Exhibit 4.3
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
__________________________________________
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 11, 2003
__________________________________________
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TABLE OF CONTENTS
Page
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Section 1. Transactions on or Prior to the Closing Date...................1
Section 2. Closing Date Actions...........................................1
Section 3. Conveyance of Mortgage Loans...................................2
Section 4. Depositor's Conditions to Closing..............................7
Section 5. Seller's Conditions to Closing.................................8
Section 6. Representations and Warranties of Seller.......................9
Section 7. Obligations of Seller.........................................11
Section 8. Crossed Mortgage Loans........................................14
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance....................................................14
Section 10. Representations and Warranties of Depositor...................15
Section 11. Survival of Certain Representations, Warranties and Covenants.15
Section 12. Transaction Expenses..........................................15
Section 13. Recording Costs...............................................16
Section 14. Notices.......................................................16
Section 15. Examination of Mortgage Files.................................16
Section 16. Successors....................................................16
Section 17. Governing Law.................................................17
Section 18. Severability..................................................17
Section 19. Further Assurances............................................17
Section 20. Counterparts..................................................17
Section 21. Treatment as Security Agreement...............................17
Section 22. Recordation of Agreement......................................18
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for KeyBank Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and
Warranties
Exhibit A Representations and Warranties of Seller Regarding the
Mortgage Loans
Exhibit B Form of Lost Mortgage Note Affidavit
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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of September 11, 2003, is made by and between KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition
have the meanings ascribed to them in the Schedule of Transaction Terms
attached hereto as Schedule I, which is incorporated herein by this reference,
or, if not defined therein, in the Pooling and Servicing Agreement.
II. On the Closing Date, and on the terms set forth
herein, Seller has agreed to sell to Depositor and Depositor has agreed to
purchase from Seller the mortgage loans identified on the schedule (the
"Mortgage Loan Schedule") annexed hereto as Schedule II (each such mortgage
loan, a "Mortgage Loan" and, collectively, the "Mortgage Loans"). Depositor
intends to deposit the Mortgage Loans and other assets into a trust fund (the
"Trust Fund") created pursuant to the Pooling and Servicing Agreement and to
cause the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with
respect to each Mortgage Loan to Xxxxx Fargo Bank Minnesota, N.A., as trustee
(the "Trustee"), against receipt by Seller of a trust receipt, pursuant to an
arrangement between Seller and the Trustee.
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 Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or such other location as agreed upon between the
parties hereto. On the Closing Date, the following actions shall take place in
sequential order on the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price (as defined herein). The Mortgage Loan
Purchase Price shall be paid by Depositor to Seller by wire transfer in
immediately available funds to an account designated by Seller on or
prior to the Closing Date (or, by such other method as shall be mutually
acceptable to Depositor and Seller). The "Mortgage Loan Purchase Price"
paid by Depositor shall be equal to the amount that the Depositor and the
Seller have mutually agreed upon as the "Net Securitization
Proceeds/Fees" under "KeyBank Share" in the settlement statement (which
amount includes, without limitation,
accrued interest and is less those costs and expenses to be paid by the
Seller, including those expenses to be paid pursuant to Section 12
hereof).
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, without recourse except as provided
herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule; and (ii)
all property of Seller described in Section 21(b) of this Agreement,
including, without limitation, (A) all scheduled payments of interest and
principal due on or with respect to the Mortgage Loans after the Cut-off Date
and (B) all other payments of interest, principal or yield maintenance charges
received on or with respect to the Mortgage Loans after the Cut-off Date,
other than any such payments of interest or principal or yield maintenance
charges that were due on or prior to the Cut-off Date. The Mortgage File for
each Mortgage Loan shall consist of the following documents:
(a) each original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the
form of Exhibit B hereto and a true and complete copy of the Note), bearing,
or accompanied by, all prior and intervening endorsements or assignments
showing a complete chain of endorsement or assignment from the Mortgage Loan
Originator either in blank or to the Seller, and further endorsed by the
Seller, on its face or by allonge attached thereto, without recourse, in blank
or to the order of the Trustee in the following form: "Pay to the order of
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C4, without recourse, representation or
warranty, express or implied";
(b) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to the Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(c) an original assignment of Mortgage, in recordable form (except
for any missing recording information and, if applicable, completion of the
name of the assignee), from the Seller (or the Mortgage Loan Originator),
either in blank or to "Xxxxx Fargo Bank Minnesota, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-C4";
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(d) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof from
the Mortgage Loan Originator of the Loan to the Seller, in each case in the
form submitted for recording or, if recorded, with evidence of recording
thereon;
(e) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form
(except for any missing recording information and, if applicable, completion
of the name of the assignee), from the Seller (or the Mortgage Loan
Originator), either in blank or to "Xxxxx Fargo Bank Minnesota, N.A., as
trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-C4";
(f) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the Mortgage
Loan Originator to the Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from the Seller (or the
Mortgage Loan Originator), either in blank or to "Xxxxx Fargo Bank Minnesota,
N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-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);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence of recording thereon or in the form
submitted for recording, in those instances where the terms or provisions of
the Mortgage, Note or any related security document have been modified or the
Mortgage Loan has been assumed;
(i) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or subsequent
to the issuance of such policy), or if the policy has not yet been issued, a
binding written commitment (which may be a pro forma or specimen title
insurance policy which has been accepted or approved in writing by the related
title insurance company) or interim binder that is marked as binding and
countersigned by the title company, insuring the priority of the Mortgage as a
first lien on the related Mortgaged Property, relating to such Mortgage Loan;
(j) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(k) certified or other copies of all UCC Financing Statements and
continuation statements which show the filing or recording thereof or copies
thereof in the form submitted for filing or recording sufficient to perfect
(and maintain the perfection of) the security interest held by the Mortgage
Loan Originator (and each assignee prior to the Trustee) in and to the
personality of the Borrower at the Mortgaged Property that is described in the
related Mortgage or a separate security agreement, and original UCC Financing
Statement assignments in a form suitable for filing or recording, sufficient
to transfer such security interest to the Trustee;
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(l) the original or copy of the power of attorney (with evidence of
recording thereon) granted by the Borrower if the Mortgage, Note or other
document or instrument referred to above was not signed by the Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar agreement
relating to such other debt, if any, including any mezzanine loan documents or
preferred equity documents, and a copy of the promissory note relating to such
other debt (if such other debt is also secured by the related Mortgage);
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related cash collateral control agreement
or lock-box control agreement, as applicable, and a copy of the UCC Financing
Statements, if any, submitted for filing with respect to the Seller's security
interest in the Cash Collateral Accounts and Lock-Box Accounts and all funds
contained therein (together with UCC Financing Statement assignments in a form
suitable for filing or recording, sufficient to transfer such security
interest to the Trustee on behalf of the Certificateholders);
(o) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related Lock-Box
Agreement or Cash Collateral Agreement (if separate from the related Mortgage
and Loan Agreement);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loan;
(q) any related environmental insurance policies and any
environmental guaranty or indemnity agreements or copies thereof; and
(r) the original ground lease, if any, and any amendments,
modifications or extensions thereto, and any ground lease estoppel, or a copy
of any of the foregoing.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the
documents and/or instruments required to be delivered pursuant to clauses (b),
(d), (h), (k) (other than assignments of UCC Financing Statements to be
recorded or filed in accordance with the transfer contemplated by this
Agreement), (l) and (n) (other than assignments of UCC Financing Statements to
be recorded or filed in accordance with the transfer contemplated by this
Agreement) above with evidence of recording or filing thereon on the Closing
Date, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, the Seller: (i) shall deliver, or cause to be delivered, to the
Trustee a duplicate original or true copy of such document certified by the
applicable public recording or filing office, the applicable title insurance
company or the Seller to be a true and complete duplicate original or copy of
the original thereof submitted for recording or filing; and (ii) shall
deliver, or cause to be delivered, to the Trustee either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate public recording or filing office to be a true and complete copy
of the original thereof submitted for recording or filing), with evidence of
recording or filing thereon, within 120 days of the Closing Date, which period
may be extended up to two times, in each case for an additional period of 45
days (provided that the Seller, as certified in writing to the Trustee prior
to each such 45-day extension, is in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy). Compliance
with this paragraph will satisfy the Seller's delivery requirements under this
Section 3 with respect to the subject document(s).
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Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the
documents and/or instruments required to be delivered pursuant to clauses (b),
(d), (h), (k) (other than assignments of UCC Financing Statements to be
recorded or filed other than in accordance with the transfer contemplated by
this Agreement), (l) and (n) (other than assignments of UCC Financing
Statements to be recorded or filed in accordance with the transfer
contemplated by this Agreement) above with evidence of recording or filing
thereon, for any other reason, including without limitation, that such
non-delivered document has been lost, the delivery requirements of this
Agreement shall be deemed to have been satisfied and such non-delivered
document shall be deemed to have been included in the related Mortgage File if
a photocopy of such non-delivered document (with evidence of recording or
filing thereon and certified by the appropriate recording or filing office to
be a true and complete copy of the original thereof as filed or recorded) is
delivered to the Trustee on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver any UCC Financing Statement assignment with the filing information of
the related UCC Financing Statement with respect to any Mortgage Loan, solely
because such UCC Financing Statement has not been returned by the public
filing office where such UCC Financing Statement has been delivered for
filing, the Seller shall so notify the Trustee and shall not be in breach of
its obligations with respect to such delivery, provided that the Seller
promptly forwards such UCC Financing Statement to the Trustee upon its return,
together with the related original UCC Financing Statement assignment in a
form appropriate for filing.
The Seller may, at its sole cost and expense, but is not obligated
to, engage a third party contractor to prepare or complete in proper form for
filing or recording any and all assignments of Mortgage, assignments of
Assignments of Leases and assignments of UCC Financing Statements to the
Trustee to be delivered pursuant to clauses (c), (e), (k) and (n) above
(collectively, the "Assignments"), to submit the Assignments for filing and
recording, as the case may be, in the applicable public filing and recording
offices and to deliver those Assignments to the Trustee or its designee as
those Assignments (or certified copies thereof) are received from the
applicable filing and recording offices with evidence of such filing or
recording indicated thereon. In the event the Seller engages a third party
contractor as contemplated in the immediately preceding sentence, the rights,
duties and obligations of the Seller pursuant to this Agreement remain binding
on such Seller; and, if the Seller does not engage a third party as
contemplated by the immediately preceding sentence, then the Seller will still
be liable for recording and filing fees and expenses of the Assignments as and
to the extent contemplated by Section 13 hereof.
Within ten (10) Business Days after the Closing Date, the Seller
shall deliver the Servicer Files with respect to each of the Mortgage Loans to
the Master Servicer under the Pooling and Servicing Agreement on behalf of the
Trustee in trust for the benefit of the Certificateholders. Each such Servicer
File shall contain all documents and records in the Seller's possession
relating to such applicable Mortgage Loans (including reserve and escrow
agreements, rent rolls, leases, environmental and engineering reports,
third-party underwriting reports, appraisals, surveys, legal opinions,
estoppels, financial statements and any other information provided by the
respective Borrower from time to time, but excluding any attorney/client
privileged communications and documents prepared by the Seller or any of its
Affiliates solely for internal communication (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
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documents which are required to be a part of the related Mortgage File in
accordance with the definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of the Closing
Date, the Seller shall cause to be prepared, executed and delivered to the
issuer of each such letter of credit such notices, assignments and
acknowledgements as are required under such letter of credit to assign,
without recourse, to, and vest in, the Trustee (whether by actual assignment
or by amendment of the letter of credit) the Seller's rights as the
beneficiary thereof and drawing party thereunder. The designated beneficiary
under each letter of credit referred to in the preceding sentence shall be the
Trustee.
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File", if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of
such document or instrument in the Mortgage File for any of such Crossed
Mortgage Loans and the inclusion of a copy of such original or certified copy
in each of the Mortgage Files for the other Crossed Mortgage Loans in such
group of Crossed Mortgage Loans, shall be deemed the inclusion of such
original or certified copy, as the case may be, in the Mortgage File for each
such Crossed Mortgage Loan.
The Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in
the name of the Seller or any other name, to be transferred to the Master
Servicer (or a Sub-Servicer at the direction of the Master Servicer) for
deposit into Servicing Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage 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 Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of records and documents that
are not required to be delivered hereunder by Seller, shall immediately vest
in Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after
Seller's receipt thereof to the Master Servicer via wire transfer for deposit
by the Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to the Depositor, as
provided herein, as a sale of the Mortgage Loans to the Depositor in exchange
for the consideration specified in Section 2 hereof. In connection with the
foregoing, Seller shall cause all of its financial and accounting records to
reflect such transfer as a sale (as opposed to a secured loan). Regardless of
its treatment of the transfer of the Mortgage Loans to the Depositor under
GAAP, Seller shall at all times following the Closing Date cause all of its
records and
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financial statements and any relevant consolidated financial statements of any
direct or indirect parent to clearly reflect that the Mortgage Loans have been
transferred to the Depositor and are no longer available to satisfy claims of
Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with
Depositor's ownership (or the ownership by any of the Depositor's assignees)
of the Mortgage Loans. Except for actions that are the express responsibility
of another party hereunder or under the Pooling and Servicing Agreement, and
further except for actions that Seller is expressly permitted to complete
subsequent to the Closing Date, Seller shall, on or before the Closing Date,
take all actions required under applicable law to effectuate the transfer of
the Mortgage Loans by Seller to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of the Seller required to be performed
by it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects; all
of the representations and warranties of Seller under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to the Seller or any of the Mortgage Loans
and related Mortgage Files which, with notice or the passage of time, would
constitute a material default under this Agreement; and Depositor shall have
received certificates to the foregoing effect signed by authorized officers of
Seller.
(b) Depositor, or if directed by Depositor, the Trustee or the
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable
to the Depositor and the Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the proviso to the first sentence
of Section 1 of this Agreement, which shall have been delivered to and
held by the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of the Seller confirming its representations
and warranties set forth in Section 6 as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by the Depositor;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by the Depositor in order for the Depositor to
perform any of it obligations or satisfy any of the conditions on its
part to be
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performed or satisfied pursuant to any sale of Mortgage Loans by the
Depositor as contemplated herein.
(c) The Seller shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply
with at or before the Closing and shall have the ability to perform or comply
with all duties, obligations, provisions and terms which it is required to
perform or comply with after the Closing.
(d) The Seller shall have delivered to the Trustee, on or before the
Closing Date, five limited powers of attorney in favor of the Trustee and
Special Servicer empowering the Trustee and, in the event of the failure or
incapacity of the Trustee, the Special Servicer, to record, at the expense of
the Seller, any Mortgage Loan Documents required to be recorded and any
intervening assignments with evidence of recording thereon that are required
to be included in the Mortgage Files. The Seller shall reasonably cooperate
with the Trustee and the Special Servicer in connection with any additional
powers of attorney 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:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(B) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
(c) The Depositor shall have performed or complied with all other
terms and conditions of this Agreement which it is required to perform or
comply with at or before the Closing and shall have the ability to perform or
comply with all duties, obligations, provisions and terms which it is required
to perform or comply with after Closing.
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Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a national
banking association in good standing under the laws of the United States.
Seller has conducted and is conducting its business so as to comply in all
material respects with all applicable statutes and regulations of regulatory
bodies or agencies having jurisdiction over it, except where the failure so to
comply would not have a materially adverse effect on the performance by Seller
of this Agreement, and there is no charge, investigation, action, suit or
proceeding before or by any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Seller, threatened, which is
reasonably likely to materially and adversely affect the performance by Seller
of this Agreement or the consummation of transactions contemplated by this
Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans owned by it and to execute and deliver
this Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents executed and
delivered by Seller in connection herewith). Seller has duly authorized the
execution, delivery and performance of this Agreement (and all agreements and
documents executed and delivered by Seller in connection herewith), and has
duly executed and delivered this Agreement (and all agreements and documents
executed and delivered by Seller in connection herewith). This Agreement (and
each agreement and document executed and delivered by Seller in connection
herewith), assuming due authorization, execution and delivery thereof by each
other party thereto, constitutes the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, fraudulent transfer, insolvency, reorganization,
receivership, moratorium or other laws relating to or affecting the rights of
creditors generally, by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and conditions
of this Agreement by Seller, will (A) conflict with or result in a breach of
any of the terms, conditions or provisions of Seller's organizational
documents; (B) conflict with, result in a breach of, or constitute a default
or result in an acceleration under, any agreement or instrument to which
Seller is now a party or by which it (or any of its properties) is bound if
compliance therewith is necessary (1) to ensure the enforceability of this
Agreement or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller in
connection herewith); (C) conflict with or result in a breach of any legal
restriction if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith); (D) result in the violation of
any law, rule, regulation, order, judgment or decree to which Seller or its
property is subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith); or (E) result in the creation or
imposition of any lien, charge or encumbrance that would have a material
adverse effect upon Seller's ability to perform its duties and obligations
under this Agreement (or any agreement or document executed
9
and delivered by Seller in connection herewith), or materially impair the
ability of the Depositor to realize on the Mortgage Loans owned by Seller.
(iv) Seller is solvent and the sale of Mortgage Loans (1) will not
cause Seller to become insolvent and (2) is not intended by Seller to hinder,
delay or defraud any of its present or future creditors. After giving effect
to its transfer of the Mortgage Loans, as provided herein, the value of
Seller's assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of Seller's debts and obligations, including
contingent and unliquidated debts and obligations of Seller, and Seller will
not be left with unreasonably small assets or capital with which to engage in
and conduct its business. Seller does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature. No proceedings looking toward liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body having
jurisdiction or regulatory authority over Seller is required for (A) Seller's
execution, delivery and performance of this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith), (B)
Seller's transfer and assignment of the Mortgage Loans, or (C) the
consummation by Seller of the transactions contemplated by this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or, to the extent so required, such consent, approval,
authorization, order, registration, filing or notice has been obtained, made
or given (as applicable), except that Seller may not be duly qualified to
transact business as a foreign corporation or licensed in one or more states
if such qualification or licensing is not necessary to ensure the
enforceability of this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of the
Mortgage Loans owned by it constitutes at least fair consideration and
reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller contained
in this Agreement (or any agreement or document executed and delivered by
Seller in connection herewith).
(viii) There are no actions, suits 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.
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(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation in
connection with the sale of the Mortgage Loans to the Depositor hereunder
except for (A) the reimbursement of expenses as described herein or otherwise
in connection with the transactions described in Section 2 hereof and (B) the
commissions or compensation owed to the Underwriters or the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and adversely
affect the ability of Seller to perform its obligations under this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions to such representations and warranties set
forth on Schedule V hereto, are true and correct in all material respects as
of the date hereof with respect to the Mortgage Loans identified on Schedule
II.
(b) The Seller hereby agrees that it shall be deemed to make, as
of the date of substitution, to and for the benefit of 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 "most recent due date for the subject
Replacement Mortgage Loan on or before the date of substitution"). From and
after the date of substitution, each Replacement Mortgage Loan, if any, shall
be deemed to constitute a "Mortgage Loan" hereunder for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Notes and notwithstanding subsequent termination
of this Agreement or the Pooling and Servicing Agreement. The representations
and warranties contained in or required to be made by Seller pursuant to
Section 6 of this Agreement shall not be impaired by any review or examination
of the Mortgage Files or other documents evidencing or relating to the
Mortgage Loans or any failure on the part of Depositor to review or examine
such documents and shall inure to the benefit of the initial transferee of the
Mortgage Loans from Depositor including, without limitation, the Trustee for
the benefit of the Holders of the Certificates, notwithstanding any
restrictive or qualified endorsement on any Note, assignment of Mortgage or
reassignment of Assignment of Leases but shall not inure to the benefit of any
subsequent transferee thereafter.
If the Seller receives notice of a breach of any of the
representations or warranties contained in Exhibit A hereto and made by the
Seller with respect to the Mortgage Loans listed on Schedule II hereto, as of
the date hereof in Section 6(a)(xii) or as of the Closing Date pursuant to
Section 4(b)(iii), or with respect to any Replacement Mortgage Loan, as of the
date of substitution pursuant to Section 6(b) (in any such case, a "Breach"),
or receives notice that (A) any document required to be included in the
Mortgage File related to any Mortgage Loan is not in the Trustee's possession
within the time period required herein or (B) such document has not been
properly executed or is otherwise defective on its face (the circumstances in
the foregoing clauses (A) and (B), in each case, a "Defect" (including the
"Defects" described below) in the related Mortgage File), and if such Breach
or Defect, as the case may be, materially and adversely affects the value of
any Mortgage Loan or the interests of the
11
Certificateholders therein (any Breach or Defect that materially and adversely
affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, a "Material Breach" and a "Material Defect",
respectively), then the Seller shall, upon request of the Depositor, the
Trustee, the Master Servicer or the Special Servicer, not later than the
earlier of 90 days from the receipt by the Seller of such request (subject to
the second succeeding paragraph, the "Initial Resolution Period"): (i) cure
such Breach or Defect in all material respects; (ii) repurchase the affected
Mortgage Loan at 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 Master Servicer for
deposit into the Collection Account any Substitution Shortfall Amount (as
defined in the Pooling and Servicing Agreement) in connection therewith;
provided, however, that if (i) such Material Breach or Material Defect is
capable of being cured but not within the Initial Resolution Period, (ii) such
Material Breach or Material Defect does not cause the related Mortgage Loan
not to be a "qualified mortgage" (within the meaning of Section 860G(a)(3) of
the Code), (iii) the Seller has commenced and is diligently proceeding with
the cure of such Material Breach or Material Defect within the Initial
Resolution Period and (iv) the Seller has delivered to the Rating Agencies,
the Master Servicer and the Trustee an Officer's Certificate that describes
the reasons that the cure was not effected within the Initial Resolution
Period and the actions that it proposes to take to effect the cure and that
states that it anticipates the cure will be effected within the additional
90-day period, then the Seller shall have an additional 90 days to cure such
material Defect or material Breach. With respect to any substitution of one or
more Qualified Substitute Mortgage Loans for 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 related date of
substitution shall be part of the Trust Fund; and (C) scheduled payments of
principal and interest due with respect to such Qualified Substitute Mortgage
Loan(s) on or prior to the related date of substitution shall not be part of
the Trust Fund, and the Seller shall be entitled to receive such payments
promptly following receipt by the Master Servicer or Special Servicer, as
applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in and the value of a
Mortgage Loan: (a) the absence from the Mortgage File of the original signed
Note, unless the Mortgage File contains a signed lost note affidavit and
indemnity; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a certified copy of
the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for
recordation, or a copy of the Mortgage and the related recording information;
(c) the absence from the Mortgage File of the item called for by clause (i) of
the definition of Mortgage File in Section 3; (d) the absence from the
Mortgage File of any intervening assignments required to create an effective
assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of the intervening assignment and a
certificate stating that the original intervening assignments were sent for
recordation; or (e) the absence from the Servicer File of any required
original letter of credit (as required in the proviso to 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; or (f) the absence from the
Mortgage File of the original or a copy of any required ground lease.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed to materially and adversely
12
affect the interest of Certificateholders therein and the Initial Resolution
Period for the affected Mortgage Loan shall be 90 days following the earlier
of the discovery of such Defect or Breach by any party to the Pooling and
Servicing Agreement (so long as Seller received prompt notice thereof pursuant
to this Section 7) or Seller's discovery of such Defect or Breach (which
period shall not be subject to extension).
If the Seller does not, as required by this Section 7, correct or
cure a Material Breach or a Material Defect in all material respects within
the applicable Initial Resolution Period (as extended pursuant to this Section
7), or if such Breach or Defect is not capable of being so corrected or cured
with such period, then the Seller shall purchase or substitute for the
affected Mortgage Loan as provided in this Section 7. If (i) any Mortgage Loan
is required to be repurchased or substituted for as provided above, (ii) such
Mortgage Loan is a Crossed Mortgage Loan that is a part of a Mortgage Group
(as defined below) and (iii) the applicable Breach or Defect does not
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
the Seller will be required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with the
provisions of this Section 7 unless the Crossed Mortgage Loan Repurchase
Criteria would be satisfied if Seller were to repurchase or substitute for
only the affected Crossed Mortgage Loans as to which a Material Breach or
Material Defect had occurred without regard to this paragraph, and in the case
of either such repurchase or substitution, all of the other requirements set
forth in the Pooling and Servicing Agreement applicable to a repurchase or
substitution, as the case may be, would be so satisfied. In the event that the
Crossed Mortgage Loan Repurchase Criteria would be so satisfied, the Mortgage
Loan Seller may elect either to repurchase or substitute for only the affected
Crossed Mortgage Loan as to which the Material Defect or Material Breach
exists or to repurchase or substitute for the aggregated Crossed Mortgage
Loans. The determination of the Special Servicer as to whether the Crossed
Mortgage Loan Repurchase Criteria have been satisfied shall be conclusive and
binding in the absence of manifest error. In the event that one or more of
such other Crossed Mortgage Loans satisfy the Crossed Loan Repurchase
Criteria, the Seller may elect either to repurchase or substitute for only the
affected Crossed Mortgage Loan as to which the related Breach or 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 (and,
if so directed by the Special Servicer, obtaining) any Appraisal required for
the Special Servicer to determine if the Crossed Loan Repurchase Criteria have
been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld). For
purposes of this paragraph, a "Mortgage Group" is any group of Mortgage Loans
identified as a Mortgage Group on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all
of the Mortgaged Properties) with respect to a Mortgage Loan, the Seller will
not be obligated to repurchase or substitute for the Mortgage Loan if the
affected Mortgaged Property may be released pursuant to the terms of any
partial release provisions in the related Mortgage Loan Documents and the
remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth
in the Mortgage Loan Documents and (i) the Seller provides an opinion of
counsel to the effect that such partial release would not cause an Adverse
REMIC Event (as defined in the Pooling and Servicing Agreement) to occur, (ii)
such Seller pays (or causes to be paid) the applicable release price required
under the Mortgage Loan Documents and, to the extent not reimbursable out of
the release price pursuant to the related Mortgage Loan Documents, any
additional amounts necessary to cover all reasonable out-of-pocket expenses
reasonably incurred by the Master Servicer, the Special
13
Servicer, the Trustee or the Trust Fund in connection therewith, including any
unreimbursed advances and interest thereon made with respect to the Mortgaged
Property that is being released, and (iii) such cure by release of such
Mortgaged Property is effected within the time periods specified for cure of a
Material Breach or Material Defect in this Section 7 .
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to the Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the
account designated by the Depositor or the Trustee, as the case may be, and
the Depositor or the Trustee, as the case may be, upon receipt of such funds
(and, in the case of a substitution, the Mortgage File(s) for the related
Qualified Substitute Mortgage Loans), 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 the Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds
of any insurance policy with respect thereto) and the related Mortgage Loan
Documents.
It is understood and agreed that the obligations of the Seller set
forth in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
listed on Schedule II hereto constitute the sole remedies available to the
Depositor and its successors and assigns against Seller respecting any Breach
or Defect affecting such Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that the 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,
the Seller and the Depositor (on behalf of its successors and assigns) agree
to modify upon such repurchase or substitution, the related Mortgage Loan
Documents in a manner such that such affected Crossed Mortgage Loan
repurchased or substituted by the 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 the Seller shall have furnished to the Trustee, at the Seller's expense,
an opinion of counsel that such modification shall not cause an Adverse REMIC
Event; provided, further, that if such opinion cannot be furnished, the Seller
and the 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. Any reserve or other cash collateral or
letters of credit securing the affected 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. The 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 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.
14
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its business
as it is conducted, and is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property
or the conduct of its business requires such qualification (except where the
failure to qualify would not have a materially adverse effect on the
consummation of any transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result
in a breach of, or constitute a default under, the certificate of
incorporation or by-laws of Depositor or, after giving effect to the consents
or taking of the actions contemplated by clause (ii) of this paragraph (b),
any of the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on Depositor or its properties, or any of the
provisions of any material indenture or mortgage or any other material
contract or other instrument to which Depositor is a party or by which it is
bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to the terms of any such
indenture, mortgage, contract or other instrument or (ii) require the consent
of, notice to or any filing with any person, entity or governmental body,
which has not been obtained or made by Depositor, except where, in any of the
instances contemplated by clause (i) above or this clause (ii), the failure to
do so will not have a material and adverse effect on the consummation of any
transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity
or at law) and, as to rights of indemnification hereunder, subject to
limitations of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against
Depositor the outcome of which could be reasonably expected to materially and
adversely affect the consummation of any transactions contemplated by this
Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties
hereto under Sections 7 and 9 of this Agreement, will remain in full force and
effect, regardless of any investigation or statement as to the result thereof
made by or on behalf of any party and will survive payment for the various
transfers referred to herein and delivery of the Certificates or termination
of this Agreement.
Section 12. Transaction Expenses. Whether or not this Agreement is
terminated, both the Purchaser and the Seller agree to pay the transaction
expenses incurred in connection with the transactions herein contemplated as
set forth in the Closing Statement.
15
Section 13. Recording Costs. 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 shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, by
overnight mail or courier service, or transmitted by facsimile and confirmed
by similar mailed writing: if to the Purchaser, addressed to the Purchaser at
00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxx, Telecopy No.: (000) 000-0000 (with a copy to Xxxxx Xxxxxx, Telecopy
No.: (000) 000-0000), or such other address as may be designated by the
Purchaser to the Seller in writing; or, if to the Seller, addressed to the
Seller at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention:
X.X. Xxxxx, Telecopy No.: (000) 000-0000 (with a copy to 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Telecopy No.: (216)
689-5681), or such other address as may be designated by the Seller to the
Purchaser hereto in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at
Seller's offices or such other location as shall otherwise be agreed upon by
Depositor and Seller. The fact that Depositor or its agent has conducted or
has failed to conduct any partial or complete examination of the Mortgage
Files shall not affect the rights of Depositor or the Trustee (for the benefit
of the Certificateholders) to demand cure, repurchase, or other relief as
provided herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective
successors, permitted assigns and legal representatives, and nothing expressed
in this Agreement is intended or shall be construed to give any other person
any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such persons and for the benefit of no other person;
it being understood that (a) the indemnities of Seller contained in that
certain Mortgage Loan Seller Indemnification Agreement dated September 11,
2003 among Seller, Depositor, Credit Suisse First Boston LLC (on behalf of
itself and the other Underwriters) and the Initial Purchaser, 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 1934 Act, 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 because of such ownership.
16
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE SELLER AND THE DEPOSITOR EACH HEREBY IRREVOCABLY (I)
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS
BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other
parties may, from time to time, reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts),
each of which when so executed and delivered will be an original, and all of
which together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by
Seller to Depositor as provided in this Agreement be, and be construed as, a
sale of the Mortgage Loans by Seller to Depositor. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by Seller to Depositor to secure a debt or other obligation of
Seller. However, in the event that, notwithstanding the intent of the parties,
the Mortgage Loans are held to be property of Seller or if for any reason this
Agreement is held or deemed to create a security interest in the Mortgage
Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in
the applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising from or
relating to any of the property described in the Mortgage Loans,
including the related Notes, Mortgages and title, hazard and 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;
17
(ii) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-306, 9-313 and 9-314 thereof) as in force in the relevant
jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law.
The Seller at the direction of the Depositor or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage 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 execute and
file such UCC Financing Statements as may be necessary or appropriate to
accomplish the foregoing.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by
Seller at Seller's expense at the direction of Depositor accompanied by an
opinion of counsel to the effect that such recordation materially and
beneficially affects the interests of Depositor.
* * *
18
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
KEYBANK NATIONAL ASSOCIATION,
as Seller
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Official
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
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 11, 2003, between KeyBank National Association (the "Seller")
and Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor").
Capitalized terms used herein without definition have the meanings given them
in or by reference in the Agreement or, if not defined in the Agreement, in
the Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person.
"Borrower" means the Borrower under a Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated September 11, 2003, between Depositor and the Initial
Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2003-C4, issued in multiple classes.
"Closing Date" means September 29, 2003.
"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 2003.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means exceptions with respect to the
representations and warranties made by the Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of the Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"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.
I-1
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 (subject to the proviso in Section 1 of the
Agreement).
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Offering Circular" means the confidential offering circular dated
September 11, 2003, 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 11, 2003, among the Master Servicer, the Special Servicer, the
Depositor 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 September 2, 2003, that is
a part of the Depositor's registration statement on Form S-3 (File
No.333-97955).
"Prospectus Supplement" means the Prospectus Supplement, dated
September 11, 2003, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-3, Class A-4, Class B, Class C, Class D and Class E Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 thereof.
"Underwriters" means Credit Suisse First Boston LLC, Greenwich
Capital Markets, Inc. and McDonald Investments Inc..
"Underwriting Agreement" means the Underwriting Agreement, dated
September 11, 2003, between the Depositor and Credit Suisse First Boston LLC,
on behalf of itself and the other Underwriters.
I-2
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Mortgage
Zip Loan
# Crossed Loan Name Address City State Code Seller
-----------------------------------------------------------------------------------------------------------------------------------
3 Jefferson Pointe Shopping 0000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxxx Xxxxx XX 00000 KeyBank
Center
-----------------------------------------------------------------------------------------------------------------------------------
12 Xxxxxx Center 0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxxx 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
15 Harbor Pointe Apartments 0000 Xxxxx 00xx Xxxxxx Xxxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
22 Sugarloaf Shopping Center 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
39 Lantana Shopping Center 0000 Xxxx Xxxxxxx Xxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxxx Xxxxx Shopping 9050-9066, 9150-9176, 0000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxxxx XX 00000 KeyBank
Center and 0000-0000 Xxxxxxxx Xxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
46 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx and 000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
48 Canterbury Xxxxx Apartments 0000 Xxxxx Xxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxx Xxxxxxx 0000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
51 Concord Self Storage 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
52 Chatsworth Industrial 00000-00 Xxxxxxxx Xxxxxx, 0000 Xxxxxxxxxxxx Xxxxxxxxxx XX 00000 KeyBank
Avenue, and 0000-00 Xxxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
55 0000 Xxxx Xxxx 0000-0000 Xxxx Xxxx Xxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
60 Corona del Sol Plaza 4939 - 0000 Xxxx Xxx Xxxx Xxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxx Xxxxxx Xxxxxx 0000 XxXxxxxx Xxxx Xxxxx Xxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
77 Harbor Park 00000 X.X. Xxxxxxx 00 Xxxx Xxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
80 San Xxxxxx Marketplace 00000 Xxxxx Xxxxxxx Xxxxx Xxxx Xxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
86 Onyx Office Building 00000 Xx Xxxxxx Xxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
96 Walgreens - Reseda, CA 00000 Xxxxxxx Xxx Xxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
97 Walgreens - State & Xxxxx 0000 Xxxxx Xxxxx Xxxxxx Xxxx Xxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
98 Walgreens - Vista 0000 Xxxxx Xxxxx Xx Xxxxxx Xxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxx - Xxxxxxx, XX 000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
102 Walgreens - Xxxxx & 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000 KeyBank
Hamilton
-----------------------------------------------------------------------------------------------------------------------------------
104 Walgreens - Modesto 0000 Xxxx Xxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxx Xxxxxxxxxx 00 Xxxxxxx Xxxx Xxxxx Xxxxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
106 Walgreens - Omaha 00000 Xxxxxxxxx Xxxxx Xxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
107 Forest Heights Apartments 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
115 Town Creek 0000 Xxxxxxxxxx Xxxxx Xxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
121 Shoppes at Thoroughbred 000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 KeyBank
Village
-----------------------------------------------------------------------------------------------------------------------------------
122 Zachary Shopping Center 0000 Xxxx Xxxxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
127 Walgreens - Xxxxx & 00000 Xxxxxxxx Xxxxx Xxxxx Xxxx Xxxxx XX 00000 KeyBank
Illinois
-----------------------------------------------------------------------------------------------------------------------------------
000 Xxxx Xxxxxx Xxxx 00000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000 KeyBank
Palisades
-----------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxx xx Xxxxxxx Hollow 0000 Xxxxxxxx Xxxx Xxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
14A 94-104 Xxxxx 00-000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
00X 0 X-X Xxxxxxxxxx Xxx 0 X-X Xxxxxxxxxx Xxx Xxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
14C 13 Branch 00 Xxxxxx Xxxxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
14D 90 Xxxxx 00 Xxxxx Xxxxxx Xxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
14E 1 Branch 0 Xxxxxx Xxxxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
66A Shurgard of Franklin 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
00X Xxxxxxxx xx Xxxxxxxxx 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 KeyBank
-----------------------------------------------------------------------------------------------------------------------------------
Cut-off
Date
Original Principal Interest Original Remaining
Principal Balance Maturity/ARD Only Amortization Amortization
# Crossed Loan Name Balance (1) Balance (2) Period Term Term
------------------------------------------ -----------------------------------------------------------------------------------
3 Jefferson Pointe Shopping $63,000,000 $63,000,000 $53,566,121.37 12 360 360
Center
------------------------------------------ ------------------------------------------------------------------------------
12 Xxxxxx Center $24,500,000 $24,473,658 $20,112,835.67 0 360 359
------------------------------------------ ------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxxx $24,250,000 $24,226,534 $20,191,231.83 0 360 359
------------------------------------------ ------------------------------------------------------------------------------
15 Harbor Pointe Apartments $23,800,000 $23,739,535 $21,682,983.18 0 360 358
------------------------------------------ ------------------------------------------------------------------------------
22 Sugarloaf Shopping Center $20,080,000 $20,080,000 $16,423,237.75 0 360 360
------------------------------------------ ------------------------------------------------------------------------------
39 Lantana Shopping Center $11,000,000 $10,987,640 $8,973,462.66 0 360 359
------------------------------------------ ------------------------------------------------------------------------------
00 Xxxxxxxxxx Xxxxx Shopping $10,500,000 $10,500,000 $8,825,954.06 0 360 360
Center
------------------------------------------ ------------------------------------------------------------------------------
46 000 Xxxxxxx Xxxxxx $9,600,000 $9,600,000 $8,562,478.14 0 360 360
------------------------------------------ ------------------------------------------------------------------------------
48 Canterbury Xxxxx Apartments $9,000,000 $9,000,000 $7,648,548.75 12 360 360
------------------------------------------ ------------------------------------------------------------------------------
49 Oakbrook Village $8,400,000 $8,391,508 $6,954,253.23 0 360 359
------------------------------------------ ------------------------------------------------------------------------------
51 Concord Self Storage $8,000,000 $7,983,653 $3,066,588.88 0 240 239
------------------------------------------ ------------------------------------------------------------------------------
52 Chatsworth Industrial $7,650,000 $7,644,150 $6,545,819.97 0 360 359
------------------------------------------ ------------------------------------------------------------------------------
55 0000 Xxxx Xxxx $7,000,000 $6,980,471 $5,339,224.51 0 300 298
------------------------------------------ ------------------------------------------------------------------------------
60 Corona del Sol Plaza $6,150,000 $6,137,953 $5,114,666.17 0 360 358
------------------------------------------ ------------------------------------------------------------------------------
00 Xxxx Xxxxxx Xxxxxx $5,000,000 $5,000,000 $4,349,826.13 36 324 324
------------------------------------------ ------------------------------------------------------------------------------
77 Harbor Park $4,850,000 $4,845,852 $4,099,340.11 0 360 359
------------------------------------------ ------------------------------------------------------------------------------
80 San Xxxxxx Marketplace $4,700,000 $4,679,531 $3,011,019.38 0 240 238
------------------------------------------ ------------------------------------------------------------------------------
86 Onyx Office Building $4,200,000 $4,193,448 $3,132,780.10 0 300 299
------------------------------------------ ------------------------------------------------------------------------------
96 Walgreens - Reseda, CA $3,500,000 $3,500,000 $3,002,982.59 0 360 360
------------------------------------------ ------------------------------------------------------------------------------
97 Walgreens - State & Xxxxx $3,500,000 $3,493,715 $2,942,562.51 0 360 358
------------------------------------------ ------------------------------------------------------------------------------
98 Walgreens - Vista $3,471,000 $3,464,624 $2,910,155.18 0 360 358
------------------------------------------ ------------------------------------------------------------------------------
99 Walgreens - Lebanon, OH $3,400,000 $3,400,000 $2,901,410.04 0 360 360
------------------------------------------ ------------------------------------------------------------------------------
102 Walgreens - Xxxxx & $3,200,000 $3,194,239 $2,689,523.69 0 360 358
Xxxxxxxx
------------------------------------------ ------------------------------------------------------------------------------
104 Walgreens - Modesto $3,152,000 $3,146,210 $2,642,698.68 0 360 358
------------------------------------------ ------------------------------------------------------------------------------
000 Xxxxxxx Xxxx Xxxxxxxxxx $3,100,000 $3,096,866 $2,566,451.09 0 360 359
------------------------------------------ ------------------------------------------------------------------------------
106 Walgreens - Omaha $3,100,000 $3,089,874 $2,243,465.12 0 276 274
------------------------------------------ ------------------------------------------------------------------------------
107 Forest Heights Apartments $3,045,000 $3,035,659 $2,535,397.79 0 360 357
------------------------------------------ ------------------------------------------------------------------------------
115 Town Creek $2,640,000 $2,634,028 $2,425,460.33 0 360 358
------------------------------------------ ------------------------------------------------------------------------------
121 Shoppes at Thoroughbred $2,400,000 $2,395,536 $2,009,107.78 0 360 358
Village
------------------------------------------ ------------------------------------------------------------------------------
122 Xxxxxxx Shopping Center $2,375,000 $2,375,000 $2,028,484.03 0 300 300
------------------------------------------ ------------------------------------------------------------------------------
127 Walgreens - Xxxxx & $2,220,000 $2,213,445 $1,858,285.57 0 360 357
Illinois
------------------------------------------ ------------------------------------------------------------------------------
000 Xxxx Xxxxxx Xxxx $2,100,000 $2,093,966 $1,764,323.17 0 360 357
------------------------------------------ ------------------------------------------------------------------------------
138 Shurgard of Hickory Hollow $1,773,000 $1,764,932 $1,339,857.42 0 300 297
------------------------------------------ ------------------------------------------------------------------------------
14A 94-104 Xxxxx $9,825,000 $9,758,312 $8,323,921.17 0 360 353
------------------------------------------ ------------------------------------------------------------------------------
00X 0 X-X Xxxxxxxxxx Xxx $7,360,000 $7,310,044 $6,235,527.78 0 360 353
------------------------------------------ ------------------------------------------------------------------------------
14C 13 Branch $4,350,000 $4,320,474 $3,685,399.39 0 360 353
------------------------------------------ ------------------------------------------------------------------------------
14D 90 Xxxxx $1,425,000 $1,415,328 $1,207,286.15 0 360 353
------------------------------------------ ------------------------------------------------------------------------------
14E 1 Branch $1,040,000 $1,032,941 $881,107.22 0 360 353
------------------------------------------ ------------------------------------------------------------------------------
00X Xxxxxxxx xx Xxxxxxxx $2,900,000 $2,886,803 $2,191,530.79 0 300 297
------------------------------------------ ------------------------------------------------------------------------------
00X Xxxxxxxx xx Xxxxxxxxx $2,525,000 $2,513,509 $1,908,143.59 0 300 297
------------------------------------------ ------------------------------------------------------------------------------
II-2
Interest Prepayment
Original Remaining Mortgage Calculation First Provision
Term to Term to Interest (30/360 / Monthly Payment Maturity as of Defeasance
Maturity(2) Maturity(2) Rate Actual/360) Payment Date Date ARD (8) Origination(9) Option (10)
-----------------------------------------------------------------------------------------------------------------------------------
120 119 5.250% Actual/360 $347,888.33 9/1/2003 8/1/2013 N/A Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 119 4.950% Actual/360 $130,773.65 9/1/2003 8/1/2013 N/A YM1/116_0.0%/4 No
-----------------------------------------------------------------------------------------------------------------------------------
120 119 5.390% Actual/360 $136,019.88 9/1/2003 8/1/2033 8/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
60 58 4.220% Actual/360 $116,664.08 8/1/2003 7/1/2008 N/A Lock/57_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 120 4.840% Actual/360 $105,838.84 10/1/2003 9/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 119 4.760% Actual/360 $57,447.53 9/1/2003 8/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 120 5.700% Actual/360 $60,942.04 10/1/2003 9/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
84 84 5.350% Actual/360 $53,607.71 10/1/2003 9/1/2033 9/1/2010 YM1/80_0.0%/4 No
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.230% Actual/360 $49,586.90 8/1/2003 7/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 119 5.210% Actual/360 $46,177.22 9/1/2003 8/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
180 179 5.840% Actual/360 $56,578.50 9/1/2003 8/1/2018 N/A Lock/177_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 119 6.300% Actual/360 $47,351.42 9/1/2003 8/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.550% Actual/360 $43,195.39 8/1/2003 7/1/2028 7/1/2013 Lock/115_0.0%/5 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.350% Actual/360 $34,342.44 8/1/2003 7/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.560% Actual/360 $29,839.98 8/1/2003 7/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 119 5.880% Actual/360 $28,705.08 9/1/2003 8/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.400% Actual/360 $32,065.82 8/1/2003 7/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 119 4.930% Actual/360 $24,381.79 9/1/2003 8/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 120 6.400% Actual/360 $21,892.71 10/1/2003 9/1/2033 9/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.700% Actual/360 $20,314.02 8/1/2003 7/1/2033 7/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.610% Actual/360 $19,948.17 8/1/2003 7/1/2033 7/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 120 6.210% Actual/360 $20,846.01 10/1/2003 9/1/2033 9/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.690% Actual/360 $18,552.54 8/1/2003 7/1/2033 7/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.610% Actual/360 $18,114.85 8/1/2003 7/1/2033 7/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 119 5.210% Actual/360 $17,041.59 9/1/2003 8/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.600% Actual/360 $19,999.52 8/1/2003 7/1/2026 7/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 117 5.390% Actual/360 $17,079.61 7/1/2003 6/1/2013 N/A YM1/116_0.0%/4 No
-----------------------------------------------------------------------------------------------------------------------------------
60 58 4.740% Actual/360 $13,755.58 8/1/2003 7/1/2008 N/A Lock/57_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 118 5.560% Actual/360 $13,717.42 8/1/2003 7/1/2033 7/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
84 84 5.850% Actual/360 $15,085.13 10/1/2003 9/1/2010 N/A YM1/79_0.0%/5 No
-----------------------------------------------------------------------------------------------------------------------------------
120 117 5.560% Actual/360 $12,688.61 7/1/2003 6/1/2033 6/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 117 5.680% Actual/360 $12,161.81 7/1/2003 6/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 117 5.290% Actual/360 $10,666.54 7/1/2003 6/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 113 5.970% Actual/360 $58,716.47 3/1/2003 2/1/2033 2/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 113 5.970% Actual/360 $43,985.06 3/1/2003 2/1/2033 2/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 113 5.970% Actual/360 $25,996.61 3/1/2003 2/1/2033 2/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 113 5.970% Actual/360 $8,516.13 3/1/2003 2/1/2033 2/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 113 5.970% Actual/360 $6,215.28 3/1/2003 2/1/2033 2/1/2013 Lock/116_0.0%/4 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 117 5.290% Actual/360 $17,446.69 7/1/2003 6/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
120 117 5.290% Actual/360 $15,190.65 7/1/2003 6/1/2013 N/A Lock/117_0.0%/3 Yes
-----------------------------------------------------------------------------------------------------------------------------------
Servicing Contractual
Original Yield and Engineering Recurring LC & TI Contractual Tax & Initial
Term to Maintenance Trustee Reserve at Replacement Reserve at Recurring Insurance Other
Maturity(2) Spread Fees Origination Reserve/FF&E Origination LC&TI Escrows Reserve
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $57,300.00 $0.00 $0 $0.00 None $276,043.33
-----------------------------------------------------------------------------------------------------------------------------------
120 T-Flat 0.0518% $0.00 $18,300.00 $0 $0.00 Both $32,500.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
60 N/A 0.0518% $1,750,000.00 $208,250.00 $0 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $105,000.00 $14,880.00 $3,125 $37,500.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $18,377.00 $833 $9,996.00 Both $8,140.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
84 T-Flat 0.0518% $0.00 $0.00 $1,870 $22,440.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $100,000.00 $0 $0.00 Tax $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $140,875.00 $96,600.00 $0 $0.00 Both $2,187.50
-----------------------------------------------------------------------------------------------------------------------------------
180 N/A 0.0518% $0.00 $0.00 $0 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $201,105.00 $21,395.00 $150,000 $74,573.04 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $255,750.00 $0.00 $4,400 $52,800.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.1018% $0.00 $9,079.00 $2,500 $30,000.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $8,282.00 $100,000 $36,000.00 Both $4,812.50
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $18,750.00 $22,716.00 $5,122 $61,464.00 Both $50,000.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $10,356.00 $0 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $2,262.00 $0 $0.00 None $49,078.13
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $2,268.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $2,100.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $2,268.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $2,250.00
-----------------------------------------------------------------------------------------------------------------------------------
120 T-Flat 0.1018% $0.00 $35,200.00 $0 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
60 N/A 0.0518% $0.00 $21,000.00 $0 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.1518% $375.00 $0.00 $25,000 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
84 T-Flat 0.0518% $0.00 $0.00 $1,667 $20,004.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $1,585.42
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $1,404.00 $0 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.1018% $0.00 $0.00 $165,723 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.1018% $0.00 $0.00 $140,422 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.1018% $0.00 $0.00 $73,373 $0.00 Both $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.1018% $0.00 $0.00 $24,036 $0.00 Both $8,000.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.1018% $0.00 $0.00 $16,446 $0.00 Both $8,000.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
120 N/A 0.0518% $0.00 $0.00 $0 $0.00 None $0.00
-----------------------------------------------------------------------------------------------------------------------------------
II-3
Initial Other Initial Initial Letter of
Reserve Debt Service Replacement of
Description Reserve Reserve Credit
-----------------------------------------------------------------------------------------------------------------------------------
Holdback for acceptable tenant estoppels from Red Star and Bed $0.00 $0.00 $0.00
Bath & Beyond
----------------------------------------------------------------------------------------------------------------------------------
Released when Wal-Mart begins paying increased rent $0.00 $1,525.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $2,000,000.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $167,354.17 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $1,240.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Holdback Reserve for Beall's $0.00 $1,531.42 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Mold Remediation Reserve $0.00 $8,050.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $1,782.92 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $756.58 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Sears Estoppel Certificate Reserve $0.00 $690.17 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Borrower has 6 months to transfer certain property $0.00 $1,893.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $863.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Escrow for Walgreens punchlist items $0.00 $188.50 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $175.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $189.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Escrow for Walgreens punchlist items $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $20,000.00 $2,933.33 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $1,750.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $5,328.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Escrow Agreement for CAM charges. $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $117.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $71,943.47 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $60,959.73 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $31,852.83 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Holdback Reserve $0.00 $10,434.55 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Holdback Reserve $0.00 $7,139.43 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A $0.00 $0.00 $0.00
----------------------------------------------------------------------------------------------------------------------------------
Initial Other Letter
Reserve of Credit Earnout
Description Description Reserve
----------------------------------------------------------------------------------------------------------------------------------
Holdback for acceptable tenant estoppels from Red Star and Bed N/A $3,000,000.00
Bath & Beyond
----------------------------------------------------------------------------------------------------------------------------------
Released when Wal-Mart begins paying increased rent N/A $1,000,000.00
----------------------------------------------------------------------------------------------------------------------------------
N/A In lieu of all escrows $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $2,580,000.00
----------------------------------------------------------------------------------------------------------------------------------
Holdback Reserve for Beall's N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $634,875.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
Mold Remediation Reserve N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
Sears Estoppel Certificate Reserve N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
Borrower has 6 months to transfer certain property N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
Escrow for Walgreens punchlist items N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
Escrow for Walgreens punchlist items N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $50,000.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
Escrow Agreement for CAM charges. N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
Holdback Reserve N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
Holdback Reserve N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A $0.00
----------------------------------------------------------------------------------------------------------------------------------
II-4
Earnout Additional Additional Additional
Reserve Collateral Collateral Collateral
Description Amount Event Date Description
----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: property must achieve annualized $3,000,000.00 1/18/05 Release in full upon: property achieves
EGI of $7,353,612 annualized EGI of $7,353,612
----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: 1) Property achieves occupancy Release in full upon: 1) Property achieves
of 92% at average rental rate of $17.63 psf $1,000,000.00 7/17/05 occupancy of 92% at average rental rate of
$17.63 psf
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: i) Occupancy of 92.3% (excluding
Publix) with avg. rental rate of $17.64 psf, ii) Release in full upon: i) Occupancy of 92.3%
Tenant estoppel for each New Tenant $2,580,000.00 2/5/04 (excluding Publix) with avg. rental rate of
$17.64 psf, ii) Tenant estoppel for each New
Tenant
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: i) exterior completion of 350
Plantation, ii) endorsement to title insurance policy, Release in full upon: i) exterior completion of
iii) estoppel certificate for Xxxxxxxx Xxxx 000 Plantation, ii) endorsement to title
Multi-Services, iv) completion of remaining 5,826 sf insurance policy, iii) estoppel certificate
of 350 Plantation $634,875.00 2/18/04 for Brockton Area Multi-Services, iv) completion
of remaining 5,826 sf of 350 Plantation
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: i) completion of the access
gate, ii) full payment of all materials and labor Release in full upon: i) completion of the
attributable to the completion $50,000.00 9/8/03 access gate, ii) full payment of all materials
and labor attributable to the completion
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
Earnout Description
Reserve Description of Existing of
Description Existing Secondary Financing Secondary Financing Lock Box
----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: property must achieve annualized
EGI of $7,353,612 N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: 1) Property achieves occupancy
of 92% at average rental rate of $17.63 psf N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
Mezzanine - Secured by
N/A 4,500,000.00 ownership interest Springing
-----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: i) Occupancy of 92.3% (excluding
Publix) with avg. rental rate of $17.64 psf, ii)
Tenant estoppel for each New Tenant N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: i) exterior completion of 350
Plantation, ii) endorsement to title insurance policy,
iii) estoppel certificate for Brockton Area
Multi-Services, iv) completion of remaining 5,826 sf
of 350 Plantation N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
Release in full upon: i) completion of the access
gate, ii) full payment of all materials and labor
attributable to the completion N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Hard
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A Springing
-----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A
II-5
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None
III-1
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
IV-1
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties contained in
Exhibit A corresponding to the roman numerals listed below:
Exception to Section (xx):
Correspondent fees are payable with respect to each of the following
Mortgage Loans:
Loan No. 10018171/Xxxxxx A Portfolio
Loan No. 10019380/Shoppes at Thoroughbred Village
Loan No. 10019902/Forest Heights Apartments
Loan Xx. 00000000/Xxxxxx Xxx Xxx Xxxxx
Exception to Section (xxiii):
With respect to each of the following Mortgage Loans, the single
tenant of the Mortgaged Property, Walgreens Co., is permitted to self insure
for property insurance:
Loan No. 10019733/Walgreens - Omaha
Loan No. 10019941/Walgreens -- Reseda
Loan No. 10020153/Walgreens -- State & Xxxxx
Loan No. 10020154/Walgreens - Xxxxx & Xxxxxxxx
Loan No. 10020155/Walgreens - Xxxxx & Illinois
Loan No. 10020752/Walgreens - Modesto
Loan No. 10020753/Walgreens - Vista
With respect to each of the following Mortgage Loans, the
requirement that business interruption insurance be obtained was waived
because the related borrower's lease with its tenant, Walgreen's Co., does not
permit abatement of rent following a casualty:
Loan Xx. 00000000/Xxxxxxxxx - Xxxxx
Xxxx Xx. 00000000/Xxxxxxxxx -- Xxxxx & Xxxxx
Loan No. 10020154/Walgreens - Xxxxx & Xxxxxxxx
Loan No. 10020155/Walgreens - Xxxxx & Illinois
Loan No. 10020752/Walgreens - Modesto
Loan No. 10020753/Walgreens - Vista
With respect to each of the following Mortgage Loans, the insurer that issued
the fire and extended perils insurance policy did not meet the requirements of
the Pooling and Servicing Agreement regarding an S&P and/or Xxxxx'x rating,
but did meet the Seller's requirements regarding an AM Best rating:
Mortgage Loan Carrier
V-1
Loan No. 10017939/Oakbrook Village Citizens Property Insurance Corp.
Loan Xx. 00000000/Xxxx Xxxxxx Xxxx. Mid-State Mutual Ins. Co.
Loan Xx. 00000000/000 Xxxxxxx Xxxxxx Affiliated FM Insurance Co.
Loan No. 19902/Forest Heights Apartments Farmers Insurance Exchange
Loan Xx. 00000000/Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx C.N.A.
Loan No. 10020152/San Xxxxxx Marketplace Transportation Insurance Co.
Loan Xx. 00000000/Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxxxx Insurance Company
Loan No. 10020333/Lantana Shopping Center Affiliated FM Insurance Co.
Loan No. 10020433/Xxxxxx Shopping Center Unigard Insurance
Loan No. 10020435/Crossroads Plaza Affiliated FM Insurance Co.
Loan No. 10021000/Concord Storage Associates C.N.A.
Exception to Section (xxvii):
With respect to Loan No. 10020153/Walgreen's at State and Xxxxx, a
Phase I environmental site assessment conducted on the related Mortgaged
Property reported that a gasoline station was operated at the related
Mortgaged Property from approximately 1940 through 1998 and that seven
underground storage tanks were removed from the related Mortgaged Property in
2000, at which time impact to soil and groundwater was identified. MTBE, a
gasoline additive, was identified in concentrations above regulatory limits.
The party responsible for the conditions has been identified as National Oil &
Gas. The related Mortgaged Property has been accepted into the Indiana
underground storage tank excess liability trust fund and the Indiana
Department of Environmental Management ("IDEM") has accepted a corrective
action plan. National Oil & Gas is working with IDEM to obtain closure for the
related Mortgaged Property, which currently involves replacement of certain
destroyed monitoring xxxxx and quarterly monitoring of MTBE levels in
groundwater. The environmental consultant recommended that the required
monitoring be continued until the related Mortgaged Property obtains closure
from IDEM.
With respect to Loan No. 20333/Lantana Shopping Center, a Phase I
environmental site assessment conducted on the related Mortgaged Property
reported that two dry cleaners occupied the related Mortgaged Property from
prior to 1974 through 1998. A Phase II subsurface investigation detected
tetrachloroethene, a dry cleaning solvent, in a concentration above Florida's
groundwater cleanup target level. The related Borrower provided Seller with a
copy of an American International Group, Inc. ("AIG") pollution legal
liability select policy issued to Ramco Xxxxxxxxxx Properties Trust. The
policy is a borrower's portfolio policy that insures more than one property.
The policy has a $50,000 each loss deductible/$250,000 aggregate deductible, a
10-year policy term, and coverage of $10,000,000 per incident/$30,000,000
aggregate. The Seller received a letter from the AIG Technical Services, Inc.
("AIGTS") environmental claims department stating that AIGTS received notice
of a claim for the related Mortgaged Property on behalf of Ramco Xxxxxxxxxx,
Inc., and that the related Mortgaged Property is covered by the policy.
Coverage is accepted subject to the $50,000 deductible. The related Mortgage
Loan Documents require the related Borrower to enter into a voluntary cleanup
agreement with the State of Florida Department of Environmental Protection
("Florida DEP") and to comply with the agreement with the Florida DEP until
the related Borrower obtains either a no further action letter or a site
rehabilitation completion order from the Florida DEP.
With respect to Loan No. 20333/Lantana Shopping Center, the
environmental insurance policy associated with the related Mortgaged Property
is a pollution legal liability select Policy issued by AIG. The policy is a
borrower's portfolio policy with a $50,000 each loss/$250,000 aggregate
deductible, a 10-year policy term, and coverage of $10,000,000 per
incident/$30,000,000 aggregate.
V-2
With respect to Loan No. 20433/Xxxxxx Shopping Center, the secured
creditor impaired property environmental insurance policy obtained by the
lender was issued by AIG, has a $0 deductible, a 15-year policy term, and the
premium has been prepaid in full. However, the secured creditor policy pays
the lesser of clean-up costs or the outstanding principal balance of the
related Mortgage Loan, and the loss coverage on the policy is capped at
$5,000,000, which is approximately 20% of the original principal balance of
the related Mortgage Loan.
Exception to Section (xxxvi):
With respect to Loan Xx. 00000000/Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx,
upon the mortgagee's prior written consent, which is conditioned upon the
satisfaction of specified minimum conditions, the following types of
mezzanine/cash flow financing alternatives are permitted: (1) each member of
the related Borrower (other than the managing member) may pledge both (a) its
right to receive net cash distributions payable by the related Borrower
pursuant to its operating agreement, and (b) its membership interests in the
related Borrower; and (2) each member or partner of the members of the related
Borrower may pledge both (a) its right to receive cash distributions from such
entity pursuant to its operating agreement and (b) its membership interests in
such entity. The specified minimum conditions upon which the mortgagee's
consent is conditioned include: no event of default shall have occurred and be
continuing; satisfaction of a specified debt service coverage ratio; payment
of all applicable fees and expenses; the holder of the subordinate debt shall
be an institutional lender which executes an acceptable subordination
agreement; execution of a lockbox agreement or modification of the existing
cash management agreement, as appropriate; delivery of any required opinion
letters; and receipt of rating agency confirmation of no downgrade.
With respect to Loan No. 1020249/Harbor Pointe Apartments, a member
of the Borrower has obtained a mezzanine loan in the original principal amount
of $4,500,000 secured by such member's membership interest in the Borrower. An
intercreditor agreement between the mezzanine lender and the senior lender
imposes restrictions on the transfer of the mezzanine loan and the mezzanine
lender's exercise of its rights and remedies with respect to its collateral,
confirms the subordination of the mezzanine loan to the related mortgage loan
and provides the mezzanine lender with the right, but not the obligation, to
cure certain defaults of the related borrower, among other provisions.
With respect to Loan No. 10019821/306 Belmont Street, members of the
related borrower may obtain financing secured by pledges of their respective
ownership interest in the related borrowing entity, upon the mortgagee's prior
written consent, which is conditioned upon the satisfaction of specified
minimum conditions, including specified debt service coverage and loan to
value ratios, execution of an intercreditor and subordination agreement by an
institutional mezzanine lender, establishment of a lockbox arrangement and
receipt of rating agency confirmation.
Exception to Section (xxxvii):
With respect to Loan Xx. 00000000/Xxxxxxxx xx Xxxxxxxx and Shurgard
of Rivergate (original principal balance of $5,425,000.00), the related
Mortgage Loan Documents do not require the related Borrower be a
single-purpose entity.
With respect to Loan Xx. 00000000/Xxxx Xxxxxx Xxxxxx (original
principal balance of $5 million), the related Mortgage Loan Documents require
the related borrower to be a single-purpose entity, but the related borrower
may obtain unsecured loans not to exceed $500,000 from its members provided
certain conditions are satisfied.
V-3
With respect to Loan No. 10020323/Corona Del Sol (original principal
balance of $6.15 million), the related Mortgage Loan Documents require one of
the three tenant-in-common co-borrowers to be a single-purpose entity, but the
related Mortgage Loan Documents do not require the other two tenant-in-common
borrowers to be single-purpose entities. Pursuant to the related Mortgage, the
two non-single-purpose entity co-borrowers are required to convey their
interests in the Mortgaged Property to the single-purpose entity co-borrower
within 12 months of the closing of the related Mortgaged Loan.
With respect to Loan No. 10020333/Lantana Plaza (original principal
balance of $11 million), the related Mortgage Loan Documents require the
related Borrower to be a single-purpose entity, but the related Borrower may
obtain unsecured loans provided certain conditions are satisfied.
With respect to Loan Xx. 00000000/Xxxxxx Xxxx Xxxxxx Xxxxxx
(original principal balance of $4.85 million), the related Mortgage Loan
Documents require the related Borrower to be a single-purpose entity, except
that the related Borrower owns one other property.
With respect to Loan No. 10021000/Concord Self Storage (original
principal balance of $8 million), the related Mortgage Loan Documents require
the related Borrower to be a single-purpose entity, but the related Borrower
is a general partnership.
Exception to Section (xxxviii):
With respect to Loan Xx. 00000000/Xxxxxxxx xx Xxxxxxxx and Shurgard
of Rivergate (original principal balance of $5,425,000.00) the related
Mortgage Loan Documents do not prohibit the related Borrower from obtaining
unsecured debt.
With respect to Loan Xx. 00000000/Xxxx Xxxxxx Xxxxxx (original
principal balance of $5 million), the related Mortgage Loan Documents permit
the related Borrower to obtain unsecured loans from its members provided
certain conditions are satisfied.
With respect to Loan No. 10020323/Corona Del Sol (original principal
balance of $6.15 million), only one of the three tenant-in-common co-borrowers
is prohibited from incurring unsecured debt.
With respect to Loan No. 10020333/Lantana Plaza (original principal
balance of $11 million) permits the related Borrower to obtain unsecured loans
provided certain conditions satisfied.
Exception to Section (xl):
With respect to Loan No 10019981/Jefferson Pointe Shopping Center,
an out parcel lot that is not part of the Mortgaged Property shares the same
tax identification number as the Mortgaged Property, but as of tax year 2004,
such out parcel lot will have a separate tax identification number.
With respect to Loan No. 10020249/Harbor Pointe Apartments, one
parcel (that consists of a lake) of the several parcels that comprise the
Mortgaged Property shares a tax parcel identification number with an adjoining
property that is not part of the Mortgaged Property. A post-closing agreement
was executed requiring the related Borrower to obtain a separate tax parcel
identification number for such parcel and the Mortgage Loan Documents also
require an escrow of funds for taxes payable for all properties in such tax
parcel (including the adjoining property that is not part of the Mortgaged
Property) until such time that a separate tax parcel identification number is
obtained for such parcel.
V-4
Exception to Section (lv):
With respect to Loan Nos. 10019817/Shurgard of Franklin and Shurgard
of Rivergate and 10019818/Shurgard of Hickory Hollow, the related Borrower's
liability for waste is limited to the diminution in value due to the willful
failure to maintain the Mortgaged Property with income generated by the
Mortgaged Property.
With respect to Loan No. 10020333/Lantana Shopping Center, there is
not a "carve-out" for willful acts of material waste, but there is a carve-out
for damage to the related Mortgaged Property as a result of the intentional
misconduct or gross negligence of the related Borrower or its principals.
Exception to Section (lvi):
With respect to each of the following ARD Loans, the Mortgage Rate
increases by the greater of (i) the initial Mortgage Rate plus 2% or (ii) the
treasury rate plus 2%:
10018171 Xxxxxx A Portfolio
10019380 Shoppes at Thoroughbred Village
10019733 Walgreens - Omaha
10019821 000 Xxxxxxx Xxxxxx
00000000 Xxxxxxxxx - Xxxxxxx
10019941 Walgreens - Reseda
10020153 Walgreens at State & Xxxxx
10020154 Walgreens at Xxxxx & Xxxxxxxx
10020155 Walgreens at Xxxxx & Illinois
10020170 Blackbaud Building/Duck Pond
10020306 Tyco Road
10020752 Walgreens - Modesto
10020753 Walgreens - Vista
V-5
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
(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) RESERVED.
(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 security interests of any nature
encumbering such Mortgage Loan;
(v) As of origination, to Seller's knowledge, based on the related
Borrower's representations and covenants in the related Mortgage Loan
Documents, the Borrower, lessee and/or operator was in possession of all
licenses, permits, and authorizations then required for use of the Mortgaged
Property which were valid and in full force and effect as of the origination
date;
(vi) 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 valid offset, defense,
counterclaim, or right of rescission 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) Each related Assignment of Leases creates a valid first
priority collateral assignment of, or a valid first priority lien or security
interest in, certain rights under the related lease or leases, subject only to
a license granted to the related Borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease or leases,
including the right to operate the related leased property, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); no person other than the
related Borrower owns any interest in any payments due under such lease or
leases that is superior to or of equal priority with the lender's interest
therein;
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(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if any, or
assignment of any other agreement executed by or for the benefit of the
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 and (B) each related Mortgaged Property
has not been released from the lien of the related Mortgage in any manner
which materially interferes with the security intended to be provided by such
Mortgage;
(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; any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid and enforceable lien on property described therein, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the 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 and/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 (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring the Seller and its successors
and assigns as to such lien, subject only to (A) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments not
yet delinquent or accruing interest or penalties, (B) covenants, conditions
and restrictions, rights of way, easements and other matters of public record,
none of which,
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individually or in the aggregate, materially interferes with the current use
of the Mortgaged Property or the security intended to be provided by such
Mortgage or with the Borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property and (C) the exceptions
(general and specific) and exclusions set forth in such policy, none of which,
individually or in the aggregate, materially interferes with the current
general use of the Mortgaged Property or materially interferes with the
security intended to be provided by such Mortgage or with the related
Borrower's ability to pay its obligations when they become due or the value of
the Mortgaged Property (items (A), (B) and (C) collectively, "Permitted
Encumbrances"); the premium for such policy was paid in full; such policy (or
if it is yet to be issued, the coverage to be afforded thereby) is issued by a
title insurance company licensed to issue policies in the state in which the
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
this Agreement; no claims have been made under such policy and the Seller has
not undertaken any action or omitted to take any action, and has no knowledge
of any such act or omission, which would impair or diminish the coverage of
such policy;
(xiv) The proceeds of 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) or reserves have been
established to cover the costs to remediate such damage and, 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 contains no equity
participation by Seller;
(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
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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;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or
its agent and there are no deficiencies (subject to any applicable grace or
cure periods) in connection therewith and all such escrows and deposits are
being conveyed by the Seller to the Depositor and identified as such with
appropriate detail;
(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 premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received by the Seller; such
insurance names the lender under the Mortgage Loan and its successors and
assigns as a named or additional insured; 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; and, 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 and does
constitute a
A-4
default, breach, violation or event of acceleration, which default, breach,
violation or event of acceleration, in the case of either (A) or (B),
materially and adversely affects the use or value of the Mortgage Loan or the
related Mortgaged Property; provided, however, that this representation and
warranty does not address or otherwise cover any default, breach, violation or
event of acceleration that specifically pertains to any matter otherwise
covered by any other representation or warranty made by the Seller in any of
the other paragraphs of this Exhibit A; and provided, further that a breach by
the Borrower of any representation or warranty contained in any Mortgage Loan
Document shall not constitute a non-monetary default, breach, violation or
event of acceleration for purposes of this representation and warranty if the
subject matter of such representation or warranty contained in any Mortgage
Loan Document is also covered by any other representation or warranty made by
the Seller in this Exhibit A-1;
(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). To the Seller's knowledge, 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 or an affiliate thereof agreed to indemnify, defend and hold
the mortgagee and its successors and assigns harmless from and against losses,
liabilities, damages, injuries, penalties, fines, expenses, and claims of any
kind whatsoever (including attorneys' fees and costs) paid, incurred or
suffered by, or asserted against, any such party resulting from a breach of
the foregoing representations, warranties or covenants given by the Borrower
in connection with such Mortgage Loan. A Phase I environmental report and,
with respect to certain Mortgage Loans, a Phase II environmental report, was
conducted by a reputable 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
A-5
material non-compliance with applicable environmental laws or material
existence of hazardous materials have been escrowed by the related Borrower
and held by the related mortgagee; (B) an operations or 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 with financial resources reasonably
estimated to be adequate to cure the condition or circumstance provided a
guaranty or indemnity to the related Borrower to cover the costs of any
required investigation, testing, monitoring or remediation; (G) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental
insurance policy was obtained and is a part of the related mortgage file.
Notwithstanding the preceding sentence, with respect to certain Mortgage Loans
with an original principal balance of less than $3,000,000, no environmental
report may have been obtained, but (in such cases where a Phase I
environmental report was not obtained) a lender's secured creditor impairment
environmental insurance policy was obtained with respect to each such Mortgage
Loan and is a part of the related mortgage file. Each of such environmental
insurance policies is in full force and effect, the premiums for such policies
have been paid in full and the Trustee is named as an insured under each of
such policies. To the best of 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 best of the Seller's knowledge,
no notice of violation of such laws has been issued by any governmental agency
or authority, except, in all cases, as indicated in such environmental reports
or other documents previously provided to the Rating Agencies; and the Seller
has not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining to
environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent
commercial mortgage lenders), each Mortgage Loan with a Stated Principal
Balance of over $20,000,000 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
A-6
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 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 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 a material
portion of the estate of the related Borrower therein is a leasehold estate,
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:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property by such lessee,
its successors or assigns in a manner that would adversely affect
the security provided by the related Mortgage. To the Seller's best
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;
(B) 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;
(C) 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 will be enforceable, by the
lender) that extends not less than 20 years beyond the stated
maturity of the related Mortgage Loan;
(D) 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;
(E) The ground lease is assignable to the lender under the
ground lease and its assigns without the consent of the lessor
thereunder;
(F) As of the Closing Date, the 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
the ground lease;
(G) The ground lease or an ancillary agreement between the
lessor and the lessee, which is part of the Mortgage File, requires
the lessor to give notice of any default by the lessee to the
lender;
A-7
(H) A 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;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. 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;
(J) 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, 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;
(K) 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 any institutional investor, 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, except to provide for an abatement of the
rent; and
(L) 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 Seller would not be considered
A-8
commercially unreasonable in any material respect by prudent commercial
mortgage lenders, (D) the related lessor has agreed in a writing included in
the related mortgage file that the related ground lease may not be amended or
modified without the prior written consent of the lender and that any such
action without such consent is not binding on the lender, its successors or
assigns, and (E) the related ground lease is in full force and effect, and the
Seller has no actual knowledge that any default beyond applicable notice and
grace periods has occurred or that there is any existing condition which, but
for the passage of time or giving of notice, would result in a default under
the terms of such ground lease;
(xxxiii) With respect to Mortgage Loans that are
cross-collateralized or cross-defaulted, all other loans that are
cross-collateralized or cross-defaulted with such Mortgage Loans are being
transferred to the Depositor hereunder;
(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) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair
market value of such real property, as evidenced by an appraisal satisfying
the requirements of FIRREA conducted within 12 months of the origination of
the Mortgage Loan, was at least equal to 80% of the principal amount of the
Mortgage Loan (1) at origination (or if the Mortgage Loan has been modified in
a manner that constituted a deemed exchange under Section 1001 of the Code at
a time when the Mortgage Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last such
modification) or (2) at the date hereof; provided that the fair market value
of the real property must first be reduced by (X) the amount of any lien on
the real property interest that is senior to the Mortgage Loan and (Y) a
proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (1) and
(2) 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
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, this Exhibit A or in the Exception Report
to this Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection with
each Mortgage Loan having an original principal balance in excess of
$4,000,000 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);
(xxxviii) Each Mortgage Loan prohibits the related Borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the prior
written consent of the mortgagee or the satisfaction of debt service coverage
or similar criteria specified therein and, except in connection with trade
debt and equipment financings in the ordinary course of
A-9
Borrower's business, from carrying any additional indebtedness, except, in
each case, liens contested in accordance with the terms of the Mortgage Loans
or, with respect to each Mortgage Loan having an original principal balance of
less than $4,000,000, any unsecured debt;
(xxxix) Each Borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress
and egress, (B) is served by public utilities and services generally available
in the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or
more separate tax parcels or is covered by an endorsement with respect to the
matters described in (A), (B) or (C) under the related title insurance policy
(or the binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency or the Secretary of Housing and Urban Development as having
special flood hazards categorized as Zone "A" or Zone "V" and flood insurance
is available, the terms of the Mortgage Loan require the Borrower to maintain
flood insurance, or at such Borrower's failure to do so, authorizes the Lender
to maintain such insurance at the cost and expense of the Borrower;
(xlii) To the knowledge of the Seller, 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;
(xliii) RESERVED.
(xliv) Except as disclosed in the Exception Report to this
Agreement, to the knowledge of the Seller as of the date hereof, there was no
pending action, suit or proceeding, arbitration or governmental investigation
against any Borrower or Mortgaged Property, an adverse outcome of which would
materially and adversely affect such Borrower's ability to perform under the
related Mortgage Loan;
(xlv) 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;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in
which 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;
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(xlvii) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlviii) Except as disclosed in the Exception Report to this
Agreement or the Prospectus Supplement with respect to the Crossed Mortgage
Loans and Mortgage Loans secured by multiple Mortgaged Properties, 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, (C) releases of unimproved out-parcels or (D) releases of
portions of the Mortgaged Property which will not have a material adverse
effect on the use or value of the collateral for the related Mortgage Loan;
(xlix) Except as provided in paragraphs (xxxi)(J) and (K) above, 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 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;
(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;
(li) 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;
(lii) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the improvements
located on or forming part of each Mortgaged Property comply with applicable
zoning laws and ordinances, or constitute a legal non-conforming use or
structure or, if any such improvement does not so comply, such non-compliance
does not materially and adversely affect the value of the related Mortgaged
Property. With respect to any Mortgage Loan with a Stated Principal Balance as
of the Closing Date 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;
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(liii) 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 Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage or any substantially similar successor
provision) and all Prepayment Premiums and Yield Maintenance Charges
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) in an amount sufficient to make
all scheduled payments under the Mortgage Loan when due, (C) the Borrower is
required to provide independent certified public accountant's certification
that the collateral is sufficient to make such payments, (D) the loan may be
required to be assumed by a single-purpose entity designated by the holder of
the Mortgage Loan, (E) the Borrower is required to provide an opinion of
counsel that the Trustee has a perfected security interest in such collateral
prior to any other claim or interest, (F) the Borrower is required to pay all
Rating Agency fees associated with defeasance (if rating confirmation is a
specific condition precedent thereto) and all other reasonable expenses
associated with defeasance, including, but not limited to, accountant's fees
and opinions of counsel, (G) with respect to any Significant Trust Mortgage
Loan (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 (H) with respect
to any Significant Trust Mortgage Loan (as defined in the Pooling and
Servicing Agreement), the Borrower must obtain Rating Agency confirmation from
each Rating Agency that the defeasance would not result in such Rating
Agency's withdrawal, downgrade or qualification of the then current rating of
any class of Certificate rated by such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide that
the related Borrower thereunder shall be liable to the Seller for any losses
incurred by the Seller due to (A) the misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related Borrower;
provided that, with respect to clause (C) of this sentence, an indemnification
against losses related to such violations or environmental insurance shall
satisfy such requirement;
(lvi) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (A) its Mortgage Rate
will increase by no more 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; (B) its Anticipated Repayment Date is not less
than seven years following the origination of such Mortgage Loan; (C) 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 (D) 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;
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(lvii) 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 and all the
mortgage loans sold to the Depositor by Column Financial, Inc. ("Column")
pursuant to that certain Mortgage Loan Purchase Agreement dated as of
September 11, 2003 between the Depositor and Column; and
(lviii) The Seller has delivered to the Trustee or a custodian
appointed thereby, with respect to each Mortgage Loan, in accordance with
Section 3 of this Agreement, a complete Mortgage File.
(lix) Origination of the Mortgage Loans. All of the Mortgage Loans
were originated by the Seller.
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EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_______________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of KeyBank
Financial, Inc. ("KeyBank");
2. that KeyBank is the owner and holder of a
mortgage loan in the original principal amount of $__________________ secured
by a mortgage (the "Mortgage") on the premises known as
___________________________ located in _________________ ;
3. (a) that KeyBank , after having conducted a
diligent investigation of its records and files, has been unable to locate the
following original note and believes that said original note has been lost,
misfiled, misplaced or destroyed due to a clerical error:
a note in the original sum of $_____________ made by
____________ , to KeyBank National Association, under date
of ______________ (the "Note");
4. that the Note is now owned and held by KeyBank;
5. that the Note has not been paid off, satisfied,
assigned, transferred, encumbered, endorsed, pledged, hypothecated, or
otherwise disposed of and that the original Note has been either lost,
misfiled, misplaced or destroyed;
6. that no other person, firm, corporation or other
entity has any right, title, interest or claim in the Note except KeyBank; and
7. upon assignment of the Note by KeyBank to Credit
Suisse First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by the Depositor to the trustee for the benefit of the holders of
the Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2003-C4 (the "Trustee") (which assignment
may, at the discretion of the Depositor, be made directly by KeyBank to the
Trustee) KeyBank covenants and agrees (a) promptly to deliver to the Trustee
the original Note if it is subsequently found, and (b) to indemnify and hold
harmless the Trustee and its successors and assigns from and against any and
all costs, expenses and monetary losses arising as a result of KeyBank's
failure to deliver said original Note to the Trustee.
KEYBANK NATIONAL ASSOCIATION
By:__________________________________________
Name:
Title:
Sworn to before me
this ________ day of September 2003
