861 1.30x N/A
202 N/A $115,767 $2,315 $113,452 $108,707 1.20x N/A
(A) The Underlying Mortgage Loans secured by RV Dakota Ridge RV Park, RV Elk
Meadows RV Park and RV Spruce Lake RV Park are cross-collateralized and
cross-defaulted.
(1) Based on a Cut-off date in September 2007.
(2) At maturity with respect to Balloon Loans or at the anticipated repayment
date in the case of ARD Loans, there can be no assurance that the value of
any particular Mortgaged Property will not have declined from the original
appraisal value.
(3) For hospitality properties, the occupancy presented above is the occupancy
concluded by the respective loan seller at underwriting based on
historical performance and future outlook. For further description of the
underwriting criteria, please see "Description of the Sponsors" in the
accompanying free writing prospectus.
(4) In the case of cross-collateralized and cross-defaulted underlying
mortgage loans, the combined LTV is presented for each and every related
underlying mortgage loan.
(5) U/W NCF reflects the net cash flow after underwritten replacement
reserves, underwritten LC's & TI's and underwritten FF&E.
(6) DSCR is based on the amount of the monthly payments presented. In the case
of cross-collateralized and cross-defaulted underlying mortgage loans the
combined DSCR is presented for each and every related underlying mortgage
loan.
(7) At maturity with respect to Balloon Loans or at the anticipated repayment
date in the case of ARD Loans.
(8) Anticipated Repayment Date.
(9) Prepayment Provision as of Origination:
Lock/(x) = Lockout or Defeasance for (x) payments
YMA/(y) = Greater of Yield Maintenance Premium and A% Prepayment for (y)
payments
A%/(y) = A% Prepayment for (y) payments
0.0%/(z) = Prepayable at par for (z) payments
(10) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
(11) The Shutters on the Beach & Casa Del Mar Portfolio Loan is evidenced by a
$310 million mortgage loan and a subordinate mezzanine loan in the amount
of $72 million. The mezzanine loan is secured by a pledge of ownership
interest in the borrower, has standard lender protection, and is subject
to standard intercreditor agreements. All calculations are based on the
$310 million mortgage loan.
(12) The 245 Fifth Avenue Loan is evidenced by a $140 million mortgage loan and
a subordinate mezzanine loan in the amount of $53 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $140 million mortgage loan.
(13) The City Tower Loan is evidenced by a $115 million mortgage loan and a
subordinate mezzanine loan in the amount of $25 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $115 million mortgage loan.
(14) The 2600 Michelson Loan is evidenced by a $95 million mortgage loan and a
subordinate mezzanine loan in the amount of $15 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $95 million mortgage loan.
(15) The Meyberry House Loan is evidenced by a $90 million mortgage loan and a
subordinate mezzanine loan in the amount of $34 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $90 million mortgage loan.
(16) The underwriting projects that 80% of the units are unregulated, 19.4% are
regulated and 0.6% are employee units.
(17) Beginning on the three month anniversary of the first payment date of the
loan, the borrower will also have the option to obtain a release of: (i)
the Parking Garage by paying the Parking Garage Release Amount
($8,800,000) and/or (ii) the Medical Office Space by paying the Medical
Office Space Release Amount ($8,800,000). In connection with the release
of either parcel, the borrower is not obligated to pay Required Yield
Maintenance.
(18) The Esquire Portfolio Loan is evidenced by a $31 million mortgage loan and
a subordinate mezzanine loan in the amount of $3.17 million. The mezzanine
loan is secured by a pledge of ownership interest in the borrower, has
standard lender protection, and is subject to standard intercreditor
agreements. All calculations are based on the $31 million mortgage loan.
(19) The underwriting projects that 49.1% of the units are unregulated, 49.1%
are regulated and 1.8% are employee units.
(20) The Artisan Las Vegas Portfolio Loan is evidenced by a $30.3 million
mortgage loan and a subordinate mezzanine loan in the amount of $9.47
million. The mezzanine loan is secured by a pledge of ownership interest
in the borrower, has standard lender protection, and is subject to
standard intercreditor agreements. All calculations are based on the $30.3
million mortgage loan.
(21) Commencing on the second anniversary of the REMIC start-up date as defined
in the relevant loan documents, the borrower will also have the option to
obtain a release of the mortgaged real property from the lien of the
mortgage loan through defeasance.
(22) Prior to the Defeasance Lockout Date, the borrower has the right to
partially prepay the mortgage loan and obtain release of an Individual
Property for up to 25% of the original principal amount of the mortgage
loan by paying the Adjusted Release Amount plus the Required Yield
Maintenance. After the Defeasance Lockout Date, the borrower can obtain a
release of such parcels only through defeasing the applicable portion of
the mortgage loan.
(23) With respect to the St. Luke's at Cypress Woods Loan, the Cut-Off LTV,
Maturity LTV, and Appraised Value are based upon the appraiser's concluded
As Is value. In addition, the appraiser also concluded a prospective As
Stabilized value of $41,500,000 as of September 1, 2008, resulting in a
Cut-Off LTV of 76.6% and a Maturity LTV of 76.6.%.
(24) The underlying mortgage loan is structured with an earnout/holdback or
stabilization reserve. The Cut-Off LTV and Maturity LTV for the loan is
shown net of its reserve.
(25) With respect to the Champions Centre Apartments Loan, the Cut-Off LTV,
Maturity LTV, and Appraised Value are based upon the appraiser's concluded
As Is value. In addition, the appraiser also concluded a prospective As
Stabilized value of $16,350,000 as of October 4, 2007, resulting in a
Cut-Off LTV of 79.5% and a Maturity LTV of 79.5%.
(26) With respect to the 1208B VFW Parkway Loan, the Cut-Off LTV, Maturity LTV,
and Appraised value are based upon stabilized values. The As is Appraised
value is $6,200,000 (as of 1/3/2007).
(27) With respect to the 1250B Auburn Road Loan, the Cut-Off LTV, Maturity LTV,
and Appraised value are based upon stabilized values. The As is Appraised
value is $2,250,000 (as of 3/10/2007).
(28) With respect to the Tower Professional Loan, the Cut-Off LTV, Maturity
LTV, and Appraised value are based upon stabilized values. The As is
Appraised value is $4,700,000 (as of 12/7/2006).
(29) The borrower has the obligation to prepay the loan, to the extent
necessary, upon the State of Illinois exercising its option to purchase
certain two parcels, which the State of Illinois currently leases. If the
State of Illinois exercises such purchase option during the defeasance
lockout period, or if the borrower is otherwise unable to defease due to
REMIC restrictions, then the borrower must prepay the loan, to the extent
necessary, with the Required Yield Maintenance plus 1%. After the
defeasance lockout period, the loan can only be defeased unless the
borrower is otherwise unable to defease the loan due to REMIC
restrictions.
(30) Commencing on the second anniversary of the REMIC start-up date as defined
in the relevant loan documents, the borrower will also have the option to
obtain a release of the of either: (i) the Drug Mart Plaza - Upper
Sandusky mortgaged real property from the lien of the mortgage by
prepaying 125% of the Minimum Release Payment or, (ii) the Drug Mart Plaza
- Parma Heights mortgaged real property by prepaying 140% of Minimum
Release Payment. In addition to such partial prepayment amount, the
borrower is also obligated to pay a prepayment penalty in the amount of
the Required Yield Maintenance.
(31) Commencing on the second anniversary of the REMIC start-up date as defined
in the relevant loan documents, the borrower will also have the option to
obtain a release of the Shoppes at Midtown mortgaged real property from
the lien of the mortgage by (i) prepaying 29% of the outstanding loan
balance if the earnout reserve has been released, or (ii) 35% of the
outstanding loan balance, if the earnout has not been released. In
addition to such partial prepayment amount, the borrower is also obligated
to pay a prepayment penalty in the amount of the Required Yield
Maintenance.
SCHEDULE III
MORTGAGE LOANS CONSTITUTING CROSSED GROUPS
None
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
See Attached
Exceptions to representation (xvii)
Loan
Number(s) Loan Name(s) Description of Exception
--------- ------------ ------------------------
940953790 Bank of the West With respect to each Mortgage Loan
94095371 Big O Tires - Ankeny listed to the left, if the related
940953860 Winn Dixie - Bay Minette Mortgage Note is not paid in full on
its maturity date and the holder
thereof exercises its option to
forebear from pursuing its remedies,
such Mortgage Loan provides that,
during the period commencing on or
about the related maturity date and
continuing until the earlier of such
Mortgage Loan being paid in full or
the holder terminating its
forbearance, additional interest
above the stated interest rate
applicable prior to the maturity
date shall accrue and may be
compounded monthly and shall be
payable only after all of the
outstanding principal of such
Mortgage Loan is paid in full.
Exceptions to representation (xxiii)
Loan
Number(s) Loan Name(s) Description of Exception
--------- ------------ ------------------------
940953602 Ontario Warehouse Building The insurance provider with respect
to the Mortgaged Property does not
meet the S&P or Moody's ratings
criteria.
940953606 Holiday Inn Express - The insurance provider with respect
Louisville to the Mortgaged Property does not
meet the S&P ratings criteria and is
not rated by Moody's.
940953623 Stone Lake Apartment Homes The insurance provider with respect
to the Mortgaged Property does not
meet the S&P or Moody's ratings
criteria.
940953702 Edinboro College Park The insurance provider with respect
Apartments to the Mortgaged Property is not
rated by Moody's.
940953716 Big O Tires - Ankeny The insurance provider with respect
to the Mortgaged Property is not
rated by Moody's.
940953717 Villas at Bailey Ranch III The insurance provider with respect
to the Mortgaged Property is not
rated by Moody's.
940953728 Creekside Plaza I, II, III One insurance provider with respect
to the Mortgaged Property is not
rated by S&P or Moody's. The other
insurance provider does not meet the
S&P ratings criteria and is not
rated by Moody's.
940953742 Quality Inn - Toms River The insurance provider with respect
to the Mortgaged Property is not
rated by S&P or Moody's.
940953787 Lone Tree Retail Center The insurance provider with respect
to the Mortgaged Property is not
rated by S&P or Moody's.
940953790 Bank of the West The insurance provider with respect
to the Mortgaged Property does not
meet the S&P or Moody's ratings
criteria.
940953860 Winn Dixie - Bay Minette The insurance provider with respect
to the Mortgaged Property is not
rated by S&P or Moody's.
940953869 Paramount Plaza The insurance provider with respect
to the Mortgaged Property is not
rated by Moody's.
Exceptions to representation (xxxvii)
Loan
Number(s) Loan Name(s) Description of Exception
--------- ------------ ------------------------
940953559 The Can Company In connection with the financing of
tenant improvements with respect to
the mortgaged real property, the
borrower has incurred unsecured debt
from three tenants of the mortgaged
real property in the aggregate
outstanding principal balance (as of
May 1, 2007) of approximately
$758,877.
Exceptions to representation (xxxviii)
Loan
Number(s) Loan Name(s) Description of Exception
--------- ------------ ------------------------
940953559 The Can Company The principals of the borrower have
incurred mezzanine debt in the
original amount of $2,611,000,
secured by the ownership interests
in the sole member of such borrower.
In addition, in connection with the
financing of tenant improvements
with respect to the mortgaged real
property, the borrower has incurred
unsecured debt from three tenants of
the related mortgaged real property
in the aggregate outstanding
principal balance (as of May 1,
2007) of approximately $758,877.
940953717 Villas at Bailey Ranch III The Mortgage Loan documents permit
the borrower to incur subordinate
unsecured indebtedness from its
affiliate.
Exceptions to representation (lviii)
Loan
Number(s) Loan Name(s) Description of Exception
--------- ------------ ------------------------
940953790 Bank of the West With respect to each Mortgage Loan
94095371 Big O Tires - Ankeny listed to the left, if the related
940953860 Winn Dixie - Bay Minette Mortgage Note is not paid in full on
its maturity date and the holder
thereof exercises its option to
forebear from pursuing its remedies,
such Mortgage Loan provides that,
during the period commencing on or
about the related maturity date and
continuing until the earlier of such
Mortgage Loan being paid in full or
the holder terminating its
forbearance, additional interest
above the stated interest rate
applicable prior to the maturity
date shall accrue and may be
compounded monthly and shall be
payable only after all of the
outstanding principal of such
Mortgage Loan is paid in full.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of the Seller" or "to the Seller's knowledge" shall mean, except
where otherwise expressly set forth below, the actual state of knowledge of the
Seller or any servicer acting on its behalf regarding the matters referred to,
in each case without having conducted any independent inquiry or due diligence
with respect to such matters and without any actual or implied obligation to
make such inquiry or perform such due diligence, other than making such inquiry
or performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of the Seller. Wherever there is
a reference to receipt by, or possession of, the Seller of any information or
documents, or to any action taken by the Seller or not taken by the Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either the Seller or any servicer acting on its behalf.
The Seller hereby represents and warrants, subject to the exceptions
set forth in the applicable Exception Report, with respect to the Mortgage Loans
that as of the date herein below specified or, if no such date is specified, as
of the date of this Agreement:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to,
and was the sole owner of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(1) originated by a savings and loan association, savings
bank, commercial bank, credit union, or insurance company, which is
supervised and examined by a Federal or State authority, or by a
mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act (any of
the foregoing, including the Seller, a "Qualified Originator"); or
(2) if originated by a person which is not a Qualified
Originator (any such person, a "Non-Qualified Originator"), then:
(a) such Mortgage Loan was underwritten in accordance
with standards established by a Qualified Originator, using
application forms and related credit documents approved by the
Qualified Originator;
(b) the Qualified Originator approved each application
and related credit documents before a commitment by the
Non-Qualified Originator was issued, and no such commitment
was issued until the Qualified Originator agreed to fund such
Mortgage Loan;
(c) the Mortgage Loan was originated by the
Non-Qualified Originator pursuant to an ongoing, standing
relationship with the Qualified Originator; and
(d) the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator, and,
pursuant to the Non-Qualified Originator's ongoing, standing
relationship with the Qualified Originator, either:
i. such closing documents reflect the Qualified
Originator as the original mortgagee, and such Mortgage
Loan was actually funded by the Qualified Originator at
the closing thereof;
ii. such closing documents reflect the
Non-Qualified Originator as the original mortgagee, but
include assignment documents executed by the
Non-Qualified Originator in favor of the Qualified
Originator at the time of the closing of the Mortgage
Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator,
and the Mortgage Loan was funded initially by the
Non-Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such
Non-Qualified Originator; or
iii. such closing documents reflect the
Non-Qualified Originator as the original mortgagee, but
include assignment documents executed by the
Non-Qualified Originator in favor of the Qualified
Originator at the time of the closing of the Mortgage
Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator,
and the Mortgage Loan was funded initially by the
Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such
Non-Qualified Originator.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor
constitutes a legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or any other interests or security
interests of any nature encumbering such Mortgage Loan, except for
interests in servicing rights created or granted under the Pooling and
Servicing Agreement, subservicing agreements and/or servicing rights
purchase agreements being executed and delivered in connection herewith;
(v) To Seller's knowledge, based on the related borrower's
representations and covenants in the related mortgage loan documents and
such other due diligence as a reasonably prudent commercial mortgage
lender would deem appropriate, the borrower, lessee and/or operator was in
possession of all licenses, permits, and authorizations then required for
use of the Mortgaged Property which were valid and in full force and
effect as of the origination date and to Seller's actual knowledge, such
licenses, permits and authorizations are still valid and in full force and
effect;
(vi) Each related Note, Mortgage, assignment of leases (if any) and
other agreement executed by or for the benefit of the related borrower,
any guarantor or their successors or assigns in connection with such
Mortgage Loan is the legal, valid and binding obligation of the related
borrower, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or
by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and there is no right
of offset, rescission, abatement or diminution or valid defense or
counterclaim available to the related borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(vii) The Mortgage File contains an Assignment of Leases, either as
a separate instrument or incorporated into the related Mortgage. Each
related Assignment of Leases creates a valid first priority collateral
assignment of, or a valid first priority lien or security interest in,
certain rights under the related lease or leases, subject only to
Permitted Encumbrances (as defined below) and to a license granted to the
related borrower to exercise certain rights and to perform certain
obligations of the lessor under such lease or leases, including the right
to operate the related leased property, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); no person other than the
related borrower owns any interest in any payments due under such lease or
leases that is superior to or of equal priority with the lender's interest
therein;
(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if the
Assignment of Leases is a separate document from the Mortgage, is in
recordable form (but for the insertion of the name and address of the
assignee and any related recording information, which is not yet available
to the Seller), and such assignments and any assignment of any other
agreement executed by or for the benefit of the related borrower, any
guarantor or their successors or assigns in connection with such Mortgage
Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(ix) Since origination (a) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded in whole or in part and (b)
each related Mortgaged Property has not been released, in whole or in
part, from the lien of the related Mortgage in any manner which materially
interferes with the security intended to be provided by such Mortgage and
since August 24, 2007, no waiver, consent, modification, assumption,
alteration, satisfaction, cancellation, subordination or rescission which
changes the terms of, or the security for, the Mortgage Loan in any
material respect has occurred or been given;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as
defined below)), except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law); and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with the
lien of the related Mortgage, except those which are insured against by a
lender's title insurance policy (as described below). A UCC financing
statement has been filed and/or recorded (or sent for filing or recording)
in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property as currently
operated; and such security interest is a first priority security
interest, subject to any prior purchase money security interest in such
personal property, any personal property leases applicable to such
personal property and any other security interest in such personal
property which do not, individually or in the aggregate, materially
interfere with the security intended to be provided for such Mortgage
Loan. Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes
and creates a valid and enforceable lien on the property described
therein, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law). In the case of any Mortgage Loan secured by a hotel,
the related loan documents contain such provisions as are necessary and
UCC Financing Statements have been filed as necessary, in each case, to
perfect a valid first priority security interest in the related operating
revenues with respect to such Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the
extent that possession or control of such items or actions other than the
filing of Uniform Commercial Code financing statements are required in
order to effect such perfection;
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of
the Mortgaged Property covered thereby (as set forth in the related
Mortgage) after all advances of principal and is insured by an ALTA
lender's title insurance policy (except that if such policy is yet to be
issued, such insurance may be evidenced by a "marked up" pro forma policy,
specimen policy or title commitment in any case marked as binding and
countersigned by the title company or its authorized agent, either on its
face or by an acknowledged closing instruction or escrow letter), or its
equivalent as adopted in the applicable jurisdiction, insuring the lender
and its successors and assigns (as sole insured) as to such lien, subject
only to (a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or
penalties, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which, individually
or in the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property, (c) the exceptions
(general and specific) and exclusions set forth in such policy, none of
which, individually or in the aggregate, materially interferes with the
current general use of the Mortgaged Property or materially interferes
with the security intended to be provided by such Mortgage or with the
related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property, (d) the rights of tenants, as tenants
only, under leases, including subleases, pertaining to the related
Mortgaged Property, (e) if the related Mortgage Loan is
cross-collateralized with any other Mortgage Loan in the trust fund, the
lien of the mortgage instrument for that other Mortgage Loan, (f) if the
related Mortgaged Property is a unit in a condominium, the related
condominium declaration and (g) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property (items (a), (b), (c), (d), (e), (f) and (g)
collectively, "Permitted Encumbrances") and with respect to each Mortgage
Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided
by the related Mortgage, the current principal use of the related
Mortgaged Property, the value of the Mortgaged Property or the or the
current ability of the related Mortgaged Property to generate income
sufficient to service such Mortgage Loan; the premium for such policy was
paid in full; such policy (or if it is yet to be issued, the coverage to
be afforded thereby) is issued by a title insurance company licensed to
issue policies in the state in which the related Mortgaged Property is
located (unless such state is Iowa) and is assignable (with the related
Mortgage Loan) to the Depositor and the Trustee without the consent of or
any notification to the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement; no claims have been made under such policy and the
Seller has not undertaken any action or omitted to take any action, and
has no knowledge of any such act or omission, which would impair or
diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage
File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the
Mortgage Loan, as of the later of the date of origination of such Mortgage
Loan or the most recent inspection of the related Mortgaged Property by
the Seller, as applicable, and to the knowledge of Seller as of the date
hereof, each related Mortgaged Property is free of any material damage
that would affect materially and adversely the use or value of such
Mortgaged Property as security for the Mortgage Loan (normal wear and tear
excepted). If any of the inspection or engineering reports referred to
above in this Paragraph (xv) revealed any immediate repair items, then one
of the following is true: (a) the repairs and/or maintenance necessary to
correct such condition have been completed in all material respects; (b)
an escrow of funds is required or a letter of credit was obtained in an
amount reasonably estimated to be sufficient to complete the repairs
and/or maintenance necessary to correct such condition; or (c) the
reasonable estimation at the time of origination of the Mortgage Loan of
the cost to complete the repairs and/or maintenance necessary to correct
such condition represented no more than the greater of (i) $50,000 and
(ii) 2% of the value of the related Mortgaged Property as reflected in an
appraisal conducted in connection with the origination of the subject
Mortgage Loan; as of the closing date for each Mortgage Loan and, to the
Seller's knowledge, as of the date hereof, there is no proceeding pending
for the total or partial condemnation of such Mortgaged Property that
would have a material adverse effect on the use or value of the Mortgaged
Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the
originator of the Mortgage Loan inspected or caused to be inspected each
related Mortgaged Property within three months of origination of the
Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than
the ARD Loans which may have negative amortization from and after the
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to the lender or any other party;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the
date of origination with, or was exempt from, applicable state or federal
laws, regulations and other requirements pertaining to usury. Except to
the extent any noncompliance did not materially and adversely affect the
value of the related Mortgaged Property, the security provided by the
Mortgage or the related borrower's operations at the related Mortgaged
Property, any and all other requirements of any federal, state or local
laws, including, without limitation, truth-in-lending, real estate
settlement procedures, equal credit opportunity or disclosure laws,
applicable to such Mortgage Loan have been complied with as of the date of
origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process
of any Mortgage Loan and the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and prudent in accordance
with customary commercial mortgage lending standards, and no other person
has been granted or conveyed the right to service the Mortgage Loans or
receive any consideration in connection therewith, except as provided in
the Pooling and Servicing Agreement or any permitted subservicing
agreements and/or servicing rights purchase agreements being executed and
delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged
Property and that are or may become a lien of priority equal to or higher
than the lien of the related Mortgage have been paid or an escrow of funds
has been established and such escrow (including all escrow payments
required to be made prior to the delinquency of such taxes and
assessments) is sufficient to cover the payment of such taxes and
assessments (for purposes of this representation and warranty, taxes and
assessments shall not be considered due and owing until the date on which
interest and/or penalties would be payable thereon);
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller
or its agent and there are no deficiencies (subject to any applicable
grace or cure periods) in connection therewith. All such escrows and
deposits are being conveyed by the Seller to the Depositor and identified
as such with appropriate detail. With respect to any disbursements made
from such escrows, any requirements for the disbursement of any such
escrows have been complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the
requirements of the Pooling and Servicing Agreement, in an amount not less
than the lesser of the principal amount of the related Mortgage Loan and
the replacement cost (with no deduction for physical depreciation) and not
less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the related Mortgaged Property; each related
Mortgaged Property is also covered by business interruption or rental loss
insurance which covers a period of not less than 12 months and
comprehensive general liability insurance in amounts generally required by
prudent commercial mortgage lenders for similar properties; all Mortgaged
Properties in California or in a seismic zone 4 or 5 have had a seismic
assessment done and earthquake insurance was obtained to the extent any
such Mortgaged Property has a probable maximum loss in the event of an
earthquake of greater than twenty percent (20%) of the replacement value
of the related improvements; if the Mortgaged Property for any Mortgage
Loan is located within Florida or within 25 miles of the coast of North
Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana or
Texas, then, such Mortgaged Property is insured by windstorm insurance in
an amount at least equal to the lesser of (i) the outstanding principal
balance of such Mortgage Loan and (ii) 100% of the insurable replacement
cost of the improvements located on the related Mortgaged Property; the
Mortgaged Properties securing all of the Mortgage Loans having a Stated
Principal Balance in excess of $3,000,000 have, as of the date hereof,
insurance policies in place with respect to acts of terrorism or damage
related thereto (excluding acts involving nuclear, biological or chemical
terrorism), except any such Mortgage Loans that are listed on the
applicable Exception Report. All premiums on such insurance policies
required to be paid as of the date hereof have been paid; such insurance
policies or the related insurance certificates require prior notice to the
insured of reduction in coverage, termination or cancellation, and no such
notice has been received by the Seller; such insurance names the lender
under the Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related
borrower to maintain all such insurance and, at such borrower's failure to
do so, authorizes the lender to maintain such insurance at the borrower's
cost and expense and to seek reimbursement therefor from such borrower;
(xxiv) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b)
event (other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of
acceleration, which default, breach, violation or event of acceleration,
in the case of either (a) or (b) would materially and adversely affect the
use or value of the Mortgage Loan or the related Mortgaged Property.
Notwithstanding the foregoing, this representation and warranty does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by
any other representation or warranty made by the Seller elsewhere in this
Exhibit A or the Exception Report;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (a) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure or, subject to applicable state law requirements,
appointment of a receiver, and (b) there is no exemption available to the
borrower which would interfere with such right to foreclose, except, in
the case of either (a) or (b), as the enforcement of the Mortgage may be
limited by bankruptcy, insolvency, reorganization, moratorium, redemption
or other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). No borrower is a debtor
in a state or federal bankruptcy or insolvency proceeding;
(xxvii) At origination, each borrower represented and warranted in
all material respects that to its knowledge, except as set forth in
certain environmental reports and, except as commonly used in the
operation and maintenance of properties of similar kind and nature to the
Mortgaged Property, in accordance with prudent management practices and
applicable law, and in a manner that does not result in any contamination
of the Mortgaged Property, it has not used, caused or permitted to exist
and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal,
state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials or other environmental laws; the related borrower agreed to
indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries,
penalties, fines, expenses, and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in
connection with such Mortgage Loan. A Phase I environmental report and/or
with respect to certain Mortgage Loans, a Phase II environmental report
was conducted by a reputable independent environmental consulting firm in
connection with such Mortgage Loan, which report did not indicate any
material non-compliance with applicable environmental laws or material
existence of hazardous materials or, if any material non-compliance or
material existence of hazardous materials was indicated in any such
report, then at least one of the following statements is true: (A) funds
reasonably estimated to be sufficient to cover the cost to cure any
material non-compliance with applicable environmental laws or material
existence of hazardous materials have been escrowed, or a letter of credit
in such amount has been provided, by the related borrower and held by the
related mortgagee; (B) if the environmental report recommended an
operations and maintenance plan, but not any material expenditure of
funds, an operations and maintenance plan has been required to be obtained
by the related borrower; (C) the environmental condition identified in the
related environmental report was remediated or abated in all material
respects prior to the date hereof; (D) a no further action or closure
letter was obtained from the applicable governmental regulatory authority
(or the environmental issue affecting the related Mortgaged Property was
otherwise listed by such governmental authority as "closed"); (E) such
conditions or circumstances identified in the Phase I environmental report
were investigated further and based upon such additional investigation, an
environmental consultant recommended no further investigation or
remediation; (F) a party unrelated to the borrower with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related borrower to
cover the costs of any required investigation, testing, monitoring or
remediation; (G) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is not greater than two percent (2%)
of the outstanding principal balance of the related Mortgage Loan; or (H)
a lender's environmental insurance policy was obtained and is a part of
the related Mortgage File. Notwithstanding the preceding sentence, with
respect to certain Mortgage Loans with an original principal balance of
less than $3,500,000, no environmental report may have been obtained, but
(in such cases where a Phase I environmental report was not obtained) a
lender's environmental insurance policy was obtained with respect to each
such Mortgage Loan. Each of such lender's environmental insurance policies
is a part of the related Mortgage File. Each of such environmental
insurance policies is in full force and effect, is in an amount not less
than the 100% of the balance of the related Mortgage Loan, has a term
extending not less than 5 years after the maturity date of the related
Mortgage Loan, the premiums for such policies have been paid in full and
the Trustee is named as an insured under each of such policies, the Seller
has delivered to the insurer all environmental reports in its possession.
To the Seller's knowledge, in reliance on such environmental reports and
except as set forth in such environmental reports, each Mortgaged Property
is in material compliance with all applicable federal, state and local
environmental laws, and to the Seller's knowledge, no notice of violation
of such laws has been issued by any governmental agency or authority,
except, in all cases, as indicated in such environmental reports or other
documents previously provided to the Rating Agencies; and the Seller has
not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining
to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage (and
the Mortgage requires the mortgagor to pay all fees and expenses
associated with obtaining such consent), the related Mortgaged Property is
directly or indirectly transferred or sold, and (2) except with respect to
transfers of certain direct or indirect interests in the related borrower
to persons already holding direct or indirect interests in the borrower,
their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent
commercial mortgage lenders) or any transfers in connection with the death
or disability of owners of the borrower, each Mortgage Loan also contains
the provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the consent of the holder of the
Mortgage, (and the Mortgage requires the mortgagor to pay all fees and
expenses associated with obtaining such consent) a majority interest in
the related borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments
onto adjoining parcels for which the Seller has obtained title insurance
against losses arising therefrom or that do not materially and adversely
affect the use or value of such Mortgaged Property. No improvements on
adjoining parcels encroach onto the related Mortgaged Property except for
encroachments that do not materially and adversely affect the value of
such Mortgaged Property, the security provided by the Mortgage, the
current use of the Mortgaged Property, or the related borrower's
operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the Mortgage Loan Schedule attached as an exhibit to this
Mortgage Loan Purchase Agreement is complete and accurate in all material
respects as of the dates of the information set forth therein (or, if not
set forth therein, as of the Cut-Off Date);
(xxxi) With respect to any Mortgage Loan where all or any material
portion of the estate of the related borrower therein is a leasehold
estate under a ground lease, and the related Mortgage does not also
encumber the related lessor's fee interest in such Mortgaged Property,
based upon the terms of the ground lease and any estoppel received from
the ground lessor, the Seller represents and warrants that:
(1) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee,
its successors or assigns in a manner that would materially and
adversely affect the security provided by the related Mortgage. To
the Seller's knowledge, there has been no material change in the
terms of the ground lease since its recordation, except by any
written instruments which are included in the related mortgage file;
(2) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not
be amended, modified, canceled or terminated without the prior
written consent of the lender and that any such action without such
consent is not binding on the lender, its successors or assigns;
(3) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and would be enforceable, by the
lender) that extends not less than 10 years beyond the amortization
term of the related Mortgage Loan;
(4) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to
any liens or encumbrances superior to, or of equal priority with,
the Mortgage, subject to Permitted Encumbrances and liens that
encumber the ground lessor's fee interest;
(5) Under the terms of the ground lease, the ground lease is
assignable to the lender and its assigns without the consent of the
lessor thereunder;
(6) The ground lease is in full force and effect, the Seller
has no actual knowledge that any default beyond applicable notice
and grace periods has occurred, and to the Seller's knowledge, there
is no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of the
ground lease;
(7) The ground lease or ancillary agreement, which is part of
the Mortgage File, between the lessor and the lessee requires the
lessor to give notice of any default by the lessee to the lender;
(8) The lender is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under the ground lease through legal
proceedings, or to take other action so long as the lender is
proceeding diligently) to cure any default under the ground lease
which is curable after the receipt of notice of any default before
the lessor may terminate the ground lease. All rights of the lender
under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(9) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent commercial mortgage lender. The lessor is not permitted to
disturb the possession, interest or quiet enjoyment of any subtenant
of the lessee in the relevant portion of the Mortgaged Property
subject to the ground lease for any reason, or in any manner, which
would adversely affect the security provided by the related
Mortgage;
(10) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the lender or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan, together with
any accrued interest, except that in the case of condemnation
awards, the ground lessor may be entitled to a portion of such
award;
(11) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of the
related Mortgaged Property will be applied first to the payment of
the outstanding principal balance of the Mortgage Loan, together
with any accrued interest (except as provided by applicable law or
in cases where a different allocation would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender,
taking into account the relative duration of the ground lease and
the related Mortgage and the ratio of the market value of the
related Mortgaged Property to the outstanding principal balance of
such Mortgage Loan). Until the principal balance and accrued
interest are paid in full, neither the lessee nor the lessor under
the ground lease will have an option to terminate or modify the
ground lease without the prior written consent of the lender as a
result of any casualty or partial condemnation; and
(12) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a
new lease upon termination of the ground lease for any reason,
including rejection of the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold
estate, but the related Mortgage also encumbers the related lessor's fee
interest in such Mortgaged Property: (a) such lien on the related fee
interest is evidenced by the related Mortgage, (b) such Mortgage does not
by its terms provide that it will be subordinated to the lien of any other
mortgage or encumbrance upon such fee interest, (c) upon the occurrence of
a default under the terms of such Mortgage by the related borrower, any
right of the related lessor to receive notice of, and to cure, such
default granted to such lessor under any agreement binding upon the lender
would not be considered commercially unreasonable in any material respect
by prudent commercial mortgage lenders, (d) the related lessor has agreed
in a writing included in the related Mortgage File that the related ground
lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on
the lender, its successors or assigns, and (e) the related ground lease is
in full force and effect, and the Seller has no actual knowledge that any
default beyond applicable notice and grace periods has occurred or that
there is any existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of such ground
lease;
(xxxiii) With respect to Mortgage Loans that are senior or pari
passu in right of payment and cross-collateralized or cross-defaulted, all
other loans that are cross-collateralized by or cross-defaulted with such
Mortgage Loans are being transferred to the Depositor;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan,
other than contributions made on or prior to the date hereof;
(xxxv) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an appraisal
satisfying the requirements of FIRREA conducted within 12 months of the
origination of the Mortgage Loan, was at least equal to 80% of the
principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time when the Mortgage Loan
was not in default or default with respect thereto was not reasonably
foreseeable, the date of the last such modification) or (b) at the date
hereof; provided that the fair market value of the real property must
first be reduced by (A) the amount of any lien on the real property
interest that is senior to the Mortgage Loan and (B) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such
other lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by
the lender or any mezzanine debt related to such Mortgaged Property,
except as set forth in the Prospectus Supplement, this Exhibit A or in the
Exception Report to this Mortgage Loan Purchase Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection with
each Mortgage Loan having an original principal balance in excess of
$5,000,000 require that the related borrower be a single-purpose entity
(for this purpose, "single-purpose entity" shall mean an entity, other
than an individual, having organizational documents which provide
substantially to the effect that it is formed or organized solely for the
purpose of owning and operating one or more Mortgaged Properties, is
prohibited from engaging in any business unrelated to such property and
the related Mortgage Loan, does not have any assets other than those
related to its interest in the related Mortgaged Property or its
financing, or any indebtedness other than as permitted under the related
Mortgage Loan). To the Seller's actual knowledge, each borrower has fully
complied with the requirements of the related Mortgage Note and Mortgage
and borrower's organizational documents regarding single-purpose entity
status;
(xxxviii) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the borrower, without the prior written
consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified in the Note or Mortgage which would be
acceptable to a reasonably prudent commercial mortgage lender, and, except
in connection with trade debt and equipment financings in the ordinary
course of borrower's business, from carrying any additional indebtedness,
except, in each case, liens contested in accordance with the terms of the
Mortgage Loan or, with respect to each Mortgage Loan having an original
principal balance of less than $4,000,000, any unsecured debt;
(xxxix) Each borrower covenants in the Mortgage Loan documents that
it shall remain in material compliance with all material licenses, permits
and other legal requirements necessary and required to conduct its
business;
(xl) Each Mortgaged Property (a) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting
ingress and egress, (b) is served by public utilities and services
generally available in the surrounding community or otherwise appropriate
for the use in which the Mortgaged Property is currently being utilized,
and (c) constitutes one or more separate tax parcels or is covered by an
endorsement with respect to the matters described in (a), (b) or (c) under
the related title insurance policy (or the binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency or the Secretary of Housing and Urban
Development as having special flood hazards categorized as Zone "A" or
Zone "V" and flood insurance is available, the terms of the Mortgage Loan
require the borrower to maintain flood insurance, or at such borrower's
failure to do so, authorizes the lender to maintain such insurance at the
cost and expense of the borrower and such insurance is in full force and
effect in an amount not less than the lesser of (1) the replacement cost
of the material improvements on such Mortgaged Property, (2) the balance
of the Mortgage Loan and (3) the maximum amount of insurance available
under the applicable National Flood Insurance Administration Program;
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently
so serves and is named in the deed of trust or has been substituted in
accordance with applicable law or may be substituted in accordance with
applicable law by the related mortgagee, and except in connection with a
trustee's sale after a default by the related borrower, no fees are
payable to such trustee, and such fees payable are payable by the
borrower;
(xliii) Except as disclosed in the Exception Report to this Mortgage
Loan Purchase Agreement, to the knowledge of the Seller as of the date
hereof, there was no pending action, suit or proceeding, arbitration or
governmental investigation against any borrower or Mortgaged Property, an
adverse outcome of which would materially and adversely affect such
borrower's ability to perform under the related Mortgage Loan;
(xliv) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of
preferred equity interests by the preferred equity interest holder, as
disclosed in the Prospectus Supplement), and no funds have, to the
Seller's knowledge, been received from any person other than, or on behalf
of, the related borrower, for, or on account of, payments due on the
Mortgage Loan;
(xlv) To the extent required under applicable law, as of the Cut-off
Date or as of the date that such entity held the Note, each holder of the
Note was authorized to transact and do business in the jurisdiction in
which each related Mortgaged Property is located, or the failure to be so
authorized did not materially and adversely affect the enforceability of
such Mortgage Loan;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except as disclosed in the Exception Report to this Mortgage
Loan Purchase Agreement or the Prospectus Supplement with respect to the
Crossed Loans and Multiple Property Loans, no Mortgage Loan requires the
lender to release any portion of the Mortgaged Property from the lien of
the related Mortgage except upon (a) payment in full or defeasance of the
related Mortgage Loan, (b) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, which in all events include payment of a release price
at least 125% of the appraised value of the property to be released or of
the allocated loan amount of such property, (c) releases of unimproved
out-parcels or (d) releases of other portions of the Mortgaged Property
which will not have a material adverse effect on the use or value of the
collateral for the related Mortgage Loan and which were given no value in
the appraisal of the Mortgaged Property or of that portion of the
Mortgaged Property used to calculate the loan-to-value ratio of the
Mortgaged Property for underwriting purposes. No release or partial
release of any Mortgaged Property, or any portion thereof, expressly
permitted or required pursuant to the terms of any Mortgage Loan would
constitute a significant modification of the related Mortgage Loan under
Treas. Reg. Section 1.860G-2(b)(2);
(xlviii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or
part of the related Mortgaged Property, with, in the case of all casualty
losses or takings in excess of a specified amount or percentage of the
related loan amount that a prudent commercial lender would deem
satisfactory and acceptable, the lender (or a trustee appointed by it)
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in any case where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender) or (b)
to the payment of the outstanding principal balance of such Mortgage Loan
together with any accrued interest thereon;
(xlix) (l) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property and each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller was, and each Form UCC-3 assignment, if
any, of such financing statement in blank which the Trustee or its
designee is authorized to complete (but for the insertion of the name of
the assignee and any related filing information which is not yet available
to the Seller) is, in suitable form for filing in the filing office in
which such financing statement was filed;
(l) To the Seller's knowledge, (a) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original
principal balance less than $2,500,000) of the net leaseable area of the
related Mortgaged Property is in full force and effect and (b) there
exists no default under any such commercial lease either by the lessee
thereunder or by the related borrower that could give rise to the
termination of such lease;
(li) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the
improvements located on or forming part of each Mortgaged Property comply
with applicable zoning laws and ordinances, or constitute a legal
non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the
value of the related Mortgaged Property. With respect to properties with a
Stated Principal Balance of over $10,000,000, if the related Mortgaged
Property does not so comply, to the extent the Seller is aware of such
non-compliance, it has required the related borrower to obtain law and
ordinance insurance coverage in amounts customarily required by prudent
commercial mortgage lenders;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulation (as defined herein) Section 1.860G-2(f)(2)
that treats a defective obligation as a qualified mortgage or any
substantially similar successor provision), the related Mortgaged
Property, if acquired by a REMIC in connection with the default or
imminent default of such Mortgage Loan would constitute "foreclosure
property" within the meaning of Code Section 860G(a)(8) and all Prepayment
Premiums and Yield Maintenance Charges constitute "customary prepayment
penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (i) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (ii) the borrower can
pledge only United States government securities in an amount sufficient to
make all scheduled payments under the Mortgage Loan when due, (iii) the
borrower is required to provide independent certified public accountant's
certification that the collateral is sufficient to make such payments,
(iv) the loan may be required to be assumed by a single-purpose entity
designated by the holder of the Mortgage Loan, (v) the borrower is
required to provide an opinion of counsel that the trustee has a perfected
security interest in such collateral prior to any other claim or interest,
(vi) the borrower is required to pay all Rating Agency fees associated
with defeasance (if rating confirmation is a specific condition precedent
thereto) and all other reasonable expenses associated with defeasance,
including, but not limited to, accountant's fees and opinions of counsel,
(vii) with respect to any Significant Loan (as defined in the Pooling and
Servicing Agreement), the borrower is required to provide an opinion of
counsel that such defeasance will not cause any REMIC created under the
Pooling and Servicing Agreement to fail to qualify as a REMIC for federal
or applicable state tax purposes and (viii) with respect to any
Significant Loan (as defined in the Pooling and Servicing Agreement), the
borrower must obtain confirmation from each Rating Agency that the
defeasance would not result in such Rating Agency's withdrawal, downgrade
or qualification of the then current rating of any class of Certificates
rated by such Rating Agency;
(liv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the lender for any
losses incurred by the lender due to (i) the misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (ii)
any willful act of material waste, (iii) any breach of the environmental
covenants contained in the related Mortgage Loan Documents, and (iv) fraud
by the related borrower; provided that, with respect to clause (iii) of
this sentence, an indemnification against losses related to such
violations or environmental insurance shall satisfy such requirement;
(lv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (i) its Mortgage Rate
will increase by no less than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan
is an asset of the Trust Fund; (ii) its Anticipated Repayment Date is not
less than seven years following the origination of such Mortgage Loan;
(iii) no later than the related Anticipated Repayment Date, if it has not
previously done so, the related borrower is required to enter into a
"lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled
by the Master Servicer; and (iv) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in
excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvi) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same borrower and to
borrowers that are Affiliates, accounted for more than 5.0% of the
aggregate of the Stated Principal Balances of all of the mortgage loans
sold to the Depositor by Column Financial, Inc., PNC Bank, National
Association and NCB,FSB pursuant to those certain Mortgage Loan Purchase
Agreements, each dated as of September 1, 2007, between the Depositor and
Column Financial, Inc., between the Depositor and PNC Bank, National
Association and between the Depositor and NCB, FSB, respectively, as the
Cut-Off Date;
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or
acquisition of each Mortgage Loan, the Seller obtained an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Seller's actual knowledge, had no interest, direct or
indirect, in the borrower, the Mortgaged Property or in any loan made on
the security of the Mortgaged Property, and whose compensation was not
affected by the approval or disapproval of the Mortgage Loan; and
(lviii) Each Mortgage Loan bears interest at a rate that remains
fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of PNC Bank, National
Association ("PNC Bank");
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. 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 _______________, under date of ______________
(the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. 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;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by 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 2007-C4 (the "Trustee") (which assignment may,
at the discretion of 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
_______________'s failure to deliver said original Note to the Trustee.
Sworn to before me this _____
day of __________, 2007
Exhibit 10.3
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
NCB, FSB
(Seller)
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2007
TABLE OF CONTENTS
Page
----
Section 1. Transactions on or Prior to the Closing Date....................
Section 2. Closing Date Actions............................................
Section 3. Conveyance of Mortgage Loans....................................
Section 4. Depositor's Conditions to Closing...............................
Section 5. Seller's Conditions to Closing..................................
Section 6. Representations and Warranties of Seller........................
Section 7. Obligations of Seller...........................................
Section 8. Crossed Mortgage Loans..........................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance....................................................
Section 10. Representations and Warranties of Depositor.....................
Section 11. Survival of Certain Representations, Warranties and Covenants...
Section 12. Transaction Expenses............................................
Section 13. Recording Costs and Expenses....................................
Section 14. Notices.........................................................
Section 15. Notice of Exchange Act Reportable Events........................
Section 16. Examination of Mortgage Files...................................
Section 17. Successors......................................................
Section 18. Governing Law...................................................
Section 19. Severability....................................................
Section 20. Further Assurances..............................................
Section 21. Counterparts....................................................
Section 22. Treatment as Security Agreement.................................
Section 23. Recordation of Agreement........................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of September 1, 2007, is made by and between NCB, FCB, a federal savings bank
chartered by the Office of Thrift Supervision of the U.S. Department of Treasury
("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware
corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein or elsewhere in this Agreement, in the Pooling and Servicing
Agreement specified on such Schedule of Transaction Terms.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Wells
Fargo Bank, N.A. as trustee (the "Trustee") or its designee, against receipt by
Seller of a written receipt, pursuant to an arrangement between Seller and the
Trustee; provided, however, that, item (xvi) in the definition of Mortgage File
(below) shall be delivered to the applicable Master Servicer for inclusion in
the Servicer File (defined below) with a copy delivered to the Trustee for
inclusion in the Mortgage File; and provided, further, that Seller shall pay (or
cause the related Borrower to pay) any costs of the assignment or amendment of
each letter of credit described under said item (xvi) required in order for the
Trustee to draw on such letter of credit pursuant to the terms of the Pooling
and Servicing Agreement and shall deliver the related assignment or amendment
documents within thirty (30) days after the Closing Date. In addition, prior to
such assignment or amendment of a letter of credit, Seller will take all
necessary steps to enable the applicable Master Servicer to draw on the related
letter of credit on behalf of the Trustee pursuant to the terms of the Pooling
and Servicing Agreement, including, if necessary, drawing on the letter of
credit in its own name pursuant to written instructions to draw from the
applicable Master Servicer and upon receipt, immediately remitting the proceeds
of such draw (or causing such proceeds to be remitted) to the applicable Master
Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Wickersham & Taft LLP, One World Financial Center, New York, New
York 10281, or such other location as agreed upon between the parties hereto. On
the Closing Date, the following actions shall take place in sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price shall be paid by Depositor to Seller or at its direction by wire
transfer in immediately available funds to an account designated by Seller
on or prior to the Closing Date. The "Mortgage Loan Purchase Price" paid
by Depositor shall be equal to the amount that the Depositor and the
Seller have mutually agreed upon as the Seller's share of the net
securitization proceeds from the sale of the Publicly Offered Certificates
and the Private Certificates set forth in the Closing Statement (which
amount includes, without limitation, accrued interest. Pursuant to the
terms of the Pooling and Servicing Agreement, Depositor shall sell all of
its right, title and interest in and to the Mortgage Loans to the Trustee
(for the benefit of the Holders of the Certificates.
(ii) 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.
(iii) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, subject to any related servicing rights
of any applicable Master Servicer under, and/or any applicable Primary Servicer
contemplated by, the Pooling and Servicing Agreement, without recourse except as
provided herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule and (ii) all
property of Seller described in Section 21(b) of this Agreement, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or prepayment premiums received on or with
respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal or prepayment premiums that were due on or
prior to the Cut-off Date. The Mortgage File for each Mortgage Loan shall
contain the following documents on a collective basis:
(i) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the
form of Exhibit B hereto and a true and complete copy of the Note),
bearing, or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment from the
Mortgage Loan Originator either in blank or to Seller, and further
endorsed (at the direction of Depositor given pursuant to this Agreement)
by Seller, on its face or by allonge attached thereto, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of Wells Fargo Bank, N.A., as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2007-C4, without
recourse, representation or warranty, express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals, certified
copies or copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage Loan
Originator) either in blank or to "Wells Fargo Bank, N.A., as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C4";
(iv) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof
from the Mortgage Loan Originator of the Loan to Seller, in each case in
the form submitted for recording or, if recorded, with evidence of
recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage Loan
Originator), either in blank or to "Wells Fargo Bank, N.A., as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C4";
(vi) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the
Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from Seller (or the
Mortgage Loan Originator) either in blank or to "Wells Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2007-C4," which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
(provided that such omnibus assignment is effective under applicable law);
(viii) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence, when appropriate, of recording
thereon or in the form submitted for recording, in those instances where
the terms or provisions of the Mortgage, Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has not yet
been issued, the original or a copy of a binding written commitment (which
may be a pro forma or specimen title insurance policy which has been
accepted or approved in writing by the related title insurance company or
escrow instructions binding on the title insurer irrevocably obligating
the title insurer to issue such title insurance policy) or interim binder
that is marked up as binding and countersigned by the title company,
insuring the priority of the Mortgage as a first lien on the related
Mortgaged Property, relating to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) sufficient to perfect (and maintain the perfection of) the
security interest held by the Mortgage Loan Originator (and each assignee
of record prior to the Trustee) in and to the personalty of the Borrower
at the Mortgaged Property, and original UCC Financing Statement
assignments, in a form suitable for filing or recording, sufficient to
assign each such UCC Financing Statement to the Trustee;
(xii) the original or copy of the power of attorney (with evidence
of recording thereon) granted by the Borrower if the Mortgage, Note or
other document or instrument referred to above was not signed by the
Borrower;
(xiii) an original or copy of any subordination agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement relating to subordinate indebtedness, including any mezzanine
loan documents or preferred equity documents;
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement and
a copy of the UCC Financing Statements, if any, submitted for filing with
respect to Seller's security interest in the Cash Collateral Accounts and
Lock-Box Accounts and all funds contained therein (together with UCC
Financing Statement assignments in a form suitable for filing or
recording, sufficient to transfer such security interest to the Trustee on
behalf of the Certificateholders);
(xv) an original or copy of any related Loan Agreement (if separate
from the related Mortgage);
(xvi) the originals and copies of letters of credit, if any,
relating to the Mortgage Loans and amendments thereto which entitles the
Trust to draw thereon; provided that in connection with the delivery of
the Mortgage File to the Trust, such originals shall be delivered to the
applicable Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement or copies thereof;
(xviii) the original or a copy of the ground lease, ground lease
memorandum and ground lease estoppels, if any, and of any amendments,
modifications or extensions thereto, if any, or certified copies thereof;
(xix) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties and any applicable transfer/assignment
documents; and
(xx) if applicable (and not for purposes of the Seller's delivery
obligations), the original or a counterpart of any post-closing agreement
relating to any modification, waiver or amendment of any term of any
Mortgage Loan (including fees charged the Borrower) required to be added
to the Mortgage File pursuant to Section 3.20(j) of the Pooling and
Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC Financing Statements to be filed in accordance
with the transfer contemplated by the related Mortgage Loan Purchase Agreement)
of the last sentence of the first paragraph of this Section 3, with evidence of
recording or filing thereon on the Closing Date, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, Seller: (i) shall
deliver, or cause to be delivered, to the Trustee or its designee a duplicate
original or true copy of such document or instrument certified by the applicable
public recording or filing office, the applicable title insurance company or
Seller to be a true and complete duplicate original or copy of the original
thereof submitted for recording or filing; and (ii) shall deliver, or cause to
be delivered, to the Trustee or its designee either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate public recording or filing office to be a true and complete copy of
the original thereof submitted for recording or filing), with evidence of
recording or filing thereon (with a copy to the applicable Master Servicer),
within 120 days after the Closing Date, which period may be extended up to two
times, in each case for an additional period of 45 days (provided that Seller,
as certified in writing to the Trustee prior to each such 45-day extension, is
in good faith attempting to obtain from the appropriate recording or filing
office such original or photocopy). Compliance with this paragraph will satisfy
Seller's delivery requirements under this Section 3 with respect to the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC Financing Statements to be filed in accordance
with the transfer contemplated by the related Mortgage Loan Purchase Agreement)
of the last sentence of the first paragraph of this Section 3, with evidence of
recording or filing thereon for any other reason, including without limitation,
that such non-delivered document or instrument has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document or instrument shall be deemed to have been included in
the related Mortgage File if a photocopy of such non-delivered document or
instrument (with evidence of recording or filing thereon and certified by the
appropriate recording or filing office to be a true and complete copy of the
original thereof as filed or recorded) is delivered to the Trustee (with a copy
to the applicable Master Servicer) or its designee on or before the Closing
Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or recording
information of the related UCC Financing Statement with respect to any Mortgage
Loan, solely because such UCC Financing Statement has not been returned by the
public filing or recording office where such UCC Financing Statement has been
delivered for filing or recording, Seller has so notified the Trustee and shall
not be in breach of its obligations with respect to such delivery, provided that
Seller promptly forwards such UCC Financing Statement to the Trustee (with a
copy to the applicable Master Servicer) upon its return, together with the
related original UCC Financing Statement assignment in a form appropriate for
filing or recording.
Notwithstanding the foregoing, Seller may elect, at its sole cost
and expense, but is not obligated to, engage a third-party contractor to prepare
or complete in proper form for filing or recording any and all assignments of
Mortgage, assignments of Assignments of Leases and assignments of UCC Financing
Statements to the Trustee to be delivered pursuant to clauses (iii), (v), and
(xi) of the last sentence of the first paragraph of this Section 3
(collectively, the "Assignments"), to submit those Assignments for filing and
recording, as the case may be, in the applicable public filing and recording
offices and to deliver those Assignments to the Trustee or its designee as those
Assignments (or certified copies thereof) are received from the applicable
filing and recording offices with evidence of such filing or recording indicated
thereon. However, in the event Seller engages a third-party contractor as
contemplated in the immediately preceding sentence, the rights, duties and
obligations of Seller pursuant to this Agreement remain binding on the Seller;
and, if Seller does not engage a third party as contemplated by the immediately
preceding sentence, then Seller will still be liable for recording and filing
fees and expenses of the Assignments as and to the extent contemplated by
Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to such
applicable Mortgage Loans (including reserve and escrow agreements, rent rolls,
leases, environmental and engineering reports, third-party underwriting reports,
appraisals, surveys, legal opinions, estoppels, financial statements, operating
statements and any other information provided by the respective Borrower from
time to time, but excluding any draft documents, attorney/client communications,
which are privileged or constitute legal or other due diligence analyses, and
documents prepared by the Seller or any of its Affiliates solely for internal
communication, credit underwriting or due diligence analyses (other than the
underwriting information contained in the related underwriting memorandum or
asset summary report prepared by the Seller in connection with the preparation
of Exhibit A-1 to the Prospectus Supplement)) that are not required to be a part
of a Mortgage File in accordance with the definition thereof, together with
copies of all instruments and documents which are required to be a part of the
related Mortgage File in accordance with the definition thereof.
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File," if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans due after the Cut-off Date, minus
that portion of any such payment which is allocable to the period on or prior to
the Cut-off Date. All scheduled payments of principal due on or before the
Cut-off Date and collected after the Cut-off Date, together with the
accompanying interest payments, shall belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of documents prepared by Seller
or any of its Affiliates solely for internal credit analysis or other internal
uses or any attorney-client privileged communication, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the applicable Master Servicer via wire transfer for deposit
by the applicable Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Depositor, as provided
herein, as a sale of the Mortgage Loans to Depositor in exchange for the
consideration specified in Section 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at all times
following the Closing Date cause all of its records and financial statements and
any relevant consolidated financial statements of any direct or indirect parent
to clearly reflect that the Mortgage Loans have been transferred to Depositor
and are no longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of this
Agreement, which shall have been delivered to and held by the Trustee or
its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations and
warranties set forth in Section 6(a) (subject to the exceptions set forth
in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by Depositor; provided that (A) such opinion may
express its reliance as to factual matters on, among other things
specified in such opinion, the representations and warranties made herein,
and on certificates or other documents furnished by officers of Seller and
(B) in rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the laws of the State of New York and the
laws of the United States and shall not be required to express any opinion
with respect to the registration or qualification of the Certificates
under any applicable state or federal securities laws;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by Depositor in order for Depositor to perform any of
it obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to any sale of Mortgage Loans by Depositor
as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before the
Closing Date, five (5) limited powers of attorney in favor of the Trustee and
applicable Special Servicer empowering the Trustee and, in the event of the
failure or incapacity of the Trustee, the applicable Special Servicer, to
record, at the expense of Seller, any Mortgage Loan Documents required to be
recorded and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage Files. Seller shall reasonably
cooperate with the Trustee and the applicable Special Servicer in connection
with any additional powers or revisions thereto that are requested by such
parties.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the Closing
Date, with the resolutions of Depositor authorizing the transactions set
forth therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a federal
savings bank in good standing under the laws of the United States of
America. Seller has conducted and is conducting its business so as to
comply in all material respects with all applicable statutes and
regulations of regulatory bodies or agencies having jurisdiction over it,
except where the failure so to comply would not have a materially adverse
effect on the performance by Seller of this Agreement, and there is no
charge, action, investigation, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to materially
and adversely affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans and to execute and deliver this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents executed
and delivered by Seller in connection herewith). Seller has duly
authorized the execution, delivery and performance of this Agreement (and
all agreements and documents executed and delivered by Seller in
connection herewith), and has duly executed and delivered this Agreement
(and all agreements and documents executed and delivered by Seller in
connection herewith). This Agreement (and each agreement and document
executed and delivered by Seller in connection herewith), assuming due
authorization, execution and delivery thereof by each other party thereto,
constitutes the legal, valid and binding obligation of Seller enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, fraudulent transfer, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of creditors
generally, by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
articles or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result in a
breach of, or constitute a default or result in an acceleration under, any
agreement or instrument to which Seller is now a party or by which it (or
any of its properties) is bound if compliance therewith is necessary (1)
to ensure the enforceability of this Agreement or (2) for Seller to
perform its duties and obligations under this Agreement (or any agreement
or document executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of Depositor to realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except for the filing or
recording of assignments and other Mortgage Loan Documents contemplated by
the terms of this Agreement and except that Seller may not be duly
qualified to transact business as a foreign corporation or licensed in one
or more states if such qualification or licensing is not necessary to
ensure the enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans constitutes at least fair consideration and reasonably
equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform
its duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller
in connection herewith) is in the ordinary course of business of Seller
and Seller's transfer, assignment and conveyance of the Mortgage Loans
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loans to Depositor hereunder
except for (A) the reimbursement of expenses as described herein or
otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions to such representations and warranties
set forth on Schedule V hereto, are true and correct in all material
respects as of the date hereof with respect to the Mortgage Loans
identified on Schedule II.
(xiii) The information set forth in any Disclosure Information (as
defined in the NCB, FSB Indemnification Agreement), as last forwarded to
each prospective investor at or prior to the date on which a contract for
sale was entered into with such prospective investor, (i) does not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complies with the
requirements of and contains all of the applicable information required by
Regulation AB (as defined in the NCB, FSB Indemnification Agreement); but
only to the extent that (i) such information regards the Mortgage Loans
and is contained in the Loan Detail (as defined in the NCB, FSB
Indemnification Agreement) or, to the extent consistent therewith, the
Diskette (as defined in the NCB, FSB Indemnification Agreement) or (ii)
such information regarding the Seller or the Mortgage Loans was contained
in the Confidential Offering Circular or the Prospectus Supplement under
the headings "Summary of Prospectus Supplement--Relevant
Parties/Entities," "--Sponsors and Mortgage Loan Sellers,"
"--Originators," "--The Underlying Mortgage Loans," "--Source of the
Underlying Mortgage Loans," "Risk Factors," "Description of the Sponsors
and Mortgage Loan Sellers," "Description of the Underlying Mortgage Loans"
and "--Significant Mortgage Loans" and such information does not represent
an incorrect restatement or an incorrect aggregation of correct
information regarding the Mortgage Loans contained in the Loan Detail.
(b) Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Trustee as the holder of the
Mortgage Loan to be replaced, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of this Agreement,
each of the representations and warranties set forth in Exhibit A hereto
(references therein to "Closing Date" being deemed to be references to the "date
of substitution" and references therein to "Cut-off Date" being deemed to be
references to the "due date for the subject Replacement Mortgage Loan during the
month of substitution"). From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If Seller receives notice of a breach of any of the representations
or warranties made by Seller with respect to the Mortgage Loans (subject to the
exceptions to such representations and warranties set forth in the Exception
Report), as of the date hereof in Section 6(a)(xii) or as of the Closing Date
pursuant to Section 4(b)(iii) (in either case, subject to the exceptions to such
representations and warranties set forth in the Exception Report), or in the
case of any Replacement Mortgage Loan, as of the date of substitution pursuant
to Section 6(b) (in any such case, a "Breach"), or receives notice that (a) any
document required to be included in the Mortgage File related to any Mortgage
Loan is not in the Trustee's (or its designee's) possession within the time
period required herein or (b) such document has not been properly executed or is
otherwise defective on its face (clause (a) and clause (b) each, a "Defect"
(which term shall include the "Defects" detailed in the immediately following
paragraph) in the related Mortgage File), and if such Breach or Defect, as the
case may be, materially and adversely affects, or is deemed hereby to materially
and adversely affect, the value of any Mortgage Loan or any successor REO Loan
with respect thereto or the interests of the Holders of any Class of
Certificates (in which case such Breach or Defect shall be a "Material Breach"
or a "Material Defect," as applicable), then Seller shall, upon written request
of Depositor, the Trustee, the applicable Master Servicer or the applicable
Special Servicer, not later than the earlier of 90 days from the receipt by
Seller of such notice or discovery by Seller of such Breach or Defect (subject
to the second succeeding paragraph, the "Initial Resolution Period"): (i) cure
such Breach or Defect in all material respects; (ii) repurchase the affected
Mortgage Loan at the applicable Purchase Price (as defined in the Pooling and
Servicing Agreement); or (iii) substitute, in accordance with the Pooling and
Servicing Agreement, one or more Qualified Substitute Mortgage Loans (as defined
in the Pooling and Servicing Agreement) for such affected Mortgage Loan
(provided that in no event shall any substitution occur later than the second
anniversary of the Closing Date) and pay the applicable Master Servicer for
deposit into the applicable Collection Account any Substitution Shortfall Amount
(as defined in the Pooling and Servicing Agreement) in connection therewith;
provided, however, that if (i) such Material Breach or Material Defect is
capable of being cured but not within the Initial Resolution Period, (ii) such
Material Breach or Material Defect does not cause the related Mortgage Loan not
to be a "qualified mortgage" (within the meaning of Section 860G(a)(3) of the
Code), (iii) Seller has commenced and is diligently proceeding with the cure of
such Material Breach or Material Defect within the Initial Resolution Period and
(iv) Seller has delivered to the Rating Agencies, the applicable Master
Servicer, the applicable Special Servicer and the Trustee an Officer's
Certificate that describes the reasons that the cure was not effected within the
Initial Resolution Period and the actions that it proposes to take to effect the
cure and that states that it anticipates the cure will be effected within the
additional 90-day period, then Seller shall have an additional 90 days to cure
such Material Defect or Material Breach. If any Breach pertains to a
representation or warranty that the related Mortgage Loan Documents or any
particular Mortgage Loan Document requires the related Borrower to bear the
costs and expenses associated with any particular action or matter under such
Mortgage Loan Document(s), then Seller shall cure such Breach within the Initial
Resolution Period by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the applicable Master Servicer, the applicable Special Servicer, the Trustee
or the Trust Fund that are the basis of such Breach and have not been reimbursed
by the related Borrower; provided, however, that in the event any such costs and
expenses exceed $10,000, Seller shall have the option to either repurchase the
related Mortgage Loan at the applicable Purchase Price or pay such costs and
expenses. Except as provided in the proviso to the immediately preceding
sentence, Seller shall remit the amount of such costs and expenses and upon its
making such remittance, Seller shall be deemed to have cured such Breach in all
respects. With respect to any repurchase of a Mortgage Loan hereunder or with
respect to any substitution of one or more Qualified Substitute Mortgage Loans
for a Mortgage Loan hereunder, (A) no such substitution may be made in any
calendar month after the Determination Date for such month; (B) scheduled
payments of principal and interest due with respect to the Qualified Substitute
Mortgage Loan(s) after the Due Date in the month of substitution, and scheduled
payments of principal and interest due with respect to each Mortgage Loan being
repurchased or replaced after the related Cut-off Date and received by the
applicable Master Servicer or the applicable Special Servicer on behalf of the
Trust on or prior to the related date of repurchase or substitution, shall be
part of the Trust Fund; and (C) scheduled payments of principal and interest due
with respect to each such Qualified Substitute Mortgage Loan on or prior to the
Due Date in the month of substitution, and scheduled payments of principal and
interest due with respect to each Mortgage Loan being repurchased or replaced
and received by the applicable Master Servicer or the applicable Special
Servicer on behalf of the Trust after the related date of repurchase or
substitution, shall not be part of the Trust Fund, and Seller (or, if
applicable, any person effecting the related repurchase or substitution in the
place of Seller) shall be entitled to receive such payments promptly following
receipt by the applicable Master Servicer or the applicable Special Servicer, as
applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (ix) of the last
sentence of the first paragraph of Section 3 hereof; (d) the absence from the
Mortgage File of any intervening assignments required to create an effective
assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of the intervening assignment as recorded or
as sent for recordation, together with a certificate stating that the original
intervening assignment was sent for recordation, or a copy of the intervening
assignment and the related recording information; or (e) the absence from the
Servicer File of any required original letter of credit, provided that such
Defect may be cured by any substitute letter of credit or cash reserve on behalf
of the related Borrower; or (f) the absence from the Mortgage File of the
original or a copy of any required ground lease. In addition, Seller shall cure
any Defect described in clause (b), (c), (e) or (f) of the immediately preceding
sentence as required in Section 2.02(b) of the Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the failure to include a
document checklist in a Mortgage File shall in no event constitute a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice (pursuant to this Section 7
or its discovery of, such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does
not constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
Seller will be required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with the provisions
of this Section 7 unless such other Crossed Mortgage Loans satisfy the Crossed
Mortgage Loan Repurchase Criteria (as defined in the Pooling and Servicing
Agreement) and Seller can satisfy all other criteria for substitution or
repurchase of the affected Mortgage Loan(s) set forth in the Pooling and
Servicing Agreement. In the event that one or more of such other Crossed
Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase Criteria, Seller may
elect either to repurchase or substitute for only the affected Crossed Mortgage
Loan as to which the related Material Breach or Material Defect exists or to
repurchase or substitute for all of the Crossed Mortgage Loans in the related
Mortgage Group. The Seller shall be responsible for the cost of any Appraisal
required to be obtained by the applicable Master Servicer to determine if the
Crossed Mortgage Loan Repurchase Criteria have been satisfied, so long as the
scope and cost of such Appraisal has been approved by Seller (such approval not
to be unreasonably withheld). For purposes of this paragraph, a "Mortgage Group"
is any group of Mortgage Loans identified as a Mortgage Group on Schedule III to
this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not be
obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan Documents and the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
Documents and (i) Seller provides an opinion of counsel to the effect that such
partial release would not cause an Adverse REMIC Event (as defined in the
Pooling and Servicing Agreement) to occur, (ii) Seller pays (or causes to be
paid) the applicable release price required under the Mortgage Loan Documents
and, to the extent not reimbursable out of the release price pursuant to the
related Mortgage Loan Documents, any additional amounts necessary to cover all
reasonable out-of-pocket expenses reasonably incurred by the applicable Master
Servicer, the applicable Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property that is being released, and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for a cure of a Material Breach or Material Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in the case of a
substitution, receipt of the Mortgage File(s) fr the related Qualified
Substitute Mortgage Loans(s)), shall promptly release the related Mortgage File
and Servicer File or cause them to be released, to Seller and shall execute and
deliver such instruments of transfer or assignment as shall be necessary to vest
in Seller the legal and beneficial ownership of such Mortgage Loan (including
any property acquired in respect thereof or proceeds of any insurance policy
with respect thereto) and the related Mortgage Loan Documents.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 constitute the sole remedies available to Depositor and its
successors and assigns respecting any Breach or Defect affecting a Mortgage
Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, Seller
and Depositor (on behalf of its successors and assigns) agree to modify upon
such repurchase or substitution, the related Mortgage Loan Documents in a manner
such that such affected Crossed Mortgage Loan repurchased or substituted by
Seller, on the one hand, and any related Crossed Mortgage Loans still held by
the Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that Seller shall have furnished
the Trustee, at Seller's expense, with an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event; and provided, further, that
if such Opinion of Counsel cannot be furnished, Seller and Depositor hereby
agree that such repurchase or substitution of only the affected Crossed Mortgage
Loans, notwithstanding anything to the contrary herein, shall not be permitted
(in which case, the Seller will be obligated to purchase or substitute for all
Crossed Mortgage Loans in the related Mortgage Group (defined above)). Any
reserve or other cash collateral or letters of credit securing the subject
Crossed Mortgage Loans shall be allocated between such Mortgage Loans in
accordance with the Mortgage Loan Documents. All other terms of the Mortgage
Loans shall remain in full force and effect, without any modification thereof.
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related 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
Seller of the parenthetical in representation (xxviii)(1) set forth on Exhibit A
hereto. Unless the Seller elects to repurchase or substitute for such Mortgage
Loan in accordance with the second paragraph of Section 7 Seller shall pay all
reasonable costs and expenses associated with a defeasance of a Mortgage Loan to
the extent such costs and expenses have not been paid by the related Borrower
and such Borrower is not required to pay them under the terms of the related
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 Seller of
representation (liii)(F) set forth on Exhibit A hereto unless the Seller elects
to repurchase or substitute for such Mortgage Loan in accordance with the second
paragraph of Section 7.
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 any consent of, notice to, or 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 12 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. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 12 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to reimburse
the Trustee or its designee 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 elects to engage a third-party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed to it at
Credit Suisse First Boston Mortgage Securities Corp., 11 Madison Avenue, 5th
Floor, New York, New York 10010, Attention: Edmund Taylor, Telecopy No.: (212)
743-4756 (with a copy to Casey McCutcheon, Esq., Legal & Compliance Department,
Telecopy No.: (917) 326-8433), or such other address or telecopy number as may
be designated by Depositor to Seller in writing, or (b) if sent to Seller, will
be mailed, delivered or telecopied and confirmed to it at 2011 Crystal Drive,
Suite 800, Arlington, Virginia 22202, Attention: Kathleen Luzik, Telecopy No.:
(202) 336-7800, or such other address or telecopy number as may be designated by
Seller to Depositor in writing.
Section 15. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Depositor and the Trustee any disclosure
information relating to any event reasonably determined in good faith by the
Depositor as required to be reported on Form 8-K, Form 10-D or Form 10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in such form),
including, without limitation, the disclosure required under Items 1117 and 1119
of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use its best
efforts to deliver proposed disclosure language relating to any event described
under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to the
Trustee and the Depositor within one (1) business day and in any event no later
than two (2) business days of the Seller becoming aware of such event and shall
provide disclosure relating to any other event reasonably determined by the
Depositor as required to be disclosed on Form 8-K, Form 10-D or Form 10-K within
two (2) business days following the Depositor's request for such disclosure
language. The obligation of the Seller to provide the above referenced
disclosure materials will terminate upon notice from the Depositor or the
Trustee that the Trustee has filed a Form 15 with respect to the Trust Fund as
to that fiscal year in accordance with Section 11.10(a) of the Pooling and
Servicing Agreement. The Seller hereby acknowledges that the information to be
provided by it pursuant to this Section will be used in the preparation of
reports meeting the reporting requirements of the Trust under Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as amended.
Section 16. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 17. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and permitted assigns, 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 designated
Persons and for the benefit of no other Person; it being understood that (a) the
indemnities of Seller contained in that certain Indemnification Agreement dated
August 24, 2007, among Seller, Depositor, the Initial Purchaser and the
Underwriters, relating to, among other things, information regarding the
Mortgage Loans in the Prospectus Supplement and the Offering Circular, subject
to all limitations therein contained, shall also be for the benefit of the
officers and directors of Depositor, the Underwriters and the Initial Purchaser
and any person or persons who control Depositor, the Underwriters and the
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended, and (b) the
rights of Depositor pursuant to this Agreement, subject to all limitations
herein contained, including those set forth in Section 7 of this Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders, as may be
required to effect the purposes of the Pooling and Servicing Agreement and, upon
such assignment, the Trustee shall succeed to such rights of Depositor
hereunder; provided that the Trustee shall have no right to further assign such
rights to any other Person. No owner of a Certificate issued pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or permitted assign
because of such ownership.
Section 18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 19. 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 20. 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 21. 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 22. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and other insurance policies,
identified on the Mortgage Loan Schedule or that constitute Replacement
Mortgage Loans, and all distributions with respect thereto payable after
the Cut-off Date;
(ii) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in clause (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;
(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, securities 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; and
(e) Seller at the direction of Depositor or its assignee, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, Depositor and its assignee shall have all of the rights and remedies
of a secured party and creditor under the Uniform Commercial Code as in force in
the relevant jurisdiction and may prepare and file such UCC Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
Section 23. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Jeffrey A. Altabef
------------------------------------
Name: Jeffrey A. Altabef
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of September 1, 2007, between NCB, FSB and Credit Suisse First Boston Mortgage
Securities Corp. Capitalized terms used herein without definition have the
meanings given them in or by reference in the Agreement or, if not defined in
the Agreement, in the Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated August 24, 2007, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2007-C4.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means September 7, 2007.
"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, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in September 2007 (or with
respect to Mortgage Loans which had closing/funding dates in September 2007, the
respective closing/funding dates of such Mortgage Loans).
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Depositor" shall have the meaning given such term in the first
sentence of this Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(xii) and under the written certificate described in Section 4(b)(iii)
of this Agreement, which exceptions are set forth in Schedule V attached hereto
and made a part hereof.
"Initial Purchaser" means Credit Suisse Securities (USA) LLC.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Group" shall have the meaning given such term in Section 7
of this Agreement.
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"NCB, FSB Indemnification Agreement" means the agreement by and
among the Depositor, the Seller and each Underwriter.
"Offering Circular" means the confidential offering circular dated
August 24, 2007, 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
September 1, 2007, among Depositor, the Master Servicers, the Special Servicers
and the Trustee, including, without limitation, the exhibits and schedules
annexed thereto.
"Primary Collateral" means with respect to any Crossed Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Crossed Mortgage Loan and excluding any Mortgaged Property as to which the
related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Crossed Mortgage Loan.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus dated August 13, 2007, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-141613).
"Prospectus Supplement" means the Prospectus Supplement, dated
August 24, 2007, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-1-A, Class A-M, Class A-1-AM, Class
A-J and Class A-1-AJ Certificates.
"Seller" shall have the meaning given such term in the first
sentence of this Agreement.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 (subject to the first proviso in
Section 1).
"Trust Fund" shall have the meaning given such term in Recital II of
this Agreement.
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse Securities (USA) LLC, Greenwich
Capital Markets, Inc. and PNC Capital Markets LLC.
"Underwriting Agreement" means the Underwriting Agreement, dated
August 24, 2007, between Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2007-C4
Total/Weighted Average:
Initial
Description of Existing Description of Replacement Total # of Total # of No. # Studio
# Secured Secondary Financing Lock Box Reserve Unsold Units Sold Units Sold Units
----- --------------------------- ------------------------------- ----------- ------------ ---------- ------------
55 N/A N/A N/A N/A N/A N/A
57 N/A Springing N/A N/A N/A N/A
66 N/A Springing Cash Flow Sweep N/A N/A N/A N/A
75 N/A N/A N/A N/A N/A N/A
81 N/A N/A N/A N/A N/A N/A
85 N/A N/A N/A N/A N/A N/A
99 N/A Springing N/A N/A N/A N/A
99.1 N/A N/A N/A
99.2 N/A N/A N/A
100 N/A Springing Cash Flow Sweep N/A N/A N/A N/A
104 N/A N/A N/A N/A N/A N/A
111 N/A N/A N/A N/A N/A N/A
128 N/A Springing N/A N/A N/A N/A
137 N/A N/A N/A N/A N/A N/A
137.1 N/A N/A N/A
137.2 N/A N/A N/A
137.3 N/A N/A N/A
137.4 N/A N/A N/A
144 N/A N/A N/A N/A N/A N/A
146 N/A Springing N/A N/A N/A N/A
151 N/A N/A N/A N/A N/A N/A
152 N/A N/A N/A N/A N/A N/A
156 N/A N/A N/A N/A N/A N/A
159 N/A N/A N/A N/A N/A N/A
160 N/A N/A N/A N/A N/A N/A
162 N/A N/A N/A N/A N/A N/A
163 N/A Springing Cash Flow Sweep N/A N/A N/A N/A
170 N/A Springing N/A N/A N/A N/A
176 N/A N/A N/A N/A N/A N/A
177 N/A Hard, Springing Cash Flow Sweep N/A N/A N/A N/A
180 N/A Springing N/A N/A N/A N/A
183 N/A N/A N/A N/A N/A N/A
187 N/A N/A N/A N/A N/A N/A
189 N/A Springing Cash Flow Sweep N/A N/A N/A N/A
192 N/A N/A N/A N/A N/A N/A
196 N/A N/A N/A N/A N/A N/A
198 N/A Springing N/A N/A N/A N/A
203 N/A N/A N/A N/A N/A N/A
204 N/A N/A N/A N/A N/A N/A
205 N/A N/A N/A N/A N/A N/A
207 N/A Hard, Springing Cash Flow Sweep N/A N/A N/A N/A
Total/Weighted Average:
No. # 1BR No. # 2BR No. # 3BR No. # 4BR No. # 5BR
# Sold Units Sold Units Sold Units Sold Units Sold Units
----- ---------- ---------- ---------- ---------- ----------
55 N/A N/A N/A 0.01 0
57 N/A N/A N/A 0.01 0
66 N/A N/A N/A 0.01 0
75 N/A N/A N/A 0.005 0
81 N/A N/A N/A N/A 0
85 N/A N/A N/A 0.01 0
99 N/A N/A N/A 0.01 0
99.1 N/A N/A N/A 0.01 0
99.2 N/A N/A N/A 0.01 0
100 N/A N/A N/A 0.01 0
104 N/A N/A N/A 0.01 0
111 N/A N/A N/A 0.01 0
128 N/A N/A N/A 0.01 0
137 N/A N/A N/A 0.01 0
137.1 N/A N/A N/A 0.01 0
137.2 N/A N/A N/A 0.01 0
137.3 N/A N/A N/A 0.01 0
137.4 N/A N/A N/A 0.01 0
144 N/A N/A N/A 0.01 0
146 N/A N/A N/A 0.01 0
151 N/A N/A N/A 0.01 0
152 N/A N/A N/A 0.01 0
156 N/A N/A N/A 0.01 0
159 N/A N/A N/A 0.01 0
160 N/A N/A N/A 0.01 0
162 N/A N/A N/A 0.01 0
163 N/A N/A N/A 0.01 0
170 N/A N/A N/A 0.01 0
176 N/A N/A N/A 0.01 0
177 N/A N/A N/A 0.01 0
180 N/A N/A N/A 0.01 0
183 N/A N/A N/A 0.01 0
187 N/A N/A N/A 0.01 0
189 N/A N/A N/A 0.01 0
192 N/A N/A N/A 0.01 0
196 N/A N/A N/A 0.01 0
198 N/A N/A N/A 0.01 0
203 N/A N/A N/A 0.01 0
204 N/A N/A N/A 0.01 0
205 N/A N/A N/A 0.01 0
207 N/A N/A N/A 0.01 0
Total/Weighted Average:
(A) The Underlying Mortgage Loans secured by RV Dakota Ridge RV Park, RV Elk Meadows RV Park and RV Spruce Lake RV Park
are cross-collateralized and cross-defaulted.
(1) Based on a Cut-off date in September 2007.
(2) At maturity with respect to Balloon Loans or at the anticipated repayment date in the case of ARD Loans, there can be no
assurance that the value of any particular Mortgaged Property will not have declined from the original appraisal value.
(3) For hospitality properties, the occupancy presented above is the occupancy concluded by the respective loan seller at
underwriting based on historical performance and future outlook. For further description of the underwriting criteria,
please see "Description of the Sponsors" in the accompanying free writing prospectus.
(4) In the case of cross-collateralized and cross-defaulted underlying mortgage loans, the combined LTV is presented for each
and every related underlying mortgage loan.
(5) U/W NCF reflects the net cash flow after underwritten replacement reserves, underwritten LC's & TI's and underwritten FF&E.
(6) DSCR is based on the amount of the monthly payments presented. In the case of cross-collateralized and cross-defaulted
underlying mortgage loans the combined DSCR is presented for each and every related underlying mortgage loan.
(7) At maturity with respect to Balloon Loans or at the anticipated repayment date in the case of ARD Loans.
(8) Anticipated Repayment Date.
(9) Prepayment Provision as of Origination:
Lock/(x) = Lockout or Defeasance for (x) payments
YMA/(y) = Greater of Yield Maintenance Premium and A% Prepayment for (y) payments
A%/(y) = A% Prepayment for (y) payments
0.0%/(z) = Prepayable at par for (z) payments
(10) "Yes" means that defeasance is permitted notwithstanding the Lockout Period.
(11) The Shutters on the Beach & Casa Del Mar Portfolio Loan is evidenced by a $310 million mortgage loan and a subordinate
mezzanine loan in the amount of $72 million. The mezzanine loan is secured by a pledge of ownership interest in the borrower,
has standard lender protection, and is subject to standard intercreditor agreements. All calculations are based on the
$310 million mortgage loan.
(12) The 245 Fifth Avenue Loan is evidenced by a $140 million mortgage loan and a subordinate mezzanine loan in the amount of
$53 million. The mezzanine loan is secured by a pledge of ownership interest in the borrower, has standard lender protection,
and is subject to standard intercreditor agreements. All calculations are based on the $140 million mortgage loan.
(13) The City Tower Loan is evidenced by a $115 million mortgage loan and a subordinate mezzanine loan in the amount of
$25 million. The mezzanine loan is secured by a pledge of ownership interest in the borrower, has standard lender protection,
and is subject to standard intercreditor agreements. All calculations are based on the $115 million mortgage loan.
(14) The 2600 Michelson Loan is evidenced by a $95 million mortgage loan and a subordinate mezzanine loan in the amount of
$15 million. The mezzanine loan is secured by a pledge of ownership interest in the borrower, has standard lender protection,
and is subject to standard intercreditor agreements. All calculations are based on the $95 million mortgage loan.
(15) The Meyberry House Loan is evidenced by a $90 million mortgage loan and a subordinate mezzanine loan in the amount of
$34 million. The mezzanine loan is secured by a pledge of ownership interest in the borrower, has standard lender protection,
and is subject to standard intercreditor agreements. All calculations are based on the $90 million mortgage loan.
(16) The underwriting projects that 80% of the units are unregulated, 19.4% are regulated and 0.6% are employee units.
(17) Beginning on the three month anniversary of the first payment date of the loan, the borrower will also have the option to
obtain a release of: (i) the Parking Garage by paying the Parking Garage Release Amount ($8,800,000) and/or (ii) the Medical
Office Space by paying the Medical Office Space Release Amount ($8,800,000). In connection with the release of either parcel,
the borrower is not obligated to pay Required Yield Maintenance.
(18) The Esquire Portfolio Loan is evidenced by a $31 million mortgage loan and a subordinate mezzanine loan in the amount of
$3.17 million. The mezzanine loan is secured by a pledge of ownership interest in the borrower, has standard lender
protection, and is subject to standard intercreditor agreements. All calculations are based on the $31 million mortgage loan.
(19) The underwriting projects that 49.1% of the units are unregulated, 49.1% are regulated and 1.8% are employee units.
(20) The Artisan Las Vegas Portfolio Loan is evidenced by a $30.3 million mortgage loan and a subordinate mezzanine loan in the
amount of $9.47 million. The mezzanine loan is secured by a pledge of ownership interest in the borrower, has standard
lender protection, and is subject to standard intercreditor agreements. All calculations are based on the $30.3 million
mortgage loan.
(21) Commencing on the second anniversary of the REMIC start-up date as defined in the relevant loan documents, the borrower
will also have the option to obtain a release of the mortgaged real property from the lien of the mortgage loan through
defeasance.
(22) Prior to the Defeasance Lockout Date, the borrower has the right to partially prepay the mortgage loan and obtain release of
an Individual Property for up to 25% of the original principal amount of the mortgage loan by paying the Adjusted Release
Amount plus the Required Yield Maintenance. After the Defeasance Lockout Date, the borrower can obtain a release of such
parcels only through defeasing the applicable portion of the mortgage loan.
(23) With respect to the St. Luke's at Cypress Woods Loan, the Cut-Off LTV, Maturity LTV, and Appraised Value are based upon the
appraiser's concluded As Is value. In addition, the appraiser also concluded a prospective As Stabilized value of $41,500,000
as of September 1, 2008, resulting in a Cut-Off LTV of 76.6% and a Maturity LTV of 76.6.%.
(24) The underlying mortgage loan is structured with an earnout/holdback or stabilization reserve. The Cut-Off LTV and Maturity
LTV for the loan is shown net of its reserve.
(25) With respect to the Champions Centre Apartments Loan, the Cut-Off LTV, Maturity LTV, and Appraised Value are based upon the
appraiser's concluded As Is value. In addition, the appraiser also concluded a prospective As Stabilized value of $16,350,000
as of October 4, 2007, resulting in a Cut-Off LTV of 79.5% and a Maturity LTV of 79.5%.
(26) With respect to the 1208B VFW Parkway Loan, the Cut-Off LTV, Maturity LTV, and Appraised value are based upon stabilized
values. The As is Appraised value is $6,200,000 (as of 1/3/2007).
(27) With respect to the 1250B Auburn Road Loan, the Cut-Off LTV, Maturity LTV, and Appraised value are based upon stabilized
values. The As is Appraised value is $2,250,000 (as of 3/10/2007).
(28) With respect to the Tower Professional Loan, the Cut-Off LTV, Maturity LTV, and Appraised value are based upon stabilized
values. The As is Appraised value is $4,700,000 (as of 12/7/2006).
(29) The borrower has the obligation to prepay the loan, to the extent necessary, upon the State of Illinois exercising its option
to purchase certain two parcels, which the State of Illinois currently leases. If the State of Illinois exercises such
purchase option during the defeasance lockout period, or if the borrower is otherwise unable to defease due to REMIC
restrictions, then the borrower must prepay the loan, to the extent necessary, with the Required Yield Maintenance plus 1%.
After the defeasance lockout period, the loan can only be defeased unless the borrower is otherwise unable to defease the
loan due to REMIC restrictions.
(30) Commencing on the second anniversary of the REMIC start-up date as defined in the relevant loan documents, the borrower will
also have the option to obtain a release of the of either: (i) the Drug Mart Plaza - Upper Sandusky mortgaged real property
from the lien of the mortgage by prepaying 125% of the Minimum Release Payment or, (ii) the Drug Mart Plaza - Parma Heights
mortgaged real property by prepaying 140% of Minimum Release Payment. In addition to such partial prepayment amount, the
borrower is also obligated to pay a prepayment penalty in the amount of the Required Yield Maintenance.
(31) Commencing on the second anniversary of the REMIC start-up date as defined in the relevant loan documents, the borrower will
also have the option to obtain a release of the Shoppes at Midtown mortgaged real property from the lien of the mortgage by
(i) prepaying 29% of the outstanding loan balance if the earnout reserve has been released, or (ii) 35% of the outstanding
loan balance, if the earnout has not been released. In addition to such partial prepayment amount, the borrower is also
obligated to pay a prepayment penalty in the amount of the Required Yield Maintenance.
See Attached
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
See Attached
Exception Report - Schedule V
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES REGARDING INDIVIDUAL
MORTGAGE LOANS (2007-C4) (NCB, FSB)
Rep No. Mortgage Loan (Borrower) Explanation
------- ------------------------ -----------
xxiii Lithia Lane, LLC The related Mortgaged Property is not covered
by business interruption or rental loss
insurance. However, the property is net
leased to Citibank, F.S.B, and, pursuant to
the lease, the tenant does not have a right
to offset or abate rent in the event of a
casualty or condemnation.
Schedule V-1
Mortgage Loans With Subordinate Secured Indebtedness or Mezzanine Financing
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of the Seller" or "to the Seller's knowledge" shall mean, except
where otherwise expressly set forth below, the actual state of knowledge of the
Seller or any servicer acting on its behalf regarding the matters referred to,
in each case without having conducted any independent inquiry or due diligence
with respect to such matters and without any actual or implied obligation to
make such inquiry or perform such due diligence, other than making such inquiry
or performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of the Seller. Wherever there is
a reference to receipt by, or possession of, the Seller of any information or
documents, or to any action taken by the Seller or not taken by the Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either the Seller or any servicer acting on its behalf.
The Seller hereby represents and warrants, subject to the exceptions
set forth in the applicable Exception Report, with respect to the Mortgage Loans
that as of the date herein below specified or, if no such date is specified, as
of the date of this Agreement:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to,
and was the sole owner of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(1) originated by a savings and loan association, savings
bank, commercial bank, credit union, or insurance company, which is
supervised and examined by a Federal or State authority, or by a
mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act (any of
the foregoing, including the Seller, a "Qualified Originator"); or
(2) if originated by a person which is not a Qualified
Originator (any such person, a "Non-Qualified Originator"), then:
(a) such Mortgage Loan was underwritten in accordance
with standards established by a Qualified Originator, using
application forms and related credit documents approved by the
Qualified Originator;
(b) the Qualified Originator approved each application
and related credit documents before a commitment by the
Non-Qualified Originator was issued, and no such commitment
was issued until the Qualified Originator agreed to fund such
Mortgage Loan;
(c) the Mortgage Loan was originated by the
Non-Qualified Originator pursuant to an ongoing, standing
relationship with the Qualified Originator; and
(d) the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator, and,
pursuant to the Non-Qualified Originator's ongoing, standing
relationship with the Qualified Originator, either:
i. such closing documents reflect the Qualified
Originator as the original mortgagee, and such Mortgage
Loan was actually funded by the Qualified Originator at
the closing thereof;
ii. such closing documents reflect the
Non-Qualified Originator as the original mortgagee, but
include assignment documents executed by the
Non-Qualified Originator in favor of the Qualified
Originator at the time of the closing of the Mortgage
Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator,
and the Mortgage Loan was funded initially by the
Non-Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such
Non-Qualified Originator; or
iii. such closing documents reflect the
Non-Qualified Originator as the original mortgagee, but
include assignment documents executed by the
Non-Qualified Originator in favor of the Qualified
Originator at the time of the closing of the Mortgage
Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator,
and the Mortgage Loan was funded initially by the
Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such
Non-Qualified Originator.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor
constitutes a legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or any other interests or security
interests of any nature encumbering such Mortgage Loan, except for
interests in servicing rights created or granted under the Pooling and
Servicing Agreement, subservicing agreements and/or servicing rights
purchase agreements being executed and delivered in connection herewith;
(v) To Seller's knowledge, based on the related borrower's
representations and covenants in the related mortgage loan documents and
such other due diligence as a reasonably prudent commercial mortgage
lender would deem appropriate, the borrower, lessee and/or operator was in
possession of all licenses, permits, and authorizations then required for
use of the Mortgaged Property which were valid and in full force and
effect as of the origination date and to Seller's actual knowledge, such
licenses, permits and authorizations are still valid and in full force and
effect;
(vi) Each related Note, Mortgage, assignment of leases (if any) and
other agreement executed by or for the benefit of the related borrower,
any guarantor or their successors or assigns in connection with such
Mortgage Loan is the legal, valid and binding obligation of the related
borrower, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or
by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and there is no right
of offset, rescission, abatement or diminution or valid defense or
counterclaim available to the related borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(vii) The Mortgage File contains an Assignment of Leases, either as
a separate instrument or incorporated into the related Mortgage. Each
related Assignment of Leases creates a valid first priority collateral
assignment of, or a valid first priority lien or security interest in,
certain rights under the related lease or leases, subject only to
Permitted Encumbrances (as defined below) and to a license granted to the
related borrower to exercise certain rights and to perform certain
obligations of the lessor under such lease or leases, including the right
to operate the related leased property, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); no person other than the
related borrower owns any interest in any payments due under such lease or
leases that is superior to or of equal priority with the lender's interest
therein;
(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if the
Assignment of Leases is a separate document from the Mortgage, is in
recordable form (but for the insertion of the name and address of the
assignee and any related recording information, which is not yet available
to the Seller), and such assignments and any assignment of any other
agreement executed by or for the benefit of the related borrower, any
guarantor or their successors or assigns in connection with such Mortgage
Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(ix) Since origination (a) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded in whole or in part and (b)
each related Mortgaged Property has not been released, in whole or in
part, from the lien of the related Mortgage in any manner which materially
interferes with the security intended to be provided by such Mortgage and
since August 24, 2007, no waiver, consent, modification, assumption,
alteration, satisfaction, cancellation, subordination or rescission which
changes the terms of, or the security for, the Mortgage Loan in any
material respect has occurred or been given;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as
defined below)), except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law); and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with the
lien of the related Mortgage, except those which are insured against by a
lender's title insurance policy (as described below). A UCC financing
statement has been filed and/or recorded (or sent for filing or recording)
in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property as currently
operated; and such security interest is a first priority security
interest, subject to any prior purchase money security interest in such
personal property, any personal property leases applicable to such
personal property and any other security interest in such personal
property which do not, individually or in the aggregate, materially
interfere with the security intended to be provided for such Mortgage
Loan. Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes
and creates a valid and enforceable lien on the property described
therein, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law). In the case of any Mortgage Loan secured by a hotel,
the related loan documents contain such provisions as are necessary and
UCC Financing Statements have been filed as necessary, in each case, to
perfect a valid first priority security interest in the related operating
revenues with respect to such Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the
extent that possession or control of such items or actions other than the
filing of Uniform Commercial Code financing statements are required in
order to effect such perfection;
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of
the Mortgaged Property covered thereby (as set forth in the related
Mortgage) after all advances of principal and is insured by an ALTA
lender's title insurance policy (except that if such policy is yet to be
issued, such insurance may be evidenced by a "marked up" pro forma policy,
specimen policy or title commitment in any case marked as binding and
countersigned by the title company or its authorized agent, either on its
face or by an acknowledged closing instruction or escrow letter), or its
equivalent as adopted in the applicable jurisdiction, insuring the lender
and its successors and assigns (as sole insured) as to such lien, subject
only to (a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or
penalties, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which, individually
or in the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property, (c) the exceptions
(general and specific) and exclusions set forth in such policy, none of
which, individually or in the aggregate, materially interferes with the
current general use of the Mortgaged Property or materially interferes
with the security intended to be provided by such Mortgage or with the
related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property, (d) the rights of tenants, as tenants
only, under leases, including subleases, pertaining to the related
Mortgaged Property, (e) if the related Mortgage Loan is
cross-collateralized with any other Mortgage Loan in the trust fund, the
lien of the mortgage instrument for that other Mortgage Loan, (f) if the
related Mortgaged Property is a unit in a condominium, the related
condominium declaration and (g) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property (items (a), (b), (c), (d), (e), (f) and (g)
collectively, "Permitted Encumbrances") and with respect to each Mortgage
Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided
by the related Mortgage, the current principal use of the related
Mortgaged Property, the value of the Mortgaged Property or the or the
current ability of the related Mortgaged Property to generate income
sufficient to service such Mortgage Loan; the premium for such policy was
paid in full; such policy (or if it is yet to be issued, the coverage to
be afforded thereby) is issued by a title insurance company licensed to
issue policies in the state in which the related Mortgaged Property is
located (unless such state is Iowa) and is assignable (with the related
Mortgage Loan) to the Depositor and the Trustee without the consent of or
any notification to the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement; no claims have been made under such policy and the
Seller has not undertaken any action or omitted to take any action, and
has no knowledge of any such act or omission, which would impair or
diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage
File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the
Mortgage Loan, as of the later of the date of origination of such Mortgage
Loan or the most recent inspection of the related Mortgaged Property by
the Seller, as applicable, and to the knowledge of Seller as of the date
hereof, each related Mortgaged Property is free of any material damage
that would affect materially and adversely the use or value of such
Mortgaged Property as security for the Mortgage Loan (normal wear and tear
excepted). If any of the inspection or engineering reports referred to
above in this Paragraph (xv) revealed any immediate repair items, then one
of the following is true: (a) the repairs and/or maintenance necessary to
correct such condition have been completed in all material respects; (b)
an escrow of funds is required or a letter of credit was obtained in an
amount reasonably estimated to be sufficient to complete the repairs
and/or maintenance necessary to correct such condition; or (c) the
reasonable estimation at the time of origination of the Mortgage Loan of
the cost to complete the repairs and/or maintenance necessary to correct
such condition represented no more than the greater of (i) $50,000 and
(ii) 2% of the value of the related Mortgaged Property as reflected in an
appraisal conducted in connection with the origination of the subject
Mortgage Loan; as of the closing date for each Mortgage Loan and, to the
Seller's knowledge, as of the date hereof, there is no proceeding pending
for the total or partial condemnation of such Mortgaged Property that
would have a material adverse effect on the use or value of the Mortgaged
Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the
originator of the Mortgage Loan inspected or caused to be inspected each
related Mortgaged Property within three months of origination of the
Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than
the ARD Loans which may have negative amortization from and after the
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to the lender or any other party;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the
date of origination with, or was exempt from, applicable state or federal
laws, regulations and other requirements pertaining to usury. Except to
the extent any noncompliance did not materially and adversely affect the
value of the related Mortgaged Property, the security provided by the
Mortgage or the related borrower's operations at the related Mortgaged
Property, any and all other requirements of any federal, state or local
laws, including, without limitation, truth-in-lending, real estate
settlement procedures, equal credit opportunity or disclosure laws,
applicable to such Mortgage Loan have been complied with as of the date of
origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process
of any Mortgage Loan and the origination, servicing and collection of each
Mortgage Loan is in all respects legal, proper and prudent in accordance
with customary commercial mortgage lending standards, and no other person
has been granted or conveyed the right to service the Mortgage Loans or
receive any consideration in connection therewith, except as provided in
the Pooling and Servicing Agreement or any permitted subservicing
agreements and/or servicing rights purchase agreements being executed and
delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged
Property and that are or may become a lien of priority equal to or higher
than the lien of the related Mortgage have been paid or an escrow of funds
has been established and such escrow (including all escrow payments
required to be made prior to the delinquency of such taxes and
assessments) is sufficient to cover the payment of such taxes and
assessments (for purposes of this representation and warranty, taxes and
assessments shall not be considered due and owing until the date on which
interest and/or penalties would be payable thereon);
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller
or its agent and there are no deficiencies (subject to any applicable
grace or cure periods) in connection therewith. All such escrows and
deposits are being conveyed by the Seller to the Depositor and identified
as such with appropriate detail. With respect to any disbursements made
from such escrows, any requirements for the disbursement of any such
escrows have been complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the
requirements of the Pooling and Servicing Agreement, in an amount not less
than the lesser of the principal amount of the related Mortgage Loan and
the replacement cost (with no deduction for physical depreciation) and not
less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the related Mortgaged Property; each related
Mortgaged Property is also covered by business interruption or rental loss
insurance which covers a period of not less than 12 months and
comprehensive general liability insurance in amounts generally required by
prudent commercial mortgage lenders for similar properties; all Mortgaged
Properties in California or in a seismic zone 4 or 5 have had a seismic
assessment done and earthquake insurance was obtained to the extent any
such Mortgaged Property has a probable maximum loss in the event of an
earthquake of greater than twenty percent (20%) of the replacement value
of the related improvements; if the Mortgaged Property for any Mortgage
Loan is located within Florida or within 25 miles of the coast of North
Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana or
Texas, then, such Mortgaged Property is insured by windstorm insurance in
an amount at least equal to the lesser of (i) the outstanding principal
balance of such Mortgage Loan and (ii) 100% of the insurable replacement
cost of the improvements located on the related Mortgaged Property; the
Mortgaged Properties securing all of the Mortgage Loans having a Stated
Principal Balance in excess of $3,000,000 have, as of the date hereof,
insurance policies in place with respect to acts of terrorism or damage
related thereto (excluding acts involving nuclear, biological or chemical
terrorism), except any such Mortgage Loans that are listed on the
applicable Exception Report. All premiums on such insurance policies
required to be paid as of the date hereof have been paid; such insurance
policies or the related insurance certificates require prior notice to the
insured of reduction in coverage, termination or cancellation, and no such
notice has been received by the Seller; such insurance names the lender
under the Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related
borrower to maintain all such insurance and, at such borrower's failure to
do so, authorizes the lender to maintain such insurance at the borrower's
cost and expense and to seek reimbursement therefor from such borrower;
(xxiv) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b)
event (other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of
acceleration, which default, breach, violation or event of acceleration,
in the case of either (a) or (b) would materially and adversely affect the
use or value of the Mortgage Loan or the related Mortgaged Property.
Notwithstanding the foregoing, this representation and warranty does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by
any other representation or warranty made by the Seller elsewhere in this
Exhibit A or the Exception Report;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (a) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure or, subject to applicable state law requirements,
appointment of a receiver, and (b) there is no exemption available to the
borrower which would interfere with such right to foreclose, except, in
the case of either (a) or (b), as the enforcement of the Mortgage may be
limited by bankruptcy, insolvency, reorganization, moratorium, redemption
or other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). No borrower is a debtor
in a state or federal bankruptcy or insolvency proceeding;
(xxvii) At origination, each borrower represented and warranted in
all material respects that to its knowledge, except as set forth in
certain environmental reports and, except as commonly used in the
operation and maintenance of properties of similar kind and nature to the
Mortgaged Property, in accordance with prudent management practices and
applicable law, and in a manner that does not result in any contamination
of the Mortgaged Property, it has not used, caused or permitted to exist
and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal,
state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials or other environmental laws; the related borrower agreed to
indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries,
penalties, fines, expenses, and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in
connection with such Mortgage Loan. A Phase I environmental report and/or
with respect to certain Mortgage Loans, a Phase II environmental report
was conducted by a reputable independent environmental consulting firm in
connection with such Mortgage Loan, which report did not indicate any
material non-compliance with applicable environmental laws or material
existence of hazardous materials or, if any material non-compliance or
material existence of hazardous materials was indicated in any such
report, then at least one of the following statements is true: (A) funds
reasonably estimated to be sufficient to cover the cost to cure any
material non-compliance with applicable environmental laws or material
existence of hazardous materials have been escrowed, or a letter of credit
in such amount has been provided, by the related borrower and held by the
related mortgagee; (B) if the environmental report recommended an
operations and maintenance plan, but not any material expenditure of
funds, an operations and maintenance plan has been required to be obtained
by the related borrower; (C) the environmental condition identified in the
related environmental report was remediated or abated in all material
respects prior to the date hereof; (D) a no further action or closure
letter was obtained from the applicable governmental regulatory authority
(or the environmental issue affecting the related Mortgaged Property was
otherwise listed by such governmental authority as "closed"); (E) such
conditions or circumstances identified in the Phase I environmental report
were investigated further and based upon such additional investigation, an
environmental consultant recommended no further investigation or
remediation; (F) a party unrelated to the borrower with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related borrower to
cover the costs of any required investigation, testing, monitoring or
remediation; (G) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is not greater than two percent (2%)
of the outstanding principal balance of the related Mortgage Loan; or (H)
a lender's environmental insurance policy was obtained and is a part of
the related Mortgage File. Notwithstanding the preceding sentence, with
respect to certain Mortgage Loans with an original principal balance of
less than $3,500,000, no environmental report may have been obtained, but
(in such cases where a Phase I environmental report was not obtained) a
lender's environmental insurance policy was obtained with respect to each
such Mortgage Loan. Each of such lender's environmental insurance policies
is a part of the related Mortgage File. Each of such environmental
insurance policies is in full force and effect, is in an amount not less
than the 100% of the balance of the related Mortgage Loan, has a term
extending not less than 5 years after the maturity date of the related
Mortgage Loan, the premiums for such policies have been paid in full and
the Trustee is named as an insured under each of such policies, the Seller
has delivered to the insurer all environmental reports in its possession.
To the Seller's knowledge, in reliance on such environmental reports and
except as set forth in such environmental reports, each Mortgaged Property
is in material compliance with all applicable federal, state and local
environmental laws, and to the Seller's knowledge, no notice of violation
of such laws has been issued by any governmental agency or authority,
except, in all cases, as indicated in such environmental reports or other
documents previously provided to the Rating Agencies; and the Seller has
not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining
to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage (and
the Mortgage requires the mortgagor to pay all fees and expenses
associated with obtaining such consent), the related Mortgaged Property is
directly or indirectly transferred or sold, and (2) except with respect to
transfers of certain direct or indirect interests in the related borrower
to persons already holding direct or indirect interests in the borrower,
their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent
commercial mortgage lenders) or any transfers in connection with the death
or disability of owners of the borrower, each Mortgage Loan also contains
the provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the consent of the holder of the
Mortgage, (and the Mortgage requires the mortgagor to pay all fees and
expenses associated with obtaining such consent) a majority interest in
the related borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments
onto adjoining parcels for which the Seller has obtained title insurance
against losses arising therefrom or that do not materially and adversely
affect the use or value of such Mortgaged Property. No improvements on
adjoining parcels encroach onto the related Mortgaged Property except for
encroachments that do not materially and adversely affect the value of
such Mortgaged Property, the security provided by the Mortgage, the
current use of the Mortgaged Property, or the related borrower's
operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the Mortgage Loan Schedule attached as an exhibit to this
Mortgage Loan Purchase Agreement is complete and accurate in all material
respects as of the dates of the information set forth therein (or, if not
set forth therein, as of the Cut-Off Date);
(xxxi) With respect to any Mortgage Loan where all or any material
portion of the estate of the related borrower therein is a leasehold
estate under a ground lease, and the related Mortgage does not also
encumber the related lessor's fee interest in such Mortgaged Property,
based upon the terms of the ground lease and any estoppel received from
the ground lessor, the Seller represents and warrants that:
(1) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee,
its successors or assigns in a manner that would materially and
adversely affect the security provided by the related Mortgage. To
the Seller's knowledge, there has been no material change in the
terms of the ground lease since its recordation, except by any
written instruments which are included in the related mortgage file;
(2) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not
be amended, modified, canceled or terminated without the prior
written consent of the lender and that any such action without such
consent is not binding on the lender, its successors or assigns;
(3) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and would be enforceable, by the
lender) that extends not less than 10 years beyond the amortization
term of the related Mortgage Loan;
(4) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to
any liens or encumbrances superior to, or of equal priority with,
the Mortgage, subject to Permitted Encumbrances and liens that
encumber the ground lessor's fee interest;
(5) Under the terms of the ground lease, the ground lease is
assignable to the lender and its assigns without the consent of the
lessor thereunder;
(6) The ground lease is in full force and effect, the Seller
has no actual knowledge that any default beyond applicable notice
and grace periods has occurred, and to the Seller's knowledge, there
is no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of the
ground lease;
(7) The ground lease or ancillary agreement, which is part of
the Mortgage File, between the lessor and the lessee requires the
lessor to give notice of any default by the lessee to the lender;
(8) The lender is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under the ground lease through legal
proceedings, or to take other action so long as the lender is
proceeding diligently) to cure any default under the ground lease
which is curable after the receipt of notice of any default before
the lessor may terminate the ground lease. All rights of the lender
under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(9) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent commercial mortgage lender. The lessor is not permitted to
disturb the possession, interest or quiet enjoyment of any subtenant
of the lessee in the relevant portion of the Mortgaged Property
subject to the ground lease for any reason, or in any manner, which
would adversely affect the security provided by the related
Mortgage;
(10) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the lender or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan, together with
any accrued interest, except that in the case of condemnation
awards, the ground lessor may be entitled to a portion of such
award;
(11) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of the
related Mortgaged Property will be applied first to the payment of
the outstanding principal balance of the Mortgage Loan, together
with any accrued interest (except as provided by applicable law or
in cases where a different allocation would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender,
taking into account the relative duration of the ground lease and
the related Mortgage and the ratio of the market value of the
related Mortgaged Property to the outstanding principal balance of
such Mortgage Loan). Until the principal balance and accrued
interest are paid in full, neither the lessee nor the lessor under
the ground lease will have an option to terminate or modify the
ground lease without the prior written consent of the lender as a
result of any casualty or partial condemnation; and
(12) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a
new lease upon termination of the ground lease for any reason,
including rejection of the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold
estate, but the related Mortgage also encumbers the related lessor's fee
interest in such Mortgaged Property: (a) such lien on the related fee
interest is evidenced by the related Mortgage, (b) such Mortgage does not
by its terms provide that it will be subordinated to the lien of any other
mortgage or encumbrance upon such fee interest, (c) upon the occurrence of
a default under the terms of such Mortgage by the related borrower, any
right of the related lessor to receive notice of, and to cure, such
default granted to such lessor under any agreement binding upon the lender
would not be considered commercially unreasonable in any material respect
by prudent commercial mortgage lenders, (d) the related lessor has agreed
in a writing included in the related Mortgage File that the related ground
lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on
the lender, its successors or assigns, and (e) the related ground lease is
in full force and effect, and the Seller has no actual knowledge that any
default beyond applicable notice and grace periods has occurred or that
there is any existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of such ground
lease;
(xxxiii) With respect to Mortgage Loans that are senior or pari
passu in right of payment and cross-collateralized or cross-defaulted, all
other loans that are cross-collateralized by or cross-defaulted with such
Mortgage Loans are being transferred to the Depositor;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan,
other than contributions made on or prior to the date hereof;
(xxxv) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an appraisal
satisfying the requirements of FIRREA conducted within 12 months of the
origination of the Mortgage Loan, was at least equal to 80% of the
principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time when the Mortgage Loan
was not in default or default with respect thereto was not reasonably
foreseeable, the date of the last such modification) or (b) at the date
hereof; provided that the fair market value of the real property must
first be reduced by (A) the amount of any lien on the real property
interest that is senior to the Mortgage Loan and (B) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such
other lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by
the lender or any mezzanine debt related to such Mortgaged Property,
except as set forth in the Prospectus Supplement, this Exhibit A or in the
Exception Report to this Mortgage Loan Purchase Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection with
each Mortgage Loan having an original principal balance in excess of
$5,000,000 require that the related borrower be a single-purpose entity
(for this purpose, "single-purpose entity" shall mean an entity, other
than an individual, having organizational documents which provide
substantially to the effect that it is formed or organized solely for the
purpose of owning and operating one or more Mortgaged Properties, is
prohibited from engaging in any business unrelated to such property and
the related Mortgage Loan, does not have any assets other than those
related to its interest in the related Mortgaged Property or its
financing, or any indebtedness other than as permitted under the related
Mortgage Loan). To the Seller's actual knowledge, each borrower has fully
complied with the requirements of the related Mortgage Note and Mortgage
and borrower's organizational documents regarding single-purpose entity
status;
(xxxviii) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the borrower, without the prior written
consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified in the Note or Mortgage which would be
acceptable to a reasonably prudent commercial mortgage lender, and, except
in connection with trade debt and equipment financings in the ordinary
course of borrower's business, from carrying any additional indebtedness,
except, in each case, liens contested in accordance with the terms of the
Mortgage Loan or, with respect to each Mortgage Loan having an original
principal balance of less than $4,000,000, any unsecured debt;
(xxxix) Each borrower covenants in the Mortgage Loan documents that
it shall remain in material compliance with all material licenses, permits
and other legal requirements necessary and required to conduct its
business;
(xl) Each Mortgaged Property (a) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting
ingress and egress, (b) is served by public utilities and services
generally available in the surrounding community or otherwise appropriate
for the use in which the Mortgaged Property is currently being utilized,
and (c) constitutes one or more separate tax parcels or is covered by an
endorsement with respect to the matters described in (a), (b) or (c) under
the related title insurance policy (or the binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency or the Secretary of Housing and Urban
Development as having special flood hazards categorized as Zone "A" or
Zone "V" and flood insurance is available, the terms of the Mortgage Loan
require the borrower to maintain flood insurance, or at such borrower's
failure to do so, authorizes the lender to maintain such insurance at the
cost and expense of the borrower and such insurance is in full force and
effect in an amount not less than the lesser of (1) the replacement cost
of the material improvements on such Mortgaged Property, (2) the balance
of the Mortgage Loan and (3) the maximum amount of insurance available
under the applicable National Flood Insurance Administration Program;
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently
so serves and is named in the deed of trust or has been substituted in
accordance with applicable law or may be substituted in accordance with
applicable law by the related mortgagee, and except in connection with a
trustee's sale after a default by the related borrower, no fees are
payable to such trustee, and such fees payable are payable by the
borrower;
(xliii) Except as disclosed in the Exception Report to this Mortgage
Loan Purchase Agreement, to the knowledge of the Seller as of the date
hereof, there was no pending action, suit or proceeding, arbitration or
governmental investigation against any borrower or Mortgaged Property, an
adverse outcome of which would materially and adversely affect such
borrower's ability to perform under the related Mortgage Loan;
(xliv) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of
preferred equity interests by the preferred equity interest holder, as
disclosed in the Prospectus Supplement), and no funds have, to the
Seller's knowledge, been received from any person other than, or on behalf
of, the related borrower, for, or on account of, payments due on the
Mortgage Loan;
(xlv) To the extent required under applicable law, as of the Cut-off
Date or as of the date that such entity held the Note, each holder of the
Note was authorized to transact and do business in the jurisdiction in
which each related Mortgaged Property is located, or the failure to be so
authorized did not materially and adversely affect the enforceability of
such Mortgage Loan;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except as disclosed in the Exception Report to this Mortgage
Loan Purchase Agreement or the Prospectus Supplement with respect to the
Crossed Loans and Multiple Property Loans, no Mortgage Loan requires the
lender to release any portion of the Mortgaged Property from the lien of
the related Mortgage except upon (a) payment in full or defeasance of the
related Mortgage Loan, (b) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, which in all events include payment of a release price
at least 125% of the appraised value of the property to be released or of
the allocated loan amount of such property, (c) releases of unimproved
out-parcels or (d) releases of other portions of the Mortgaged Property
which will not have a material adverse effect on the use or value of the
collateral for the related Mortgage Loan and which were given no value in
the appraisal of the Mortgaged Property or of that portion of the
Mortgaged Property used to calculate the loan-to-value ratio of the
Mortgaged Property for underwriting purposes. No release or partial
release of any Mortgaged Property, or any portion thereof, expressly
permitted or required pursuant to the terms of any Mortgage Loan would
constitute a significant modification of the related Mortgage Loan under
Treas. Reg. Section 1.860G-2(b)(2);
(xlviii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or
part of the related Mortgaged Property, with, in the case of all casualty
losses or takings in excess of a specified amount or percentage of the
related loan amount that a prudent commercial lender would deem
satisfactory and acceptable, the lender (or a trustee appointed by it)
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in any case where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender) or (b)
to the payment of the outstanding principal balance of such Mortgage Loan
together with any accrued interest thereon;
(xlix) (l) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property and each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller was, and each Form UCC-3 assignment, if
any, of such financing statement in blank which the Trustee or its
designee is authorized to complete (but for the insertion of the name of
the assignee and any related filing information which is not yet available
to the Seller) is, in suitable form for filing in the filing office in
which such financing statement was filed;
(l) To the Seller's knowledge, (a) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original
principal balance less than $2,500,000) of the net leaseable area of the
related Mortgaged Property is in full force and effect and (b) there
exists no default under any such commercial lease either by the lessee
thereunder or by the related borrower that could give rise to the
termination of such lease;
(li) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the
improvements located on or forming part of each Mortgaged Property comply
with applicable zoning laws and ordinances, or constitute a legal
non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the
value of the related Mortgaged Property. With respect to properties with a
Stated Principal Balance of over $10,000,000, if the related Mortgaged
Property does not so comply, to the extent the Seller is aware of such
non-compliance, it has required the related borrower to obtain law and
ordinance insurance coverage in amounts customarily required by prudent
commercial mortgage lenders;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulation (as defined herein) Section 1.860G-2(f)(2)
that treats a defective obligation as a qualified mortgage or any
substantially similar successor provision), the related Mortgaged
Property, if acquired by a REMIC in connection with the default or
imminent default of such Mortgage Loan would constitute "foreclosure
property" within the meaning of Code Section 860G(a)(8) and all Prepayment
Premiums and Yield Maintenance Charges constitute "customary prepayment
penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (i) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (ii) the borrower can
pledge only United States government securities in an amount sufficient to
make all scheduled payments under the Mortgage Loan when due, (iii) the
borrower is required to provide independent certified public accountant's
certification that the collateral is sufficient to make such payments,
(iv) the loan may be required to be assumed by a single-purpose entity
designated by the holder of the Mortgage Loan, (v) the borrower is
required to provide an opinion of counsel that the trustee has a perfected
security interest in such collateral prior to any other claim or interest,
(vi) the borrower is required to pay all Rating Agency fees associated
with defeasance (if rating confirmation is a specific condition precedent
thereto) and all other reasonable expenses associated with defeasance,
including, but not limited to, accountant's fees and opinions of counsel,
(vii) with respect to any Significant Loan (as defined in the Pooling and
Servicing Agreement), the borrower is required to provide an opinion of
counsel that such defeasance will not cause any REMIC created under the
Pooling and Servicing Agreement to fail to qualify as a REMIC for federal
or applicable state tax purposes and (viii) with respect to any
Significant Loan (as defined in the Pooling and Servicing Agreement), the
borrower must obtain confirmation from each Rating Agency that the
defeasance would not result in such Rating Agency's withdrawal, downgrade
or qualification of the then current rating of any class of Certificates
rated by such Rating Agency;
(liv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the lender for any
losses incurred by the lender due to (i) the misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (ii)
any willful act of material waste, (iii) any breach of the environmental
covenants contained in the related Mortgage Loan Documents, and (iv) fraud
by the related borrower; provided that, with respect to clause (iii) of
this sentence, an indemnification against losses related to such
violations or environmental insurance shall satisfy such requirement;
(lv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (i) its Mortgage Rate
will increase by no less than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan
is an asset of the Trust Fund; (ii) its Anticipated Repayment Date is not
less than seven years following the origination of such Mortgage Loan;
(iii) no later than the related Anticipated Repayment Date, if it has not
previously done so, the related borrower is required to enter into a
"lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled
by the Master Servicer; and (iv) any cash flow from the related Mortgaged
Property that is applied to amortize such Mortgage Loan following its
Anticipated Repayment Date shall, to the extent such net cash flow is in
excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvi) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same borrower and to
borrowers that are Affiliates, accounted for more than 5.0% of the
aggregate of the Stated Principal Balances of all of the mortgage loans
sold to the Depositor by Column Financial, Inc., PNC Bank, National
Association and NCB,FSB pursuant to those certain Mortgage Loan Purchase
Agreements, each dated as of September 1, 2007, between the Depositor and
Column Financial, Inc., between the Depositor and PNC Bank, National
Association and between the Depositor and NCB, FSB, respectively, as the
Cut-Off Date;
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or
acquisition of each Mortgage Loan, the Seller obtained an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Seller's actual knowledge, had no interest, direct or
indirect, in the borrower, the Mortgaged Property or in any loan made on
the security of the Mortgaged Property, and whose compensation was not
affected by the approval or disapproval of the Mortgage Loan; and
(lviii) Each Mortgage Loan bears interest at a rate that remains
fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of NCB, FSB ("NCB, FSB");
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. 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 _______________, under date of ______________
(the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. 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;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by 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 2007-C4 (the "Trustee") (which assignment may,
at the discretion of 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
_______________'s failure to deliver said original Note to the Trustee.
Sworn to before me this _____
day of __________, 2007
Exhibit 10.4
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.,
Master Servicer
and
COLUMN FINANCIAL, INC.,
Sub-Servicer
SUB-SERVICING AGREEMENT
Dated as of September 1, 2007
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2007-C4
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents....................................................
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.......................................
Section 3.02 Merger or Consolidation of the Sub-Servicer...................
Section 3.03 Limitation on Liability of the Sub-Servicer and Others........
Section 3.04 Sub-Servicer's Resignation....................................
Section 3.05 No Transfer or Assignment of Servicing........................
Section 3.06 Indemnification...............................................
Section 3.07 Sub-Servicer Compensation with Respect to the Mortgage
Loans........................................................
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.............................................
Section 4.02 Waiver of Defaults............................................
Section 4.03 Other Remedies of Master Servicer.............................
ARTICLE V
TERMINATION
Section 5.01 Termination...................................................
Section 5.02 Termination of Duties with Respect to Specially Serviced
Mortgage Loans...............................................
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.................................
Section 6.02 Financial Statements..........................................
Section 6.03 Closing.......................................................
Section 6.04 Closing Documents.............................................
Section 6.05 Notices.......................................................
Section 6.06 Severability Clause...........................................
Section 6.07 Counterparts..................................................
Section 6.08 Governing Law.................................................
Section 6.09 Protection of Confidential Information........................
Section 6.10 Intention of the Parties......................................
Section 6.11 Third Party Beneficiary.......................................
Section 6.12 Successors and Assigns; Assignment of Agreement...............
Section 6.13 Waivers.......................................................
Section 6.14 Exhibits......................................................
Section 6.15 General Interpretive Principles...............................
Section 6.16 Complete Agreement............................................
Section 6.17 Further Agreement.............................................
Section 6.18 Amendments....................................................
EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B POOLING AND SERVICING AGREEMENT
This is a Sub-Servicing Agreement (the "Agreement"), dated as of
September 1, 2007, by and between KEYCORP REAL ESTATE CAPITAL MARKETS, INC.,
having an office at 911 Main Street, Suite 1500, Kansas City, Missouri 64105,
and its successors and assigns (the "Master Servicer"), and COLUMN FINANCIAL,
INC., having an office at 3414 Peachtree Road N.E., Suite 1140, Atlanta, Georgia
30326 (the "Sub-Servicer").
W I T N E S S E T H:
WHEREAS, CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. (the
"Depositor"), the Master Servicer, as Master Servicer No. 1, WACHOVIA BANK,
NATIONAL ASSOCIATION, as Master Servicer No. 2, MIDLAND LOAN SERVICES, INC., as
Master Servicer No. 3, NCB, FSB, as Master Servicer No. 4, ING CLARION PARTNERS,
LLC, as Special Servicer No. 1 (the "Special Servicer"), NATIONAL CONSUMER
COOPERATIVE BANK, as Special Servicer No. 2, and WELLS FARGO BANK, N.A. (the
"Trustee") have entered into that certain Pooling and Servicing Agreement dated
as of September 1, 2007, as amended, modified and restated from time to time
(the "Pooling and Servicing Agreement"), whereby the Master Servicer shall
master service certain mortgage loans on behalf of the Trustee;
WHEREAS, Section 3.22 of the Pooling and Servicing Agreement permits
the Master Servicer to enter into agreements with sub-servicers for the
sub-servicing of mortgage loans; and
WHEREAS, the Master Servicer desires to enter into a contract with
the Sub-Servicer with respect to certain mortgage loans (the "Mortgage Loans")
identified on Exhibit A hereto (the "Mortgage Loan Schedule").
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Master Servicer and
the Sub-Servicer hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Pooling
and Servicing Agreement. As used herein, the following terms have the meanings
assigned to them in this Section 1.01:
"CSI": Centerline Servicing Inc.
"Mortgage Loans": As defined in the recitals hereto.
"Mortgage Loan Schedule": As defined in the recitals hereto.
"Sub-Servicing Fee": With respect to the Mortgage Loans, the fee
payable pursuant to Section 3.07 of this Agreement.
"Sub-Servicing Fee Rate": With respect to the Mortgage Loans the
rate set forth on the Mortgage Loan Schedule.
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents.
The Master Servicer, by execution and delivery of this Agreement,
does hereby contract with the Sub-Servicer, subject to the terms of this
Agreement, for the servicing of the Mortgage Loans. On and after the Closing
Date, the Sub-Servicer shall hold any portion of the Servicing Files (including
without limitation, any original letter of credit to the extent such letter of
credit has been delivered to the Sub-Servicer) or the Mortgage Files in the
possession of the Sub-Servicer in trust by the Sub-Servicer, on behalf of the
Master Servicer for the benefit of the Trustee. The Sub-Servicer's possession of
any portion of the Servicing Files or the Mortgage Files shall be at the will of
the Master Servicer and the Trustee for the sole purpose of facilitating the
servicing or the supervision of servicing of the Mortgage Loans pursuant to this
Agreement, and such retention and possession by the Sub-Servicer shall be in a
custodial capacity only. Any portion of the Servicing Files or the Mortgage
Files retained by the Sub-Servicer shall be identified to reflect clearly the
ownership of the Mortgage Loans by the Trustee. The Sub-Servicer shall release
from its custody any Mortgage Files retained by it only in accordance with this
Agreement and the Pooling and Servicing Agreement.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.
(a) The Sub-Servicer, as an independent contractor, shall service
and administer pursuant to this Agreement on behalf of the Master Servicer and
the Trustee in the best interests of and for the benefit of the
Certificateholders in accordance with any and all applicable laws and the terms
of this Agreement and the Mortgage Loans and to the extent consistent with the
foregoing with the Servicing Standard under the Pooling and Servicing Agreement.
For the avoidance of doubt, the Sub-Servicer's obligations and rights under this
Agreement are expressly limited to the Mortgage Loans set forth in Exhibit A.
Without in any way limiting the generality of this Section 3.01(a), the parties
hereto hereby acknowledge that, except as otherwise set forth herein, any or all
of the Sub-Servicer's obligations hereunder may be performed in the
Sub-Servicer's name by CSI.
(b) The Sub-Servicer shall perform, on behalf of the Master
Servicer, all of the obligations of the Master Servicer (with respect to the
Mortgage Loans subject to this Agreement) as set forth in those sections of the
Pooling and Servicing Agreement incorporated herein pursuant to Section 3.01(c)
of this Agreement (the "Incorporated Sections"), as modified by Section 3.01(c)
of this Agreement, and the Master Servicer shall have the same rights with
respect to the Sub-Servicer that the Trustee, the Depositor, the Underwriters,
the Rating Agencies and the Certificateholders (including, without limitation,
the right of the Special Servicer to direct the Master Servicer during certain
periods) have with respect to the Master Servicer under the Pooling and
Servicing Agreement to the extent that the Sub-Servicer is acting on behalf of
the Master Servicer hereunder and except as otherwise set forth herein. Without
limiting the foregoing, and subject to Section 3.21 of the Pooling and Servicing
Agreement as modified herein, the Sub-Servicer shall service and administer the
Mortgage Loans so long as no such mortgage loan is then a Specially Serviced
Mortgage Loan; provided, however, that the Sub-Servicer shall, under instruction
from the Special Servicer or the Master Servicer, deliver certain statements and
documents reasonably requested by the Special Servicer regarding information
held by the Sub-Servicer and continue to cooperate with the Special Servicer by
providing reasonably requested information regarding the servicing of any such
Specially Serviced Mortgage Loan. All references herein to the respective duties
of the Sub-Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21 of the Pooling and
Servicing Agreement, as modified herein and to the Special Servicer's rights to
service Specially Serviced Mortgage Loans. Except as otherwise set forth below,
for purposes of this Agreement, references to the Trustee, the Depositor, the
Underwriters, the Rating Agencies, and the Certificateholders in the
Incorporated Sections shall be deemed to be references to the Master Servicer
hereunder and references to the Master Servicer in the Incorporated Sections
shall be deemed to be references to the Sub-Servicer hereunder (such
modification of the Incorporated Sections shall be referred to herein as the
"References Modification").
(c) The following Sections of the Pooling and Servicing Agreement
listed herein and only such Sections, unless otherwise provided in this Section
3.01(c) of this Agreement, are hereby incorporated herein by reference as if
fully set forth herein, and, for purposes of this Agreement, in addition to the
References Modification, are hereby further modified as set forth below (and to
avoid any doubt, any modification is limited to its specific terms and the
section is otherwise fully incorporated herein without limitation):
(1) Sections 2.05, 2.06(a) and 2.06(c). The Sub-Servicer makes
each of the representations and warranties, other than the
representations set forth in Section 2.06(a)(viii) and Section
2.06(a)(ix) of the Pooling and Servicing Agreement, that are made by
the Special Servicer in Section 2.06 of the Pooling and Servicing
Agreement, except that reference to "Special Servicer" therein shall
be a reference to the Sub-Servicer. The Sub-Servicer is authorized
to transact business in each state in which a Mortgaged Property is
located, if and to the extent required by applicable law. The Master
Servicer makes each of the representations and warranties, other
than the representation set forth in Section 2.05 (a)(ix) of the
Pooling and Servicing Agreement, that it makes pursuant to Section
2.05 of the Pooling and Servicing Agreement to the Sub-Servicer.
(2) Section 3.03(e). The Sub-Servicer shall process any
requests for releases of Reserve Funds (or draws under any Letter of
Credit delivered in lieu of Reserve Funds) with respect to the
Mortgage Loans that are Performing Mortgage Loans and then instruct
the Master Servicer as to the amount of any related disbursement
from the Reserve Account (or, as applicable, the amount of any
related draw under such Letter of Credit). The Master Servicer shall
make such disbursements from the Reserve Account (or such draw under
the applicable Letter of Credit, as the case may be) at the
direction of the Sub-Servicer within three Business Days following
receipt of notice from the Sub-Servicer, unless the Master Servicer
has determined that such disbursement is not in accordance with the
Servicing Standard; provided that the Master Servicer shall be
entitled to conclusively rely on the determination of the
Sub-Servicer as to such release requests; provided, further, the
Master Servicer shall not release any Earn-Out Reserve Funds, or
return any related Letter of Credit delivered in lieu of Earn-Out
Reserve Funds, without providing notice to the Special Servicer in
accordance with Section 3.03(e) of the Pooling and Servicing
Agreement.
(3) Section 3.07(d). In lieu of the Freddie Mac, Fannie Mae or
HUD requirements with respect to the fidelity bond and insurance
policies described in Section 3.07(d) of the Pooling and Servicing
Agreement, the Sub-Servicer shall cause CSI to maintain CSI's
current insurance policies and fidelity bonds without any reduction
in coverages or amounts and as otherwise is consistent with this
Agreement. The fidelity bond and insurance policies required
hereunder shall also name the Master Servicer as additional insured
and loss payee; the Master Servicer shall designate in writing to
the Sub-Servicer how its name shall appear prior to the
Sub-Servicer's obligation to provide any certificate of insurance.
The Sub-Servicer shall provide a certificate of insurance to the
Master Servicer evidencing fidelity bond and insurance coverage
required hereunder on or before March 31 of each year, beginning
March 31, 2008.
(4) Section 3.08. With respect to the Mortgage Loans, the
Sub-Servicer shall neither approve nor consent to an assumption of
any of the Mortgage Loans or a transfer of interest in the Mortgagor
nor waive any restrictions contained in the Mortgage on transfer of
an interest in the Mortgaged Property or Mortgagor or on subordinate
financing, without the prior written consent of the Special
Servicer. The Sub-Servicer shall process all assumption or transfer
of interest requests or subordinate financing requests and then
forward to the Special Servicer (with a copy to the Master Servicer)
its recommendation, along with any information in the possession of
the Sub-Servicer reasonably requested by the Special Servicer in
analysis of such requests. Any assumption fees, transfer of interest
fees and any other fees or charges (other than application fees)
relating to an assumption or transfer of interest request with
respect to the Mortgage Loans shall be assessed by the Sub-Servicer
and paid as follows: 50% to the Special Servicer, 25% to the Master
Servicer and 25% to the Sub-Servicer. The Sub-Servicer shall be
entitled to 100% of any application fees relating to an assumption
or transfer of interest request with respect to the Mortgage Loans.
(5) Section 3.11. Section 3.11 of the Pooling and Servicing
Agreement is not incorporated herein. The sole compensation payable
to the Sub-Servicer with respect to the Mortgage Loans is set forth
in Section 3.07 of this Agreement and, as applicable, under Section
3.01(c)(4), Section 3.01(c)(9) and Section 3.01(c)(10) with respect
to fees and charges relating to assumption, transfer of interest,
defeasance, modification, waiver and/or amendment requests with
respect to the Mortgage Loans.
(6) Sections 3.12(a) and (b). With respect to the Mortgage
Loans, the Sub-Servicer shall not prepare any report referred to in
the Pooling and Servicing Agreement or complete any operating
statements or rent rolls in respect of the related Mortgaged
Properties, except that the Sub-Servicer shall complete all
inspection reports and shall promptly (but in no event later than
twenty (20) days after the related inspection or collection, as
applicable) forward to the Master Servicer an electronic copy of all
photographs included therein and all operating statements, rent
rolls and other period financial statements collected by the
Sub-Servicer. The Sub-Servicer will afford the Master Servicer
reasonable cooperation with respect to any report that the
Sub-Servicer prepares or receives in connection with Section 3.12(a)
and Section 3.12(b) of the Pooling and Servicing Agreement, by
providing such information as the Master Servicer may reasonably
request in connection with the Master Servicer's responsibilities in
Section 3.12(a) and Section 3.12(b) of the Pooling and Servicing
Agreement. The Sub-Servicer shall (at its own expense) at all times
use diligent, commercially reasonable efforts to obtain and deliver
to the Master Servicer within five (5) Business Days of receipt by
the Sub-Servicer, the annual and quarterly operating statements,
rent rolls and other related period financial statements required to
be delivered by the Mortgagor pursuant to the terms of the loan
documents for the Mortgage Loans.
(7) Section 3.15. With respect to the Mortgage Loans serviced
hereunder, the Sub-Servicer shall fulfill all of the obligations of
the Master Servicer required pursuant to Section 3.15 and Section
6.05 of the Pooling and Servicing Agreement as if the Sub-Servicer
were the Master Servicer thereunder; provided, however, that the
Sub-Servicer shall not be required to make available information or
reports prepared by or entered into by the Special Servicer to the
extent such information and reports are not in the possession of the
Sub-Servicer. Upon reasonable prior notice, the Sub-Servicer shall
provide to the Master Servicer, during normal business hours, access
to its books and records related to the servicing of the Mortgage
Loans serviced hereunder (including, at the option of the Master
Servicer, an on-site review).
(8) Section 3.19(a). Section 3.19(a) of the Pooling and
Servicing Agreement is not incorporated herein. To the extent that
the Sub-Servicer receives any Principal Prepayments (including any
Insurance Proceeds or Condemnation Proceeds) in respect of any
Mortgage Loans that are Performing Mortgage Loans, the Sub-Servicer
shall forward such amounts to the Master Servicer within two
Business Days of receipt by the Sub-Servicer.
(9) Section 3.19(f). With respect to the Mortgage Loans
serviced hereunder, the Sub-Servicer shall fulfill all of the
obligations of the Master Servicer required pursuant to Section
3.19(f) of the Pooling and Servicing Agreement as if the
Sub-Servicer were the Master Servicer thereunder. The Sub-Servicer
shall promptly notify the Master Servicer upon satisfaction of the
requirements of Section 3.19(f) of the Pooling and Servicing
Agreement. Any defeasance fees with respect to the Mortgage Loans
shall be assessed by the Sub-Servicer and paid as follows: 50% to
the Master Servicer and 50% to the Sub-Servicer.
(10) Section 3.20. With respect to the Mortgage Loans, the
Sub-Servicer shall neither approve nor consent to a modification,
waiver or amendment of any term of a Mortgage Loan (other than as
set forth in Section 3.01(c)(4) of this Agreement and other than
with respect to those actions specified in Section 3.20(b) of the
Pooling and Servicing Agreement) nor waive any restrictions
contained in the Mortgage on such modifications, waivers or
amendments, without the prior written consent of the Special
Servicer. The Sub-Servicer shall process all requests for
modifications, waivers or amendments with respect to the Mortgage
Loans and then forward to the Special Servicer (with a copy to the
Master Servicer) its recommendation, along with any information in
the possession of the Sub-Servicer reasonably requested by the
Special Servicer in analysis of such requests. Any fees relating to
requests for modifications, waivers or amendments with respect to
the Mortgage Loans shall be assessed by the Sub-Servicer and paid as
follows: 50% to the Special Servicer, 25% to the Master Servicer and
25% to the Sub-Servicer.
(11) Section 3.21(a). The Sub-Servicer shall promptly notify
the Master Servicer of any event or circumstance, of which the
Sub-Servicer becomes aware, that the Sub-Servicer deems to
constitute a Servicing Transfer Event with respect to the Mortgage
Loans; provided, however, that in no event shall the Sub-Servicer be
under any obligation to perform calculations or to monitor financial
covenants with respect to the Mortgage Loans for the purposes of
determining the existence of any such event or circumstance. The
determination as to whether a Servicing Transfer Event has occurred
shall be made by the Master Servicer or the Special Servicer. Upon
receipt by the Master Servicer of notice from the Special Servicer
that a Specially Serviced Mortgage Loan has become a Corrected
Mortgage Loan, the Master Servicer shall promptly give the
Sub-Servicer notice thereof and the obligation of the Sub-Servicer
to service and administer such mortgage loan shall resume.
(12) Section 3.22. References to the Master Servicer shall not
be deemed to be references to the Sub-Servicer for purposes of
Section 3.22. Each and every one of the terms and conditions of
Section 3.22 shall be enforceable against the Sub-Servicer in
accordance with the terms thereof and each requirement for the
Sub-Servicing Agreement set forth in Section 3.22 is hereby
incorporated into the Agreement. In addition, the parties hereto
hereby acknowledge that the Sub-Servicer has retained CSI to
sub-service the Mortgage Loans. Subject to Section 3.22 of the
Pooling and Servicing Agreement, the Sub-Servicer may not transfer
sub-servicing of the Mortgage Loans to an entity other CSI without
the consent of the Master Servicer, whose consent shall not be
unreasonably withheld.
(13) Section 12.01. To the extent applicable to the
Sub-Servicer's duties and responsibilities set forth in this Section
3.01(c), the Sub-Servicer shall provide (and shall cause CSI to
provide) any and all good faith cooperation to the Depositor to
enable it to comply with Regulation AB.
(14) Section 12.03. Section 12.03 is incorporated in its
entirety to the extent applicable to the Sub-Servicer's duties and
responsibilities set forth in this Section 3.01(c).
(15) Section 12.05 is incorporated herein in its entirety to
the extent applicable to the Sub-Servicer's duties and
responsibilities set forth in this Section 3.01(c).
(16) Section 12.06 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c), the Sub-Servicer shall fulfill (and
shall cause CSI to fulfill) all of the obligations of the Master
Servicer under Section 12.06 of the Pooling and Servicing Agreement
(including, without limitation, the preparation of the Additional
Form 10-D Disclosure). The Sub-Servicer shall provide (and shall
cause CSI to provide) to the Master Servicer copies of any items
prepared by the Sub-Servicer (or by CSI, as the case may be)
pursuant to Section 12.06 of the Pooling and Servicing Agreement no
later than five Business Days prior to the date when such items are
required to be provided to the Trust under the Pooling and Servicing
Agreement.
(17) Section 12.07 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c), the Sub-Servicer shall provide (and
shall cause CSI to provide) to the Trust all the reports required of
an Additional Servicer under Section 12.07 of the Pooling and
Servicing Agreement. To the extent that the Sub-Servicer (or CSI) is
aware of any information that would constitute Additional Form 10-K
Disclosure, the Sub-Servicer shall provide (and shall cause CSI to
provide, as applicable) such information to the Trustee and the
Depositor within the timeframe that the Master Servicer is required
to provide such information to the Trust under the Pooling and
Servicing Agreement. The Sub-Servicer shall provide (and shall cause
CSI to provide) to the Master Servicer copies of any items prepared
by the Sub-Servicer (or by CSI, as the case may be) pursuant to
Section 12.07 of the Pooling and Servicing Agreement no later than
five Business Days prior to the date when such items are required to
be provided to the Trust under the Pooling and Servicing Agreement.
The Sub-Servicer hereby acknowledges that the purpose of Section
12.07 of the Pooling and Servicing Agreement is to facilitate the
compliance by the Depositor with Regulation AB.
(18) Section 12.08 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c) (and regardless of whether the
Sub-Servicer or CSI, as the case may be, meets the criteria set
forth in the definition of "Servicing Function Participant" under
the Pooling and Servicing Agreement), the Sub-Servicer shall provide
(and shall cause CSI to provide) to the Trust a Performance
Certification in the form set forth on Exhibit M-3 to the Pooling
and Servicing Agreement within the timeframe set forth under the
Pooling and Servicing Agreement. This certification may be relied
upon by the Trustee and the Depositor in performing their respective
obligations under Section 12.08 of the Pooling and Servicing
Agreement but may not be otherwise used, circulated, or relied upon
by any person other than the Trustee or the Depositor; provided that
the Sub-Servicer shall provide (and shall cause CSI to provide) to
the Master Servicer a copy of such Performance Certification no
later than five Business Days prior to the date when such
certification is required to be provided to the Trust under the
Pooling and Servicing Agreement.
(19) Section 12.09 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c), the Sub-Servicer shall fulfill (and
shall cause CSI to fulfill) all of the obligations of the Master
Servicer under Section 12.09 of the Pooling and Servicing Agreement
(including, without limitation, the preparation of the Form 8-K
Disclosure Information with respect to any Reportable Event). The
Sub-Servicer shall notify the parties to the Pooling and Servicing
Agreement of any Reportable Event within the timeframe set forth in
Section 12.09 of the Pooling and Servicing Agreement. The
Sub-Servicer shall provide (and shall cause CSI to provide) to the
Master Servicer copies of any items prepared by the Sub-Servicer (or
by CSI, as the case may be) pursuant to Section 12.09 of the Pooling
and Servicing Agreement no later than five Business Days prior to
the date when such items are required to be provided to the Trust
under the Pooling and Servicing Agreement.
(20) Section 12.10(b) is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c), the Sub-Servicer shall provide any
and all good faith cooperation to the Trustee and the Depositor to
enable the Depositor to satisfy its Exchange Act reporting
obligations in respect of the Trust.
(21) Section 12.11 is incorporated herein. The Sub-Servicer
shall provide (and shall cause CSI to provide) to the Trust an
Officer's Certificate containing the certifications required of an
Additional Servicer under Section 12.11 of the Pooling and Servicing
Agreement. The Sub-Servicer shall provide (and shall cause CSI to
provide) to the Master Servicer copies of any such Officer's
Certificate prepared by the Sub-Servicer (or by CSI, as the case may
be) pursuant to Section 12.11 of the Pooling and Servicing Agreement
no later than five Business Days prior to the date when such
Officer's Certificate is required to be provided to the Trust under
the Pooling and Servicing Agreement.
(22) Section 12.12 is incorporated herein. The Sub-Servicer
shall provide (and shall cause CSI to provide) to all parties
specified in Section 12.12 of the Pooling and Servicing Agreement
the reports required of Servicing Function Participant under Section
12.12 of the Pooling and Servicing Agreement (regardless of whether
the Sub-Servicer or CSI, as the case may be, meets the criteria set
forth in the definition of "Servicing Function Participant" under
the Pooling and Servicing Agreement) within the timeframe set forth
under the Pooling and Servicing Agreement. The Sub-Servicer shall
provide (and shall cause CSI to provide) to the Master Servicer
copies of any reports prepared by the Sub-Servicer (or by CSI, as
the case may be) pursuant to Section 12.12 of the Pooling and
Servicing Agreement no later than five Business Days prior to the
date when such reports are required to be provided to the Trust
under the Pooling and Servicing Agreement.
(23) Section 12.13 is incorporated herein. The Sub-Servicer
shall deliver (and shall cause CSI to deliver) the annual
independent public accountants' attestation referenced in Section
12.13 of the Pooling and Servicing Agreement (regardless of whether
the Sub-Servicer or CSI, as the case may be, meets the criteria set
forth in the definition of "Servicing Function Participant" under
the Pooling and Servicing Agreement) within the timeframe that such
attestation is required to be delivered to the Trustee and the
Depositor under the Pooling and Servicing Agreement. The
Sub-Servicer shall provide (and shall cause CSI to provide) to the
Master Servicer a copy of such attestation no later than five
Business Days prior to the date when such attestation is required to
be provided to the Trust under the Pooling and Servicing Agreement.
(24) Section 12.14 is incorporated herein. References to the
Servicing Function Participant shall be references to the
Sub-Servicer (and, to the extent applicable to CSI's performance of
the Sub-Servicer's duties hereunder, to CSI). References to each of
the Trustee, the Master Servicer and the Special Servicer shall
remain a reference to each such party.
Section 3.02 Merger or Consolidation of the Sub-Servicer.
The Sub-Servicer shall keep in full effect its existence, rights and
franchises as a duly formed business entity formed under the laws of the state
of its organization.
Any Person into which the Sub-Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Sub-Servicer shall be a party, or any Person
succeeding to the business of the Sub-Servicer, shall be the successor of the
Sub-Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person (i) must be a company whose business includes the servicing of mortgage
loans and shall be authorized to transact business in the state or states in
which the related Mortgaged Property it is to service is situated if and to the
extent required by applicable law, (ii) must be acceptable to the Master
Servicer (in its reasonable discretion), and (iii) shall assume in writing the
obligations of the Sub-Servicer under this Agreement.
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
Neither the Sub-Servicer nor any of the officers, employees or
agents of the Sub-Servicer shall be under any liability to the Master Servicer
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement or as set forth in any writing from the Master
Servicer, or for errors in judgment; provided, however, that this provision
shall not protect the Sub-Servicer or any such person against liability to the
Master Servicer under Section 3.06, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement,
or against any expense or liability specifically required to be borne by such
party without right of reimbursement pursuant to the terms hereof. The
Sub-Servicer and any officer, employee or agent of the Sub-Servicer may rely in
good faith on any document of any kind that appears on its face to be properly
executed and submitted by any Person respecting any matters arising hereunder.
The Sub-Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its duties under this
Agreement and, unless it is specifically required to bear the costs of such
legal action or, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Sub-Servicer may, with the consent of the
Master Servicer, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Master Servicer will be liable and the Sub-Servicer shall be entitled to be
reimbursed therefor from the Master Servicer upon written demand.
Section 3.04 Sub-Servicer's Resignation.
The Sub-Servicer may resign from the obligations and duties hereby
imposed on it at any time with thirty (30) days' written notice to the Master
Servicer.
Section 3.05 No Transfer or Assignment of Servicing.
With respect to the responsibility of the Sub-Servicer to service
Mortgage Loans hereunder, the Sub-Servicer acknowledges that the Master Servicer
has acted in reliance upon the adequacy of the Sub-Servicer's servicing program,
its integrity, financial standing and reputation and the continuance thereof.
Without in any way limiting the generality of this Section 3.05, the parties
hereto hereby acknowledge that, except as otherwise set forth herein, any or all
of the Sub-Servicer's obligations hereunder may be performed in the
Sub-Servicer's name by CSI and that the Sub-Servicer shall neither assign nor
transfer this Agreement or the servicing hereunder nor delegate its rights or
duties hereunder or any portion thereof to any party other than CSI without the
prior written approval of the Master Servicer (which approval shall not be
unreasonably withheld or delayed).
Section 3.06 Indemnification.
Notwithstanding the provisions of Section 3.03, the Master Servicer
and any director, officer, agent or employee of the Master Servicer shall be
indemnified and held harmless by the Sub-Servicer against any loss, liability or
expense in connection with any legal action incurred (i) by reason of either the
Sub-Servicer's or CSI's willful misconduct, bad faith or negligence in the
performance of or reckless disregard of the Sub-Servicer's duties hereunder or
(ii) by reason of any breach by the Sub-Servicer or CSI of any representation,
warranty, covenant or agreement made by the Sub-Servicer herein.
The Sub-Servicer and any director, officer, employee or agent of the
Sub-Servicer shall be indemnified and held harmless by the Master Servicer
against any loss, liability or expense in connection with any legal action
incurred (i) by reason of the Master Servicer's willful misconduct, bad faith or
negligence in the performance of or reckless disregard of its duties hereunder
or (ii) by reason of any breach of any representation, warranty, covenant or
agreement made by the Master Servicer herein; provided that the Master Servicer
shall have no liability to the Sub-Servicer for any action taken at the
direction of the Sub-Servicer (or for refraining, in good faith, from the taking
of any such action) in accordance with Section 3.01(c)(2). The Master Servicer
agrees to use reasonable efforts to pursue the Trust Fund for indemnification
against any loss, liability or expense incurred by a Sub-Servicer in connection
with the performance of the Sub-Servicer's duties and obligations under this
Agreement as to which the Pooling and Servicing Agreement grants to the Master
Servicer a right to indemnification from the Trust Fund, and the Sub-Servicer
shall be entitled to any such sums actually received by the Master Servicer.
Each indemnified party hereunder shall give prompt written notice to
the indemnitor of matters which may give rise to the liability of such
indemnitor hereunder; provided, however, that failure to give such notice shall
not relieve the indemnitor of any liability except to the extent of actual
prejudice.
This Section 3.06 shall survive the termination of this Agreement
and the termination or resignation of the Master Servicer or the Sub-Servicer.
Section 3.07 Sub-Servicer Compensation with Respect to the Mortgage
Loans.
The Sub-Servicer shall be entitled to a Sub-Servicing Fee with
respect to each Mortgage Loan in an amount equal to the product of (i) the
Sub-Servicing Fee Rate, on a per annum basis and (ii) the outstanding principal
balance of the related Mortgage Loan; provided, however, that any such fee shall
be payable only to the extent that collections of interest on the Mortgage Loan
is sufficient to cover the Sub-Servicing Fee.
The related Sub-Servicing Fee shall be payable on the Servicer
Remittance Date from monthly payments from the related Borrower and shall
include a report indicating (i) the then outstanding principal balance of the
related Mortgage Loan, (ii) the loan paid to date, (iii) the principal and
interest payment received by the Master Servicer on the related Mortgage Loan
and (iv) the amount of the related Sub-Servicing Fee.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
"Event of Default," wherever used herein, unless the context
otherwise requires, means any one of the following events:
(a) any failure on the part of the Sub-Servicer to (1) observe or
perform its obligations and duties with respect to a Mortgage Loan in strict
accordance with Section 3.01(c) of this Agreement which continue unremedied for
a period of five (5) days after the date on which notice of breach, requiring
the same to be remedied, shall be given to the Sub-Servicer by the Master
Servicer, or (2) in any way comply with Section 3.01(c)(13) through Section
3.01(c)(24) of this Agreement, provided that such failure was during the period
when the Trust Fund was subject to the reporting requirements of the Exchange
Act; or
(b) any breach on the part of the Sub-Servicer of any representation
or warranty contained in Section 2.06(a) of the Pooling and Servicing Agreement
as modified by Section 3.01(c)(1) of this Agreement which materially and
adversely affects the interests of the Master Servicer or any Class of
Certificateholders and which continues unremedied for a period of thirty (30)
days after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Sub-Servicer by the Master Servicer; or
(c) an event of default with respect to the Master Servicer under
Section 7.01 of the Pooling and Servicing Agreement, which event of default
occurred as a direct result of the failure of the Sub-Servicer to perform any
obligation hereunder; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Sub-Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or
(e) the Sub-Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Sub-Servicer or of or
relating to all or substantially all of its property; or
(f) the Sub-Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(g) the Sub-Servicer receives actual knowledge that (1) a Rating
Agency has qualified, downgraded or withdrawn its rating or ratings on one or
more Classes of Certificates, or (2) that a Rating Agency has placed one or more
Classes of Certificates on "rating watch negative" in contemplation of a rating
downgrade or withdrawal (and such "rating watch negative" placement shall not
have been withdrawn by such Rating Agency within sixty (60) days of the date the
Sub-Servicer obtained such actual knowledge), in the case of either of clauses
(1) or (2), citing servicing concerns with the Sub-Servicer or CSI as the sole
or material factor in such action; or
(h) the Sub-Servicer shall assign or transfer or attempt to assign
or transfer all or part of its rights and obligations hereunder, except as
permitted by this Agreement.
If any Event of Default shall occur and be continuing, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied within any applicable cure period, the Master Servicer may terminate,
by notice in writing to the Sub-Servicer, all of the rights and obligations of
the Sub-Servicer as sub-servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof. From and after the receipt by the Sub-Servicer
of such written notice, all authority and power of the Sub-Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer pursuant to and under this Section, and,
without limitation, the Master Servicer is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Sub-Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Sub-Servicer agrees that if it is terminated pursuant to this
Section, it shall promptly (and in any event no later than five (5) Business
Days subsequent to its receipt of the notice of termination) provide the Master
Servicer with all documents and records (including, without limitation, those in
electronic form) requested by it to enable it to assume the Sub-Servicer's
functions hereunder, and shall cooperate with the Master Servicer in effecting
the termination of the Sub-Servicer's responsibilities and rights hereunder and
the assumption by a successor of the Sub-Servicer's obligations hereunder. All
accrued and unpaid Sub-Servicing Fees as of the date of termination shall be
paid to the Sub-Servicer.
Section 4.02 Waiver of Defaults.
The Master Servicer may waive any default by the Sub-Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 4.03 Other Remedies of Master Servicer.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Master Servicer, in addition
to the rights specified in Section 4.01, shall have the right, in its own name,
to take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies (including the institution and prosecution of
all judicial, administrative and other proceedings and the filing of proofs of
claim and debt in connection therewith). Except as otherwise expressly provided
in this Agreement, no remedy provided for by this Agreement shall be exclusive
of any other remedy, and each and every remedy shall be cumulative and in
addition to any other remedy and no delay or omission to exercise any right or
remedy shall impair any such right or remedy or shall be deemed to be a waiver
of any Event of Default.
ARTICLE V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein, the rights,
obligations and responsibilities of the Sub-Servicer shall terminate (without
payment of any penalty or termination fee) (i) upon the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and the disposition of all REO Property and the remittance of all
funds due hereunder; (ii) by mutual consent of the Sub-Servicer and the Master
Servicer in writing; (iii) at the option of any purchaser of the Mortgage Loans
pursuant to the Pooling and Servicing Agreement; or (iv) upon termination of the
Pooling and Servicing Agreement. Any notice of termination shall be in writing
and delivered to the Sub-Servicer as provided in Section 6.05 of this Agreement
and Sub-Servicer shall be paid all accrued and outstanding Sub-Servicing Fees as
of the date of termination.
Section 5.02 Termination of Duties with Respect to Specially
Serviced Mortgage Loans.
At such time as any of the Mortgage Loans becomes a Specially
Serviced Mortgage Loan, the obligations and duties of the Sub-Servicer set forth
herein with respect to such Specially Serviced Mortgage Loan that are required
to be performed by the Special Servicer under the Pooling and Servicing
Agreement shall cease; provided, however, that although duties of the
Sub-Servicer shall terminate to the extent transferred to the Special Servicer,
the Sub-Servicer shall retain the Mortgage Loan on its computer system so long
as the Mortgage Loan is a Specially Serviced Mortgage Loan. If a Mortgage Loan
is retained on the computer systems of the Sub-Servicer, the Mortgage Loan shall
be subject to the rights of the Special Servicer while the Mortgage Loan is a
Specially Serviced Mortgage Loan. In addition, the Sub-Servicer shall continue
to perform all of its duties hereunder with respect to a Specially Serviced
Mortgage Loan that are not required to be performed by the Special Servicer
pursuant to the Pooling and Servicing Agreement. If a Specially Serviced
Mortgage Loan becomes a Corrected Mortgage Loan, the Sub-Servicer shall commence
servicing such Corrected Mortgage Loan pursuant to the terms of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.
Prior to termination of the Sub-Servicer's responsibilities and
duties under this Agreement pursuant to Section 3.04, 4.01 or 5.01 of this
Agreement, the Master Servicer shall (i) succeed to and assume all of the
Sub-Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor which satisfies the criteria for a
successor Sub-Servicer in Section 3.02 of this Agreement and which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Sub-Servicer under this Agreement accruing following the termination of the
Sub-Servicer's responsibilities, duties and liabilities under this Agreement.
Section 6.02 Financial Statements.
The Sub-Servicer shall, upon request, deliver to the Master Servicer
its most recent financial statements and, upon the request of the Master
Servicer, make available such other records relevant to the performance of the
Sub-Servicer's obligations hereunder as may be reasonably requested by the
Master Servicer to the extent required to enable the Master Servicer to fulfill
its related obligations under the Pooling and Servicing Agreement.
Section 6.03 Closing.
The closing for the commencement of the Sub-Servicer to perform the
servicing responsibilities under this Agreement with respect to the Mortgage
Loans shall take place on the Closing Date. At the Master Servicer's option, the
closing shall be either by telephone, confirmed by letter or wire as the parties
shall agree, or conducted in person, at such place as the parties shall agree.
The closing shall be subject to the execution and delivery of the
Pooling and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following
documents:
(a) to be provided by the Sub-Servicer and CSI:
(1) this Agreement executed by the Sub-Servicer and
acknowledged by CSI; and
(b) to be provided by the Master Servicer:
(1) this Agreement executed by the Master Servicer;
(2) the Mortgage Loan Schedule, with one copy to be attached
to each counterpart of this Agreement as Exhibit A hereto; and
(3) the Pooling and Servicing Agreement substantially in the
form of Exhibit B hereto.
Section 6.05 Notices.
All demands, notices, consents and communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered to the
following addresses:
(i) if to the Master Servicer:
KeyCorp Real Estate Capital Markets, Inc.
911 Main Street, Suite 1500
Kansas City, Missouri 64105
Facsimile No.: (816) 204-2290
Attention: Bryan Nitcher
with a copy to:
Key Bank National Association
127 Public Square
Cleveland, Ohio 44114
Facsimile No.: (216) 689-5681
Attention: Robert C. Bowes
with an additional copy to:
Polsinelli Shalton Flanigan Suelthaus PC
700 W. 47th Street, Suite 1000
Kansas City, Missouri 64112
Facsimile No.: (816) 753-1536
Attention: Kraig Kohring
and
(ii) if to the Sub-Servicer:
Column Financial, Inc.
11 Madison Avenue
5th Floor
New York, New York 10010
Attention: Larry Goland
Attention: George Winckler
and
Column Financial, Inc.
3414 Peachtree Road N.E.
Suite 1140
Atlanta, Georgia 30326
Attention: Bob Barnes
with copies to:
Casey McCutcheon, Esq.
Legal & Compliance Department
Telecopy No.: (917) 326-8433
and
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
Attention: Patrick T. Quinn
and
(iii) if to CSI:
Centerline Servicing Inc.
5221 N. O'Connor Blvd.
Suite 600
Irving, Texas 75039
Attention: John Lloyd
with a copy to:
Centerline Servicing Inc.
5221 N. O'Connor Blvd.
Suite 600
Irving, Texas 75039
Attention: Jenna Unell
or such other address as may hereafter be furnished to the other party by like
notice.
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction as to the Mortgage Loans shall not
invalidate or render unenforceable such provision in any other jurisdiction. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good faith, to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 6.08 Governing Law.
In order to, among other things, conform to the governing law
provision of the Pooling and Servicing Agreement, this Agreement shall be
construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the laws of the State of New York, except to the extent
preempted by federal law.
Section 6.09 Protection of Confidential Information.
The Sub-Servicer shall keep confidential and shall not divulge to
any party other than CSI, the Master Servicer, the Depositor, the Special
Servicer or the Trustee, without the Master Servicer's prior written consent,
any information pertaining to the Mortgage Loans or any borrower thereunder,
except to the extent that it is appropriate for the Sub-Servicer to do so in
working with third-party vendors, property inspectors, legal counsel, auditors,
taxing authorities or other governmental agencies or in accordance with this
Agreement.
Section 6.10 Intention of the Parties.
It is the intention of the parties that the Master Servicer is
conveying, and the Sub-Servicer is receiving, only a contract for servicing the
Mortgage Loans. Accordingly, the parties hereby acknowledge that the Trustee
remains the sole and absolute beneficial owner of the Mortgage Loans and all
rights related thereto.
Section 6.11 Third Party Beneficiary.
Each of the Depositor and the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under this Agreement;
provided that, except to the extent the Trustee or its designee assumes the
obligations of the Master Servicer hereunder as contemplated by Section 6.12 of
this Agreement, none of the Depositor, the Trustee, the Trust Fund, any
successor Master Servicer, or any Certificateholder shall have any duties under
this Agreement or any liabilities arising herefrom.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Sub-Servicer and the Master Servicer and the respective
successors and assigns of the Sub-Servicer and the Master Servicer. This
Agreement shall not be assigned, pledged or hypothecated by the Sub-Servicer to
a third party except as otherwise specifically provided for herein. If the
Master Servicer shall for any reason no longer act in such capacity under the
Pooling and Servicing Agreement, the Trustee or its designee may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer under this Agreement.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties
regarding the subject matter hereof and may not be varied except by a written
agreement conforming to the provisions of Section 6.18 of this Agreement. All
prior negotiations or representations of the parties are merged into this
Agreement and shall have no force or effect unless expressly stated herein.
Section 6.17 Further Agreement.
The Sub-Servicer and the Master Servicer each agree to execute and
deliver to the other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the
Sub-Servicer and the Master Servicer. No amendment to the Pooling and Servicing
Agreement that purports to change the rights or obligations of the Sub-Servicer
hereunder shall be effective against the Sub-Servicer without the express
written consent of the Sub-Servicer.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Sub-Servicer and the Master Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the date first above written.
COLUMN FINANCIAL, INC.
By: /s/ Jeffrey A. Altabef
--------------------------
Name: Jeffrey A. Altabef
Title: Vice President
By: /s/ John Lloyd
-----------------
Name: John Lloyd
Title: Director
EXHIBIT A
MORTGAGE LOAN SCHEDULE
SUB-SERVICING FEE RATE
LOAN # PROPERTY NAME CUT-OFF BALANCE (BASIS POINTS)
-----------------------------------------------------------------------------------------
13 Grove Square Shopping Center $26,000,000.00 1.25
15 Hillside Village Shopping Center $23,200,000.00 1.25
18 Egizii Portfolio $21,865,362.71 1.25
23 Champions Park Apartments $15,300,000.00 1.25
25 The Madison Hotel $14,687,681.46 1.25
26 University Square $13,750,000.00 1.25
28 University Centre I $13,400,000.00 1.25
30 Champions Centre Apartments $13,000,000.00 1.25
32 Temescal Plaza $12,700,000.00 1.25
34 565 Metro Place $12,235,000.00 1.25
36 RV Dakota Ridge RV Park $5,980,000.00 1.25
37 RV Elk Meadows RV Park $3,941,500.00 1.25
38 RV Spruce Lake RV Park $2,047,500.00 1.25
52 Northridge Shopping Center $8,800,000.00 1.25
84 Design Market $4,987,672.16 1.25
88 City Center MOB $4,662,000.00 1.25
91 Prominence Shops at Liberty Park $4,252,176.98 1.25
113 Comfort Inn & Suites Mansfield $3,467,310.40 1.25
118 Santa Fe Trails Apartments $3,230,000.00 1.25
119 Sleep Inn & Suites Metairie $3,093,518.63 1.25
142 Providence Plaza & Shoppes at Midtown $2,395,787.95 1.25
143 Dunn Commons $2,354,081.92 1.25
154 3100 University Boulevard $2,048,015.71 1.25
179 Office Depot Greensboro $1,600,000.00 1.25
13 Grove Square Shopping Center $26,000,000.00 1.25
15 Hillside Village Shopping Center $23,200,000.00 1.25
18 Egizii Portfolio $21,865,362.71 1.25
23 Champions Park Apartments $15,300,000.00 1.25
25 The Madison Hotel $14,687,681.46 1.25
26 University Square $13,750,000.00 1.25
28 University Centre I $13,400,000.00 1.25
30 Champions Centre Apartments $13,000,000.00 1.25
EXHIBIT B
POOLING AND SERVICING AGREEMENT
See Exhibit 4.1
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer
and
COLUMN FINANCIAL, INC.,
Sub-Servicer
SUB-SERVICING AGREEMENT
Dated as of September 1, 2007
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2007-C4
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents....................................................
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.......................................
Section 3.02 Merger or Consolidation of the Sub-Servicer...................
Section 3.03 Limitation on Liability of the Sub-Servicer and Others........
Section 3.04 Sub-Servicer's Resignation....................................
Section 3.05 No Transfer or Assignment of Servicing........................
Section 3.06 Indemnification...............................................
Section 3.07 Sub-Servicer Compensation with Respect to the Mortgage
Loans........................................................
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.............................................
Section 4.02 Waiver of Defaults............................................
Section 4.03 Other Remedies of Master Servicer.............................
ARTICLE V
TERMINATION
Section 5.01 Termination...................................................
Section 5.02 Termination of Duties with Respect to Specially Serviced
Mortgage Loans...............................................
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.................................
Section 6.02 Financial Statements..........................................
Section 6.03 Closing.......................................................
Section 6.04 Closing Documents.............................................
Section 6.05 Notices.......................................................
Section 6.06 Severability Clause...........................................
Section 6.07 Counterparts..................................................
Section 6.08 Governing Law.................................................
Section 6.09 Protection of Confidential Information........................
Section 6.10 Intention of the Parties......................................
Section 6.11 Third Party Beneficiary.......................................
Section 6.12 Successors and Assigns; Assignment of Agreement...............
Section 6.13 Waivers.......................................................
Section 6.14 Exhibits......................................................
Section 6.15 General Interpretive Principles...............................
Section 6.16 Complete Agreement............................................
Section 6.17 Further Agreement.............................................
Section 6.18 Amendments....................................................
EXHIBIT A MORTGAGE LOAN SCHEDULE A-1
EXHIBIT B MASTER SERVICER REPRESENTATIONS
AND WARRANTIES B-1
EXHIBIT C FORM OF SECRETARY'S CERTIFICATE C-1
EXHIBIT D POOLING AND SERVICING AGREEMENT D-1
This is a Sub-Servicing Agreement (the "Agreement"), dated as of
September 1, 2007, by and between WACHOVIA BANK, NATIONAL ASSOCIATION, having an
office at 8739 Research Drive URP4, Charlotte, North Carolina 28262, and its
successors and assigns (the "Master Servicer"), and COLUMN FINANCIAL, INC.,
having an office at 3414 Peachtree Road N.E., Suite 1140, Atlanta, Georgia 30326
(the "Sub-Servicer").
W I T N E S S E T H:
WHEREAS, CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., as
Depositor (the "Depositor"), KEYCORP REAL ESTATE CAPITAL MARKETS, INC., as
Master Servicer No. 1 (the "KRECM Master Servicer"), the Master Servicer, as
Master Servicer No. 2, MIDLAND LOAN SERVICES, INC., as Master Servicer No. 3,
NCB, FSB, as Master Servicer No. 4, ING CLARION PARTNERS, LLC, as Special
Servicer No. 1 (the "Special Servicer"), NATIONAL CONSUMER COOPERATIVE BANK, as
Special Servicer No. 2 and WELLS FARGO BANK, N.A., as Trustee (the "Trustee")
have entered into that certain Pooling and Servicing Agreement dated as of
September 1, 2007, as amended, modified and restated from time to time (the
"Pooling and Servicing Agreement"), whereby the Master Servicer shall master
service certain mortgage loans on behalf of the Trustee;
WHEREAS, Section 3.22 of the Pooling and Servicing Agreement permits
the Master Servicer to enter into agreements with sub-servicers for the
sub-servicing of mortgage loans; and
WHEREAS, the Master Servicer desires to enter into a contract with
the Sub-Servicer with respect to certain mortgage loans (the "Mortgage Loans")
identified on Exhibit A hereto (the "Mortgage Loan Schedule").
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Master Servicer and
the Sub-Servicer hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms
not otherwise defined herein shall have the meanings set forth in the Pooling
and Servicing Agreement. As used herein, the following terms have the meanings
assigned to them in this Section 1.01:
"CSI": Centerline Servicing Inc.
"Mortgage Loans": As defined in the recitals hereto.
"Mortgage Loan Schedule": As defined in the recitals hereto.
"Servicing Fee": With respect to the Mortgage Loans, the fee payable
pursuant to Section 3.07 of this Agreement.
"Sub-Servicing Fee Rate": With respect to the Mortgage Loans the
rate set forth on the Mortgage Loan Schedule.
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents.
The Master Servicer, by execution and delivery of this Agreement,
does hereby contract with the Sub-Servicer, subject to the terms of this
Agreement, for the servicing of the Mortgage Loans. On and after the Closing
Date, the Sub-Servicer shall hold any portion of the Servicing Files (including
without limitation, any original letter of credit to the extent such letter of
credit has been delivered to the Sub-Servicer) or the Mortgage Files in the
possession of the Sub-Servicer in trust by the Sub-Servicer, on behalf of the
Master Servicer for the benefit of the Trustee. The Sub-Servicer's possession of
any portion of the Servicing Files or the Mortgage Files shall be at the will of
the Master Servicer and the Trustee for the sole purpose of facilitating the
servicing or the supervision of servicing of the Mortgage Loans pursuant to this
Agreement, and such retention and possession by the Sub-Servicer shall be in a
custodial capacity only. Any portion of the Servicing Files or the Mortgage
Files retained by the Sub-Servicer shall be identified to reflect clearly the
ownership of the Mortgage Loans by the Trustee. The Sub-Servicer shall release
from its custody any Mortgage Files retained by it only in accordance with this
Agreement and the Pooling and Servicing Agreement.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.
(a) The Sub-Servicer, as an independent contractor, shall service
and administer pursuant to this Agreement on behalf of the Master Servicer and
the Trustee in the best interests of and for the benefit of the
Certificateholders in accordance with any and all applicable laws and the terms
of this Agreement and the Mortgage Loans and to the extent consistent with the
foregoing with the Servicing Standard under the Pooling and Servicing Agreement.
For the avoidance of doubt, the Sub-Servicer's obligations and rights under this
Agreement are expressly limited to the Mortgage Loans set forth in Exhibit A.
Without in any way limiting the generality of this Section 3.01(a), the parties
hereto hereby acknowledge that, except as otherwise set forth herein, any or all
of the Sub-Servicer's obligations hereunder may be performed in the
Sub-Servicer's name by CSI, provided, however, the Sub-Servicer shall remain
liable to the Master Servicer under this Agreement for performance of its duties
hereunder whether or not such duties are performed by the Sub-Servicer.
(b) The Sub-Servicer shall perform, on behalf of the Master
Servicer, all of the obligations of the Master Servicer (with respect to the
Mortgage Loans subject to this Agreement) as set forth in those sections of the
Pooling and Servicing Agreement incorporated herein pursuant to Section 3.01(c)
of this Agreement (the "Incorporated Sections"), as modified by Section 3.01(c)
of this Agreement, and the Master Servicer shall have the same rights with
respect to the Sub-Servicer that the Trustee, the Depositor, the Underwriters,
the Rating Agencies and the Certificateholders (including, without limitation,
the right of the Special Servicer to direct the Master Servicer during certain
periods) have with respect to the Master Servicer under the Pooling and
Servicing Agreement to the extent that the Sub-Servicer is acting on behalf of
the Master Servicer hereunder and except as otherwise set forth herein. Without
limiting the foregoing, and subject to Section 3.21 of the Pooling and Servicing
Agreement as modified herein, the Sub-Servicer shall service and administer the
Mortgage Loans so long as no such mortgage loan is then a Specially Serviced
Mortgage Loan; provided, however, that the Sub-Servicer shall, under instruction
from the Special Servicer or the Master Servicer, deliver certain statements and
documents reasonably requested by the Special Servicer regarding information
held by the Sub-Servicer and continue to cooperate with the Special Servicer by
providing reasonably requested information regarding the servicing of any such
Specially Serviced Mortgage Loan. All references herein to the respective duties
of the Sub-Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21 of the Pooling and
Servicing Agreement, as modified herein and to the Special Servicer's rights to
service Specially Serviced Mortgage Loans. Except as otherwise set forth below,
for purposes of this Agreement, references to the Trustee, the Depositor, the
Underwriters, the Rating Agencies, and the Certificateholders in the
Incorporated Sections shall be deemed to be references to the Master Servicer
hereunder and references to the Master Servicer in the Incorporated Sections
shall be deemed to be references to the Sub-Servicer hereunder (such
modification of the Incorporated Sections shall be referred to herein as the
"References Modification").
(c) The following Sections of the Pooling and Servicing Agreement
listed herein and only such Sections, unless otherwise provided in this Section
3.01(c) of this Agreement, are hereby incorporated herein by reference as if
fully set forth herein, and, for purposes of this Agreement, in addition to the
References Modification, are hereby further modified as set forth below (and to
avoid any doubt, any modification is limited to its specific terms and the
section is otherwise fully incorporated herein without limitation):
(1) Sections 2.05 and 2.06. The Sub-Servicer makes each of the
representations and warranties, other than the representations set
forth in Section 2.06(a)(viii) of the Pooling and Servicing
Agreement, that are made by the Special Servicer in Section 3.24 of
the Pooling and Servicing Agreement, except that reference to
"Special Servicer" therein shall be a reference to the Sub-Servicer.
The Sub-Servicer is authorized to transact business in each state in
which a Mortgaged Property is located, if and to the extent required
by applicable law. The Master Servicer makes each of the
representations and warranties set forth on Exhibit B hereto to the
Sub-Servicer.
(2) The Sub-Servicer shall process any requests for releases
of Reserve Funds (or draws under any Letter of Credit delivered in
lieu of Reserve Funds) with respect to the Mortgage Loans that are
Performing Mortgage Loans the Master Servicer is responsible for
processing pursuant to the Pooling and Servicing Agreement and then
recommend to the Master Servicer the amount of any related
disbursement from the Reserve Account (or, as applicable, the amount
of any related draw under such Letter of Credit), which
recommendation will be non-binding. The Master Servicer shall make
disbursements from the Reserve Account (or draw under the applicable
Letter of Credit, as the case may be) within three Business Days
following receipt of the Sub-Servicer's recommendation with respect
to such request.
(3) Section 3.07(d). In lieu of the Freddie Mac, Fannie Mae or
HUD requirements with respect to the fidelity bond and insurance
policies described in Section 3.07(d) of the Pooling and Servicing
Agreement, the Sub-Servicer shall cause CSI to maintain CSI's
current insurance policies and fidelity bonds without any reduction
in coverages or amounts and as otherwise is consistent with this
Agreement. The fidelity bond and insurance policies required
hereunder shall also name the Master Servicer as additional insured
and loss payee; the Master Servicer shall designate in writing to
the Sub-Servicer how its name shall appear prior to the
Sub-Servicer's obligation to provide any certificate of insurance.
The Sub-Servicer shall provide a certificate of insurance to the
Master Servicer evidencing fidelity bond and insurance coverage
required hereunder on or before March 31 of each year, beginning
March 31, 2008.
(4) Section 3.08. The Sub-Servicer shall collect all
assumption or transfer of interest requests or subordinate financing
requests and related documentation from the related Borrower and
then forward to the Special Servicer (with a copy to the Master
Servicer) such requests and related documentation. Any assumption
fees, transfer of interest fees and any other fees or charges (other
than application fees) relating to an assumption or transfer of
interest request with respect to the Mortgage Loans shall be paid as
follows: 50% to the Special Servicer, 25% to the Master Servicer and
25% to the Sub-Servicer. The Sub-Servicer shall be entitled to 100%
of any application fees relating to an assumption or transfer of
interest request with respect to the Mortgage Loans.
(5) Section 3.11. Section 3.11 of the Pooling and Servicing
Agreement is not incorporated herein. The sole compensation payable
to the Sub-Servicer with respect to the Mortgage Loans is set forth
in Section 3.07 of this Agreement and, as applicable, under Section
3.01(c)(4), Section 3.01(c)(9) and Section 3.01(c)(10) with respect
to fees and charges relating to assumption, transfer of interest,
defeasance, modification, waiver and/or amendment requests with
respect to the Mortgage Loans.
(6) Sections 3.12(a) (b) (c) (d). With respect to the Mortgage
Loans, the Sub-Servicer shall not prepare any report referred to in
the Pooling and Servicing Agreement or complete any operating
statements or rent rolls in respect of the related Mortgaged
Properties, except that the Sub-Servicer shall complete all
inspection reports and shall promptly (but in no event later than
twenty (20) days after the related inspection or collection, as
applicable) forward to the Master Servicer an electronic copy of all
photographs included therein and all operating statements, rent
rolls and other period financial statements collected by the
Sub-Servicer. The Sub-Servicer will afford the Master Servicer
reasonable cooperation with respect to any report that the
Sub-Servicer prepares or receives in connection with Section 3.12(a)
and Section 3.12(b) (c) and (d) of the Pooling and Servicing
Agreement, by providing such information as the Master Servicer may
reasonably request in connection with the Master Servicer's
responsibilities in Section 3.12(a) (c) and (d) and Section 3.12(b)
of the Pooling and Servicing Agreement. The Sub-Servicer shall (at
its own expense) at all times use diligent, commercially reasonable
efforts to obtain and deliver to the Master Servicer within five (5)
Business Days of receipt by the Sub-Servicer, the annual and
quarterly operating statements, rent rolls and other related period
financial statements required to be delivered by the Mortgagor
pursuant to the terms of the loan documents for the Mortgage Loans.
(7) Section 3.15. With respect to the Mortgage Loans serviced
hereunder, the Sub-Servicer shall fulfill all of the obligations of
the Master Servicer required pursuant to Section 3.15 and Section
6.05 of the Pooling and Servicing Agreement as if the Sub-Servicer
were the Master Servicer thereunder; provided, however, that the
Sub-Servicer shall not be required to make available information or
reports prepared by or entered into by the Special Servicer to the
extent such information and reports are not in the possession of the
Sub-Servicer. Upon reasonable prior notice, the Sub-Servicer shall
provide to the Master Servicer, during normal business hours, access
to its books and records related to the servicing of the Mortgage
Loans serviced hereunder (including, at the option of the Master
Servicer, an on-site review).
(8) Section 3.19(f). With respect to the Mortgage Loans
serviced hereunder, the Sub-Servicer shall fulfill all of the
obligations of the Master Servicer required pursuant to Section
3.19(f) of the Pooling and Servicing Agreement as if the
Sub-Servicer were the Master Servicer thereunder. The Sub-Servicer
shall promptly notify the Master Servicer upon satisfaction of the
requirements of Section 3.19(f) of the Pooling and Servicing
Agreement. Any defeasance fees with respect to the Mortgage Loans
shall be assessed by the Sub-Servicer and paid as follows: 50% to
the Master Servicer and 50% to the Sub-Servicer.
(9) Section 3.20. With respect to the Mortgage Loans, the
Sub-Servicer shall neither approve nor consent to a modification,
waiver or amendment of any term of a Mortgage Loan (other than as
set forth in Section 3.01(c)(4) of this Agreement and other than
with respect to those actions specified in Section 3.20(e) of the
Pooling and Servicing Agreement) nor waive any restrictions
contained in the Mortgage on such modifications, waivers or
amendments, without the prior written consent of the Special
Servicer. The Sub-Servicer shall collect from the related Borrower
all requests for modifications, waivers or amendments with respect
to the Mortgage Loans and all related documentation and then forward
to the Special Servicer (with a copy to the Master Servicer) such
requests and documentation. Any fees relating to requests for
modifications, waivers or amendments with respect to the Mortgage
Loans shall be paid as follows: 50% to the Special Servicer, 25% to
the Master Servicer and 25% to the Sub-Servicer.
(10) Section 3.21(a). The Sub-Servicer shall promptly notify
the Master Servicer of any event or circumstance, of which the
Sub-Servicer becomes aware, that the Sub-Servicer deems to
constitute a Servicing Transfer Event with respect to the Mortgage
Loans; provided, however, that in no event shall the Sub-Servicer be
under any obligation to perform calculations or to monitor financial
covenants with respect to the Mortgage Loans for the purposes of
determining the existence of any such event or circumstance. The
determination as to whether a Servicing Transfer Event has occurred
shall be made by the Master Servicer or the Special Servicer. Upon
receipt by the Master Servicer of notice from the Special Servicer
that a Specially Serviced Mortgage Loan has become a Corrected
Mortgage Loan, the Master Servicer shall promptly give the
Sub-Servicer notice thereof and the obligation of the Sub-Servicer
to service and administer such mortgage loan shall resume.
(11) Section 3.22. References to the Master Servicer shall not
be deemed to be references to the Sub-Servicer for purposes of
Section 3.22. Each and every one of the terms and conditions of
Section 3.22 shall be enforceable against the Sub-Servicer in
accordance with the terms thereof and each requirement for the
Sub-Servicing Agreement set forth in Section 3.22 is hereby
incorporated into the Agreement. In addition, the parties hereto
hereby acknowledge that the Sub-Servicer has retained CSI to
sub-service the Mortgage Loans. Subject to Section 3.22 of the
Pooling and Servicing Agreement, the Sub-Servicer may not transfer
sub-servicing of the Mortgage Loans to an entity other than CSI
without the consent of the Master Servicer, whose consent shall not
be unreasonably withheld. In addition, to the extent the
sub-servicing arrangement between the Sub-Servicer and CSI with
respect to the Mortgage Loans is terminated for any reason, the
Sub-Servicer shall retain an entity listed on S&P's Select Servicer
List as a U.S. Commercial Mortgage Master Servicer to sub-service
the Mortgage Loans.
(12) Section 12.01. To the extent applicable to the
Sub-Servicer's duties and responsibilities set forth in this Section
3.01(c), the Sub-Servicer shall provide (and shall cause CSI to
provide) any and all good faith cooperation to the Depositor to
enable it to comply with Regulation AB.
(13) Section 12.03. Section 12.03 is incorporated in its
entirety to the extent applicable to the Sub-Servicer's duties and
responsibilities set forth in this Section 3.01(c).
(14) Section 12.05 is incorporated herein in its entirety to
the extent applicable to the Sub-Servicer's duties and
responsibilities set forth in this Section 3.01(c).
(15) Section 12.06 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c), the Sub-Servicer shall fulfill (and
shall cause CSI to fulfill) all of the obligations of the Master
Servicer under Section 12.06 of the Pooling and Servicing Agreement
(including, without limitation, the preparation of the Additional
Form 10-D Disclosure). The Sub-Servicer shall provide (and shall
cause CSI to provide) to the Master Servicer copies of any items
prepared by the Sub-Servicer (or by CSI, as the case may be)
pursuant to Section 12.06 of the Pooling and Servicing Agreement no
later than five Business Days prior to the date when such items are
required to be provided to the Trust under the Pooling and Servicing
Agreement.
(16) Section 12.07 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c), the Sub-Servicer shall provide (and
shall cause CSI to provide) to the Trust all the reports required of
an Additional Servicer under Section 12.07 of the Pooling and
Servicing Agreement. To the extent that the Sub-Servicer (or CSI) is
aware of any information that would constitute Additional Form 10-K
Disclosure, the Sub-Servicer shall provide (and shall cause CSI to
provide, as applicable) such information to the Trustee and the
Depositor within the timeframe that the Master Servicer is required
to provide such information to the Trust under the Pooling and
Servicing Agreement. The Sub-Servicer shall provide (and shall cause
CSI to provide) to the Master Servicer copies of any items prepared
by the Sub-Servicer (or by CSI, as the case may be) pursuant to
Section 12.07 of the Pooling and Servicing Agreement no later than
five Business Days prior to the date when such items are required to
be provided to the Trust under the Pooling and Servicing Agreement.
The Sub-Servicer hereby acknowledges that the purpose of Section
12.07 of the Pooling and Servicing Agreement is to facilitate the
compliance by the Depositor with Regulation AB.
(17) Section 12.08 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c) (and regardless of whether the
Sub-Servicer or CSI, as the case may be, meets the criteria set
forth in the definition of "Servicing Function Participant" under
the Pooling and Servicing Agreement), the Sub-Servicer shall provide
(and shall cause CSI to provide) to the Trust a Performance
Certification in the form set forth on Exhibit M-3 to the Pooling
and Servicing Agreement within the timeframe set forth under the
Pooling and Servicing Agreement. This certification may be relied
upon by the Trustee and the Depositor in performing their respective
obligations under Section 12.08 of the Pooling and Servicing
Agreement but may not be otherwise used, circulated, or relied upon
by any person other than the Trustee or the Depositor; provided that
the Sub-Servicer shall provide (and shall cause CSI to provide) to
the Master Servicer a copy of such Performance Certification no
later than five Business Days prior to the date when such
certification is required to be provided to the Trust under the
Pooling and Servicing Agreement.
(18) Section 12.09 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c), the Sub-Servicer shall fulfill (and
shall cause CSI to fulfill) all of the obligations of the Master
Servicer under Section 12.09 of the Pooling and Servicing Agreement
(including, without limitation, the preparation of the Form 8-K
Disclosure Information with respect to any Reportable Event). The
Sub-Servicer shall notify the parties to the Pooling and Servicing
Agreement of any Reportable Event within the timeframe set forth in
Section 12.09 of the Pooling and Servicing Agreement. The
Sub-Servicer shall provide (and shall cause CSI to provide) to the
Master Servicer copies of any items prepared by the Sub-Servicer (or
by CSI, as the case may be) pursuant to Section 12.09 of the Pooling
and Servicing Agreement no later than five Business Days prior to
the date when such items are required to be provided to the Trust
under the Pooling and Servicing Agreement.
(19) Section 12.10 is incorporated herein. To the extent
applicable to the Sub-Servicer's duties and responsibilities set
forth in this Section 3.01(c), the Sub-Servicer shall provide any
and all good faith cooperation to the Trustee and the Depositor to
enable the Depositor to satisfy its Exchange Act reporting
obligations in respect of the Trust.
(20) Section 12.11 is incorporated herein. The Sub-Servicer
shall provide (and shall cause CSI to provide) to the Trust an
Officer's Certificate containing the certifications required of an
Additional Servicer under Section 12.11 of the Pooling and Servicing
Agreement. The Sub-Servicer shall provide (and shall cause CSI to
provide) to the Master Servicer copies of any such Officer's
Certificate prepared by the Sub-Servicer (or by CSI, as the case may
be) pursuant to Section 12.11 of the Pooling and Servicing Agreement
no later than five Business Days prior to the date when such
Officer's Certificate is required to be provided to the Trust under
the Pooling and Servicing Agreement.
(21) Section 12.12 is incorporated herein. The Sub-Servicer
shall provide (and shall cause CSI to provide) to all parties
specified in Section 12.12 of the Pooling and Servicing Agreement
the reports required of Servicing Function Participant under Section
12.12 of the Pooling and Servicing Agreement (regardless of whether
the Sub-Servicer or CSI, as the case may be, meets the criteria set
forth in the definition of "Servicing Function Participant" under
the Pooling and Servicing Agreement) within the timeframe set forth
under the Pooling and Servicing Agreement. The Sub-Servicer shall
provide (and shall cause CSI to provide) to the Master Servicer
copies of any reports prepared by the Sub-Servicer (or by CSI, as
the case may be) pursuant to Section 12.12 of the Pooling and
Servicing Agreement no later than five Business Days prior to the
date when such reports are required to be provided to the Trust
under the Pooling and Servicing Agreement.
(22) Section 12.13 is incorporated herein. The Sub-Servicer
shall deliver (and shall cause CSI to deliver) the annual
independent public accountants' attestation referenced in Section
12.13 of the Pooling and Servicing Agreement (regardless of whether
the Sub-Servicer or CSI, as the case may be, meets the criteria set
forth in the definition of "Servicing Function Participant" under
the Pooling and Servicing Agreement) within the timeframe that such
attestation is required to be delivered to the Trustee and the
Depositor under the Pooling and Servicing Agreement. The
Sub-Servicer shall provide (and shall cause CSI to provide) to the
Master Servicer a copy of such attestation no later than five
Business Days prior to the date when such attestation is required to
be provided to the Trust under the Pooling and Servicing Agreement.
(23) Section 12.14 is incorporated herein. References to the
Servicing Function Participant shall be references to the
Sub-Servicer (and, to the extent applicable to CSI's performance of
the Sub-Servicer's duties hereunder, to CSI). References to each of
the Trustee, the Master Servicer and the Special Servicer shall
remain a reference to each such party.
Section 3.02 Merger or Consolidation of the Sub-Servicer.
The Sub-Servicer shall keep in full effect its existence, rights and
franchises as a duly formed business entity formed under the laws of the state
of its organization.
Any Person into which the Sub-Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Sub-Servicer shall be a party, or any Person
succeeding to the business of the Sub-Servicer, shall be the successor of the
Sub-Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person (i) must be a company whose business includes the servicing of mortgage
loans and shall be authorized to transact business in the state or states in
which the related Mortgaged Property it is to service is situated if and to the
extent required by applicable law, (ii) must be acceptable to the Master
Servicer (in its reasonable discretion), and (iii) shall assume in writing the
obligations of the Sub-Servicer under this Agreement.
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
Neither the Sub-Servicer nor any of the officers, employees or
agents of the Sub-Servicer shall be under any liability to the Master Servicer
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement or as set forth in any writing from the Master
Servicer, or for errors in judgment; provided, however, that this provision
shall not protect the Sub-Servicer or any such person against liability to the
Master Servicer under Section 3.06, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement,
or against any expense or liability specifically required to be borne by such
party without right of reimbursement pursuant to the terms hereof. The
Sub-Servicer and any officer, employee or agent of the Sub-Servicer may rely in
good faith on any document of any kind that appears on its face to be properly
executed and submitted by any Person respecting any matters arising hereunder.
The Sub-Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its duties under this
Agreement and, unless it is specifically required to bear the costs of such
legal action or, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Sub-Servicer may, with the consent of the
Master Servicer, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Master Servicer will be liable and the Sub-Servicer shall be entitled to be
reimbursed therefor from the Master Servicer upon written demand.
Section 3.04 Sub-Servicer's Resignation.
The Sub-Servicer may resign from the obligations and duties hereby
imposed on it at any time with thirty (30) days' written notice to the Master
Servicer.
Section 3.05 No Transfer or Assignment of Servicing.
With respect to the responsibility of the Sub-Servicer to service
Mortgage Loans hereunder, the Sub-Servicer acknowledges that the Master Servicer
has acted in reliance upon the adequacy of the Sub-Servicer's servicing program,
its integrity, financial standing and reputation and the continuance thereof.
Without in any way limiting the generality of this Section 3.05, the parties
hereto hereby acknowledge that, except as otherwise set forth herein, any or all
of the Sub-Servicer's obligations hereunder may be performed in the
Sub-Servicer's name by CSI and that the Sub-Servicer shall neither assign nor
transfer this Agreement or the servicing hereunder nor delegate its rights or
duties hereunder or any portion thereof to any party other than CSI without the
prior written approval of the Master Servicer (which approval shall not be
unreasonably withheld or delayed).
Section 3.06 Indemnification.
Notwithstanding the provisions of Section 3.03, the Master Servicer
and any director, officer, agent or employee of the Master Servicer shall be
indemnified and held harmless by the Sub-Servicer against any loss, liability or
expense in connection with any legal action incurred (i) by reason of either the
Sub-Servicer's or CSI's willful misconduct, bad faith or negligence in the
performance of or reckless disregard of the Sub-Servicer's duties hereunder or
(ii) by reason of any breach by the Sub-Servicer or CSI of any representation,
warranty, covenant or agreement made by the Sub-Servicer herein.
The Sub-Servicer and any director, officer, employee or agent of the
Sub-Servicer shall be indemnified and held harmless by the Master Servicer
against any loss, liability or expense in connection with any legal action
incurred (i) by reason of the Master Servicer's willful misconduct, bad faith or
negligence in the performance of or reckless disregard of its duties hereunder
or (ii) by reason of any breach of any representation, warranty, covenant or
agreement made by the Master Servicer herein; provided that the Master Servicer
shall have no liability to the Sub-Servicer for any action taken at the
direction of the Sub-Servicer (or for refraining, in good faith, from the taking
of any such action) in accordance with Section 3.01(c)(2). The Master Servicer
agrees to use reasonable efforts to pursue the Trust Fund for indemnification
against any loss, liability or expense incurred by a Sub-Servicer in connection
with the performance of the Sub-Servicer's duties and obligations under this
Agreement as to which the Pooling and Servicing Agreement grants to the Master
Servicer a right to indemnification from the Trust Fund, and the Sub-Servicer
shall be entitled to any such sums actually received by the Master Servicer.
Each indemnified party hereunder shall give prompt written notice to
the indemnitor of matters which may give rise to the liability of such
indemnitor hereunder; provided, however, that failure to give such notice shall
not relieve the indemnitor of any liability except to the extent of actual
prejudice.
This Section 3.06 shall survive the termination of this Agreement
and the termination or resignation of the Master Servicer or the Sub-Servicer.
Section 3.07 Sub-Servicer Compensation with Respect to the Mortgage
Loans.
The Sub-Servicer shall be entitled to a Sub-Servicing Fee with
respect to each Mortgage Loan in an amount equal to the product of (i) the
Sub-Servicing Fee Rate, on a per annum basis and (ii) the outstanding principal
balance of the related Mortgage Loan; provided, however, that any such fee shall
be payable only to the extent that collections of interest on the Mortgage Loan
is sufficient to cover the Sub-Servicing Fee to the extent that the related
Mortgage Loan is not then a Specially Serviced Mortgage Loan or a defeased Loan.
The related Sub-Servicing Fee shall be payable on the Servicer
Remittance Date from monthly payments from the related Borrower and shall
include a report indicating (i) the then outstanding principal balance of the
related Mortgage Loan, (ii) the loan paid to date, (iii) the principal and
interest payment received by the Master Servicer on the related Mortgage Loan
and (iv) the amount of the related Sub-Servicing Fee.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
"Event of Default," wherever used herein, unless the context
otherwise requires, means any one of the following events:
(a) any failure on the part of the Sub-Servicer to (1) observe or
perform its obligations and duties with respect to a Mortgage Loan in strict
accordance with Section 3.01(c) of this Agreement which continue unremedied for
a period of five (5) days after the date on which notice of breach, requiring
the same to be remedied, shall be given to the Sub-Servicer by the Master
Servicer, or (2) in any way comply with Section 3.01(c)(13) through Section
3.01(c)(24) of this Agreement, provided that such failure was during the period
when the Trust Fund was subject to the reporting requirements of the Exchange
Act; or
(b) any breach on the part of the Sub-Servicer of any representation
or warranty contained in Section 3.24(a) of the Pooling and Servicing Agreement
as modified by Section 3.01(c)(1) of this Agreement which materially and
adversely affects the interests of the Master Servicer or any Class of
Certificateholders and which continues unremedied for a period of thirty (30)
days after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Sub-Servicer by the Master Servicer; or
(c) an event of default with respect to the Master Servicer under
Section 7.01 of the Pooling and Servicing Agreement, which event of default
occurred as a direct result of the failure of the Sub-Servicer to perform any
obligation hereunder; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Sub-Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or
(e) the Sub-Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Sub-Servicer or of or
relating to all or substantially all of its property; or
(f) the Sub-Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(g) the Sub-Servicer receives actual knowledge that (1) a Rating
Agency has qualified, downgraded or withdrawn its rating or ratings on one or
more Classes of Certificates, or (2) that a Rating Agency has placed one or more
Classes of Certificates on "rating watch negative" in contemplation of a rating
downgrade or withdrawal (and such "rating watch negative" placement shall not
have been withdrawn by such Rating Agency within sixty (60) days of the date the
Sub-Servicer obtained such actual knowledge), in the case of either of clauses
(1) or (2), citing servicing concerns with the Sub-Servicer or CSI as the sole
or material factor in such action; or
(h) the Sub-Servicer shall assign or transfer or attempt to assign
or transfer all or part of its rights and obligations hereunder, except as
permitted by this Agreement.
If any Event of Default shall occur and be continuing, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied within any applicable cure period, the Master Servicer may terminate,
by notice in writing to the Sub-Servicer, all of the rights and obligations of
the Sub-Servicer as sub-servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof. From and after the receipt by the Sub-Servicer
of such written notice, all authority and power of the Sub-Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer pursuant to and under this Section, and,
without limitation, the Master Servicer is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Sub-Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Sub-Servicer agrees that if it is terminated pursuant to this
Section, it shall promptly (and in any event no later than five (5) Business
Days subsequent to its receipt of the notice of termination) provide the Master
Servicer with all documents and records (including, without limitation, those in
electronic form) requested by it to enable it to assume the Sub-Servicer's
functions hereunder, and shall cooperate with the Master Servicer in effecting
the termination of the Sub-Servicer's responsibilities and rights hereunder and
the assumption by a successor of the Sub-Servicer's obligations hereunder. All
accrued and unpaid Sub-Servicing Fees as of the date of termination shall be
paid to the Sub-Servicer.
Section 4.02 Waiver of Defaults.
The Master Servicer may waive any default by the Sub-Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 4.03 Other Remedies of Master Servicer.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Master Servicer, in addition
to the rights specified in Section 4.01, shall have the right, in its own name,
to take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies (including the institution and prosecution of
all judicial, administrative and other proceedings and the filing of proofs of
claim and debt in connection therewith). Except as otherwise expressly provided
in this Agreement, no remedy provided for by this Agreement shall be exclusive
of any other remedy, and each and every remedy shall be cumulative and in
addition to any other remedy and no delay or omission to exercise any right or
remedy shall impair any such right or remedy or shall be deemed to be a waiver
of any Event of Default.
ARTICLE V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein, the rights,
obligations and responsibilities of the Sub-Servicer shall terminate (without
payment of any penalty or termination fee) (i) upon the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan and the disposition of all REO Property and the remittance of all
funds due hereunder; (ii) by mutual consent of the Sub-Servicer and the Master
Servicer in writing; (iii) at the option of any purchaser of the Mortgage Loans
pursuant to the Pooling and Servicing Agreement; or (iv) upon termination of the
Pooling and Servicing Agreement. Any notice of termination shall be in writing
and delivered to the Sub-Servicer as provided in Section 6.05 of this Agreement
and Sub-Servicer shall be paid all accrued and outstanding Sub-Servicing Fees as
of the date of termination.
Section 5.02 Termination of Duties with Respect to Specially
Serviced Mortgage Loans.
At such time as any of the Mortgage Loans becomes a Specially
Serviced Mortgage Loan, the obligations and duties of the Sub-Servicer set forth
herein with respect to such Specially Serviced Mortgage Loan that are required
to be performed by the Special Servicer under the Pooling and Servicing
Agreement shall cease; provided, however, that although duties of the
Sub-Servicer shall terminate to the extent transferred to the Special Servicer,
the Sub-Servicer shall retain the Mortgage Loan on its computer system so long
as the Mortgage Loan is a Specially Serviced Mortgage Loan. If a Mortgage Loan
is retained on the computer systems of the Sub-Servicer, the Mortgage Loan shall
be subject to the rights of the Special Servicer while the Mortgage Loan is a
Specially Serviced Mortgage Loan. In addition, the Sub-Servicer shall continue
to perform all of its duties hereunder with respect to a Specially Serviced
Mortgage Loan that are not required to be performed by the Special Servicer
pursuant to the Pooling and Servicing Agreement. If a Specially Serviced
Mortgage Loan becomes a Corrected Mortgage Loan, the Sub-Servicer shall commence
servicing such Corrected Mortgage Loan pursuant to the terms of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.
Prior to termination of the Sub-Servicer's responsibilities and
duties under this Agreement pursuant to Section 3.04, 4.01 or 5.01 of this
Agreement, the Master Servicer shall (i) succeed to and assume all of the
Sub-Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor which satisfies the criteria for a
successor Sub-Servicer in Section 3.02 of this Agreement and which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Sub-Servicer under this Agreement accruing following the termination of the
Sub-Servicer's responsibilities, duties and liabilities under this Agreement.
Section 6.02 Financial Statements.
The Sub-Servicer shall, upon request, deliver to the Master Servicer
its most recent financial statements and, upon the request of the Master
Servicer, make available such other records relevant to the performance of the
Sub-Servicer's obligations hereunder as may be reasonably requested by the
Master Servicer to the extent required to enable the Master Servicer to fulfill
its related obligations under the Pooling and Servicing Agreement.
Section 6.03 Closing.
The closing for the commencement of the Sub-Servicer to perform the
servicing responsibilities under this Agreement with respect to the Mortgage
Loans shall take place on the Closing Date. At the Master Servicer's option, the
closing shall be either by telephone, confirmed by letter or wire as the parties
shall agree, or conducted in person, at such place as the parties shall agree.
The closing shall be subject to the execution and delivery of the
Pooling and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following
documents:
(a) to be provided by the Sub-Servicer and CSI:
(1) this Agreement executed by the Sub-Servicer and
acknowledged by CSI;
(2) a Secretary's Certificate of the Sub-Servicer and a
Secretary's Certificate of CSI, in each case dated the Closing Date
and substantially in the form of Exhibit C hereto, including all
attachments thereto; and
(b) to be provided by the Master Servicer:
(1) this Agreement executed by the Master Servicer;
(2) the Mortgage Loan Schedule, with one copy to be attached
to each counterpart of this Agreement as Exhibit A hereto; and
(3) the Pooling and Servicing Agreement substantially in the
form of Exhibit D hereto.
Section 6.05 Notices.
All demands, notices, consents and communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered to the
following addresses:
(i) if to the Master Servicer:
Wachovia Bank, National Association
8739 Research Drive URP4
Charlotte, North Carolina 28262
Attention: Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2007-C4
Telecopy No.: (704) 715-0036
with copies to:
Lar Carlsten, Esq.
c/o Wachovia Bank Corporation
301 S. College St. TW-30
Charlotte, NC 28288-0630
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2007-C4
and
(ii) if to the Sub-Servicer:
Column Financial, Inc.
11 Madison Avenue
5th Floor
New York, New York 10010
Attention: Larry Goland
Attention: George Winckler
and
Column Financial, Inc.
3414 Peachtree Road N.E.
Suite 1140
Atlanta, Georgia 30326
Attention: Bob Barnes
with copies to:
Casey McCutcheon, Esq.
Legal & Compliance Department
Telecopy No.: (917) 326-8433
and
Cadwalader, Wickersham & Taft LLP
One World Financial Center
New York, New York 10281
Attention: Patrick T. Quinn
and
(iii) if to CSI:
Centerline Servicing Inc.
5221 N. O'Connor Blvd.
Suite 600
Irving, Texas 75039
Attention: John Lloyd
with a copy to:
Centerline Servicing Inc.
5221 N. O'Connor Blvd.
Suite 600
Irving, Texas 75039
Attention: Jenna Unell
or such other address as may hereafter be furnished to the other party by
like notice.
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction as to the Mortgage Loans shall not
invalidate or render unenforceable such provision in any other jurisdiction. If
the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate, in good faith, to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 6.08 Governing Law.
In order to, among other things, conform to the governing law
provision of the Pooling and Servicing Agreement, this Agreement shall be
construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the laws of the State of New York, except to the extent
preempted by federal law.
Section 6.09 Protection of Confidential Information.
The Sub-Servicer shall keep confidential and shall not divulge to
any party other than CSI, the Master Servicer, the Depositor, the Special
Servicer or the Trustee, without the Master Servicer's prior written consent,
any information pertaining to the Mortgage Loans or any borrower thereunder,
except to the extent that it is appropriate for the Sub-Servicer to do so in
working with third-party vendors, property inspectors, legal counsel, auditors,
taxing authorities or other governmental agencies or in accordance with this
Agreement.
Section 6.10 Intention of the Parties.
It is the intention of the parties that the Master Servicer is
conveying, and the Sub-Servicer is receiving, only a contract for servicing the
Mortgage Loans. Accordingly, the parties hereby acknowledge that the Trustee
remains the sole and absolute beneficial owner of the Mortgage Loans and all
rights related thereto.
Section 6.11 Third Party Beneficiary.
Each of the Depositor and the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under this Agreement;
provided that, except to the extent the Trustee or its designee assumes the
obligations of the Master Servicer hereunder as contemplated by Section 6.12 of
this Agreement, none of the Depositor, the Trustee, the Trust Fund, any
successor Master Servicer, or any Certificateholder shall have any duties under
this Agreement or any liabilities arising herefrom.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Sub-Servicer and the Master Servicer and the respective
successors and assigns of the Sub-Servicer and the Master Servicer. This
Agreement shall not be assigned, pledged or hypothecated by the Sub-Servicer to
a third party except as otherwise specifically provided for herein. If the
Master Servicer shall for any reason no longer act in such capacity under the
Pooling and Servicing Agreement, the Trustee or its designee may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer under this Agreement.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties
regarding the subject matter hereof and may not be varied except by a written
agreement conforming to the provisions of Section 6.18 of this Agreement. All
prior negotiations or representations of the parties are merged into this
Agreement and shall have no force or effect unless expressly stated herein.
Section 6.17 Further Agreement.
The Sub-Servicer and the Master Servicer each agree to execute and
deliver to the other such reasonable and appropriate additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the
Sub-Servicer and the Master Servicer. No amendment to the Pooling and Servicing
Agreement that purports to change the rights or obligations of the Sub-Servicer
hereunder shall be effective against the Sub-Servicer without the express
written consent of the Sub-Servicer.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Sub-Servicer and the Master Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the date first above written.
COLUMN FINANCIAL, INC.
By: /s/ Jeffrey A. Altabef
-------------------------------------
Name: Jeffrey A. Altabef
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer,
By: /s/ Scott R. Rossbach
-------------------------------------
Name: Scott R. Rossbach
Title: Vice President
Acknowledged and agreed:
CENTERLINE SERVICING INC.
By: /s/ John Lloyd
----------------------------
Name: John Lloyd
Title: Director
EXHIBIT A
MORTGAGE LOAN SCHEDULE
SUB-SERVICING FEE
RATE
LOAN # PROPERTY NAME CUT-OFF BALANCE (BASIS POINTS)
--------------------------------------------------------------------------------
11 Sweetwater Crossings $29,000,000.00 0.00
76 Drug Mart Plaza A - ROLLUP $5,775,000.00 0.00
EXHIBIT B
MASTER SERVICER REPRESENTATIONS AND WARRANTIES
(1) The Master Servicer is a national banking association duly organized,
validly existing and in good standing under the laws of the United States, and
the Master Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its obligations
under this Agreement, except where the failure to so qualify or comply would not
have a material adverse effect on the ability of the Master Servicer to perform
its obligations hereunder;
(2) The execution and delivery of this Agreement by the Master Servicer,
and the performance and compliance with the terms of this Agreement by the
Master Servicer, will not (A) violate the Master Servicer's certificate of
incorporation or charter and by-laws or other comparable organizational
documents or (B) constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party or
which is applicable to it or any of its assets, or (C) result in the violation
of any law, rule, regulation, order, judgment or decree binding on the Master
Servicer which, in the case of either (B) or (C), is likely to materially and
adversely affect the Master Servicer's ability to perform hereunder;
(3) This Agreement, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid, legal and binding obligation of
the Master Servicer, enforceable against the Master Servicer in accordance with
the terms hereof, except as such enforcement may be limited by (A) applicable
bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium
and other laws relating to or affecting creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(4) The Master Servicer is not in violation with respect to any law, any
order or decree of any court, or any order, regulation or demand of any federal,
state, municipal or governmental agency, which violations are reasonably likely
to have consequences that would materially and adversely affect (A) the
financial condition or operations of the Master Servicer or its properties taken
as a whole or (B) its ability to perform its duties and obligations hereunder;
(5) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer which, if determined adversely
to the Master Servicer, would prohibit the Master Servicer from entering into
this Agreement or, in the Master Servicer's reasonable judgment, is likely to
materially and adversely affect the ability of the Master Servicer to perform
its obligations under this Agreement;
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Master Servicer of, or compliance by the Master Servicer
with, this Agreement or the consummation of the Master Servicer's transactions
contemplated by this Agreement, except for any consent, approval, authorization
or order which has been obtained or cannot be obtained prior to the actual
performance by the Master Servicer of its obligations under this Agreement, or
which, if not obtained, would not have a materially adverse effect on the
ability of the Master Servicer to perform its obligations hereunder;
(7) The Master Servicer has full corporate power and authority to enter
into and perform in accordance with this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly executed and
delivered this Agreement; and
(8) Each officer and employee of the Master Servicer that has
responsibilities concerning the servicing and administration of Mortgage Loans
is covered by errors and omissions insurance and the fidelity bond in the
amounts and with the coverage required by Section 3.07(c) of the Pooling and
Servicing Agreement.
EXHIBIT C
FORM OF SECRETARY'S CERTIFICATE
I, ______________________________, hereby certify that I am the duly
elected __________________________ of [Column Financial, Inc.][Centerline
Servicing Inc.] (the "Sub-Servicer"), a corporation organized under the laws of
Delaware and further as follows:
1. Attached hereto as Exhibit A is a full, true and accurate copy
of the Sub-Servicer's Certificate of Incorporation. The
Certificate of Incorporation is in full force and effect as of
the date hereof and, to the best of my knowledge no action has
been taken or contemplated looking toward any such amendment.
2. Attached hereto as Exhibit B is a full, true and accurate copy
of the By-laws of the Sub-Servicer as in effect on
_______________, and at all times subsequent thereto.
3. Attached hereto as Exhibit 3 is an original certificate of
good standing of the Sub-Servicer, dated as of _____, 200__,
and no event has occurred since the date thereof which would
impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete
copy of the Resolution adopted by the Board of Directors of
the Sub-Servicer authorizing the Sub-Servicer to execute and
deliver, among other documents, the Sub-Servicing Agreement,
dated as of _________, 200__ (the "Sub-Servicing Agreement"),
by and between the Sub-Servicer and Wachovia Bank, National
Association, and such resolutions are in effect on the date
hereof and have been in effect without amendment, waiver,
rescission or modification since _______________.
5. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Sub-Servicer, signed the
Sub-Servicing Agreement and any other document delivered prior
hereto or on the date hereof in connection with the
Sub-Servicing Agreement, was, at the respective times of such
signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the
Sub-Servicer, who holds the office set forth opposite his or
her name on Exhibit 5, and the signatures of such persons
appearing on such documents are their genuine signatures.
IN WITNESS WHEREOF, I have hereunto signed my name.
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