MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 5, 2001, between Column Financial, Inc., a Delaware
corporation ("Column"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller") and Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB Mortgage
Securities"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "Purchaser").
RECITALS
Column desires to sell, assign, transfer, set over and otherwise convey to
CSFB Mortgage Securities, without recourse, and CSFB Mortgage Securities desires
to purchase, subject to the terms and conditions set forth herein, the
multifamily and commercial mortgage loans (collectively, the "Schedule A-1
Loans") identified on the schedule annexed hereto as Exhibit A-1, as such
schedule may be amended from time to time pursuant to the terms hereof. Each
Schedule A-1 Loan was originated by the Seller, Union Capital Investments, LLC
("Union Capital") or Credit Suisse First Boston Mortgage Capital LLC ("CSFB
Mortgage Capital"). With respect to those Schedule A-1 Loans identified on the
schedule annexed hereto as Exhibit A-1 as having been originated by Union
Capital (each such Schedule A-1 Loan, a "Union Capital Loan"), Column is the
beneficiary of certain representations and warranties made by Union Capital with
respect to the Union Capital Loans, pursuant to the Seller's Warranty
Certificate dated as of March 5, 2001 (the "Union Capital Agreement"), from
Union Capital in favor of the Seller. With respect to those Schedule A-1 Loans
identified on the schedule annexed hereto as Exhibit A-1 as having been
originated by CSFB Mortgage Capital (each such Schedule A-1 Loan, a "CSFB
Mortgage Capital Loan"), Column is the beneficiary of certain representations
and warranties made by CSFB Mortgage Capital with respect to the CSFB Mortgage
Capital Loans, pursuant to the Seller's Warranty Certificate dated as of March
2, 2001 (the "CSFB Mortgage Capital Agreement"), from CSFB Mortgage Capital in
favor of Column. Column intends to assign to CSFB Mortgage Securities all of its
right, title and interest in, to and under the Union Capital Agreement and the
CSFB Mortgage Capital Agreement (except for its right to approve substitute
mortgage loans under each of those agreements and its rights to indemnification
under Section 4 of each of those agreements).
Column also desires to sell, assign, transfer, set over and otherwise
convey to CSFB Mortgage Securities, without recourse, and CSFB Mortgage
Securities desires to purchase, subject to the terms and conditions set forth
herein, the multifamily and commercial mortgage loans (collectively, the
"Schedule A-2 Loans"; and, collectively with the Schedule A-1 Loans, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A-2
(together with the schedule annexed hereto as Exhibit A-1, the "Mortgage Loan
Schedule"), as such schedule may be amended from time to time pursuant to the
terms hereof. Column acquired each of the Schedule A-2 Loans from KeyBank
National Association ("KeyBank"). It is expected that KeyBank will be
responsible for making certain representations, warranties, with respect to the
Schedule A-2 Loans in lieu of the Seller's making the same.
A real estate mortgage investment conduit ("REMIC") election has been made
with respect to one of the Mortgage Loans (the resulting REMIC being herein
referred to as the "Loan REMIC"), for federal income tax purposes. Column also
desires to sell, assign, transfer and otherwise convey to CSFB Mortgage
Securities, without recourse, and CSFB Mortgage Securities desires to purchase,
subject to the terms and conditions set forth herein, the regular interest (the
"Loan REMIC
Regular Interest") and residual interest (the "Loan REMIC Residual Interest;
and, together with the Loan REMIC Regular Interest, the "Loan REMIC Interests")
in the Loan REMIC.
CSFB Mortgage Securities intends to create a trust (the "Trust"), the
primary assets of which will be a segregated pool of multifamily and commercial
mortgage assets that includes the Mortgage Loans and the Loan REMIC Interests.
Beneficial ownership of the assets of the Trust (such assets collectively, the
"Trust Fund" will be evidenced by a series of mortgage pass-through certificates
(the "Certificates"). Certain classes of the Certificates will be rated by
Xxxxx'x Investors Service, Inc. and Fitch, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust will be created and the Certificates will be issued pursuant to
a pooling and servicing agreement to be dated as of March 1, 2001 (the "Pooling
and Servicing Agreement"), among CSFB Mortgage Securities, as depositor (in such
capacity, the "Depositor"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key
Commercial Mortgage, as master servicer (the "Master Servicer"), ORIX Real
Estate Capital Markets, LLC, as special servicer (the "Special Servicer"), and
Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), relating to the
issuance of the Depositor's Series 2001-CK1 Commercial Mortgage Pass-Through
Certificates (the "Certificates"). Capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement as in full force and effect on the Closing Date
(as defined in Section 1 hereof). It is anticipated that CSFB Mortgage
Securities will transfer the Mortgage Loans and the Loan REMIC Interests to the
Trust contemporaneously with its purchase of the Mortgage Loans and the Loan
REMIC Interests hereunder.
CSFB Mortgage Securities intends to sell the Registered Certificates to
Credit Suisse First Boston Corporation ("CSFBC"), McDonald Investments Inc.
("McDonald"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated ("Xxxxxxx
Xxxxx") and Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI"), pursuant to the Underwriting
Agreement, dated as of the date hereof (the "Underwriting Agreement), among CSFB
Mortgage Securities, CSFBC, XxXxxxxx, Xxxxxxx Xxxxx and SSBI; and CSFB Mortgage
Securities intends to sell the remaining Certificates (the "Non-Registered
Certificates") to CSFBC, pursuant to the Certificate Purchase Agreement, dated
as of the date hereof (the "Certificate Purchase Agreement"), between CSFB
Mortgage Securities and the CSFBC. The Registered Certificates are more fully
described in the prospectus dated March 5, 2001 (the "Basic Prospectus"), and
the supplement to the Basic Prospectus dated March 5, 2001 (the "Prospectus
Supplement"; and, together with the Basic Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time hereafter. The Non-Registered
Certificates are more fully described in the confidential offering circular
dated March 5, 2001 (the "Confidential Offering Circular"), as it may be amended
or supplemented at any time hereafter.
Column will indemnify CSFB Mortgage Securities, CSFBC, XxXxxxxx, Xxxxxxx
Xxxxx, SSBI and certain related parties with respect to the disclosure regarding
the Schedule A-1 Loans contained in the Prospectus, the Confidential Offering
Circular and certain other disclosure documents and offering materials relating
to the Certificates, pursuant to the Indemnification Agreement, dated the date
hereof (the "Indemnification Agreement"), among Column, CSFB Mortgage
Securities, CSFBC, XxXxxxxx, Xxxxxxx Xxxxx and SSBI.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the
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Seller, subject to the terms and conditions set forth herein, the Mortgage Loans
and the Loan REMIC Interests. The purchase and sale of the Mortgage Loans and
the Loan REMIC Interests shall take place on March 16, 2001 or such other date
as shall be mutually acceptable to the parties hereto (the "Closing Date"). As
of the close of business on the respective Due Dates for the Mortgage Loans in
March 2001 (individually and collectively, the "Cut-off Date"), the Mortgage
Loans will have an aggregate principal balance, after application of all
payments of principal due on the Mortgage Loans on or before the Cut-off Date,
whether or not received, of $_________, subject to a variance of plus or minus
5%. The purchase price for the Mortgage Loans and the Loan REMIC Interests shall
be __% of such aggregate principal balance, together with accrued interest on
the Mortgage Loans at their respective Net Mortgage Rates from and including
March 1, 2001 to but not including the Closing Date, and the Purchaser shall pay
such purchase price to the Seller on the Closing Date by wire transfer in
immediately available funds or by such other method as shall be mutually
acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Mortgage Loans and the Loan REMIC Interests, including all interest and
principal received on or with respect to the Mortgage Loans after the Cut-off
Date (other than scheduled payments of interest and principal due on or before
the Cut-off Date), together with (i) all of the right, title and interest of the
Seller in and to the proceeds of any related title, hazard or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans, (ii) all of the right, title and interest of the Seller in, to
and under the Union Capital Agreement and the CSFB Mortgage Capital Agreement
(other than the Seller's rights to approve substitute mortgage loans under each
of those agreements and its rights to indemnification under Section 4 of each of
those agreements), and (iii) all right, title and interest of the Seller in, to
and under the Co-Lender Agreement dated as of July 11, 2000 (the "Crystal
Building/Xxxxx Building Co-Lender Agreement"), between CSFB Mortgage Capital and
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the holders of CSFB Mortgage
Securities, Series 2000-C1 Commercial Mortgage Pass-Through Certificates, which
Co-Lender Agreement relates to the Mortgage Loan secured by the Mortgaged
Property identified on the Mortgage Loan Schedule as Crystal Pavilion/Xxxxx
Building (such Mortgage Loan, the "Crystal Pavilion/Xxxxx Building Mortgage
Loan").
(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver or cause to be delivered to the Purchaser or its
designee the Mortgage File and, except in the case of the Crystal Pavilion/Xxxxx
Building Mortgage Loan, any Additional Collateral (other than reserve funds and
escrow payments) with respect to each Mortgage Loan. In addition, with respect
to each Mortgage Loan, other than the Crystal Pavilion/Xxxxx Building 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 acknowledgments as are necessary to cause the recognition, under such Letter
of Credit, of the Purchaser or its designee as the beneficiary thereof and
drawing party thereunder. Unless the Purchaser notifies the Seller in writing to
the contrary, the designated recipient of the items
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described in the second preceding sentence, and the designated beneficiary under
each Letter of Credit referred to in the preceding sentence, shall be the
Trustee.
If the Seller cannot deliver on the Closing Date any original or certified
recorded document or original policy of title insurance which is to be delivered
as part of the related Mortgage File for any Mortgage Loan, other than the
Crystal Pavilion/Xxxxx Building Mortgage Loan, solely because the Seller is
delayed in making such delivery by reason of the fact that such original or
certified recorded document has not been returned by the appropriate recording
office or such original policy of title insurance has not yet been issued, then
the Seller shall notify the Purchaser in writing of such delay and, pursuant to
the terms and conditions of the Pooling and Servicing Agreement (if such
Mortgage Loan is still subject thereto), shall deliver such documents to the
Purchaser or its designee, promptly upon the Seller's receipt thereof.
In addition, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
on or before the Closing Date, the following items (except to the extent any of
the following items are to be retained by a subservicer that will continue to
act on behalf of the Purchaser or its designee): (i) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File for any Mortgage Loan in accordance
with the definition thereof, originals or copies of all documents, certificates
and opinions in the possession or under the control of the Seller that were
delivered by or on behalf of the related Borrowers in connection with the
origination of the Mortgage Loans; and (ii) all unapplied reserve funds and
escrow payments in the possession or under the control of the Seller that relate
to the Mortgage Loans; provided that the foregoing does not apply in the case of
the Crystal Pavilion/Xxxxx Building Mortgage Loan. Unless the Purchaser notifies
the Seller in writing to the contrary, the designated recipient of the items
described in clauses (i) and (ii) of the preceding sentence shall be the Master
Servicer.
If the Seller is unable to deliver any Letter of Credit constituting
Additional Collateral for any Mortgage Loan, exclusive of the Crystal
Pavilion/Xxxxx Building Mortgage Loan, then the Seller may, in lieu thereof,
deliver on behalf of the related Borrower, to be used for the same purposes as
such missing Letter of Credit either: (i) a substitute letter of credit
substantially comparable to, but in all cases in the same amount and with the
same draw conditions and renewal rights as, that Letter of Credit and issued by
an obligor that meets any criteria in the related Mortgage Loan documents
applicable to the issuer of that Letter of Credit; or (ii) a cash reserve in an
amount equal to the amount of that Letter of Credit. For purposes of the
delivery requirements of this Section 2(c), any such substitute letter of credit
shall be deemed to be Additional Collateral of the type covered by the first
paragraph of this Section 2(c) and any such cash reserve shall be deemed to be
reserve funds of the type covered by the third paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c), the
Seller shall receive copies, or otherwise be the beneficiary, of all
certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement. To the extent that those certifications and/or the related
exception reports reflect Document Defects with respect to the Mortgage Loans,
those certifications and/or the related exception reports shall constitute
notice to the Seller for purposes of Section 5 upon receipt thereof by the
Seller.
(d) The Seller shall be responsible for all reasonable out-of-pocket costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer with respect to the Mortgage Loans that are
required to be recorded or filed, as the case may be, under the
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Pooling and Servicing Agreement; provided that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer or for costs and expenses that the related Borrowers
have agreed to pay. If the Seller receives written notice that any such
assignment or other instrument of transfer is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
prepare or cause the preparation of a substitute therefor or cure such defect,
as the case may be. The Seller shall provide the Purchaser or its designee with
a power of attorney to enable it or them to record any loan documents that the
Purchaser has been unable to record. Unless the Purchaser notifies the Seller in
writing to the contrary, the designated recipients of the power of attorney
referred to in the preceding sentence shall be the Trustee, the Master Servicer
and the Special Servicer.
On or before the Closing Date (and in connection with any substitution of
Mortgage Loans by the Seller pursuant to Section 5 hereof), the Seller shall
deposit with the Purchaser or its designee cash (the "Recording/Filing Reserve
Funds") in the amount set forth in the Recording Side Letter, which cash amount
is to be applied toward the recording and filing of assignments and other
instruments of transfer with respect to such Mortgage Loans, as contemplated
herein and in the Pooling and Servicing Agreement. If the total Recording/Filing
Reserve Funds delivered by the Seller to the Purchaser or its designee with
respect to any Mortgage Loan delivered hereunder on the Closing Date (or with
respect to any Replacement Mortgage Loan delivered hereunder in connection with
any substitution of Mortgage Loans pursuant to Section 5 hereof), as
contemplated herein and in the Pooling and Servicing Agreement, is insufficient
to reimburse the Purchaser or its designee for all costs and expenses reasonably
incurred by or on behalf of the Purchaser in connection with such recording and
filing, the Purchaser or its designee shall notify the Seller in writing and the
Seller shall promptly remit to the Purchaser the amount of any such shortfall.
The Purchaser may retain any excess Recording/Filing Reserve Funds with respect
to any particular Mortgage Loan delivered hereunder on the Closing Date and any
Replacement Mortgage Loans delivered hereunder in connection with any
substitution of Mortgage Loans pursuant to Section 5 hereof.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
and the Loan REMIC Interests to the Purchaser, as provided herein, as a sale of
the Mortgage Loans and the Loan REMIC Interests to the Purchaser in exchange for
the consideration specified in Section 1 hereof. In connection with the
foregoing, the Seller shall cause all of its records to reflect such transfer as
a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans and the Loan REMIC
Interests to the Purchaser, as provided herein, the Seller shall not take any
action inconsistent with the Purchaser's ownership of the Mortgage Loans and the
Loan REMIC Interests. 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 the Seller is expressly permitted to complete
subsequent to the Closing Date, the Seller shall, on or before the Closing Date,
take all actions required under applicable law to effectuate the transfer of the
Mortgage Loans and the Loan REMIC Interests by the Seller to the Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
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SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review. The
Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Mortgage Loans and the
Loan REMIC, that may be undertaken by or on behalf of the Purchaser. The fact
that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans and the Loan REMIC, shall
not affect the Purchaser's right to pursue any remedy available in equity or at
law for a breach of the Seller's representations and warranties made pursuant to
Section 4 (except as set forth in Section 5).
SECTION 4. Representations, Warranties and Covenants of the Seller and the
Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser, each of the representations and warranties set forth in
Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller, each of the representations and warranties set forth in
Exhibit B-2.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, with respect to each Schedule A-1 Loan, each
of the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than the
initial Purchaser, CSFBC, XxXxxxxx, Xxxxxxx Xxxxx and SSBI) who may be entitled
to any commission or compensation in connection with the sale to the Purchaser
of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof), whether by
the Seller pursuant to Section 5(a) of this Agreement, by Union Capital pursuant
to the Union Capital Agreement or by CSFB Mortgage Capital pursuant to the CSFB
Mortgage Capital Agreement, each of the representations and warranties set forth
in Exhibit C (except that, in the case of a Replacement Mortgage Loan
substituted by Union Capital or CSFB Mortgage Capital, the representations and
warranties set forth in Paragraph 2 of Exhibit C will relate to the ownership
and transfer thereof by Union Capital or CSFB Mortgage Capital, as the case may
be) to this Agreement. 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 (and, if it replaced a Schedule A-1 Loan, shall be deemed to
constitutes a "Schedule A-1 Loan" hereunder for all purposes.
(e) It is understood and agreed that the representations and warranties set
forth in this Section 4 shall survive delivery of the respective Mortgage Files
to the Purchaser or its designee and shall inure to the benefit of the Purchaser
for so long as any of the Mortgage Loans and/or Loan REMIC Interests remains
outstanding, notwithstanding any restrictive or qualified endorsement or
assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Purchaser or its designee shall provide the Seller with written
notice of a Material Breach with respect to any Schedule A-1 Loan or a Material
Document Defect with respect to
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any Mortgage Loan. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach with respect
to any Schedule A-1 Loan or a Material Document Defect with respect to any
Mortgage Loan (such 90-day period, the "Initial Resolution Period"), the Seller
shall, subject to Section 5(b) and Section 5(c) below, (i) cure such Material
Breach or Material Document Defect, as the case may be, in all material respects
or (ii) repurchase the Schedule A-1 Loan affected by such Material Breach (such
Schedule A-1 Loan, a "Defective Mortgage Loan") or the Mortgage Loan affected by
such Material Document Defect (such Mortgage Loan, also a "Defective Mortgage
Loan"), as the case may be, at the related Purchase Price, with payment to be
made in accordance with the reasonable directions of the Purchaser; provided
that if (i) any such Material Breach or Material Document Defect, as the case
may be, does not relate to whether the Defective Mortgage Loan was, as of the
Closing Date (or, in the case of a Replacement Mortgage Loan, as of the related
date of substitution), a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material Breach or
Material Document Defect, as the case may be, is capable of being cured but not
within the applicable Initial Resolution Period, (iii) the Seller has commenced
and is diligently proceeding with the cure of such Material Breach or Material
Document Defect, as the case may be, within the applicable Initial Resolution
Period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the Seller by an officer thereof stating
that such Material Breach or Material Document Defect, as the case may be, is
not capable of being cured within the applicable Initial Resolution Period,
specifying what actions the Seller is pursuing in connection with the cure
thereof and confirming that the Seller anticipates that such Material Breach or
Material Document Defect, as the case may be, will be cured within an additional
period not to exceed the applicable Resolution Extension Period (as defined
below), then the Seller shall have an additional period equal to the applicable
Resolution Extension Period to complete such cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation
Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, the Seller may, at its option, subject to the
terms, conditions and limitations set forth in the Pooling and Servicing
Agreement, in lieu of repurchasing such Defective Mortgage Loan (but, in any
event, no later than such repurchase would have to have been completed), (i)
replace such Defective Mortgage Loan with one or more substitute mortgage loans
that individually and collectively satisfy the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such
substitution and payment to be effected in accordance with the terms of the
Pooling and Servicing Agreement. Any such repurchase or replacement of a
Defective Mortgage Loan shall be on a whole loan, servicing released basis. The
Seller shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Material Breach or Material Document Defect, but if the Seller
discovers a Material Breach with respect to any Schedule A-1 Loan or a Material
Document Defect with respect to a any Mortgage Loan, it will notify the
Purchaser.
Except as otherwise provided in Section 5(b) and Section 5(c) below,
"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to any
Schedule A-1 Loan, 90 days;
(ii) for purposes of remediating a Material Document Defect with respect to
any
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Mortgage Loan that is and remains a Performing Mortgage Loan
throughout the applicable Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period and
ending on, and including, the earlier of (A) the 90th day following
the end of such Initial Resolution Period and (B) the 45th day
following the Seller's receipt of written notice from the Purchaser or
its designee of the occurrence of any Servicing Transfer Event with
respect to such Mortgage Loan subsequent to the end of such Initial
Resolution Period;
(iii) for purposes of remediating a Material Document Defect with respect
to any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
the earlier of (A) the end of such Initial Resolution Period and (B)
the Seller's receipt of written notice from the Purchaser or its
designee of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with respect to
any Mortgage Loan that is a Specially Serviced Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-)
days, provided that, if the Seller did not receive written notice from
the Purchaser or its designee of the relevant Servicing Transfer Event
as of the commencement of the applicable Initial Resolution Period,
then such Servicing Transfer Event will be deemed to have occurred
during such Initial Resolution Period and clause (iii) of this
definition will be deemed to apply;
provided that, except as otherwise set forth in the following proviso, there
shall be no Resolution Extension Period in respect of a Material Document Defect
involving a Specially Designated Mortgage Loan Document; and provided, further,
that if a Material Document Defect exists with respect to any Mortgage Loan, and
if the Seller escrows with the Purchaser, prior to the end of the Initial
Resolution Period and any Resolution Extension Period otherwise applicable to
the remediation of such Material Document Defect without regard to this proviso,
cash in the amount of the then Purchase Price for such Mortgage Loan and
subsequently delivers to the Purchaser, on a monthly basis, such additional cash
as may be necessary to maintain a total escrow equal to the Purchase Price for
such Mortgage Loan as such price may increase over time (the total amount of
cash delivered to the Purchaser with respect to any Mortgage Loan as
contemplated by this proviso, the "Purchase Price Security Deposit"), then the
Resolution Extension Period applicable to the remediation of such Material
Document Defect shall be extended until the earliest of (i) the second
anniversary of the Closing Date, (ii) the date on which such Mortgage Loan is no
longer outstanding and part of the Trust Fund and (iii) if such Mortgage Loan
becomes a Specially Serviced Mortgage Loan under the Pooling and Servicing
Agreement, the date, if any, on which the Special Servicer determines in its
reasonable, good faith judgment that such Material Document Defect will
materially interfere with or delay the realization against the related Mortgaged
Property or materially increase the cost thereof.
The Purchaser or its designee shall establish, and maintain any Purchase
Price Security Deposit delivered to it with respect to any Mortgage Loan in, one
or more accounts (individually and collectively, the "Purchase Price Security
Deposit Account") and shall be entitled to make withdrawals from such account(s)
for the following purposes: (i) to cover any costs and expenses resulting from
the applicable Material Document Defect; (ii) upon any discounted payoff or
other liquidation of such Mortgage Loan, to cover any Realized Loss related
thereto; and (iii) if the Seller so directs, or if the
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balance on deposit in the Purchase Price Security Deposit Account declines, and
for 45 days remains, below the Purchase Price for such Mortgage Loan, or if such
Material Document is not remedied on or before the second anniversary of the
Closing Date, or if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan under the Pooling and Servicing Agreement and the Special Servicer
determines in its reasonable, good faith judgment that such Material Document
Defect will materially interfere with or delay the realization against the
related Mortgaged Property or materially increase the cost thereof, to apply the
Purchase Price Security Deposit to a full or partial, as applicable, payment of
the Purchase Price for such Mortgage Loan (with the Seller to pay any remaining
balance of such Purchase Price). The Seller may obtain a release of the Purchase
Price Security Deposit for any Mortgage Loan (net of any amounts payable
therefrom as contemplated by the prior sentence) upon such Mortgage Loan's being
paid in full or otherwise satisfied, liquidated or removed from the Trust Fund
or upon the subject Material Document Defect's being remedied in all material
respects and all associated fees and expenses being paid in full. The Seller may
direct the Purchaser to invest or cause the investment of the funds deposited in
any Purchase Price Security Deposit Account in one or more Permitted Investments
that bear interest or are sold at a discount and that mature, unless payable on
demand, no later than the Business Day prior to the next Master Servicer
Remittance Date. The Purchaser shall act upon the written instructions of the
Seller with respect to the investment of funds in any Purchase Price Security
Deposit Account in such Permitted Investments, provided that in the absence of
appropriate written instructions from the Seller, the Purchaser shall have no
obligation to invest or direct the investment of funds in such Purchase Price
Security Deposit Account. All income and gain realized from the investment of
funds deposited in any Purchase Price Security Deposit Account shall be for the
benefit of the Seller and shall be withdrawn by the Purchaser or its designee
and remitted to the Seller on each Master Servicer Remittance Date (net of any
losses incurred and any deposits required to be made by the Seller as
contemplated by the second proviso to the prior paragraph), and the Seller shall
remit to the Purchaser from the Seller's own funds for deposit into such
Purchase Price Security Deposit Account the amount of any realized losses (net
of realized gains) in respect of such Permitted Investments immediately upon
realization of such net losses and receipt of written notice thereof from the
Purchaser. Neither the Purchaser nor any of its designees shall have any
responsibility or liability with respect to the investment directions of the
Seller, the investment of funds in any Purchase Price Security Deposit Account
in Permitted Investments or any losses resulting therefrom.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase or
substitution, the Purchaser or its designee shall use its best efforts, subject
to the terms of such Mortgage Loans, to prepare and, to the extent necessary and
appropriate, have executed by the related Borrower and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased or replaced, on the one hand, and the remaining Mortgage Loans
therein, on the other hand, such that those two groups of Mortgage Loans are
each secured only by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly corresponding thereto; provided that no such termination
shall be effected unless and until (i) if the affected Cross-Collateralized
Group is then subject to the Pooling and Servicing Agreement, the Seller shall
have obtained the written consent of the Controlling Class Representative, and
(ii) the Purchaser shall have received from the Seller or, if applicable, from
Union Capital or CSFB Mortgage Capital (A) an Opinion of Counsel to the effect
that such termination will not cause an Adverse REMIC Event to occur with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool and (B) written confirmation from each Rating Agency
that such termination will not cause an Adverse Rating Event to occur with
respect to any Class of Rated Certificates; and provided, further, that the
Seller may, at its option,
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purchase the entire subject Cross-Collateralized Group in lieu of terminating
the cross-collateralization. All costs and expenses incurred by the Purchaser or
its designee pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased or replaced. If the
cross-collateralization of any Cross-Collateralized Group of Mortgage Loans
cannot be terminated as contemplated by this paragraph for any reason
(including, but not limited to, the Seller's failure to satisfy any of the
conditions set forth in the first proviso to the second preceding sentence),
then, for purposes of determining whether any Breach is a Material Breach or any
Document Defect is a Material Document Defect, as the case may be, and also for
purposes of the application of remedies, such Cross-Collateralized Group shall
be treated as a single Mortgage Loan.
Whenever one or more mortgage loans are substituted by the Seller for a
Defective Mortgage Loan as contemplated by this Section 5(a), the Seller shall
(i) deliver the related Mortgage File for each such substitute mortgage loan to
the Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent cure of the relevant Material Breach or Material Document Defect,
the Defective Mortgage Loan will be required to be repurchased as contemplated
hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the Cut-off Date (or, in
the case of a Replacement Mortgage Loan, after the date on which it is added to
the Trust Fund) and on or prior to the related date of repurchase or
replacement, shall belong to the Purchaser and its successors and assigns.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or replacement, shall belong to the Seller (or, in the case of a
Defective Mortgage Loan that is repurchased or replaced by Union Capital or CSFB
Mortgage Capital, to Union Capital or CSFB Mortgage Capital, as applicable).
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set forth in
this Section 5(a) to cure a Material Breach or a Material Document Defect or
repurchase or replace the related Defective Mortgage Loan(s), constitute the
sole remedies available to the Purchaser with respect to a Breach in respect of
any Schedule A-1 Loan or a Document Defect in respect of any Mortgage Loan.
(b) It is hereby acknowledged that with respect to the Union Capital Loans,
the rights of the Seller in respect of those certain representations and
warranties made by Union Capital pursuant to the Union Capital Agreement and
assigned by the Seller to the Purchaser pursuant hereto will, in turn, be
assigned by the Purchaser to the Trustee, as trustee under the Pooling and
Servicing Agreement, for the benefit of the Certificateholders. Accordingly, it
is hereby agreed that if, with respect to any Union Capital Mortgage Loan, there
exists a breach of any of Union Capital's representations and warranties for
which Union Capital could be required to repurchase or (at its option, to the
extent of its substitution rights and subject to the Seller's right to approve
any Replacement Mortgage Loan delivered thereunder) replace such Union Capital
Loan, and if such Union Capital Loan may also constitute a Defective Mortgage
Loan for purposes of Section 5(a) of this Agreement by reason of a Material
Breach, and
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Xxxxx Xxxxxxx fails to cure such breach in all material respects or repurchase
or replace such Mortgage Loan within the Initial Resolution Period then the
Seller shall automatically be entitled to a Resolution Extension Period for
purposes of curing that Material Breach or purchasing such Mortgage Loan equal
to the longer of (i) 45 days and (ii) the Resolution Extension Period otherwise
applicable in accordance with Section 5(a) (without regard to this Section 5(b)
or Section 5(c) below); provided that this sentence shall not apply in the event
of a Material Breach that relates to whether the Defective Mortgage Loan was, as
of the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the
date it was added to the Trust Fund), a Qualified Mortgage. In addition, if the
price at which any Union Capital Loan is required to be repurchased by Union
Capital, or the additional cash amount to be paid together with the delivery of
one or more Replacement Mortgage Loans substituted by Union Capital for any
Union Capital Loan, in either case in connection with a breach of Union
Capital's representations and warranties as contemplated above, is less than the
applicable Purchase Price or Substitution Shortfall Amount, as the case may be,
the Seller shall make-up the difference out of its own funds (payment of such
difference to be made in accordance with the reasonable directions of the
Purchaser).
(c) It is hereby acknowledged that with respect to the CSFB Mortgage
Capital Loans, the rights of the Seller in respect of those certain
representations and warranties made by CSFB Mortgage Capital pursuant to the
CSFB Mortgage Capital Agreement and assigned by the Seller to the Purchaser
pursuant hereto will, in turn, be assigned by the Purchaser to the Trustee, as
trustee under the Pooling and Servicing Agreement, for the benefit of the
Certificateholders. Accordingly, it is hereby agreed that if, with respect to
any CSFB Mortgage Capital Loan, there exists a breach of any of CSFB Mortgage
Capital's representations and warranties for which CSFB Mortgage Capital could
be required to repurchase or (at its option, to the extent of its substitution
rights and subject to the Seller's right to approve any Replacement Mortgage
Loan delivered thereunder) replace such CSFB Mortgage Capital Loan, and if such
CSFB Mortgage Capital Loan may also constitute a Defective Mortgage Loan for
purposes of Section 5(a) of this Agreement by reason of a Material Breach, and
CFSB Mortgage Capital fails to cure such breach in all material respects or
repurchase or replace such Mortgage Loan within the Initial Resolution Period
then the Seller shall automatically be entitled to a Resolution Extension Period
for purposes of curing that Material Breach or purchasing such Mortgage Loan
equal to the longer of (i) 45 days and (ii) the Resolution Extension Period
otherwise applicable in accordance with Section 5(a) (without regard to this
Section 5(a) or Section 5(b) above; provided that this sentence shall not apply
in the event of a Material Breach that relates to whether the Defective Mortgage
Loan was, as of the Closing Date (or, in the case of a Replacement Mortgage
Loan, as of the date it was added to the Trust Fund), a Qualified Mortgage.
(d) It shall be a condition to any repurchase or replacement of a Defective
Schedule A-1 Loan by the Seller pursuant to Section 5(a) that the Purchaser
(which shall include the Trustee) shall have executed and delivered such
instruments of transfer or assignment then presented to it by the Seller, in
each case without recourse, as shall be necessary to vest in the Seller (i) the
legal and beneficial ownership of such Defective Schedule A-1 Loan (including
any property acquired in respect thereof or proceeds of any insurance policy
with respect thereto), to the extent that such ownership interest was
transferred to the Purchaser hereunder, (ii) in the case of a Union Capital
Loan, the rights in respect of such Union Capital Loan under the Union Capital
Agreement that were assigned to the Purchaser hereunder, (iii) in the case of a
CSFB Mortgage Capital Loan, the rights in respect of such CSFB Mortgage Capital
Loan under the CSFB Mortgage Capital Agreement that were assigned to the
Purchaser hereunder, and (iv) in the case of the Schedule A-1 Loan secured by
the mortgaged real property identified on the Mortgage Loan Schedule as Crystal
Pavilion/Xxxxx Building, the rights in respect of such Schedule A-1 Loan under
the Crystal Pavilion/Xxxxx Building Co-Lender Agreement.
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(e) If the Purchaser has identified on or before July 16, 2002 one or more
conditions that will become Recording/Title Policy Omissions with respect to any
Mortgage Loan on September 16, 2002 if not earlier corrected, the Purchaser or
any of its designees shall, on or about July 16, 2002 (or, if such day is not a
Business Day, the first Business Day thereafter), provide written notification
of the conditions that will become Recording/Title Policy Omissions to the
Seller. On the later of September 16, 2002 and 60 days following delivery of the
notice contemplated by the prior sentence, the Purchaser may, in its sole
discretion, require the Seller to (and, at the direction of the Purchaser or its
designee, the Seller shall) establish a Recording/Title Policy Reserve or
deliver a Recording/Title Policy Credit with respect to each Mortgage Loan that
then has a Recording/Title Policy Omission. In furtherance of the preceding
sentence, the Purchaser or its designee shall establish one or more accounts
(individually and collectively, the "Special Reserve Account"), each of which
shall be an Eligible Account, and the Purchaser or its designee shall deposit
any Recording/Title Policy Reserve into the Special Reserve Account within one
Business Day of receipt. The Seller may direct the Purchaser to invest or cause
the investment of the funds deposited in the Special Reserve Account in one or
more Permitted Investments that bear interest or are sold at a discount and that
mature, unless payable on demand, no later than the Business Day prior to the
next Master Servicer Remittance Date. The Purchaser shall act upon the written
instructions of the Seller with respect to the investment of funds in the
Special Reserve Account in such Permitted Investments, provided that in the
absence of appropriate written instructions from the Seller, the Purchaser shall
have no obligation to invest or direct the investment of funds in such Special
Reserve Account. All income and gain realized from the investment of funds
deposited in such Special Reserve Account shall be for the benefit of the Seller
and shall be withdrawn by the Purchaser or its designee and remitted to the
Seller on each Master Servicer Remittance Date (net of any losses incurred), and
the Seller shall remit to the Purchaser from the Seller's own funds for deposit
into such Special Reserve Account the amount of any realized losses (net of
realized gains) in respect of such Permitted Investments immediately upon
realization of such net losses and receipt of written notice thereof from the
Purchaser; provided that the Seller shall not be required to make any such
deposit for any realized loss which is incurred solely as a result of the
insolvency of the federal or state depository institution or trust company that
holds such Special Reserve Account. Neither the Purchaser nor any of its
designees shall have any responsibility or liability with respect to the
investment directions of the Seller, the investment of funds in the Special
Reserve Account in Permitted Investments or any losses resulting therefrom. A
Recording/Title Policy Credit shall (i) entitle the Purchaser or its designee to
draw upon the Recording/Title Policy Credit on behalf of the Purchaser upon
presentation of only a sight draft or other written demand for payment, (ii)
permit multiple draws by the Purchaser or its designee, and (iii) be issued by
such issuer and containing such other terms as the Purchaser or its designee may
reasonably require to make such Recording/Title Policy Credit reasonably
equivalent security to a Recording/Title Policy Reserve in the same amount. Once
a Recording/Title Policy Reserve or Recording/Title Policy Credit is established
with respect to any Mortgage Loan, the Purchaser or its designee shall, from
time to time, withdraw funds from the related Special Reserve Account or draw
upon the related Recording/Title Policy Credit, as the case may be, and apply
the proceeds thereof to pay the losses or expenses directly incurred by the
Purchaser or its designee as a result of a Recording/Title Policy Omission. The
Recording/Title Policy Reserve or Recording/Title Policy Credit or any unused
balance thereof with respect to each Mortgage Loan will be released to the
Seller by the Purchaser upon the earlier of the Seller's cure of all
Recording/Title Policy Omissions with respect to such Mortgage Loan (provided
that the Purchaser has been reimbursed with respect to all losses and expenses
relating to Recording/Title Policy Omissions with respect to such Mortgage Loan)
or such Mortgage Loan no longer being a part of the Trust Fund under the Pooling
and Servicing Agreement. The rights to require and apply the proceeds of a
Recording/Title Policy Reserve or Recording/Title Policy Credit with respect to
a Mortgage Loan under this Section 5(e) are in addition to the rights afforded
with respect to a Defective Mortgage Loan under Section 5(a), and the exercise
of
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rights with respect to a Mortgage Loan under this Section 5(e) shall not
preclude or otherwise limit the exercise of rights afforded with respect to a
Defective Mortgage Loan under Section 5(a) or constitute a waiver thereof.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley & Austin, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date;
(ii) all documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) the result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) all other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) the Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(vii) neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of the
following:
(i) this Agreement, duly executed by the Purchaser and the Seller;
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
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(iii) an Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and
upon which CSFB Mortgage Securities, CSFBC, XxXxxxxx, Xxxxxxx Xxxxx, SSBI
and the Rating Agencies (collectively, for purposes of this Section 7, the
"Interested Parties") may rely, attaching thereto as exhibits (A) the
resolutions of the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated by this Agreement, and
(B) the certificate of incorporation and by-laws of the Seller;
(iv) a certificate of good standing with respect to the Seller issued
by the Secretary of State of the State of Delaware not earlier than 20 days
prior to the Closing Date, and upon which the Interested Parties may rely;
(v) a Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
(vi) a written opinion of Long, Xxxxxxxx & Xxxxxx, special counsel for
the Seller, dated the Closing Date and addressed to the Interested Parties
and the Trustee, which opinion shall be substantially in the form of
Exhibit D-3A hereto (with such additions, deletions or modifications as may
be required by either Rating Agency);
(vii) a written opinion of Sidley & Austin, special counsel for the
Seller, dated the Closing Date and addressed to the Interested Parties and
the Trustee, which opinion shall be substantially in the form of Exhibit
D-3B hereto (with such additions, deletions or modifications as may be
required by either Rating Agency);
(viii) a written opinion of Sidley & Austin, special counsel for the
Seller, dated the Closing Date and addressed to the Interested Parties and
the Trustee, which opinion shall be substantially in the form of Exhibit
D-3C hereto (with such additions, deletions or modifications as may be
required by either Rating Agency);
(ix) a letter from Sidley & Austin, special counsel for the Seller,
which letter shall be substantially in the form of Exhibit D-3D hereto;
(x) one or more comfort letters from Xxxxxx Xxxxxxxx LLP, certified
public accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and addressed to, and in
form and substance acceptable to, CSFB Mortgage Securities, CSFBC,
XxXxxxxx, Xxxxxxx Xxxxx, SSBI and their respective counsel, stating in
effect that, using the assumptions and methodology used by CSFB Mortgage
Securities, all of which shall be described in such letters, they have
recalculated such numbers and percentages relating to the Schedule A-1
Loans set forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, compared the results of their calculations to the corresponding
items in any preliminary Prospectus Supplement and the Prospectus
Supplement, respectively, and found each such number and percentage set
forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, respectively, to be in agreement with the results of such
calculations; and
(xi) such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
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SECTION 8. Costs. Whether or not this Agreement is terminated, the costs
and expenses incurred in connection with the transactions herein contemplated
shall be allocated pursuant to the terms of the Term Sheet for the Joint Conduit
Securitizations between Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
Prudential Securities Incorporated, Prudential Mortgage Capital Company, LLC,
Column and KeyBank, as supplemented and modified by the Term Sheet for the Joint
Securitizations among Column, CSFBC and KeyBank for Calendar Year 2001 (the
"Term Sheet").
SECTION 9. 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: Xxxxx Xxxxx, 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 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxx, or such other address as may
be designated by the Seller to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans and the Loan REMIC Interests.
The parties hereto further agree that it is not their intention that such
conveyance be a pledge of the Mortgage Loans and the Loan REMIC Interests by the
Seller to secure a debt or other obligation of the Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans and the Loan
REMIC Interests are held to continue to be property of the Seller, then: (a)
this Agreement shall be deemed to be a security agreement under applicable law;
(b) the transfer of the Mortgage Loans and the Loan REMIC Interests provided for
herein shall be deemed to be a grant by the Seller to the Purchaser of a first
priority security interest in all of the Seller's right, title and interest in
and to the Mortgage Loans and the Loan REMIC Interests and all amounts payable
to the holder(s) of the Mortgage Loans and the Loan REMIC Interests in
accordance with the terms thereof (other than scheduled payments of interest and
principal due on or before the Cut-off Date) and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (c) the assignment by CSFB Mortgage Securities to the Trustee of
its interests in the Mortgage Loans and the Loan REMIC Interests as contemplated
by Section 16 hereof shall be deemed to be an assignment of any security
interest created hereunder; (d) the possession by the Purchaser of the related
Mortgage Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the Georgia Uniform Commercial Code, the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
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jurisdiction; and (e) notifications to, and acknowledgments, receipts or
confirmations from, persons or entities holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser 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 Loan REMIC Interests,
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 and the Pooling and Servicing Agreement.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans and the Loan REMIC
Interests by the Seller to the Purchaser, notwithstanding any restrictive or
qualified endorsement or assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, the Seller and the
Purchaser 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 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans and the Loan REMIC Interests to the Trust as contemplated
by the recitals hereto, CSFB Mortgage Securities is expressly authorized to
assign its
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rights and obligations under this Agreement, in whole or in part, to the Trustee
for the benefit of the registered holders and beneficial owners of the
Certificates. To the extent of any such assignment, the Trustee, for the benefit
of the registered holders and beneficial owners of the Certificates, shall be
the Purchaser hereunder. In connection with the transfer of any Mortgage Loan by
the Trust as contemplated by the terms of the Pooling and Servicing Agreement,
the Trustee, for the benefit of the registered holders and beneficial owners of
the Certificates, is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the transferee of such Mortgage
Loan. To the extent of any such assignment, such transferee shall be the
Purchaser hereunder (but solely with respect to such Mortgage Loan that was
transferred to it). Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Seller and the Purchaser, and
their respective successors and permitted assigns.
SECTION 17. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 19. Entire Agreement. Except as otherwise expressly contemplated
hereby, this Agreement constitutes the entire agreement and understanding of the
parties with respect to the matters addressed herein, and this Agreement
supersedes any prior agreements and/or understandings, written or oral, with
respect to such matters.
[SIGNATURE PAGE FOLLOWS]
-17-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
COLUMN FINANCIAL, INC.
By:
-----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:
---------------------------------------
Name:
Title:
X-0
XXXXXXX X-0
MORTGAGE LOAN SCHEDULE - PART 1
[See attached list of Mortgage Loans]
A-1-1
# PROPERTY NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------------
0 Xxxxxxxxx Xxxxxx Xxxx 000 Xxxxxxxxx Xxxxxx
2 150 Spear Xxxxxx Xxxxxx Xxxxxxxx 000 Xxxxx Xxxxxx
3 Central Plaza 0000-0000 Xxxxxxxx Xxxxxxxxx
0 Xxxxx Xxxxx Xxxxxxxx 000 Xxxxx Xxxxx Street
5 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
6 Exodus R&D Building 17871 Xxx Xxxxxx & 00000 Xxxxxxxx Xxxxxx
7a Foxfire Apartments 0000 Xxxx 00xx Xxxxxx
7b Xxxxxxxx Apartments 000 Xxxxxxxxxx Xxxxx
0x Xxxxxx Xxxxxxx Apartments 300 North Vista
7d Aspen Village Apartments 0000 Xxxxx Xxxxx
8 000 Xxxxxxx Xxxxxx Office Building 000 Xxxxxxx Xxxxxx
9 Brea Union Plaza Phase II 2315-2395 East Imperial Xxxxxxx
00x Xxxxxxx Xxxxxxxx 000 Xxxxx Xxxxxx
00x Xxxxx Xxxxxxxx 0 Xxxx 00xx Xxxxxx
12 One Rennaisance Center 0000 Xxxxxx Xxxxx
00 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxx Xxxx
00 Xxxxx Xxxxxxx Shopping Center 0-000 Xxxxx Xxxxxxx
00 Hotel Richelieu 0000 Xxx Xxxx Xxxxxx
16a Pecan Crossing Apartments 0000 Xxxx Xxxxxxxx Xxx Xxxx
00x Xxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxx Parkway
16c Forest Creek Apartments 13500 Xxxxxxx Avenue
17 Lowe's San Xxxxx (3) 1340 El Camino Real
18 Reflections Apartments 0000 Xxxxxxx Xxxxxxxxx
23 Stuart Square Shopping Center 0000 Xxxxx Xxxxxxx Xxxxxxx
25 Fairlane Village Mall 0000 Xxxxx 00 Xxxxx
26 Sierra Center 3000-3060 Xxxxxxx Xxxx Xxxxxxxxx
00 Xxxxxxx Xxxxxxxxxx Xxxxx (2B) 0000 Xxxxxxx Xxxx
00 Xxxxxxxxxx Xxxxx (2B) 000 Xxxxx X.X. Xxxxxxx 00
29 Wildwood Plaza (2B) 00 Xxxxxxxx Xxxx
30 Dorchester Crossing (2B) 0000 Xxxxxxxxxx Xxxx
31 Holiday Inn - Portsmouth 000 Xxxxxxxx Xxxxxx
32 St. Xxxxx Village Apartments 0000 Xxxxx Xxxxx
00 Xxxxxxx Xxxx Xxxxxxxx Xxxxxx 00000 Coors Road Northwest
35 Oak Xxxxxxx Apartments and Xxx Xxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx and 1800-1801 Xxxxx Drive
00 Xxx Xxxx Xxxxx Xxxxx Shopping Center 0000-0000 Xxx Xxxx Xxxxx
00 Xxxxxxx Xxxxxx Xxxxxxxxxx 0000 Xxxxxx Xxxxxxxxx
38 Xxxxxx Landing 0000-0000 Xxxxx Xxxxxx Xxxx
39 00 Xxxxxxxxx Xxxxx 00 Xxxxxxxxx Xxxxx
00 Xxxxxxx Xxxxxxx 00 Xxxxxxx Xxxxx
00 Xxx Xxxxxxxx Apartments 0000 Xxxxxxxxx Xxxx
43 Hollyview Apartments 0000 Xxxxx Xxxx Xxxxx
44 Hampton Inn and Suites 0000 Xxxxxxxxx Xxxxx
45 Lakewood City Center Shopping Center 00000-00 Xxxxxxx Xxxxxx
46a Xxxxxxxxx Apartments 000 Xxxxxxxx Xxxxx
00x Xxxxxxxx Xxxxxxx Apartments 000-000 Xxxx Xxxxxxxx Xxxxxxx
46c Cypress Garden Apartments 1402-1410 Cypress Street
46d Harford Road Apartments 0000-0000 Xxxxxxx Xxxx
49 00000 Xxxxx Xxxxxx 00000 Xxxxx Xxxxxx
00 Xxxxxxxx Xxxxx Commons 0000 Xxxx Xxxxxx Xxxx
00 Xxxx Xxxxx Plaza 221-A & 000-X Xxxxxxxxx 000xx Xxxxxx
54 Courtside Crossing at Bocage 0000 Xxxxxxxxx Xxxxxxxxx
55 FDC II Office Building 5250 Hahns Peak Drive
56 Comfort Inn - Syracuse 0000 Xxxxxxxx Xxxx
58 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
00x Xxxxxxxx Xxxx Apartments 14148 Superior Road
00x Xxx Xxxxxxxx Xxxxxxxx 0000 Xxxxxxxxx Xxxx
59c 2737 Hampshire Road 0000 Xxxxxxxxx Xxxx
00x The Xxxxxxx Building 2863 Xxxxxxxx Road
59e The Orono Building 0000 Xxxxxxxxxx Xxxx
00x 0000 Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxx
00 Xxxxxxxx Xxxxxx Center 00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx
00 Xxxxxxxx Xxxxx Apartments 0000 Xxxx Xxxx Xxxx
00 Xxxxxxx Xxxxx Xxxxxxx 0000 Xxxxxxxxxx Xxxxxxx
64 The 0000 Xxxxxxxxxxxx Xxxxx Office Building 0000 Xxxxxxxxxxxx Xxxxx
65 Piedmont Plaza 000-000 Xxxxx Xxxxx Xxxxxxxxx
00 Xxxx Xxxx Apartments 2111-2125 Xxxx 0xx Xxxxxx & 000-000 Xxxxx X Avenue
68 Willow Wood Apartments 0000 Xxxxxx Xxxxx
69 Peppers Ferry Centre 7381-7401 Peppers Ferry Boulevard
71 Xxxxxx'x Crossing 2184-2204 Xxxx Xxxxxxx Xxxxxxx
00 Xxxxxxx Xxxxx Apartments 000 Xxxx Xxxxxxx Xxxxxxx
73 Topics RV Park 00000 Xxxxxx Xxxx Xxxx
74 Pompano Plaza 000 Xxxx XxXxx Xxxx
75 Sierra Pointe Apartments 0000 Xxxx 00xx Xxxxxx
76 Town & Country Professional Building 10405 & 10409 Town and Country Way
00 Xxxxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxxxxx Pike
80 Scripps Ranch Village 10006 Scripps Ranch Boulevard
81 Xxxxxxxxx Apartments 0000 Xxxx Xxxx
00 Xxxxxx Gardens Apartments 0000 Xxxxxxxx Xxxx
83 The Lofts Apartments 00 Xxxxxxx Xxxxxx Xxxxxxxxx
84 Pert Ltd. Office Building 0000 Xxxx Xxxxxxx Xxx
85 El Rancho Seven Mobile Home Park 0000 Xxxxxxx Xxxxxx
00 Xxxxxx Xxxxxx Townhomes 0000 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxx Xxxxx 0000 Xxxxx Xxxxxxxxx Avenue
89 Oak Manor Apartments 0000 Xxxxxxx Xxxxx
00 Xxxxxxxx Villa Apartments 38675-38707 12th Street East
91 Bel-Aire Apartments 2847 & 0000 Xxxxxxxx Xxxxxx
92 The Xxxxxxx 0000 Xxxx Xxxxxx X
00 Xxxxxxx Xxxxxx 0000-0000 Xxxx Xxxxxxx Xxxxxx Xxxxx
94 Wyncrest Manor Apartments 00 Xxxxxxxxx Xxxx
00 Xxxxxxx Xxxxxxx 0000-0000 Xxxxxxx Xxxxxx
00 Xxxxxxx Xxxxx Apartments 000 Xxxxxxx Xxxxx
00 Xxxxxxx Xxxxxxx 0000 Xxxxxx Xxxxxx
00 Xxxxx Xxxxx Retail Center 00000 Xxxxx Xxxxx Xxxxxx
99 7171 Jurupa Avenue 7171 Jurupa Avenue
Total/Weighted Average:
ZIP MORTGAGE FEE SIMPLE/
# CITY COUNTY STATE CODE LOAN SELLER ORIGINATOR LEASEHOLD
------------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxx Xxx Xxxxxxx XX 00000 Column CSFB Leasehold
0 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 Column Column Fee
0 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 Column Column Fee
0 Xxxxxxxxxxxx Xxxxxxxxxxxx XX 00000 Column CSFB Fee
0 Xxx Xxxx Xxx Xxxx XX 00000 Column Column Leasehold
0 Xxxxxx Xxxxxx XX 00000 Column Column Fee
0x Xxxxxxxx Xxxxxxx XX 00000 Column Column Fee
0x Xxxxxxxxx Xxxxxxx XX 00000 Column Column Fee
0x Xxxxxxx Xxxxxx XX 00000 Column Column Fee
7d Indianapolis Xxxxxx IN 46224 Column Column Fee
0 Xxxxxx Xxxxxxx XX 00000 Column Column Fee
9 Brea Xxxxxx XX 00000 Column Column Fee
00x Xxx Xxxx Xxx Xxxx XX 00000 Column CSFB Fee
00x Xxx Xxxx Xxx Xxxx XX 00000 Column CSFB Fee
12 Raleigh Xxxx XX 00000 Column Union Fee
00 Xxxxxxx Xxxxxxxxxx XX 00000 Column CSFB Fee
14 Kapaa Kauai HI 96746 Column CSFB Fee
00 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 Column Allied Capital Fee
00x XxXxxx Xxxxxx XX 00000 Column Column Fee
00x Xxxxxx Xxxxxx XX 00000 Column Column Fee
00x Xxxxx Xxxxxxxx XX 00000 Column Column Fee
00 Xxx Xxxxx Xxx Xxxxx XX 00000 Column Column Fee
00 Xxxx Xxxxx Xxx XX 00000 Column Union Fee
00 Xxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxxx Xxxxxxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxx Xxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxx Xxxxx Xxxxx XX 00000 Column Column Fee
00 Xxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxxx Xxxxxxxxxx XX 00000 Column CSFB Fee
00 Xxxx Xxxx Xxxxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxxxx Xxxxxxxxxx XX 00000 Column Column Fee
00 Xxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxxx Xxxxxxxxx XX 00000 Column Column Fee
38 Aurora Xxxxxxxx XX 00000 Column Column Fee
00 Xxxxx Xxxxx Xxx Xxxxx XX 00000 Column Column Fee
00 Xxxxx Xxxxxxxx XX 00000 Column Column Fee
00 Xxx Xxxxxxx Xxxxx XX 00000 Column CSFB Fee
00 Xxxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxxxxx Xxxxxxxx XX 00000 Column Column Leasehold
00 Xxxxxxxx Xxxxxxxx XX 00000 Column Key Fee
00x Xxxxxx Xxxxx XX 00000 Column Column Fee
00x Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000 Column Column Fee
00x Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000 Column Column Fee
46d Baltimore Xxxxxxxxx Xxxx XX 00000 Column Column Fee
00 Xxxxxxxxx Xxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxxx Xxxxxxx Xxxxx XX 00000 Column Column Fee
00 Xxxxxxxxx Xxxxx XX 00000 Column Column Fee
00 Xxxxx Xxxxx Xxxx Xxxxx Xxxxx XX 00000 Column Union Fee
00 Xxxxxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00 Xxxxxx Xxxxxxx XX 00000 Column Column Fee
00x Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00x Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00x Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00x Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00x Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00x Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxxxx Xxxxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxxxxx XX 00000 Column Union Fee
00 Xxxxxxxx Xxxx Xxx Xxxxx XX 00000 Column Column Fee
00 Xxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxxxx XX 00000 Column Union Fee
00 Xxxxxxxxxxxx Xxxxxxxxxx XX 00000 Column Union Fee
00 Xxxxxxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxxx Xxxx Xxxxxxxx XX 00000 Column Union Fee
00 Xxxxxxx Xxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxx Xxxxx Xxx Xxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxx Xxxxxx Xxxx XX 00000 Column CSFB Fee
00 Xxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxxx Xxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxx Xxxx Xxx Xxxxxxx XX 00000 Column CSFB Fee
00 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 Column CSFB Fee
00 Xxxxxxxx Xxxxxxxx XX 00000 Column Column Fee
90 Palmdale Xxx Xxxxxxx XX 00000 Column CSFB Fee
00 Xxxxxxxxx Xxxxxxx XX 00000 Column Column Fee
92 Palmdale Xxx Xxxxxxx XX 00000 Column CSFB Fee
00 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 Column Column Fee
00 Xxxxxxxxx Xxx Xxxxx XX 00000 Column Column Fee
00 Xxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxxx Xxxxx Xxx XX 00000 Column Column Fee
98 Xxxxx Xxxx Xxxx XX 00000 Column Column Fee
00 Xxxxxxxxx Xxxxxxxxx XX 00000 Column Column Fee
REM.
REM. ORIG TERM TO
ORIGINAL CUT-OFF ORIG AMORT. TERM TO MATURITY INTEREST
# BALANCE BALANCE (9) AMORT. TERM MATURITY (10) (10) RATE
------------------------------------------------------------------------------------------------------------------------------------
1 $77,750,000 $77,750,000 360 360 120 117 7.4100%
2 77,100,000 76,983,259 360 358 84 82 8.2200%
3 37,500,000 37,338,703 360 351 120 111 8.9800%
4 36,550,000 36,445,087 360 355 120 115 8.4300%
5 36,000,000 35,830,879 360 351 84 75 8.6400%
6 35,000,000 34,906,620 360 356 120 116 8.0700%
7a
7b
7c
7d
8 23,350,000 23,302,603 360 357 84 81 7.9800%
9 22,000,000 22,000,000 324 324 120 115 7.8000%
11a
11b
12 18,800,000 18,800,000 360 360 120 118 8.3400%
13 18,550,000 18,425,199 360 347 120 107 8.7900%
14 18,100,000 18,050,820 360 356 120 116 7.9800%
15 15,292,198 15,292,198 271 271 88 88 8.2500%
16a
16b
16c
17 14,000,000 14,000,000 360 360 120 114 8.0600%
18 12,480,000 12,454,616 360 357 120 117 7.9700%
23 9,700,000 9,670,978 360 355 120 115 8.2500%
25 9,500,000 9,459,433 360 352 120 112 8.4600%
26 9,400,000 9,400,000 360 360 120 114 8.3600%
27 2,976,000 2,966,744 360 355 120 115 8.0800%
28 2,172,000 2,165,245 360 355 120 115 8.0800%
29 2,112,000 2,105,281 360 355 120 115 7.9800%
30 1,900,000 1,894,091 360 355 120 115 8.0800%
31 9,000,000 8,964,157 300 296 120 116 8.3900%
32 8,600,000 8,579,706 360 356 120 116 8.6700%
34 7,900,000 7,876,634 360 355 120 115 8.3000%
35 7,600,000 7,575,877 360 355 120 115 7.9900%
36 7,600,000 7,571,109 360 354 120 114 8.0700%
37 6,500,000 6,472,701 360 351 120 111 9.0700%
38 6,345,000 6,332,328 360 357 120 117 8.0600%
39 6,000,000 5,985,064 360 356 120 116 8.4100%
40 5,800,000 5,787,465 360 357 120 117 7.6700%
41 5,670,000 5,647,143 360 352 120 112 8.6800%
43 5,472,000 5,459,886 360 357 120 117 7.5500%
44 5,200,000 5,188,700 300 298 120 118 8.5200%
45 4,800,000 4,787,679 360 356 120 116 8.2600%
46a
46b
46c
46d
49 4,400,000 4,382,362 300 296 120 116 8.3500%
50 3,920,000 3,907,529 360 355 120 115 7.9800%
51 3,800,000 3,788,235 360 355 120 115 8.1000%
54 3,200,000 3,191,295 360 355 120 115 8.6600%
55 3,200,000 3,190,687 360 355 120 115 8.3700%
56 3,200,000 3,188,339 300 296 120 116 8.9300%
58 3,000,000 2,990,733 360 355 120 115 8.1100%
59a
59b
59c
59d
59e
59f
61 2,900,000 2,892,571 360 356 120 116 8.2700%
62 2,800,000 2,792,842 360 356 120 116 8.2800%
63 2,750,000 2,742,466 360 355 120 115 8.6300%
64 2,700,000 2,691,959 360 355 120 115 8.2700%
65 2,650,000 2,644,919 360 357 120 117 8.2600%
67 2,500,000 2,493,840 360 356 120 116 8.4600%
68 2,402,000 2,396,154 360 356 120 116 8.5200%
69 2,360,000 2,353,865 360 356 120 116 8.1980%
71 2,230,000 2,224,203 360 356 120 116 8.1980%
72 2,215,000 2,208,266 360 355 120 115 8.1800%
73 2,200,000 2,196,187 360 357 120 117 8.7500%
74 2,200,000 2,187,851 300 294 120 114 8.6500%
75 2,120,000 2,114,327 360 355 120 115 8.7300%
76 2,000,000 1,995,290 360 356 120 116 8.6800%
79 1,755,000 1,750,790 360 356 120 116 8.5900%
80 1,725,000 1,720,680 360 356 120 116 8.3800%
81 1,720,000 1,715,441 360 355 84 79 8.7700%
82 1,700,000 1,693,984 360 354 120 114 8.3900%
83 1,533,678 1,518,731 338 330 174 166 7.9750%
84 1,500,000 1,494,716 360 354 120 114 8.4100%
85 1,440,000 1,437,107 360 357 120 117 8.0300%
86 1,430,000 1,426,073 360 355 120 115 8.6200%
88 1,212,000 1,208,656 360 355 120 115 8.6000%
89 1,190,000 1,187,846 360 357 120 117 8.5400%
90 1,184,000 1,180,749 360 355 120 115 8.6200%
91 1,132,000 1,127,521 360 352 120 112 8.7500%
92 1,120,000 1,115,732 360 352 120 112 8.8900%
93 1,104,000 1,100,904 360 355 120 115 8.5300%
94 1,000,000 996,946 360 355 120 115 8.1600%
95 975,000 972,280 300 297 60 57 8.7800%
96 950,000 947,482 360 355 120 115 8.7700%
97 830,000 820,715 180 176 120 116 8.4800%
98 800,000 798,200 360 356 120 116 8.9000%
99 701,000 699,403 360 356 120 116 8.8400%
769,838,736
---------------------------------------------------------------------------------------------------------------
$1,001,148,279 $997,140,788 348 343 115 110 8.1672%
===============================================================================================================
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360 / MONTHLY PAYMENT DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT (11) DATE ARD (12) (14) DATE FEES
------------------------------------------------------------------------------------------------------------------------------------
1 Actual/360 $538,856 1/11/2001 12/11/2010 Yes 9/11/10 0.0529%
2 Actual/360 577,601 2/11/2001 Yes 7/11/07 0.0529%
3 Actual/360 301,194 7/1/2000 Yes 12/1/09 0.0529%
4 Actual/360 279,227 11/11/2000 10/11/2010 Yes 8/11/10 0.0529%
5 Actual/360 280,389 7/1/2000 Yes 3/1/07 0.0529%
6 Actual/360 258,528 12/1/2000 Yes 5/1/10 0.0529%
7a
7b
7c
7d
8 Actual/360 171,009 1/11/2001 No 11/11/02 0.0529%
9 Actual/360 162,973 11/1/2000 Yes 4/1/10 0.0529%
11a
11b
12 Actual/360 142,429 2/11/2001 Yes 7/11/10 0.0529%
13 Actual/360 146,463 3/11/2000 2/11/2010 Yes 11/11/09 0.0529%
14 Actual/360 132,559 12/11/2000 11/11/2010 Yes 8/11/10 0.0529%
15 Actual/360 124,593 4/1/2001 No N/A 0.0529%
16a
16b
16c
17 Actual/360 103,313 10/1/2000 Yes 3/1/10 0.0529%
18 Actual/360 91,313 1/1/2001 Yes 6/1/10 0.0529%
23 Actual/360 72,873 11/1/2000 Yes 4/1/10 0.0529%
25 Actual/360 72,778 8/1/2000 Yes 1/1/10 0.0529%
26 Actual/360 71,347 10/1/2000 Yes 3/1/10 0.0529%
27 Actual/360 22,003 11/1/2000 Yes 4/1/10 0.0529%
28 Actual/360 16,059 11/1/2000 Yes 4/1/10 0.0529%
29 Actual/360 15,468 11/1/2000 Yes 4/1/10 0.0529%
30 Actual/360 14,048 11/1/2000 Yes 4/1/10 0.0529%
31 Actual/360 71,805 12/11/2000 11/11/2010 Yes 7/11/10 0.0529%
32 Actual/360 67,165 12/1/2000 Yes 5/1/10 0.0529%
34 Actual/360 59,628 11/1/2000 Yes 4/1/10 0.0529%
35 Actual/360 55,713 11/1/2000 Yes 4/1/10 0.0529%
36 Actual/360 56,137 10/1/2000 Yes 3/1/10 0.0529%
37 Actual/360 52,628 7/1/2000 Yes 12/1/09 0.0529%
38 Actual/360 46,823 1/1/2001 Yes 3/1/10 0.0529%
39 Actual/360 45,753 12/1/2000 Yes 5/1/10 0.0529%
40 Actual/360 41,232 1/11/2001 Yes 6/11/10 0.0829%
41 Actual/360 44,323 8/11/2000 7/11/2010 Yes 12/11/09 0.0529%
43 Actual/360 38,449 1/11/2001 Yes 6/11/10 0.0529%
44 Actual/360 41,942 2/1/2001 Yes 7/1/10 0.0529%
45 Actual/360 36,095 12/1/2000 Yes 7/1/10 0.0529%
46a
46b
46c
46d
49 Actual/360 34,986 12/1/2000 Yes 5/1/10 0.0529%
50 Actual/360 28,709 11/1/2000 Yes 4/1/10 0.0529%
51 Actual/360 28,148 11/1/2000 Yes 4/1/10 0.0529%
54 Actual/360 24,969 11/1/2000 Yes 4/1/10 0.0529%
55 Actual/360 24,311 11/1/2000 Yes 4/1/10 0.0529%
56 Actual/360 26,701 12/1/2000 Yes 5/1/10 0.0529%
58 Actual/360 22,243 11/1/2000 Yes 4/1/10 0.0529%
59a
59b
59c
59d
59e
59f
61 Actual/360 21,828 12/1/2000 Yes 5/1/10 0.0529%
62 Actual/360 21,095 12/1/2000 Yes 5/1/10 0.0529%
63 Actual/360 21,399 11/1/2000 Yes 4/1/10 0.0529%
64 Actual/360 20,322 11/1/2000 Yes 4/1/10 0.0529%
65 Actual/360 19,927 1/1/2001 Yes 6/1/10 0.0529%
67 Actual/360 19,152 12/1/2000 Yes 5/1/10 0.0529%
68 Actual/360 18,503 12/1/2000 Yes 5/1/10 0.0529%
69 Actual/360 17,644 12/1/2000 Yes 5/1/10 0.0529%
71 Actual/360 16,672 12/1/2000 Yes 5/1/10 0.0529%
72 Actual/360 16,532 11/1/2000 Yes 4/1/10 0.0629%
73 Actual/360 17,307 1/1/2001 Yes 6/1/10 0.0529%
74 Actual/360 17,938 10/1/2000 Yes 3/1/10 0.0529%
75 Actual/360 16,648 11/1/2000 Yes 4/1/10 0.0529%
76 Actual/360 15,634 12/1/2000 Yes 5/1/10 0.0529%
79 Actual/360 13,607 12/1/2000 Yes 5/1/10 0.0529%
80 Actual/360 13,117 12/1/2000 Yes 5/1/10 0.0529%
81 Actual/360 13,556 11/1/2000 Yes 4/1/07 0.0529%
82 Actual/360 12,939 10/1/2000 Yes 3/1/10 0.0529%
83 Actual/360 11,408 8/11/2000 1/11/2015 Yes 6/11/14 0.0529%
84 Actual/360 11,438 10/1/2000 Yes 3/1/10 0.0529%
85 Actual/360 10,596 1/1/2001 Yes 6/1/10 0.0529%
86 Actual/360 11,117 11/11/2000 10/11/2010 Yes 8/11/10 0.1529%
88 Actual/360 9,405 11/11/2000 10/11/2010 Yes 8/11/10 0.1529%
89 Actual/360 9,184 1/1/2001 Yes 6/1/10 0.0529%
90 Actual/360 9,205 11/11/2000 10/11/2010 Yes 8/11/10 0.1529%
91 Actual/360 8,905 8/1/2000 Yes 1/1/10 0.0529%
92 Actual/360 8,923 8/11/2000 7/11/2010 Yes 5/11/10 0.1529%
93 Actual/360 8,512 11/1/2000 Yes 4/1/10 0.0529%
94 Actual/360 7,449 11/1/2000 Yes 4/1/10 0.0529%
95 Actual/360 8,036 1/11/2001 Yes 6/11/05 0.0529%
96 Actual/360 7,487 11/1/2000 Yes 4/1/10 0.0529%
97 Actual/360 8,164 12/1/2000 Yes 5/1/10 0.0529%
98 Actual/360 6,380 12/1/2000 Yes 5/1/10 0.0529%
99 Actual/360 5,560 12/1/2000 Yes 5/1/10 0.0529%
-------------
$7,551,218.12
=============
Pages A-1-1 thru A-1-3
ZIP
# PROPERTY NAME XXXXXXX XXXX XXXXXX XXXXX XXXX
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxxx Retail Center 00000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxx Xxxx XX 00000
132 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
000 00xx Xxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxx XX 00000
134 CSK Auto Store - Anchorage 0000 Xxxxxx Xxxx Xxxxxxxxx X/X XX 00000
000 Xxxx Xxxxxx Apartments 000-000 Xxxx Xxxxxx Xxxx Xxxxx Xxx Xxxxxxx XX 00000
136 Westside Mobile Home Park 0000 Xxxxxx X Xxxx Xxxxxxx Xxx XX 00000
137 CSK Auto - Albuquerque 0000 Xxxxx Xxxxxxx 000 Xxxxxxxxx Xxxxxxxxxxx Xxxxxxxxxx XX 00000
000 Xxxxxx Xxxx Apartments 0000-0000 Xxxxxx Xxxx Xxxxx Xxx Xxxxxxx XX 00000
000 Xxxx Xxxxxx Apartments 0000-0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxx XX 00000
140 000-000 Xxxxx Xxxxxx (2D) 000-000 Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxx XX 00000
141 00-00 Xxxxxx Xxxxxx (2D) 00-00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx XX 00000
142 0000-0000 Xxxxxxxxx Xxxx 0000-0000 Xxxxxxxxx Xxxx Xxxxxx Xxx Xxxxxxx XX 00000
Total/Weighted Average:
REM. ORIG
MORTGAGE FEE SIMPLE/ ORIGINAL CUT-OFF ORIG AMORT. TERM TO
# LOAN SELLER ORIGINATOR LEASEHOLD BALANCE BALANCE (9) AMORT. TERM MATURITY (10)
------------------------------------------------------------------------------------------------------------------------------------
131 S Column Fee 800,000 798,200 360 356 120
132 7 Column Fee 701,000 699,403 360 356 120
133 4 KeyBank Fee 640,000 637,186 300 295 120
134 C KeyBank Fee 607,600 605,922 300 297 120
135 P KeyBank Fee 550,000 545,923 300 291 120
000 X XxxXxxx Fee 525,000 522,700 300 295 120
137 C KeyBank Fee 500,000 498,619 300 297 120
138 C KeyBank Fee 500,000 497,996 300 296 120
139 L KeyBank Fee 376,000 374,893 360 355 120
140 8 KeyBank Fee 210,000 208,084 300 288 120
141 7 KeyBank Fee 165,000 163,495 300 288 120
142 8 KeyBank Fee 337,500 334,553 300 289 120
$1,001,148,279 $997,140,788 348 343 115
INTEREST SERVICING
REM. CALCULATION FIRST LOCKOUT AND
TERM TO INTEREST (30/360 / MONTHLY PAYMENT DEFEASANCE EXPIRATION TRUSTEE
# MATURITY (10) RATE ACTUAL/360) PAYMENT (11) DATE ARD (12) (14) DATE FEES
------------------------------------------------------------------------------------------------------------------------------------
131 116 8.9000% Actual/360 6,380 12/1/2000 Yes 5/1/10 0.0529%
132 116 8.8400% Actual/360 5,560 12/1/2000 Yes 5/1/10 0.0529%
133 115 8.8300% Actual/360 5,297 11/1/2000 No 10/1/05 0.0529%
134 117 8.8400% Actual/360 5,033 1/1/2001 No 12/1/05 0.0529%
135 111 9.0500% Actual/360 4,634 7/1/2000 No 6/1/05 0.0529%
136 115 8.8500% Actual/360 4,352 11/1/2000 No 10/1/05 0.0529%
137 117 8.8400% Actual/360 4,141 1/1/2001 No 12/1/05 0.0529%
138 116 8.3500% Actual/360 3,976 12/1/2000 No 11/1/05 0.0529%
139 115 8.3200% Actual/360 2,843 11/1/2000 No 10/1/05 0.0529%
140 108 9.3700% Actual/360 1,816 4/1/2000 No 3/1/05 0.0529%
141 108 9.3700% Actual/360 1,427 4/1/2000 No 3/1/05 0.0529%
142 109 9.2300% Actual/360 2,886 5/1/2000 No 4/1/05 0.0529%
110 8.1672% $7,551,218.12
(1) The Crystal Pavilion/Xxxxx Building Loan is one of four existing pari passu
notes. The total original principal amount of all four notes is
$119,120,085.86. The U/W DSCR and LTV ratios presented are based on the
entire outstanding indebtedness of the Crystal Pavilion/Xxxxx Building four
existing pari passu notes.
(2A) The Underlying Mortgage Loans secured by College Park Medical Office
Building and College Park Commons are cross-collateralized and
cross-defaulted, respectively.
(2B) The Underlying Mortgage Loans secured by Xxxxxxx Xxxxxxxxxx Xxxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxx and Dorchester Crossing are
cross-collateralized and cross-defaulted, respectively.
(2C) The Underlying Mortgage Loans secured by 000 Xxxxxx Xxxxxx and 000-000 Xxxx
Xxxxxx are cross-defaulted.
(2D) The Underlying Mortgage Loans secured by 000-000 Xxxxx Xxxxxx and 00-00
Xxxxxx Xxxxxx are cross-defaulted.
(3) The Underlying Mortgage Loan secured by Lowe's San Xxxxx follows the
following amortization schedule: Payments 1-36 are based on an
Interest-Only Period Payments 37-60 are based on a 360-month amortization
of principal Payments 61-120 are based on a 300-month amortization of
principal
(4) Does not include the hotel properties.
(5) In the case of cross-collateralized and/or cross-defaulted Underlying
Mortgage Loans, the combined LTV is presented for each and every related
Underlying Mortgage Loan.
(6) At maturity with respect to Balloon Loans or at the anticipated repayement
date in the case of ARD Loans. There can be no assurance that the value of
any particular Mortgaged Property will not have declined from the original
appraisal value.
(7) Underwritten NCF reflects the Net Cash Flow after U/W Replacement Reserves,
U/W LC's and TI's and U/W FF&E.
(8) U/W DSCR is based on the amount of the monthly payments presented. In the
case of cross-collateralized and/or cross-defaulted Underlying Mortgage
Loans, the combined U/W DSCR is presented for each and every related
Underlying Mortgage Loan.
(9) Assumes a Cut-off Date of March 11, 2001.
(10) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(11) In the case of Mortgage Loans with Interest Only Periods, the monthly
payment presented herein reflects the amount due during the respective
amortization terms.
(12) Anticipated Repayment Date.
(13) Prepayment Provision as of Origination:
L (x) = Lockout or Defeasance for x years
YM A% (x) = Greater of Yield Maintenance Premium and A% Prepayment for x
years O (x) = Prepayable at par for x years
(14) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
Page X-0-0
XXXXXXX X-0
MORTGAGE LOAN SCHEDULE--PART 2
[See attached list of Mortgage Loans]
A-2-1
PROPERTY
# NAME ADDRESS CITY
----------------------------------------------------------------------------------------------------------------------------
1 Wieden & Xxxxxxx Building 0000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
0 Xxxxx Xxxx Xxxxx 000 Xxxxxx Xxxxx Xxx Xxxxxx
3 Forbes Business Center II & Metro Business 4351-4485 Xxxxxx Drive & 0000 Xxxxxx Xxxxxxxxx Xxxxxx
Center V
4 Trendwest Office Building 9805 Willows Road Redmond
5 8251 & 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx 0000 & 0000 Xxxxxxxx Xxxxxx Clayton
0 Xxxxxxxxx Xxxxx X-XX 00000, 14175, 14201 and 00000 Xxxxxxxxxx Xxxxxx Chantilly
0 Xxxxxxxx Xxxxxx Xxxxx 2002-2072 West Avenue J Lancaster
8 Xxxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
9 Lakewood City Center Shopping Center 00000-00 Xxxxxxx Xxxxxx Lakewood
10 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx Xxx Xxxxxxxx
00 Xxxxxxxxxx Xxxx Xxxxxxxx Xxxx Research and Technology Drives Chesapeake
12 Redmond Self Storage 00000 - Xxxxxxxxx 00xx Xxxxxx Xxxxxxx
00 AT&T Cable Center 0000 Xxxxx Xxxxx Xxxxxx Denver
14 S&A Brookline 000 Xxxxxxx Xxxxxx Xxxxxxxxx
15 Tractor Supply Company 000 Xxxx Xxxx Xxxxxxxxx Xxxxxxxxx
16 Charlotte Arms Apartments 0000 Xxxxx Xxxxxx Xxxxxx Monroe
17 Xxxxxxx & Bay Shopping Center 000 Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx
18 CVS Drug Store 00 Xxxx Xxxx Xxxxxx Xxxxxxxxxx
00 Xxxxxxxxxx Xxxxxxx 0000 Xxxxx Xxxx Xxxx Xxxxxxxxx
Total/Weighted Average:
ZIP MORTGAGE FEE SIMPLE/ ORIGINAL CUT-OFF
# COUNTY STATE CODE LOAN SELLER LEASEHOLD BALANCE BALANCE (9)
-------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxxxx XX 00000 Column Fee 20,000,000 19,861,229
2 Xxxxxxxxx XX 00000 Column Fee 12,100,000 12,054,813
3 Xxxxxx Xxxxxx'x XX 00000 Column Fee 12,000,000 11,975,443
4 Xxxx XX 00000 Column Fee 11,700,000 11,677,706
5 Xxxxx Xxxxx XX 00000 Column Fee/Leasehold 10,470,000 10,449,885
6 Xxxxxxx XX 00000 Column Fee 9,600,000 9,580,828
7 Xxx Xxxxxxx XX 00000 Column Fee 7,960,000 7,944,038
8 Xxxxxxxxxxxx XX 00000 Column Fee 5,522,000 5,504,843
9 Xxxxxxxx XX 00000 Column Fee 4,800,000 4,787,679
10 Xxxxxxxxxxx XX 00000 Column Fee 4,585,000 4,570,997
11 Xxxxxxxxxx Xxxxxxx XX 00000 Column Fee 4,500,000 4,486,381
12 Xxxx XX 00000 Column Fee 3,476,000 3,458,839
13 Xxxxxx XX 00000 Column Fee 3,100,000 3,090,746
14 Xxxxxxx XX 00000 Column Fee 2,900,000 2,894,406
15 Xxxxxxxx XX 00000 Column Fee 2,630,000 2,625,693
16 Xxxxxx XX 00000 Column Fee 2,255,000 2,251,096
17 Xxxxx XX 00000 Column Fee 2,000,000 1,990,119
18 Xxxxxxxxx XX 00000 Column Fee 1,850,000 1,840,618
19 Tippecanoe IN 47909 Column Fee 1,325,000 1,322,972
122,368,333
------------------------------------
$1,001,148,279 $997,140,788
====================================
ORIG REM. INTEREST
REM. TERM TO TERM TO CALCULATION FIRST
ORIG AMORT. MATURITY MATURITY INTEREST (30/360 / MONTHLY PAYMENT
# AMORT. TERM (10) (10) RATE ACTUAL/360) PAYMENT (11) DATE ARD (12)
----------------------------------------------------------------------------------------------------------------------------
1 204 201 120 117 8.0700% Actual/360 180,487 1/1/2001
2 360 354 120 114 8.1500% Actual/360 90,054 10/1/2000
3 360 357 144 141 7.9400% Actual/360 87,550 1/1/2001
4 360 357 120 117 8.2900% Actual/360 88,227 1/1/2001
5 360 357 144 141 8.2500% Actual/360 78,658 1/1/2001
6 360 357 120 117 8.0600% Actual/360 70,843 1/1/2001
7 360 357 120 117 8.0400% Actual/360 58,630 1/1/2001 12/1/2010
8 336 332 120 116 8.2100% Actual/360 42,032 12/1/2000 11/1/2010
9 360 356 120 116 8.2600% Actual/360 36,095 12/1/2000
10 300 297 132 129 8.2300% Actual/360 36,089 1/1/2001 12/1/2011
11 360 355 120 115 8.2000% Actual/360 33,649 11/1/2000
12 300 295 120 115 8.1800% Actual/360 27,244 11/1/2000 10/1/2010
13 360 355 120 115 8.2600% Actual/360 23,311 11/1/2000 10/1/2010
14 360 357 84 81 8.2300% Actual/360 21,746 1/1/2001 12/1/2007
15 360 358 120 118 7.7200% Actual/360 18,787 2/1/2001 1/1/2011
16 360 358 120 118 7.3700% Actual/360 15,567 2/1/2001
17 240 237 120 117 8.2900% Actual/360 17,092 1/1/2001
18 240 237 120 117 8.0800% Actual/360 15,566 1/1/2001
19 360 358 120 118 8.1500% Actual/360 9,861 2/1/2001
----------------------------------------------------- ------------
Total/348 343 115 110 8.1672% 7,551,218.12
===================================================== ============
SERVICING
LOCKOUT AND
DEFEASANCE EXPIRATION TRUSTEE
# (14) DATE FEES
------------------------------------------------------
1 Yes 8/1/10 0.0529%
2 Yes 6/1/10 0.0529%
3 Yes 6/1/12 0.1029%
4 Yes 9/1/10 0.0529%
5 Yes 9/1/12 0.0729%
6 Yes 9/1/10 0.1029%
7 Yes 8/1/10 0.0529%
8 Yes 7/1/10 0.0529%
9 Yes 7/1/10 0.0529%
10 Yes 8/1/11 0.0529%
11 Yes 7/1/10 0.0529%
12 Yes 6/1/10 0.0529%
13 Yes 6/1/10 0.0529%
14 Yes 8/1/07 0.0529%
15 Yes 9/1/10 0.0529%
16 Yes 10/1/10 0.0529%
17 Yes 9/1/10 0.1029%
18 Yes 8/1/10 0.0529%
19 No N/A 0.0529%
X-0-0
XXXXXXX X-0
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature) and
delivery of any and all documents contemplated by this Agreement, including,
without limitation, endorsements of Mortgage Notes, and the performance and
compliance by the Seller with the terms of this Agreement will not: (i) violate
the Seller's organizational documents; or (ii) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Seller is a party or by which it is bound or which is applicable to it
or any of its assets, which default or breach, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller has full power and authority to enter into and fully perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) Immediately prior to the transfer of the Mortgage Loans to the
Purchaser pursuant to this Agreement (and assuming that KeyBank transferred to
the Seller good and marketable title to each Schedule A-2 Loan, free and clear
of all liens, claims, encumbrances and other interests) the Seller had good
title to, and was the sole owner and holder of, each Schedule A-2 Loan free and
clear of all liens, claims encumbrances and other interests. The Seller has the
full right, power and authority to sell, assign, transfer, set over and convey
the Mortgage Loans (and, in the event that the related transaction is deemed to
constitute a loan secured by all or part of the Mortgage Loans, to pledge the
Mortgage Loans) in accordance with, and under the conditions set forth in, this
Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best of
the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the
B-1-1
Seller from entering into this Agreement or, in the Seller's good faith and
reasonable judgment, would be likely to affect materially and adversely either
the ability of the Seller to perform its obligations hereunder or the financial
condition of the Seller.
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
(i) The transfer of the Mortgage Loans and the Loan REMIC Interests to the
Purchaser as contemplated herein is not subject to any bulk transfer or similar
law in effect in any applicable jurisdiction.
(j) The Mortgage Loans and the Loan REMIC Interests do not constitute all
or substantially all of the assets of the Seller.
(k) The consideration to be received by the Seller upon the sale of the
Mortgage Loans and the Loan REMIC Interests to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage Loans
and the Loan REMIC Interests.
(l) The Seller is not transferring the Mortgage Loans and the Loan REMIC
Interests to the Purchaser with any intent to hinder, delay or defraud its
present or future creditors.
(m) The Seller will be solvent at all relevant times prior to, and will not
be rendered insolvent by, its transfer of the Mortgage Loans and the Loan REMIC
Interests to the Purchaser, as contemplated herein.
(n) After giving effect to its transfer of the Mortgage Loans and the Loan
REMIC Interests to the Purchaser, as provided herein, the value of the Seller's
assets, either taken at their present fair saleable value or at fair valuation,
will exceed the amount of the Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Seller, and the Seller
will not be left with unreasonably small assets or capital with which to engage
in and conduct its business.
(o) The 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.
(p) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(q) The principal place of business and chief executive office of the
Seller is located in the State of Georgia.
B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing Date:
(a) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Purchaser of this Agreement, and the
performance and compliance by the Purchaser with the terms of this Agreement
will not: (i) violate the Purchaser's organizational documents; or (ii)
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any indenture,
agreement or other instrument to which the Purchaser is a party or by which it
is bound or which is applicable to it or any of its assets, which default or
breach, in the Purchaser's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Purchaser to perform
its obligations under this Agreement or the financial condition of the
Purchaser.
(c) The Purchaser has full power and authority to enter into and fully
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(e) The Purchaser is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(f) There are no actions, suits or proceedings pending or, to the best of
the Purchaser's knowledge, threatened against the Purchaser which, if determined
adversely to the Purchaser, would prohibit the Purchaser from entering into this
Agreement or, in the Purchaser's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Purchaser to
perform its obligations hereunder or the financial condition of the Purchaser.
(g) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings of Mortgage Loan
documents and assignments thereof that are contemplated by the Pooling and
Servicing Agreement to be completed after the Closing Date.
B-2-1
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SCHEDULE A-1 LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" SHALL
MEAN, EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF
KNOWLEDGE OF THE SELLER REGARDING THE MATTERS REFERRED TO, IN EACH CASE (i)
AFTER HAVING CONDUCTED SUCH INQUIRY INTO SUCH MATTERS AS REQUIRED BY THE
SELLER'S UNDERWRITING STANDARDS AT THE TIME OF THE ORIGINATION OF THE PARTICULAR
SCHEDULE A-1 LOAN AND (ii) SUBSEQUENT TO SUCH ORIGINATION UTILIZING THE
SERVICING AND MONITORING PRACTICES CUSTOMARILY UTILIZED BY PRUDENT COMMERCIAL
MORTGAGE LOAN SERVICERS WITH RESPECT TO WHOLE LOANS, AND THE PHRASE "SELLER'S
ACTUAL KNOWLEDGE" SHALL MEAN, EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW,
THE ACTUAL STATE OF THE SELLER`S KNOWLEDGE WITHOUT ANY EXPRESS OR IMPLIED
OBLIGATION TO MAKE INQUIRY. ALL INFORMATION CONTAINED IN DOCUMENTS WHICH ARE
PART OF A MORTGAGE FILE SHALL BE DEEMED TO BE WITHIN SELLER'S KNOWLEDGE AND
SELLER'S ACTUAL KNOWLEDGE.
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Schedule A-1 Loans is true, complete (in accordance
with the requirements of this Agreement and the Pooling and Servicing Agreement)
and correct in all material respects as of the date of this Agreement and as of
the respective Due Dates for the Schedule A-1 Loans in March 2001.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Schedule A-1 Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Schedule A-1 Loan. The Seller has full right, power and
authority to sell, transfer and assign each Schedule A-1 Loan to, or at the
direction of, the Purchaser free and clear of any and all pledges, liens,
charges, security interests, participation interests and/or other interests and
encumbrances. Subject to the completion of the names and addresses of the
assignees and endorsees and any missing recording information in all instruments
of transfer or assignment and endorsements and the completion of all recording
and filing contemplated hereby and by the Pooling and Servicing Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Schedule A-1 Loan free and clear of any
pledge, lien, charge, security interest or other encumbrance. The sale of the
Schedule A-1 Loans to the Purchaser or its designee does not require the Seller
to obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is genuine.
3. Payment Record. No scheduled payment of principal and interest due under
any Schedule A-1 Loan on the Due Date in February 2001 and on any Due Date in
the twelve-month period immediately preceding the Due Date for such Schedule A-1
Loan in February 2001 was 30 days or more delinquent, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Schedule A-1 Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except with respect to the lien of related Mortgage securing the Crystal
Pavilion/Xxxxx
C-1
Building Mortgage Loan which is pari passu with three other mortgage loans
pursuant to the applicable co-lender agreement, and except for (a) the lien for
current real estate taxes, water charges, sewer rents and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or title policy commitment meeting the requirements
described below in Paragraph 8), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Schedule A-1 Loan, (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or title policy commitment meeting the requirements described below in Paragraph
8), none of which materially interferes with the security intended to be
provided by such Mortgage, the current principal use of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service such Schedule A-1 Loan, (d) other matters to which
like properties are commonly subject, none of which materially interferes with
the security intended to be provided by such Mortgage, the current principal use
of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Schedule
A-1 Loan, (e) the rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property which do not materially
interfere with the security intended to be provided by such Mortgage, (f)
condominium declarations of record and identified in the lender's title
insurance policy (or, if not yet issued, identified in a pro forma title policy
or title policy commitment meeting the requirements described in Paragraph 8
below) and (g) if such Schedule A-1 Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Schedule A-1 Loan contained
in the same Cross-Collateralized Group (the foregoing items (a) through (g)
being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form (but for insertion of the name and address of the assignee and
any related recording information which is not yet available to the Seller) to
validly and effectively convey the assignor's interest therein and constitutes a
legal, valid, binding and, subject to the exceptions set forth in Paragraph 13
below, enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. The Mortgage File contains an assignment
of leases and rents ("Assignment of Leases"), either as a separate instrument or
incorporated into the related Mortgage, which establishes and creates a valid,
subsisting and, subject to the exceptions set forth in Paragraph 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Borrower
described therein; and each assignor thereunder has the full right to assign the
same. The related assignment of any Assignment of Leases not included in a
Mortgage, executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) to validly and
effectively convey the assignor's interest therein and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of each Schedule
A-1 Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part. Except as
C-2
described on Schedule C-6 hereto, no alterations, waivers, modifications or
assumptions of any kind have been given, made or consented to by or on behalf of
the Seller since December 1, 2000. The Seller has not taken any affirmative
action that would cause the representations and warranties of the related
Borrower under the Schedule A-1 Loan not to be true and correct in any material
respect.
7. Condition of Property; Condemnation. In the case of each Schedule A-1
Loan, except as set forth on Schedule C-7A or in an engineering report prepared
in connection with the origination of such Schedule A-1 Loan which has been
delivered to the Purchaser or its designee as part of the related Mortgage File,
the related Mortgaged Property is, to the Seller's knowledge, in good repair,
free and clear of any damage that would materially and adversely affect its
value as security for such Schedule A-1 Loan (except in any such case where an
escrow of funds or insurance coverage exists sufficient to effect the necessary
repairs and maintenance). As of origination of such Schedule A-1 Loan there was
no proceeding pending, and subsequent to such date, the Seller has not received
actual notice of, any proceeding pending for the condemnation of all or any
material portion of the Mortgaged Property securing any Schedule A-1 Loan. As of
the date of the origination of each Schedule A-1 Loan, except as set forth on
Schedule C-7B: (a) all of the material improvements on the related Mortgaged
Property lay wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property, except for
encroachments that are insured against by the lender's title insurance policy
referred to in Paragraph 8 below or that do not materially and adversely affect
the value or marketability of such Mortgaged Property, and (b) no improvements
on adjoining properties materially encroached upon such Mortgaged Property so as
to materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the lender's
title insurance policy referred to in Paragraph 8 below.
8. Title Insurance. The lien of each Mortgage securing a Schedule A-1 Loan
is insured by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (except that if such policy
is yet to be issued, such insurance may be evidenced by a "marked up" pro forma
policy or title commitment in either case marked as binding and countersigned by
the title company or its authorized agent, either on its face or by an
acknowledged closing instruction or escrow letter) in the original principal
amount of such Schedule A-1 Loan after all advances of principal, insuring the
originator of the related Schedule A-1 Loan, its successors and assigns (as the
sole insured) that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid, and Seller has
made no claims thereunder and, to Seller's actual knowledge, no prior holder of
the related Mortgage has made any claims thereunder and no claims have been paid
thereunder. Seller has not, and to the Seller's actual knowledge, no prior
holder of the related Mortgage has, done, by act or omission, anything that
would materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Schedule A-1 Loan to the
Trustee (including endorsement and delivery of the related Mortgage Note to the
Purchaser and recording of the related Assignment of Mortgage in favor of
Purchaser in the applicable real estate records), such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. Such
Title Policy contains no exclusion for, or it affirmatively insures (unless, in
the case of clause (b) below, the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Schedule A-1 Loan is
the same as the property legally described in the related Mortgage.
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9. No Holdback. The proceeds of each Schedule A-1 Loan have been fully
disbursed (except in those cases where the full amount of the Schedule A-1 Loan
has been disbursed but a portion thereof is being held in escrow or reserve
accounts pending the satisfaction of certain conditions relating to leasing,
repairs or other matters with respect to the related Mortgaged Property), and
there is no obligation for future advances with respect thereto. Any and all
requirements under each Schedule A-1 Loan as to completion of any on-site or
off-site improvement and as to disbursements of any funds escrowed for such
purpose, which requirements were to have been complied with on or before the
Closing Date, have been complied with in all material aspects or any such funds
so escrowed have not been released.
10. Mortgage Provisions. The Mortgage Note, Mortgage and Assignment of
Leases for each Schedule A-1 Loan, together with applicable state law, contains
customary and, subject to the exceptions set forth in Paragraph 13 below,
enforceable provisions for commercial Schedule A-1 Loans such as to render the
rights and remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Schedule A-1 Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Schedule A-1 Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12(Ab/LBP) (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Schedule A-1 Loan related to asbestos-containing materials and
lead-based paint) and Schedule C-12(TS) (as to which a transaction screen
meeting the requirements of the American Society for Testing and Materials
("Transaction Screen") was performed), (a) an environmental site assessment
meeting the requirements of the American Society for Testing and Materials and
covering all environmental hazards typically assessed for similar properties
including use, type and tenants of the Mortgaged Property ("Environmental
Report"), or an update of such an assessment, was performed by a licensed (to
the extent required by applicable state law) environmental consulting firm with
respect to each Mortgaged Property securing a Schedule A-1 Loan in connection
with the origination of such Schedule A-1 Loan and thereafter updated such that,
except as set forth on Schedule C-12(a), such Environmental Report is dated no
earlier than twelve months prior to the Closing Date, (b) a copy of each such
Environmental Report has been delivered to the Purchaser, and (c) either: (i) no
such Environmental Report provides that as of the date of the report there is a
material violation of any applicable environmental laws with respect to any
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same have not
been subsequently remediated in all material respects, then, except as described
on Schedule C-12(c), one or more of the following are true--(A) a party not
related to the related Borrower with financial resources reasonably estimated to
be adequate to cure the subject violation in all material respects was
identified as a responsible party for such condition or circumstance and such
condition or circumstance does not materially impair the value of the Mortgaged
Property, (B) the related Borrower was required to provide additional security
reasonably estimated to be adequate to cure the subject violation in all
material respects and/or to obtain an operations and maintenance plan, (C) the
related
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Borrower, or other responsible party, provided a "no further action" letter or
other evidence reasonably acceptable to a reasonably prudent commercial mortgage
lender that applicable federal, state or local governmental authorities had no
current intention of taking any action, and are not requiring any action, in
respect of such condition or circumstance, (D) such conditions or circumstances
were investigated further and based upon such additional investigation, an
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 5% of the outstanding principal balance of the
related Schedule A-1 Loan, (F) there exists an escrow of funds reasonably
estimated to be sufficient for purposes of effecting such remediation, (G) the
related Mortgaged Property is identified on Schedule C-12(G) and insured under a
policy of insurance subject to reasonable per occurrence and aggregate limits
and a reasonable deductible, against certain losses arising from such
circumstances and conditions or (H) a party with financial resources reasonably
estimated to be adequate to cure the subject violation in all material respects
provided a guaranty or indemnity to the related Borrower to cover the costs of
any required investigation, testing, monitoring or remediation. To the Seller's
actual knowledge, there are no significant or material circumstances or
conditions with respect to any Mortgaged Property not revealed in any such
Environmental Report, where obtained, or in any Borrower questionnaire delivered
to Seller at the issue of any related environmental insurance policy, if
applicable, that render such Mortgaged Property in material violation of any
applicable environmental laws. The Mortgage for each Schedule A-1 Loan
encumbering the Mortgaged Property requires the related Borrower to comply with
all applicable federal, state and local environmental laws and regulations. The
Seller has not taken any affirmative action which would cause the Mortgaged
Property not to be in compliance with all federal, state and local laws
pertaining to environmental hazards. Each Borrower represents and warrants in
the related Schedule A-1 Loan documents generally to the effect that except as
set forth in certain specified environmental reports and to the best of its
knowledge 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. The related Borrower (or an affiliate thereof) has agreed
to indemnify, defend and hold the Seller and its successors and assigns harmless
from and against, or otherwise be liable for, any and all losses resulting from
a breach of environmental representations, warranties or covenants given by the
Borrower in connection with such Schedule A-1 Loan, generally including any and
all losses, liabilities, damages, injuries, penalties, fines, expenses and
claims of any kind or nature whatsoever (including without limitation,
attorneys' fees and expenses) paid, incurred or suffered by or asserted against,
any such party resulting from such breach. With respect to the Schedule A-1 Loan
identified as Brea Union Plaza, Seller represents and warrants that (W) no
claims have been made under the Unocal Indemnity, (X) Seller has the right to
assign and is assigning to Purchaser, or by operation of the document the
Purchaser will be entitled to, all of Seller's rights under the Unocal
Indemnity, (Y) the Brea Union Plaza Mortgage Loan is the first "take-out" loan
as defined in the Unocal Indemnity, and (Z) no notice has been given by the
Seller or any prior holder of such Schedule A-1 Loan under the Unocal Indemnity,
retaining any rights as an "Exempt Lender" thereunder and such rights are
assigned to or will otherwise run to the benefit of Purchaser.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower, or any guarantor of
non-recourse exceptions and environmental liability, with respect to each
Schedule A-1 Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by: (i) bankruptcy, insolvency,
reorganization, fraudulent transfer and conveyance or other similar laws
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affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions in such loan
documents may be further limited or rendered unenforceable by applicable law,
but (subject to the limitations set forth in the foregoing clauses (i) and (ii))
such limitations will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no right of rescission,
offset, abatement, diminution or valid defense or counterclaim available to the
related Borrower with respect to such Mortgage Note, Mortgage or other
agreements that would deny the mortgagee the principal benefits intended to be
provided thereby. Seller has no actual knowledge of any such rights, defenses or
counterclaims having been asserted.
14. Insurance. Except in certain cases, where tenants, having a net worth
of at least $50,000,000 or an investment grade credit rating and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Schedule A-1 Loan are insured under a fire and extended perils
included within the classification "All Risk of Physical Loss" insurance (or the
equivalent) policy in an amount at least equal to the lesser of the outstanding
principal balance of such Schedule A-1 Loan and 100% of the replacement cost of
the improvements located on the related Mortgaged Property, and if applicable,
the related hazard insurance policy contains appropriate endorsements to avoid
the application of co-insurance and does not permit reduction in insurance
proceeds for depreciation. Except in the case of the Mortgaged Properties
identified on Schedule C-14 hereto, each Mortgaged Property securing a Schedule
A-1 Loan is the subject of a business interruption or rent loss insurance policy
providing coverage for at least twelve (12) months (or a specified dollar amount
which is reasonably estimated to cover no less than twelve (12) months of rental
income). If any portion of the improvements on a Mortgaged Property securing any
Schedule A-1 Loan was, at the time of the origination of such Schedule A-1 Loan,
in an area identified in the Federal Register by the Flood Emergency Management
Agency as a special flood hazard area (Zone A or Zone V) (an "SFH Area") and
flood insurance was available, a flood insurance policy meeting the requirements
of the then current guidelines of the Federal Insurance Administration is in
effect with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (1) the minimum amount required, under the
terms of coverage, to compensate for any damage or loss on a replacement basis,
(2) the outstanding principal balance of such Schedule A-1 Loan, and (3) the
maximum amount of insurance available under the applicable National Flood
Insurance Administration Program. All such hazard and flood insurance policies
contain a standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not terminable (nor
may the amount of coverage provided thereunder be reduced) without ten (10)
days' prior written notice to the mortgagee; and no such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured and, to the Seller's actual knowledge, all such insurance is in full force
and effect. Each Mortgaged Property and all improvements thereon are also
covered by comprehensive general liability insurance in such amounts as are
generally required by reasonably prudent commercial lenders for similar
properties and seismic insurance to the extent any Mortgaged Property has a PML
of greater than twenty percent (20%) calculated using methodology acceptable to
a reasonably prudent commercial mortgage lender with respect to similar
properties in same area or earthquake zone. Any Mortgaged Property constituting
a materially non-conforming use under applicable zoning laws and ordinances
constitutes a legal non-conforming use which, in the event of casualty or
destruction, may be restored or repaired to materially the same extent of the
use or structure at the time of such casualty or such Mortgaged Property is
covered by law and ordinance insurance in an amount customarily required by
reasonably prudent commercial mortgage lenders. Additionally, for any Schedule
A-1 Loan having a Cut-off Date Principal Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set
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forth herein has a claims paying ability rating from Standard & Poor's, Xxxxx'x
or Fitch of not less than A-minus (or the equivalent), or from A.M. Best of not
less than "A:V" (or the equivalent). With respect to each Schedule A-1 Loan, the
related Mortgage requires that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage for each Schedule A-1 Loan provides that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Schedule A-1
Loan; provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Schedule A-1
Loan; and provided, further, that, if the related Borrower holds a leasehold
interest in the related Mortgaged Property, the application of such proceeds
will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). To Seller's actual knowledge, all insurance policies
described above are with an insurance carrier qualified to write insurance in
the relevant jurisdiction.
15. Taxes and Assessments. As of the origination of the Schedule A-1 Loan
or February 2000, whichever is later, there were no, and as of the Closing Date,
the Seller has no knowledge of any, delinquent property taxes or assessments or
other outstanding charges affecting any Mortgaged Property securing a Schedule
A-1 Loan that are not otherwise covered by an escrow of funds sufficient to pay
such charge. For purposes of this representation and warranty, real property
taxes and assessments shall not be considered delinquent until the date on which
interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Mortgaged Property is the subject of, and no
Borrower under a Schedule A-1 Loan is a debtor in, any state or federal
bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a letter
from governmental authorities, a legal opinion, a zoning consultant's report, an
endorsement to the related Title Policy, or a representation of the related
Borrower at the time of origination of the subject Schedule A-1 Loan, or based
on such other due diligence considered reasonable by prudent commercial mortgage
lenders in the lending area where the subject Mortgaged Property is located,
except as described on Schedule C-17, the improvements located on or forming
part of, and the existing use of, each Mortgaged Property securing a Schedule
A-1 Loan are in material compliance with applicable zoning laws and ordinances
or constitute a legal non-conforming use or structure (or, if any such
improvement does not so comply and does not constitute a legal non-conforming
use or structure, such non-compliance and failure does not materially and
adversely affect the value of the related Mortgaged Property as determined by
the appraisal performed in connection with the origination of such Schedule A-1
Loan).
18. Leasehold Estate Only. If any Schedule A-1 Loan is secured by the
interest of a Borrower as a lessee under a ground lease (together with any and
all written amendments and modifications thereof and any and all estoppels from
or other agreements with the ground lessor, a "Ground Lease"), but not by the
related fee interest in such property (the "Fee Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage and does not restrict the use of
the related Mortgaged Property by such lessee, its successors or assigns in
a manner that would materially adversely affect the security provided by
the related
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Mortgage; and there has been no material change in the terms of such Ground
Lease since its recordation, with the exception of material changes
reflected in written instruments which are a part of the related Mortgage
File;
(b) Based on the related Title Policy (or if the related Title Policy
is not yet issued, based on the pro forma title policy or commitment
described in Paragraph 8 above), the related lessee's leasehold interest in
the portion of the related Mortgaged Property covered by such Ground Lease
is not subject to any liens or encumbrances superior to, or of equal
priority with, the related Mortgage, other than Permitted Encumbrances and
such Ground Lease, provides that it shall remain superior to any mortgage
or other lien upon the related Fee Interest;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained); provided that such Ground Lease has not
been terminated and all defaults, if any, on the part of the related lessee
have been cured;
(d) Except in the case of the Schedule A-1 Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as Stonewood
Center Mall (as to which the Borrower had failed to maintain certain
required insurance, but as of the Closing Date has cured such failure), the
Seller has not received, as of the Closing Date, actual notice that such
Ground Lease is not in full force and effect or that any material default
has occurred under such Ground Lease and the lessor under such Ground Lease
has been sent notice of the lien evidenced by the Mortgage in accordance
with the terms of the Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Schedule A-1 Loan.
Furthermore, except in the case of the Schedule A-1 Loans secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule as Stonewood
Center Mall and Hampton Inn & Suites, respectively, such Ground Lease
further provides that no notice of termination given under such Ground
Lease is effective against the mortgagee under such Schedule A-1 Loan
unless a copy has been delivered to such mortgagee in the manner described
in such Ground Lease;
(f) The mortgagee under such Schedule A-1 Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to cure
any default under such Ground Lease, which is curable after the receipt of
notice of any such default, before the lessor thereunder may terminate such
Ground Lease;
(g) Except in the case of the Schedule A-1 Loan secured by the
Mortgaged Property identified on the Mortgage Loan Schedule as Hampton Inn
& Suites, such Ground Lease has an original term (or an original term plus
options exercisable by the holder of the related Mortgage) which extends
not less than ten (10) years beyond the end of the amortization term of
such Schedule A-1 Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the
related Borrower unless the mortgagee under such Schedule A-1 Loan fails to
cure a default of the lessee under such Ground Lease following notice
thereof from the lessor;
(i) Except as described on Schedule C-18(i), under the terms of such
Ground Lease and the related Mortgage, taken together, any casualty
insurance proceeds, other than de minimis amounts for minor casualties,
with respect to the leasehold interest will be applied either: (i) to the
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repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or (ii) to the payment of the
outstanding principal balance of the Schedule A-1 Loan together with any
accrued interest thereon. Under the terms of the Ground Lease and the
related Mortgage, taken together, any condemnation proceeds or awards in
respect of a total or substantially total taking will be applied first to
the payment of the outstanding principal and interest on the Schedule A-1
Loan (except as otherwise provided by applicable law) and subject to any
rights to require the improvements to be rebuilt.;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the Mortgaged Property is located
at the time of the origination of such Schedule A-1 Loan;
(k) The lessor under such Ground Lease is not permitted to disturb the
possession, interest or quiet enjoyment of the lessee in the relevant
portion of the Mortgaged Property subject to such Ground Lease for any
reason, or in any manner, which would materially adversely affect the
security provided by the related Mortgage;
(l) Such Ground Lease provides that it may not be amended or modified
without the prior consent of the mortgagee under such Schedule A-1 Loan
and, except in the case of the Schedule A-1 Loans secured by the Mortgaged
Properties identified on the Mortgage Loan Schedule as 000 Xxxxx Xxxxxx and
Hampton Inn & Suites, respectively, that any such action without such
consent is not binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Such Schedule A-1 Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) and the related Mortgaged Property, if acquired in
connection with the default or imminent default of such Schedule A-1 Loan, would
constitute "foreclosure property" within the meaning of Section 860G(a)(8).
20. Advancement of Funds. The Seller has not advanced funds or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property (other than amounts paid by the tenant
as specifically provided under related lease), for the payment of any amount
required by such Schedule A-1 Loan, except for interest accruing from the date
of origination of such Schedule A-1 Loan or the date of disbursement of the
Schedule A-1 Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Schedule A-1 Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, has a shared appreciation feature,
provides for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property, or, except as identified on
Schedule C-21, provides for interest-only payments without principal
amortization or for the negative amortization of interest, except that, in the
case of an ARD Loan, such Schedule A-1 Loan provides that, during the period
commencing on or about the related Anticipated Repayment Date and continuing
until such Schedule A-1 Loan is paid in full, (a) additional interest shall
accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Schedule A-1 Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal
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balance thereof in addition to the principal portion of the related Monthly
Payment. Neither Seller nor any affiliate thereof has any obligation to make any
capital contribution to the Borrower under the Schedule A-1 Loan or otherwise.
22. Legal Proceedings. To Seller's knowledge, as of origination of the
Schedule A-1 Loan, there were no, and to the Seller's actual knowledge, as of
the Closing Date, there are no pending actions, suits, litigation or other
proceedings by or before any court or governmental authority against or
affecting the Borrower (or guarantor to the extent the Seller in accordance with
Seller's underwriting standards would consider the guarantor material to the
underwriting of such Schedule A-1 Loan) under any Schedule A-1 Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Schedule A-1 Loan, the Borrower's
ability to pay principal, interest or any other amounts due under such Schedule
A-1 Loan or of any such guarantor to meet its obligations.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule C-23,
none of the Schedule A-1 Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder thereof or
the satisfaction of debt service coverage or similar criteria specified therein.
To Seller's knowledge, as of origination of the Schedule A-1 Loan, and to the
Seller's actual knowledge, as of the Closing Date, except as otherwise set forth
on Schedule C-23, and except for cases involving other Schedule A-1 Loans, none
of the Mortgaged Properties securing the Schedule A-1 Loans is encumbered by any
mortgage liens junior to or of equal priority with the liens of the related
Mortgage.
24. No Mechanics' Liens. To Seller's knowledge, as of the origination of
the Schedule A-1 Loan, and, to the Seller's actual knowledge, as of the Closing
Date: (i) each Mortgaged Property securing a Schedule A-1 Loan (exclusive of any
related personal property) is free and clear of any and all mechanics' and
materialmen's liens that are prior or equal to the lien of the related Mortgage
and that are not bonded or escrowed for or covered by title insurance, and (ii)
no rights are outstanding that under law could give rise to any such lien that
would be prior or equal to the lien of the related Mortgage and that is not
bonded or escrowed for or covered by title insurance.
25. Compliance with Usury Laws. Each Schedule A-1 Loan complied with, or
was exempt from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the extent required by applicable law, and
except as identified on Schedule C-26, each Schedule A-1 Loan requires the
related Borrower to be qualified to do business, and requires the related
Borrower and the related Mortgaged Property to be in material compliance with
all regulations, licenses, permits, authorizations, restrictive covenants and
zoning and building laws, in each case to the extent required by law or to the
extent that the failure to be so qualified or in compliance would have a
material and adverse effect upon the enforceability of the Schedule A-1 Loan or
upon the practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby. To the
Seller's knowledge, as of the date of origination of each Schedule A-1 Loan and
based on any of: (i) a letter from governmental authorities, (ii) a legal
opinion, (iii) an endorsement to the related Title Policy, (iv) a representation
of the related borrower at the time of origination of such Schedule A-1 Loan,
(v) a zoning report from a zoning consultant, or (vi) other due diligence that
the originator of the Schedule A-1 Loan customarily performs in the origination
of comparable mortgage loans, the related Borrower was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
C-10
27. Cross-Collateralization. No Schedule A-1 Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Schedule A-1 Loans, the sum of the amounts of the
respective Mortgages recorded on the related Mortgaged Properties with respect
to such Schedule A-1 Loans is at least equal to the total amount of such
Schedule A-1 Loans.
28. Releases of Mortgaged Properties. Except as set forth on Schedule C-28,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon: (i) payment in full of all amounts due under the related
Schedule A-1 Loan or (ii) delivery of U.S. Treasury securities in connection
with a defeasance of the related Schedule A-1 Loan; provided that the Schedule
A-1 Loans that are Cross-Collateralized Mortgage Loans, and the other individual
Schedule A-1 Loans secured by multiple parcels, may require the respective
mortgagee(s) to grant releases of material portions of the related Mortgaged
Property or the release of one or more related Mortgaged Properties upon: (i)
the satisfaction of certain legal and underwriting requirements or (ii) the
payment of a release price and prepayment consideration in connection therewith.
29. Defeasance. With respect to any Schedule A-1 Loan that contains a
provision for any defeasance of mortgage collateral (a "Defeasance Loan"), the
related Mortgage Note or Mortgage provides that the defeasance option is not
exercisable prior to a date that is at least two (2) years following the Closing
Date and is otherwise in compliance with applicable statutes, rules and
regulations governing REMICs; requires prior written notice to the holder of the
Schedule A-1 Loan of the exercise of the defeasance option and payment by
Borrower of all related reasonable fees, costs and expenses as set forth below;
requires, or permits the lender to require, the Schedule A-1 Loan (or the
portion thereof being defeased) to be assumed by a single-purpose entity; and
requires counsel to provide a legal opinion that the Trustee has a perfected
security interest in such collateral prior to any other claim or interest. In
addition, each Schedule A-1 Loan that is a Defeasance Loan permits defeasance
only with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount sufficient to make
all scheduled payments under the Mortgage Note (or the portion thereof being
defeased) when due, and in the case of ARD Loans, assuming the Anticipated
Repayment Date is the Maturity Date. To Seller's actual knowledge, defeasance
under the Schedule A-1 Loan is only for the purpose of facilitating the
disposition of a Mortgaged Property and not as part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages. With respect to each Defeasance Loan, except as set forth on Schedule
C-29, the related Mortgage or other related loan document provides that the
related Borrower shall (a) 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, or (b) provide all opinions required
under the related loan documents, including, if applicable, a REMIC opinion and
a perfection opinion and any applicable rating agency letters confirming no
downgrade or qualification of ratings on any classes in the transaction.
Additionally, for any Schedule A-1 Loan having a Cut-off Date Principal Balance
equal to or greater than $19,900,000, the Schedule A-1 Loan or the related
documents require confirmation from the Rating Agency that exercise of the
defeasance option will not cause a downgrade or withdrawal of the rating
assigned to any securities backed by the Schedule A-1 Loan and require the
Borrower to pay any Rating Agency fees and expenses.
30. Fixed Rate Loans. Each Schedule A-1 Loan bears interest at a rate that
remains fixed throughout the remaining term of such Schedule A-1 Loan, except in
the case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
C-11
31. Inspection. Other than the Union Capital Mortgage Loans, identified as
such on the Mortgage Loan Schedule, and except as set forth on Schedule C-31,
the Seller, or an affiliate, inspected, or caused the inspection of, the related
Mortgaged Property within twelve (12) months of the Closing Date.
32. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Schedule A-1 Loan; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Seller in this Exhibit C.
33. Due-on-Sale. The Mortgage contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Schedule A-1 Loan if, without the prior written consent of the holder of the
Mortgage, either the related Mortgage Property, or any direct equity interest in
the related Borrower, is pledged, transferred or sold, other than by reason of
family and estate planning transfers, transfers of less than a controlling
interest in the Borrower, transfers of shares in public companies, issuance of
non-controlling new equity interests, transfers to an affiliate meeting the
requirements of the Schedule A-1 Loan, transfers among existing members,
partners or shareholders in the Borrower, transfers among affiliated Borrowers
with respect to cross-collateralized Mortgaged Loans or multi-property Schedule
A-1 Loans, transfers among co-Borrowers or transfers of a similar nature to the
foregoing meeting the requirements of the Schedule A-1 Loan. The Mortgage
requires the Borrower to pay all reasonable fees and expenses associated with
securing the consent or approval of the holder of the Mortgage for all actions
requiring such consent or approval under the Mortgage including the cost of
counsel opinions relating to REMIC or other securitization and tax issues.
34. Single Purpose Entity. Each Schedule A-1 Loan with an original
principal balance over $5,000,000 requires the Borrower to be at least for so
long as the Schedule A-1 Loan is outstanding, and to Seller's actual knowledge
each Borrower is, a Single-Purpose Entity. For this purpose, "Single-Purpose
Entity" means a person, other than an individual, which is formed or organized
solely for the purpose of owning and operating the related Mortgaged Property or
Properties; does not engage in any business unrelated to such Mortgaged Property
or Properties and the financing thereof; and whose organizational documents
provide, or which entity represented and covenanted in the related Schedule A-1
Loan documents, substantially to the effect that such Borrower (i) does not and
will not have any material assets other than those related to its interest in
such Mortgaged Property or Properties or the financing thereof; (ii) does not
and will not have any indebtedness other than as permitted by the related
Mortgage or other related Mortgage Loan Documents; (iii) maintains its own
books, records and accounts, in each case which are separate and apart from the
books, records and accounts of any other person; and (iv) holds itself out as
being a legal entity, separate and apart from any other person. In addition with
respect to all Schedule A-1 Loans with a Cut-off Date Principal Balance of
$20,000,000 or more, except as set forth on Schedule C-34, the Borrower's
organizational documents provide substantially to the effect that the Borrower
shall: conduct business in its own name; not guarantee or assume the debts or
obligations of any other person; not commingle its assets or funds with those of
any other person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such group;
transact business with affiliates on an arm's length basis; hold itself out as
being a legal entity, separate and apart from any other person and such
organizational documents provide substantially to the effect that: any
dissolution and winding up or insolvency filing for such entity is prohibited or
requires the consent of an independent director or member or the unanimous
consent of all partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements without the
approval of the mortgagee
C-12
or rating agencies; the Borrower shall have an outside independent director or
member. The Mortgage File for each such Schedule A-1 Loan having a Cut-off Date
Principal Balance of $20,000,000 or more contains a counsel's opinion regarding
non-consolidation of the Borrower in any insolvency proceeding involving any
other party. To Seller's actual knowledge, each Borrower has fully complied with
the requirements of the related Schedule A-1 Loan and Mortgage and the
Borrower's organizational documents regarding Single-Purpose-Entity status. The
organization documents of any Borrower on a Schedule A-1 Loan having a Cut-off
Date Principal Balance of $20,000,000 or more which is a single member limited
liability company provide that the Borrower shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of the sole member. Any such
single member limited liability company Borrower is organized in jurisdictions
that provide for such continued existence and the Mortgage Loan File contains an
opinion of such Borrower's counsel confirming such continued existence and that
the applicable law provides that creditors of the single member may only attach
the assets of the member including the membership interests in the Borrower but
not the assets of the Borrower.
35. Whole Loan. Each Schedule A-1 Loan is a whole loan and not a
participation interest in a mortgage loan.
36. Tax Parcels. Except as described on Schedule C-36 of this Agreement,
each Mortgaged Property constitutes one or more complete separate tax lots
containing no other property, is subject to an endorsement under the related
Title Policy insuring same or an application for the creation of separate tax
lots complying in all respects with the applicable laws and requirements of the
applicable governing authority has been made and approved by the applicable
governing authority and such separate tax lots shall be effective for the next
tax year.
37. ARD Loans. Except as described on Schedule C-37, each Schedule A-1 Loan
which is an ARD Loan commenced amortizing on its initial scheduled Due Date, and
provides that: (i) its Mortgage Rate will increase by at least two (2)
percentage points in connection with the passage of its Anticipated Repayment
Date; (ii) its Anticipated Repayment Date is not less than seven (7) years
following the origination of such Schedule A-1 Loan; (iii) no later than the
related Anticipated Repayment Date, the related Borrower is required (if it has
not previously done so) to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer; and (iv) any net cash flow
from the related Mortgaged Property that is applied to amortize such Schedule
A-1 Loan following its Anticipated Repayment Date shall, to the extent such net
cash flow is in excess of the scheduled principal and interest payment payable
therefrom, be net of budgeted and discretionary (servicer approved) capital
expenditures.
38. Security Interests. The security agreements, financing statements or
other instruments, if any, related to the Schedule A-1 Loan establish and
create, and a UCC financing statement has been filed and/or recorded in all
places required by applicable law for the perfection of (to the extent that the
filing of such a UCC financing statement can perfect such a security interest),
a valid security interest in the personal property granted under such Mortgage
(and any related security agreement), which in all cases includes elevators and
all Borrower-owned furniture, fixtures and equipment material to the Mortgaged
Property, and if such Mortgaged Property is a hotel operated by the related
Borrower, then such personal property constitutes such portion of the material
personal property required to operate the Borrower's business as the Seller
considered appropriate in light of its underwriting standards; any security
agreement, chattel mortgage or equivalent document related to and delivered in
connection with the Schedule A-1 Loan establishes and creates a valid and
enforceable lien and security interest on the property described therein
(subject to the exceptions set forth in Paragraph
C-13
13 above), which lien/security interest shall, in the case of (i) elevators at
all Mortgaged Properties having the same and (ii) all Borrower-owned furniture,
fixtures and equipment at Borrower operated hotel properties, be a first
priority lien/ security interest except for certain personal property subject to
purchase money security interests and personal property leases. In the case of
each Schedule A-1 Loan secured by a hotel, the related loan documents contain
such provisions as are necessary and UCC Financing Statements have been filed as
necessary, in each case, to perfect a valid first priority security interest in
the related revenues with respect to such Mortgaged Property. An assignment of
each UCC financing statement relating to the Schedule A-1 Loan has been executed
by Seller in blank which the Purchaser or Trustee, as applicable, or designee is
authorized to complete and to file in the filing office in which such financing
statement was filed. Each Schedule A-1 Loan and the related Mortgage (along with
any security agreement and UCC financing statement), together with applicable
state law, contain customary and enforceable provisions such as to render the
rights and remedies of the holders thereof adequate for the practical
realization against the personal property described above, and the principal
benefits of the security intended to be provided thereby.
39. Disclosure to Environmental Insurer. If the Mortgaged Property securing
any Schedule A-1 Loan is covered by a secured creditor impaired property policy,
then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent required by such policy or to the extent the failure
to make any such disclosure or deliver any such report would materially and
adversely affect the Purchaser's ability to recover under such policy.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to each Schedule A-1 Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
41. Operating Statements. Except for the Schedule A-1 Loans with an initial
principal balance less than $3,000,000, which only require annual statements,
and except as set forth on Schedule C-41, each Mortgage requires the Borrower,
in some cases only at the request of the holder of the Mortgage, to provide the
owner or holder of the Mortgage with at least quarterly and annual operating
statements, rent rolls (if there is more than one tenant) and related
information and annual financial statements, which annual financial statements
for all Schedule A-1 Loans with an original principal balance greater than $20
million (except for the Schedule A-1 Loans secured by the Mortgaged Properties
identified on the Mortgage Loan Schedule as 000 Xxxxxxx Xxxxxxxx and Brea Union
Plaza II, respectively) shall be audited by an independent certified public
accountant upon the request of the holder of the Schedule A-1 Loan.
42. Servicing Rights. Except as set forth on Schedule C-42 or as otherwise
contemplated in this Agreement, no Person has been granted or conveyed the right
to service any Schedule A-1 Loan or receive any consideration in connection
therewith.
C-14
43. Recourse. Each Schedule A-1 Loan is non-recourse, except that, except
as described on Schedule C-43 or for Schedule A-1 Loans with a Cut-off Date
Principal Balance of less than $5,000,000, the Borrower and either a principal
of the Borrower or other individual guarantor, with assets other than any
interest in the Borrower, is liable in the event of: (i) fraud or material
misrepresentation, (ii) misapplication or misappropriation of rents, insurance
payments, condemnation awards or tenant security deposits or (iii) violation of
applicable environmental laws or breaches of environmental covenants; provided
that, with respect to clause (iii) in this paragraph, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement. No waiver of liability for such non-recourse exceptions has been
granted to the Borrower or any such guarantor or principal by the Seller or
anyone acting on behalf of the Seller.
44. Assignment of Collateral. There is no material collateral securing any
Schedule A-1 Loan that has not been assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related Borrower
in the Mortgaged Property securing each Schedule A-1 Loan includes a fee simple
and/or leasehold estate or interest in real property and the improvements
thereon.
46. Servicing. The servicing and collection practices used with respect to
each Schedule A-1 Loan in all material respects have met customary standards
utilized by prudent commercial mortgage loan servicers with respect to whole
loans.
47. Originator's Authorization To Do Business. To the extent required under
applicable law to assure the enforceability of a Schedule A-1 Loan, as of the
Schedule A-1 Loan's funding date and at all times when it held such Schedule A-1
Loan, the originator of each Schedule A-1 Loan was authorized to do business in
the jurisdiction in which the related Mortgaged Property is located.
48. No Fraud In Origination. In the origination of the Schedule A-1 Loan,
neither the originator nor any employee or agent of Seller or the originator,
participated in any fraud or intentional material misrepresentation with respect
to the Borrower, the Mortgaged Property or any guarantor. To Seller's actual
knowledge, no Borrower is guilty of defrauding or making an intentional material
misrepresentation to the Seller or originator with respect to the origination of
the Schedule A-1 Loan, the Borrower or the Mortgaged Property.
49. Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property, which appraisal is signed by an appraiser, who, to Seller's
actual knowledge, had no interest, direct or indirect, in the Borrower, the
Mortgaged Property or in any loan made on the security of the Mortgaged
Property, and whose compensation is not affected by the approval or disapproval
of the Schedule A-1 Loan; to the Seller's knowledge, the appraisal and appraiser
both satisfy the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, all as in effect on the date the Schedule A-1 Loan was originated.
50. Jurisdiction of Organization. Each Borrower under a Schedule A-1 Loan
was organized under the laws of the United States or the laws of a jurisdiction
located within the United States, its territories and possessions.
51. Borrower Concentration. Except in the case of the Schedule A-1 Loans
secured by the Mortgaged Properties identified on the Mortgage Loan Schedule as
Stonewood Center Mall and 000 Xxxxx Xxxxxx Office Building, respectively, no
single Borrower or group of affiliated Borrowers
C-15
is/are the obligor(s) under any one or more Schedule A-1 Loans with a Cut-off
Date Principal Balance equal to or greater than 5% of $997,140,788.
52. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Schedule A-1 Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
which are required for the administration and servicing of such Schedule A-1
Loan are conveyed hereunder to the Purchaser.
C-16
SCHEDULE C-6
1. The Mortgage Loan secured by the Mortgaged Properties identified on the
Mortgage Loan Schedule as the Alliance IJ Portfolio, was modified on
December 27, 2000 to add the Aspen Village Apts. and to increase the
principal amount of such Mortgage Loan to $29,022,700.43. There was also a
revision to the Second Consolidated, Amended and Restated Promissory Note
to correct the monthly principal and interest amount. The Mortgage Loan
secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule as the Alliance CC Portfolio is currently being modified to sever
the debt and "break out" one property.
2. The Mortgage Loan secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as the Stonewood Center Mall, was the subject of a
waiver of a default under the related ground lease relating to the
maintenance of insurance by the related Borrower.
C-17
SCHEDULE C-7A
1. The Mortgaged Property identified on the Mortgage Loan Schedule as Parkway
Place Townhomes was the subject of a fire that destroyed a building
containing two 3-bedroom units. This building may not be restored.
C-18
SCHEDULE C-7B
[None]
C-19
SCHEDULE C-12(AB/LBP)
PROPERTY NAME CUT-OFF DATE BALANCE
------------- --------------------
1 Xxxxxxxxx Apartments $ 3,353,753
0 Xxxxxxxx Xxxxxxx Apartments 646,795
3 Cypress Garden Apartments 379,294
0 Xxxxxxx Xxxx Xxxxxxxxxx 000,000
0 Xxxxxxxx Xxxx Apartments 917,619
6 The Palmetto Building 750,054
7 0000 Xxxxxxxxx Xxxx 359,068
8 The Xxxxxxx Building 357,074
9 The Orono Building 319,172
10 0000 Xxxxxxxx Xxxx 259,327
00 Xxxxxxxx Xxxxx Apartments 2,792,842
12 Xxxx Xxxx Apartments 2,493,840
13 Willow Wood Apartments 2,396,154
00 Xxxxxxx Xxxxx 2,187,851
00 Xxxxxx Xxxxxx Apartments 2,114,327
16 Town & Country Professional Building 1,995,290
00 Xxxxxxxxx Xxxxxx 1,750,790
18 Xxxxxxxxx Apartments 1,715,441
00 Xx Xxxxxx Xxxxx Xxxxxx Xxxx Xxxx 1,437,107
00 Xxx Xxxxx Apartments 1,187,846
21 Bel-Aire Apartments 1,127,521
22 Newport Center 1,100,904
23 Wyncrest Manor Apartments 996,946
24 Xxxxxxx Chateau 972,280
00 Xxxxxxx Xxxxx Apartments 947,482
00 Xxxxxxx Xxxxxxx 000,000
00 Xxxxx Xxxxx Retail Center 798,200
28 0000 Xxxxxx Xxxxxx 699,403
----------------------------
============================
C-20
SCHEDULE C-12(TS)
PROPERTY NAME TYPE OF ENVIRONMENTAL REPORT
------------- ----------------------------
Comfort Inn - Syracuse Transaction Screen
Birmingham Drug & Video Max Transaction Screen
Vanowen Self Storage Transaction Screen
Aspin Storage Transaction Screen
000 Xxxxxx Xxxxxx Transaction Screen
000-000 Xxxx Xxxxxx Transaction Screen
41st Street Office Building Transaction Screen
CSK Auto Store - Anchorage Transaction Screen
Pine Avenue Apartments Transaction Screen
Westside Mobile Home Park Transaction Screen
CSK Auto - Albuquerque Transaction Screen
Crooks Road Apartments Transaction Screen
Lawn Avenue Apartments Transaction Screen
000-000 Xxxxx Xxxxxx Transaction Screen
00-00 Xxxxxx Xxxxxx Transaction Screen
0000-0000 Xxxxxxxxx Xxxx Transaction Screen
C-21
SCHEDULE C-12(A)
PROPERTY NAME DATE OF REPORT
------------- --------------
Crystal Pavilion 5/12/1999
Xxxxx Building 5/12/1999
Lowe's San Bruno 7/15/1999
CVS/Pharmacy 8/4/1999
The Lofts Apartments 9/8/1999
College Park Medical Office Building 11/29/1999
College Park Commons 11/29/1999
Durkopp Xxxxx America 12/20/1999
00-00 Xxxxxx Xxxxxx 12/29/1999
000 Xxxxx Xxxxxx 1/6/2000
Cedarbrook Plaza Shopping Center 1/11/2000
0000-0000 Xxxxxxxxx Xxxx 1/21/2000
Xxxxxxx Xxxxx 0/00/0000
Xxxxxxx Xxxxxx Apartments 2/10/2000
000-000 Xxxxx Xxxxxx 2/11/2000
Vanowen Self Storage 2/14/2000
The Maple Leaf Square Shopping Center 2/16/2000
C-22
SCHEDULE C-12(C)
1. The Mortgaged Property identified on the Mortgage Loan Schedule as
Sierra Center is in a Superfund site.
C-23
SCHEDULE C-12(G)
PROPERTY NAME CUT-OFF DATE BALANCE
------------- --------------------
1 Exodus R&D Building $ 34,906,620
0 Xxxxxxx Xxxxxxxxxx Xxxxx (2B) 2,966,744
0 Xxxxxxxxxx Xxxxx (2B) 2,165,245
0 Xxxxxxxx Xxxxx (2B) 2,105,281
5 Dorchester Crossing (2B) 1,894,091
6 Xxxxxxxxx Apartments 3,353,753
0 Xxxxxxxx Xxxxxxx Apartments 646,795
8 Cypress Garden Apartments 379,294
0 Xxxxxxx Xxxx Apartments 283,472
10 Superior Hill Apartments 917,619
11 The Palmetto Building 750,054
12 0000 Xxxxxxxxx Xxxx 359,068
13 The Xxxxxxx Building 357,074
14 The Orono Building 319,172
15 0000 Xxxxxxxx Xxxx 259,327
00 Xxxxxxxx Xxxxx Apartments 2,792,842
17 Durkopp Xxxxx America 2,742,466
18 Xxxx Xxxx Apartments 2,493,840
19 Willow Wood Apartments 2,396,154
00 Xxxxxxx Xxxxx 2,187,851
00 Xxxxxx Xxxxxx Xxxxxxxxxx 0,000,000
00 Xxx Xxxxxx Square 2,045,067
23 Town & Country Professional Building 1,995,290
24 CVS Drug Store 1,840,618
00 Xxxxxxxxx Xxxxxx 1,750,790
26 Xxxxxxxxx Apartments 1,715,441
00 Xx Xxxxxx Xxxxx Xxxxxx Xxxx Xxxx 1,437,107
00 Xxx Xxxxx Apartments 1,187,846
29 Bel-Aire Apartments 1,127,521
30 Newport Center 1,100,904
31 Wyncrest Manor Apartments 996,946
32 Xxxxxxx Chateau 972,280
00 Xxxxxxx Xxxxx Apartments 947,482
00 Xxxxxxx Xxxxxxx 000,000
00 Xxxxx Xxxxx Retail Center 798,200
36 0000 Xxxxxx Xxxxxx 699,403
==========
C-24
SCHEDULE C-14
1. Mortgaged Properties used as mobile home parks.
C-25
SCHEDULE C-17
1. Certain businesses are being operated at the Mortgaged Property
identified on the Mortgage Loan Schedule as First Union Building without proper
licenses and permits and otherwise in violation of Philadelphia zoning code.
2. There currently exists with respect to the Mortgaged Property identified
on the Mortgage Loan Schedule as Stonewood Center Mall various violations of the
Downey Fire Department Life Safety Codes.
C-26
SCHEDULE C-18(I)
1. In the case of the Mortgaged Property identified on the Mortgage Loan
Schedule as 000 Xxxxx Xxxxxx, the related Borrower may, without lender
involvement, deal with insurance and condemnation proceeds in an amount not in
excess of the lesser of 10% of the outstanding principal balance of the related
Mortgage Loan and $1,000,000.
2. In the case of the Mortgaged Property identified on the Mortgage Loan
Schedule as Stonewood Center Mall, the related Borrower may, without lender
involvement, deal with insurance and condemnation proceeds in an amount not in
excess of $1,000,000.
3. In the case of the Mortgaged Property identified on the Mortgage Loan
Schedule as Hampton Inn & Suites, the related Borrower may, without lender
involvement, deal with insurance and condemnation proceeds in an amount not in
excess of the lesser of 10% of the outstanding principal balance of the related
Mortgage Loan and $350,000.
C-27
SCHEDULE C-21
Interest Only Period
Property Name (months)
------------- --------------------
1. Stonewood Center Mall 21
2. Brea Union Plaza Phase II 31
3. One Rennaisance Center 4
4. Lowe's San Xxxxx 30
5. Sierra Center 54
6. Coachwood Colony Mobile Home Park 9
C-28
SCHEDULE C-23
1. The Mortgaged Property identified on the Mortgage Loan Schedule as the
Lofts Apartments is encumbered by a $300,000 subordinate loan pursuant to the
Affordable Housing Program.
2. The Crystal Pavilion/Xxxxx Building Mortgaged Property is encumbered by
three loans that are pari passu with the Crystal Pavilion/Xxxxx Building
Mortgage Loan.
C-29
SCHEDULE C-26
1. Certain businesses are being operated at the Mortgaged Property
identified on the Mortgage Loan Schedule as First Union Building without proper
licenses and permits and otherwise in violation of Philadelphia zoning code.
C-30
SCHEDULE C-28
[None]
C-31
SCHEDULE C-29
1. In the case of the Mortgage Loans secured by the Mortgaged Properties
identified on the Mortgage Loan Schedule as 17871 Xxx Xxxxxx and Xxxx'x Home
Improvement Warehouse, respectively, the related Borrowers are not expressly
required to pay Rating Agency fees or to provide "all opinions required under
the related loan documents."
C-32
SCHEDULE C-31
[None]
C-33
SCHEDULE C-34
1. In the case of the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as Central Plaza, the manager (as
opposed to the Borrower) is required to have at least one independent director,
and the manager must consent to insolvency/bankruptcy proceedings in respect of
the Borrower.
2. In the case of the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as 000 Xxxxx Xxxxxx, the Borrower is
required to have a special purpose member that has a board of directors with 2
independent directors or 2 independent members, which special purpose member is
to vote on all matters requiring unanimous consent of the Borrower's members.
3. In the case of the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as Brea Union Plaza II, the managing
member (as opposed to the Borrower) is required to have at least one independent
director.
4. In the case of the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as 000 Xxxxxxx Xxxxxx Xxxxxx Building,
the general partner (as opposed to the Borrower) is required to have at least
one independent director.
5. In the case of the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as the Exodus Building, the manager (as
opposed to the Borrower) is required to have at least one independent director,
and such independent director must vote on insolvency/bankruptcy matters with
respect to the Borrower.
6. In the case of the Mortgage Loan secured by the Mortgaged Properties
identified on the Mortgage Loan Schedule as Alliance IJ Portfolio, the general
partner (as opposed to the Borrower) is required to have at least one
independent director and all of the directors of the general partner must
consent to the insolvency of the related Borrower.
7. In the case of the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as the First Union Building, the
general partner (as opposed to the Borrower) is required to have at least one
independent member.
C-34
SCHEDULE C-36
[None]
C-35
SCHEDULE C-37
1. The Mortgage Loan secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as Stonewood Center Mall has an initial interest only
period.
C-36
SCHEDULE C-42
SUB-SERVICED LOANS
PROPERTY SUBSERVICER SUB FEE
--------------------------------------------------------------------------------
1 Milford Commons Apartments Fifth third Real Estate Markets Co. 0.05%
------------------------------------------------------------------------------
0 Xxxxxxx Xxxxx Xxxxxxxxx XxxXxxxx Financial 0.03%
------------------------------------------------------------------------------
3 Crystal Pavilion/Xxxxx Building CapMark Services 0.07%
------------------------------------------------------------------------------
0 Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxx Bank 0.12%
------------------------------------------------------------------------------
0 Xxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx Bank 0.12%
------------------------------------------------------------------------------
6 Palmdale Xxxxxxx Apartments Heartland Bank 0.12%
------------------------------------------------------------------------------
7 Palmdale Villa Apartments Heartland Bank 0.12%
------------------------------------------------------------------------------
C-37
SCHEDULE C-43
1. With respect to the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as Oak Crossing, the related Borrower
is the only indemnitor and the guarantor is the general partner of the related
Borrower.
2. With respect to the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as 000 Xxxxx Xxxxxx, the carveout
regarding willful misconduct only extends to material physical damage to the
property as a result of intentional misconduct of the related Borrower. There is
no carveout for acts of waste. In addition, the lender is precluded from
enforcing the guaranty regarding the environmental carveout to the extent that
the related Borrower's environmental insurance otherwise satisfies the costs.
3. The Mortgage Loan secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as Chantilly Plaza I-IV does not provide for an
indemnitor or guarantor with respect to the non-recourse carveouts.
C-38
NY1 2057216v12 X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SECRETARY
OR AN ASSISTANT SECRETARY OF THE SELLER
CERTIFICATE OF [ASSISTANT] SECRETARY OF COLUMN FINANCIAL, INC.
I, __________________, hereby certify that I am a duly appointed Secretary
of Column Financial, Inc., a Delaware corporation ("Column"), and further
certify as follows:
1. Attached hereto as Attachment A are true, correct and complete copies of
the certificate of incorporation and by-laws of Column, which are in full force
and effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of Column authorizing and approving Column's execution, delivery and
performance of (a) the Mortgage Loan Purchase Agreement, dated as of __________,
2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse First
Boston Mortgage Securities Corp., as purchaser, and Column, as seller, and (b)
the corresponding Indemnification Agreement referred to in the Mortgage Loan
Purchase Agreement (the "Indemnification Agreement"). Such resolutions are in
full force and effect on the date hereof and do not conflict with any other
resolutions of the board of directors of Column in effect on the date hereof.
3. Attached hereto as Attachment C is a certificate of good standing with
respect to Column issued by the Secretary of State of the State of Delaware
within 20 days of the date hereof and no event (including, without limitation,
any act or omission on the part of Column) has occurred since the date thereof
that has affected the good standing of Column under the laws of the State of
Delaware.
4. Each person who, as an officer or representative of Column, signed the
Mortgage Loan Purchase Agreement, the Indemnification Agreement or any other
document or certificate delivered by or on behalf of Column prior hereto or on
the date hereof in connection with the transactions contemplated in the Mortgage
Loan Purchase Agreement and/or the Indemnification Agreement, was, at the
respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of each such person appearing on any such
documents is his or her genuine signature.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________, 2001.
By:__________________________________
Name:
Title: [Assistant] Secretary
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF COLUMN FINANCIAL, INC.
In connection with the execution and delivery by Column Financial, Inc.
("Column") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
__________, 2001, between Credit Suisse First Boston Mortgage Securities Corp.,
as purchaser, and Column, as seller, and the corresponding Indemnification
Agreement referred to in the Mortgage Loan Purchase Agreement (the
"Indemnification Agreement"; and, together with the Mortgage Loan Purchase
Agreement, the "Agreements"), the undersigned hereby certifies that (i) the
representations and warranties of Column in the Agreements are true and correct
in all material respects at and as of the date hereof (or, in the case of any
particular representation and warranty set forth in Exhibit C to the Mortgage
Loan Purchase Agreement, as of such other date specifically set forth in such
representation and warranty) with the same effect as if made on the date hereof
(or, in the case of any particular representation and warranty set forth in
Exhibit C to the Mortgage Loan Purchase Agreement, on such other date
specifically set forth in such representation and warranty), and (ii) Column
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreements to be performed or
satisfied at or prior to the date hereof. Capitalized terms used but not defined
herein shall have the respective meanings assigned to them in the Mortgage Loan
Purchase Agreement.
Certified this __ day of __________ 2001.
COLUMN FINANCIAL, INC.
By:
----------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0X
XXXX XX XXXXXXX XX XXXX, XXXXXXXX & XXXXXX,
PURSUANT TO SECTION 7(VI)
March 16, 2001
Credit Suisse First Boston Xxxxx'x Investors Service, Inc.
Mortgage Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Fitch, Inc.
00 Xxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments, Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center, 26th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK1
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Column Financial, Inc. (the "Company") in
connection with the sale of certain mortgage loans (collectively, the "Mortgage
Loans") by the Company to Credit Suisse First Boston Mortgage Securities Corp.
("CSFB Mortgage Securities") pursuant to a Mortgage Loan Purchase Agreement,
dated as of March 5, 2001 (the "Agreement"), between the Company and CSFB
Mortgage Securities and in connection with the delivery by the Company of that
certain Indemnification Agreement, dated as of March 5, 2001 (the "Indemnity")
among the Company, CSFB Mortgage Securities, Credit Suisse First Boston
Corporation, McDonald Investments, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxxx Xxxxx Barney, Inc. This opinion is being delivered to
you pursuant to the Agreement. Capitalized terms not defined herein have the
meanings set forth in the Agreement.
1
In rendering this opinion letter, we have examined the Agreement, the
Indemnity and such other documents as we have deemed necessary. As to matters of
fact, we have examined and relied upon, without any independent investigation,
representations of the Company contained in the Agreement and in the Certificate
of an Officer of the Seller attached hereto and, where we have deemed
appropriate, representations or certifications of parties to the Agreement or
public officials. We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of
natural persons and the conformity to the originals of all documents submitted
to us as copies. We have assumed that all parties to the Agreement and the
Indemnity other than the Company had the corporate power and authority to enter
into and perform all obligations thereunder. As to such parties, other than the
Company, we also have assumed the due authorization by all requisite corporate
action, and the due execution and delivery and the enforceability of such
documents. We have further assumed the conformity of the Mortgage Loans and
related documents to the requirements of the Agreement and have assumed that the
Company is the owner of the Mortgage Loans.
Based upon and subject to the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing and
in good standing under the laws of the State of Delaware and has the requisite
corporate power to own its properties, to conduct its business as presently
conducted by it, to own and to transfer and convey to CSFB Mortgage Securities
the Mortgage Loans and to enter into and perform its obligations under the
Agreement and Indemnity.
2. The Agreement and Indemnity each has been duly and validly authorized,
executed and delivered by the Company and each constitutes the valid, legal and
binding agreement of the Company.
3. No consent, approval, authorization or order of any State of Georgia or
federal court or State of Georgia or federal governmental agency or body is
required for the consummation by the Company of the transactions contemplated by
the Agreement and Indemnity, except for those consents, approvals,
authorizations or orders that previously have been obtained.
4. Neither the transfer of the Mortgage Loans as provided in the Agreement,
nor the fulfillment of the terms of or the consummation of any other of the
transactions contemplated by the Agreement and Indemnity, will result in a
breach of any term or provision of the certificate of incorporation or by-laws
of the Company or any State of Georgia or federal statute or regulation
applicable to the Company, or to our knowledge, will conflict with, result in a
breach, violation or acceleration of or constitute a default under, the terms of
any indenture or other agreement or instrument to which the Company is a party
or by which it is bound, or any order of any State of Georgia or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company.
5. To our knowledge, there are no actions, proceedings, or investigations
pending or threatened against the Company before any State of Georgia, State of
Delaware or federal court, administrative agency or other tribunal (a) asserting
the invalidity of the Agreement or Indemnity, (b) seeking to prevent the
consummation of any of the transactions contemplated in the Agreement or
Indemnity, or (c) that might materially and adversely affect the performance by
the Company of its obligations under, or the validity of, the Agreement or
Indemnity.
Where we have rendered our opinion concerning matters "known to us" or this
letter otherwise refers to our knowledge or our attention, such reference shall
mean only the knowledge of
2
Xxxxxxx X. Xxxxxxx, Xxxxxxx X. XxXxxxxx, X. Xxxxxxx Null, Xxxxx X. Xxxxxx or
Xxxxxx X. Xxxxx, who are the attorneys in our firm primarily responsible for our
services relating to the Company, and shall not refer to the knowledge of any
other person in any way associated with this firm. You are advised that we have
made no independent investigation or verification of such matters and have not
searched or reviewed the files and records of or relating to Company or such
matters in our office, in the public records, in the possession of Company, or
elsewhere.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of Georgia, the corporate law of the
State of Delaware and the federal law of the United States. We do not express
any opinion concerning the enforceability of the Agreement or the Indemnity.
Any and all opinions rendered by this firm in this opinion letter are
limited to the matters expressly set forth herein; and no opinion is implied or
to be inferred beyond the matters expressly so stated. This opinion is given as
of the date hereof, and we expressly decline any undertaking to revise or update
this opinion subsequent to the date hereof or to advise you of any matter
arising subsequent to the date hereof, which would cause us to modify the
opinion, in whole or in part.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person is entitled to rely hereon. Copies of this letter
may not be furnished to any other person, nor may any portion of this letter be
quoted, circulated or referred to in any other document.
Very truly yours,
LONG XXXXXXXX & XXXXXX LLP
3
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY & AUSTIN,
PURSUANT TO SECTION 7(VII)
March 16, 2001
Credit Suisse First Boston Xxxxxxx Xxxxx Xxxxxx Inc.
Mortgage Securities Corp. 000 Xxxxxxxxx Xxxxxx, 00xx Floor
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, XX 00000
Xxxxxxx, Lynch, Pierce, Xxxxxx Xxxxx, Inc.
& Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Xxxxxx-00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK1
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("Column") with
respect to certain matters in connection with the sale by Column, and the
purchase by Credit Suisse First Boston Mortgage Securities Corp. ("CSFBMSC"), of
a segregated pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement dated as of
March 5, 2001 (the "Agreement"), between Column and CSFBMSC.
This opinion letter is being provided to you pursuant to Section 7(vii) of
the Agreement. Capitalized terms that are used, but not defined, herein have the
respective meanings set forth in, or otherwise assigned to them pursuant to, the
Agreement.
For purposes of this opinion letter, we have reviewed the Agreement. In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreement and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
D-3B-1
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
contained in the Agreement, (ii) the legal capacity of natural persons, (iii)
the genuineness of all signatures, (iv) the authenticity of all documents
submitted to us as originals, (v) the conformity to authentic originals of all
documents submitted to us as certified, conformed or photostatic copies, (vi)
the due organization of each of the parties to the Agreement and the valid
existence of each such party in good standing under the laws of its jurisdiction
of organization, (vii) the power and authority of all parties to the Agreement
to enter into, perform under and consummate the transactions contemplated by the
Agreement, without any resulting conflict with or violation of the
organizational documents of any such party or with or of any law, rule,
regulation, order or decree applicable to any such party or its assets, and
without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreement by the parties thereto, (ix) except to
the extent expressly addressed below, the constitution of the Agreement as the
legal, valid and binding obligation of each party thereto, enforceable against
such party in accordance with its terms, and (x) the absence of any other
agreement that supplements or otherwise modifies the intentions and agreements
of the parties to the Agreement, as expressed therein.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
In rendering this opinion letter, we do not express any opinion concerning
the laws of any jurisdiction other than the laws of the State of New York
(without regard to conflicts of law principles).
D-3B-2
In addition, we do not express any opinion with respect to (i) the tax,
securities or "doing business" laws of any particular jurisdiction, including,
without limitation, the State of New York, or (ii) any law, rule or regulation
to which Column may be subject as a result of any other person's or entity's
legal or regulatory status or any such other person's or entity's involvement in
the transactions contemplated by the Agreement. Furthermore, we do not express
any opinion with respect to any matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that the
Agreement constitutes a valid, legal and binding agreement of Column,
enforceable against Column in accordance with its terms.
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the closing of Column's sale of
the Mortgage Loans to CSFBMSC, pursuant to the Agreement, and may not be relied
on in any manner for any other purpose or by any other person or transmitted to
any other person without our prior consent.
Very truly yours,
D-3B-3
EXHIBIT D-3C
FORM OF OPINION OF SIDLEY & AUSTIN,
PURSUANT TO SECTION 7(VIII)
March 16, 2001
Credit Suisse First Boston Xxxxxxx Xxxxx Xxxxxx Inc.
Mortgage Securities Corp. 000 Xxxxxxxxx Xxxxxx, 00xx Floor
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, XX 00000
Xxxxxxx, Lynch, Pierce, Xxxxxx Xxxxx, Inc.
& Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Center -00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK1
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor") and Column Financial, Inc. ("Column") with
respect to certain matters in connection with the following transactions
(collectively the "Transactions"):
(ii) the sale by Column, and the purchase by the Depositor, of a
segregated pool of multifamily and commercial mortgage loans (collectively,
the "Column Mortgage Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of March 5, 2001 (the "Column Mortgage Loan Purchase
Agreement"), between Column as seller and the Depositor as purchaser (such
Transaction, the "Column Sale");
(iii) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of March 5, 2001 (the "KeyBank
Mortgage Loan Purchase Agreement"), between KeyBank as seller and the
Depositor as purchaser (such Transaction, the "KeyBank Sale");
(iv) the creation of a commercial mortgage trust (the "Trust"), and
the issuance of an aggregate $997,140,787 Certificate Principal Balance of
Commercial Mortgage Pass-Through
D-3C-1
Certificates, Series 2001-CK1 (the "Certificates"), consisting of 21
classes designated Class A-1, Class A-2, Class A-3, Class B, Class C, Class
D, Class A-X. Class A-CP, Class A-Y, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class R and Class V
pursuant to the Pooling and Servicing Agreement dated as of March 1, 2001
(the "Pooling and Servicing Agreement"), among the Depositor as depositor,
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage, as
master servicer, ORIX Real Estate Capital Markets, LLC, as special
servicer, and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
(v) the transfer of the Column Mortgage Loans and the KeyBank Mortgage
Loans (collectively, the "Mortgage Loans") by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates being issued to or at the direction of the Depositor (such
Transaction, the "Transfer to the Trust");
(vi) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB"), McDonald Investments Inc. ("McDonald"),
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and
Xxxxxxx Xxxxx Barney Inc. ("SSBI"; and, collectively with CSFB, McDonald
and Xxxxxxx Xxxxx, in such capacity, the "Underwriters") of the Class A-1,
Class A-2, Class A-3, Class B, Class C and Class D Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement dated as of March 5, 2001 (the "Underwriting
Agreement"), between the Depositor and the Underwriters; and
(vii) the sale by the Depositor, and the purchase by CSFB (in such
capacity, the "Initial Purchaser") of the Class A-X, Class A-CP, Class A-Y,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class R and Class V Certificates (collectively, the
"Privately Offered Certificates"), pursuant to the Certificate Purchase
Agreement dated as of March 5, 2001 (the "Certificate Purchase Agreement"),
between the Depositor and the Initial Purchaser.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the Column Mortgage Loan Purchase Agreement and
the KeyBank Mortgage Loan Purchase Agreement are collectively referred to herein
as the "Agreements". Capitalized terms not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement and, to the extent not
defined therein, in the other Agreements.
We have been asked by our clients to provide our opinion to you as to
whether:
(i) in connection with any bankruptcy proceedings instituted by or on
behalf of Column under the Federal Bankruptcy Code, as amended (Title 11 of
the United States Code)(the "Bankruptcy Code"), the Column Sale would be
treated by a court as a true sale of the Column Mortgage Loans from Column
to the Depositor rather than as a loan secured by the Column Mortgage
Loans, such that the Column Mortgage Loans would not, on such basis,
constitute property of Column's estate under Section 541(a)(1) of the
Bankruptcy Code or property of Column subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of Column in such a proceeding; and
(viii) in connection with any bankruptcy proceedings instituted by or
on behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the Mortgage
Loans from the Depositor to the Trust rather than as a loan secured by the
Mortgage Loans, such that the Mortgage Loans would not, on such basis,
D-3C-2
constitute property of the Depositor's estate under Section 541(a)(1) of
the Bankruptcy Code or property of the Depositor subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of the Depositor in such a proceeding.
(ix) For purposes of this opinion letter, we have reviewed the
following documents and all exhibits thereto (collectively, the "Relevant
Documents"):
(x) the Agreements;
(xi) a certificate of Column regarding the Column Sale, a copy of
which is attached hereto;
(xii) a certificate of the Depositor regarding the Transfer to the
Trust, a copy of which is attached hereto; and
(xiii) a certificate of CSFB regarding its sales of the Certificates
purchased by it, a copy of which is attached hereto.
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
underlying the assumptions set forth below or that are otherwise factually
relevant to the opinions expressed herein and contained in the Relevant
Documents, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed or photostatic copies, (vi) the due organization
of all parties to each of the Agreements and the valid existence of each such
party in good standing under the laws of its jurisdiction of organization, (vii)
the power and authority of the parties to each of the Agreements to enter into,
perform under and consummate the transactions contemplated by such Agreement,
without any resulting conflict with or violation of the organizational documents
of any such party or with or of any law, rule, regulation, order or decree
applicable to any such party or its assets, and without any resulting default
under or breach of any other agreement or instrument by which any such party is
bound or which is applicable to it or its assets, (viii) the due authorization
by all necessary action, and the due execution and delivery, of the Agreements
by the parties thereto, (ix) the constitution of each Agreement as the legal,
valid and binding obligation of each party thereto, enforceable against such
party in accordance with its terms, (x) compliance with the Agreements by all
parties thereto, and (xi) the conformity, to the requirements of the Column
Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase Agreement
and the Pooling and Servicing Agreement, of the Mortgage Notes, the Mortgages
and the other documents delivered to the Trustee by, on behalf of or at the
direction of Column, KeyBank and/or the Depositor.
In addition, we have assumed that the following statements are true and the
following actions (except as otherwise indicated) have occurred on the date
hereof based upon representations or other provisions in the Relevant Documents:
D-3C-3
1. CSFB either has sold, or is actively attempting and expects to sell, to
third parties unrelated to Column, the Depositor or any of their affiliates,
substantially all of the Certificates acquired by CSFB pursuant to the
Underwriting Agreement and the Certificate Purchase Agreement.
2. The transfer of the Column Mortgage Loans by Column to the Depositor,
the transfer of the Mortgage Loans by the Depositor to the Trust and the sale of
the Certificates by the Depositor to the Underwriters and the Initial Purchaser,
as provided in the Agreements, are contemporaneous exchanges in which Column and
the Depositor, respectively, receive new value and consideration constituting
reasonably equivalent value and fair consideration.
3. Following the Column Sale and the Transfer to the Trust, neither Column
nor the Depositor has the right to unilaterally modify or alter the terms of
such Transactions. The consideration received by Column in connection with its
sale of the Column Mortgage Loans to the Depositor, and by the Depositor in
connection with its sales of the Certificates to the Underwriters and the
Initial Purchaser, are, in each case, fixed and not subject to adjustment
following the Closing Date.
4. No provision exists whereby the terms of the Certificates, the Pooling
and Servicing Agreement or the Column Mortgage Loan Purchase Agreement may be
unilaterally modified by Column or the Depositor following the Column Sale and
the Transfer to the Trust.
5. Pursuant to the Column Mortgage Loan Purchase Agreement, it is the
intention of Column and the Depositor that the Column Sale constitute a sale by
Column to the Depositor of all of Column's right, title and interest in and to
the Column Mortgage Loans. Pursuant to the Pooling and Servicing Agreement, it
is the intention of the Depositor and the Trustee that the Transfer to the Trust
constitute an absolute transfer by the Depositor to the Trust of all of the
Depositor's right, title and interest in and to the Mortgage Loans. Pursuant to
the Column Mortgage Loan Purchase Agreement and/or the Pooling and Servicing
Agreement, each of Column and the Depositor will treat the Column Sale as a sale
(as opposed to a secured loan) under generally accepted accounting principles in
the United States ("GAAP"), and pursuant to the Pooling and Servicing Agreement,
the Underwriting Agreement and/or the Certificate Purchase Agreement, the
Depositor will treat the Transfer to the Trust and the sale of the Certificates
by the Depositor to the Underwriters and the Placement Agents as a sale (as
opposed to a secured loan) under GAAP.
6. After the completion of the Column Sale and the Transfer to the Trust,
none of Column, the Depositor or any of their affiliates has (i) the right to
repurchase or otherwise to cause the reconveyance to itself of any Mortgage Loan
or (ii) any obligation to repurchase or otherwise remove any Mortgage Loan from
the Trust (other than, in the case of Column, in connection with a material
breach of certain representations, warranties and covenants made by such party
with respect to each Column Mortgage Loan, in the Column Mortgage Loan Purchase
Agreement, and other than, in the case of Credit Suisse First Boston Mortgage
Capital LLC ("CSFBMC"), an affiliate of Column and the Depositor, in connection
with a material breach of certain representations, warranties and covenants made
by such party with respect to each Column Mortgage Loan acquired from CSFBMC, in
a Sellers Warranty Certificate dated as of March 2, 2001, from CSFBMC in favor
of Column).
7. There is no other agreement, arrangement or understanding, written or
otherwise (including, without limitation, with respect to the Column Sale or the
Transfer to the Trust), that supplements or otherwise modifies the intentions
and agreements of the parties to the Agreements, as expressed therein.
D-3C-4
8. After the completion of the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor will take any action inconsistent with the
Trust's ownership of the Mortgage Loans.
9. Immediately before the Column Sale, Column owned the Column Mortgage
Loans free and clear of any adverse claims or other interests. Immediately
before the KeyBank Sale, KeyBank owned the KeyBank Mortgage Loans free and clear
of any adverse claims or other interests. In connection with the KeyBank Sale,
KeyBank will have validly and effectively conveyed to the Depositor all legal
and beneficial ownership in and to each KeyBank Mortgage Loan free and clear of
any pledge, lien, charge, security interest or other encumbrance. The Depositor
has not transferred and will not transfer its right, title and interest in and
to any Mortgage Loan except to the Trustee as contemplated by the Pooling and
Servicing Agreement. No adverse claims or other interests with respect to any
Mortgage Loan were created by or through the Depositor, except as contemplated
by the Agreements.
10. Each of Column and the Depositor has taken all actions required under
applicable law to effectuate the Column Sale. Each of the Depositor and the
Trustee has taken (or the Pooling and Servicing Agreement provides that, within
a reasonable time period following the Closing Date, each of them will be
required to take) all actions required under applicable law to effectuate the
Transfer to the Trust.
11. In connection with the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor had any intent to hinder, delay or defraud its
present or future creditors.
12. After giving effect to the Column Sale and the Transfer to the Trust,
the value of the assets of each of Column and the Depositor, respectively,
either taken at their present fair salable value or at fair valuation, exceeded
the amount of the debts and obligations, including contingent and unliquidated
debts and obligations, of Column and the Depositor, respectively.
13. After giving effect to the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor was left with unreasonably small assets or
capital with which to engage in and conduct its business.
14. After giving effect to the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor intends to, or believes that it will, incur
debts or obligations beyond its ability to pay such debts and obligations as
they mature.
There is limited judicial authority relating to the issue of when a
transaction styled as a sale of assets or an absolute transfer of assets
constitutes a true sale or an absolute transfer, as the case may be, as opposed
to a secured loan, and we have not located any controlling precedent for the
transactions described herein. However, the existing case law indicates that an
analysis of a purported true sale or absolute transfer should examine the intent
of the parties as well as the economic consequences of the transaction to
determine whether they are consistent with characterization as a true sale or
absolute transfer, as the case may be. Some of the most important factors
relevant to this economic analysis include (i) whether the buyer or transferee
has assumed the risks inherent in the ownership of the assets purportedly sold
or transferred (i.e., whether the risk of loss has been borne by the buyer or
transferee), (ii) the presence (or absence) of a fixed consideration that is not
subject to further adjustment, given in connection with the purchase or
transfer, (iii) the level of recourse (if any) that the buyer or transferee has
against the seller or transferor, (iv) whether the buyer's or transferee's
rights in the acquired assets could be extinguished by repayment of a debt owed
by the seller or
D-3C-5
transferor or by the recovery of the consideration (if any) given in connection
with the purchase or transfer and (v) in what circumstances (if any) the seller
or transferor has the right or the obligation to repurchase or otherwise
reacquire the assets or any interest therein.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the Bankruptcy Code and the law of the State of New York to
the extent that it may be applicable thereunder. We do not express any opinion
on any matter not expressly addressed below.
Based upon and subject to the foregoing, the further qualifications set
forth below, and the reasoned analysis of analogous case law (although there is
no precedent directly on point), it is our opinion that:
1. In connection with any bankruptcy proceedings instituted by or on behalf
of Column under the Bankruptcy Code, the Column Sale would be treated by a court
as a true sale of the Column Mortgage Loans from Column to the Depositor, rather
than as a loan secured by the Column Mortgage Loans, such that the Column
Mortgage Loans would not, on such basis, constitute property of Column's estate
under Section 541(a)(1) of the Bankruptcy Code or property of Column subject to
the automatic stay provisions of Section 362(a) of the Bankruptcy Code that
would be applicable to the property of Column in such a proceeding.
2. In connection with any bankruptcy proceedings instituted by or on behalf
of the Depositor under the Bankruptcy Code, the Transfer to the Trust would be
treated by a court as an absolute transfer of the Mortgage Loans from the
Depositor to the Trust, rather than as a loan secured by the Mortgage Loans,
such that the Mortgage Loans would not, on such basis, constitute property of
the Depositor's estate under section 541(a)(1) of the Bankruptcy Code or
property of the Depositor subject to the automatic stay provisions of Section
362(a) of the Bankruptcy Code that would be applicable to the property of the
Depositor in such a proceeding.
The foregoing opinions are subject to the qualifications that (i) the
assumptions set forth herein are and continue to be true in all respects
relevant to this opinion, (ii) there are no additional facts that would affect
the validity of the assumptions set forth herein or upon which this opinion is
based, (iii) any claim contrary to or inconsistent with any opinion expressed
herein made in any judicial proceeding will be opposed and litigated to a final
resolution by one or more persons or entities with standing to do so, (iv) such
case is properly presented and argued, and (v) the law is properly applied.
The foregoing opinions are not intended to be a guaranty as to what a
particular court would actually hold, but an opinion as to the decision a court
should reach if the issue were properly presented to it and the court followed
what we believe to be the applicable legal principles. In that regard, you
should be aware that bankruptcy opinions are subject to inherent limitations
because of the pervasive equity powers of bankruptcy courts, the overriding goal
of reorganization to which other legal rights and policies may be subordinated,
the potential relevance to the exercise of judicial discretion of future-arising
facts and circumstances and the nature of the bankruptcy process.(1)
------------------
(1) In that regard, we note the Memorandum Opinion dated February 5,
2001, issued by the bankruptcy court in In re: LTV Steel Company, Inc., et al.,
U.S. Bankr. Ct., Northern District of Ohio, Case No. 00-43866 (the "LTV
Memorandum Opinion"). The LTV Memorandum Opinion arose in a case in which the
debtor, LTV Steel Company ("LTV" or the "Debtor"), had entered into
securitization arrangements with respect both to its inventory and its accounts
receivable, selling its inventory to one special purpose subsidiary and its
accounts receivable to another special purpose entity. (Neither special purpose
entity was made a debtor in the jointly administered Chapter 11 filings of LTV
and its subsidiaries). The Debtor filed a motion seeking use of the cash
collections from the securitized assets on the basis that the sales were nothing
more
D-3C-6
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
--------------
than disguised financings and the debtor and the agent for the financial
institutions that invested in the two securitizations agreed to an interim order
for the use of such cash collateral (the "Interim Order"). The Interim Order,
among other things, (i) required the securitization investors, on an interim
basis until the true sale issue could be decided, to turn over to LTV the cash
proceeds of the securitized inventory and accounts receivable and (ii) purported
to provide "adequate protection" to the securitization investors (treating them,
in effect, as secured creditors) in the form of liens on LTV's accounts
receivable and inventory and weekly interest payments at the non-default
contract rate.
The LTV Memorandum Opinion was issued in response to the motion of one of
the investors in the accounts receivable securitization to modify the Interim
Order, in part on the basis that the receivables transferred in the accounts
receivable securitization were not property of the Debtor's estate. The
bankruptcy court, while not determining the "fact-intensive issue" as to whether
the inventory and receivables transferred were property of the estate (which
determination required further discovery and an evidentiary hearing), did find
that LTV "...has at least some equitable interest in the inventory and
receivables, and that this interest is property of the Debtor's estate ...
sufficient to support the entry of the interim cash collateral order." (LTV
Memorandum Opinion at p. 14). The court based its decision in large part on its
view of the equities of the case. The court noted in particular that failure to
enter the interim cash collateral order "...would put an immediate end to
Debtor's business, would put thousands of people out of work, would deprive
100,000 retirees of needed medical benefits, and would have more far reaching
economic effects on the geographic areas where Debtor does business" (LTV
Memorandum Opinion, pp. 14 - 15), while the Interim Order protected the
securitization financing parties by its adequate protection provisions.
The Debtor and the securitization investors subsequently settled their
dispute over the terms of the Interim Order and the bankruptcy court therefore
never made a final determination as to whether the assets transferred in the two
securitizations were property of LTV's estate. The bankruptcy court did not cite
case law or other support for the proposition that a party that has sold
accounts receivable, inventory or other property, retains an equitable interest
in that property, and the bankruptcy court's finding that LTV retained such an
interest could be read narrowly as one court's attempt to maintain the status
quo pending a determination of the issue on the merits. Nonetheless, the LTV
Memorandum Opinion serves as an example of the pervasive equity powers of
bankruptcy courts, and the importance that such courts may ascribe to the goal
of reorganization when faced with a dispute as to whether a transfer of assets
integral to the ongoing operation of the debtor's business constitutes a true
sale or a secured loan, particularly where the transfer is documented in a
transaction deemed significant and complex by the court.
D-3C-7
EXHIBIT D-3D
FORM OF LETTER OF SIDLEY & AUSTIN,
PURSUANT TO SECTION 7(IX)
March 16, 2001
Credit Suisse First Boston Xxxxxxx, Lynch, Pierce,
Mortgage Securities Corp. Xxxxxx & Xxxxx Incorporated
Eleven Madison Avenue 4 World Financial Center - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
Eleven Madison Avenue Xxxxxxx Xxxxx Xxxxxx Inc.
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK1
---------------------------------------------------------------
Ladies and Gentlemen:
We have, with the knowledge and consent of all the parties involved, acted
as special counsel to Column Financial, Inc. ("Column"), Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"), Credit Suisse First Boston
Corporation ("CSFB"), McDonald Investments Inc. ("McDonald"), Merrill, Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Merrill") and Xxxxxxx Xxxxx Xxxxxx Inc.
("SSBI") with respect to certain matters in connection with the following
transactions (collectively, the "Transactions"):
(i) the filing by the Depositor of a registration statement on Form
S-3 (No. 333-53012) (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), for purposes of registering under
the Securities Xxx 0000, as amended (the "Securities Act"), certain
offerings of commercial mortgage pass-through certificates evidencing
interests in trust funds established by the Depositor;
(xiv) the sale by Column, and the purchase by the Depositor, of a
segregated pool of multifamily and commercial mortgage loans (collectively,
the "Column Mortgage Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of March 5, 2001 (the "Column Mortgage Loan Purchase
Agreement"), between Column as seller and the Depositor as purchaser;
(xv) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of March 5,
D-3D-1
2001 (the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank as
seller and the Depositor as purchaser;
(xvi) the creation of a commercial mortgage trust (the "Trust"), and
the issuance of an aggregate $997,140,787 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1 (the
"Certificates"), consisting of 21 classes designated Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class A-X, Class A-CP, Class A-Y,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class R and Class V, pursuant to the Pooling and
Servicing Agreement dated as of March 1, 2001 (the "Pooling and Servicing
Agreement"), among the Depositor as depositor, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer, ORIX Real
Estate Capital Markets, LLC, as special servicer, and Xxxxx Fargo Bank
Minnesota, N. A., as trustee (in such capacity, the "Trustee");
(xvii) the transfer of the Column Mortgage Loans and the KeyBank
Mortgage Loans (collectively, the "Mortgage Loans") by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates; and
(xviii) the sale by the Depositor, and the purchase by CSFB, XxXxxxxx,
Xxxxxxx and SSBI (collectively, in such capacity, the "Underwriters"), of
the Class A-1, Class A-2, Class A-3, Class B, Class C and Class D
Certificates (collectively, the "Publicly Offered Certificates"), pursuant
to the Underwriting Agreement dated as of March 5, 2001 (the "Underwriting
Agreement"), between the Depositor and the Underwriters.
The Pooling and Servicing Agreement, the Underwriting Agreement, the Column
Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan Purchase
Agreement are collectively referred to herein as the "Agreements". Capitalized
terms not defined herein have the respective meanings set forth in the Pooling
and Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Registration Statement; the Prospectus, dated March 5, 2001, relating to
publicly offered mortgage pass-through certificates evidencing interests in
trust funds established by the Depositor (the "Basic Prospectus"); and the
Prospectus Supplement, dated March 5, 2001, specifically relating to the Trust
and the Publicly Offered Certificates (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"). In addition, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for rendering this letter; we have obtained such
certificates from and made such inquiries of officers and representatives of the
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for rendering this letter; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in this letter are based. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Agreements, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures, (iv) the
authenticity of all documents submitted to us as originals, (v) the conformity
to authentic originals of all documents submitted to us as certified, conformed
or photostatic copies, (vi) the due organization of all parties to each of the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the due authorization by all
necessary action, and the due execution and delivery, of the Agreements by the
parties thereto, (viii) the constitution of each of the Agreements as the legal,
valid and binding obligation of each party
D-3D-2
thereto, enforceable against such party in accordance with its terms, (ix)
compliance with the Agreements by the parties thereto, (x) the conformity, to
the requirements of the Column Mortgage Loan Purchase Agreement, the KeyBank
Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement, of the
Mortgage Notes, the Mortgages and the other documents delivered to the Trustee
by, on behalf of, or at the direction of, the Depositor and Column, (xi) the
conformity of the text of each document filed with the Commission through the
Commission's Electronic Data Gathering, Analysis and Retrieval System to the
printed documents reviewed by us, and (xii) the absence of any other agreement
that supplements or otherwise modifies the intentions and agreements of the
parties to the Agreements, as expressed therein. In making the statements set
forth below, we do not express any view concerning the laws of any jurisdiction
other than the federal laws of the United States of America.
We are delivering this letter in our capacity as special counsel to the
Depositor, Column and the Underwriters. In the course of our acting in such
capacity, we have generally reviewed and discussed with certain representatives
of the Depositor, Column, the Underwriters and the other parties to the
Agreements and their respective counsel (in addition to us) the information set
forth in the Registration Statement and the Prospectus, other than any documents
or information included therein solely by incorporation by reference (all such
documents and information so incorporated by reference shall be referred to
herein as the "Excluded Information"), and we have reviewed certain loan
summaries prepared by Column in respect of the Column Mortgage Loans originated
by Column, Union Capital Investments, LLC ("Union Capital") or Credit Suisse
First Boston Mortgage Capital LLC ("CSFBMC") and, in the case of the Crystal
Pavilion/Xxxxx Building Mortgage Loan and the nine largest Column Mortgage Loans
(by Cut-off Date Balance) to be included in the Trust, selected provisions of
the related Mortgage Note, the related Mortgage and certain other related
Mortgage Loan Documents. While we have made no independent check or verification
of, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, nothing has come to our attention
that causes us to believe that (a) the Registration Statement (exclusive of the
Excluded Information therein, as to which we express no view or belief), as of
its effective date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (b) the Prospectus (exclusive of the
Excluded Information therein, as to which we express no view or belief), as of
the date of the Prospectus Supplement or as of the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that we express
no view or belief as to (x) any financial statements, schedules and/or other
numerical, financial or statistical data set forth or referred to therein or
omitted therefrom, (y) any information contained in or omitted from the
Prospectus regarding the nature and characteristics of the KeyBank Mortgage
Loans and/or the Borrowers and Mortgaged Properties relating to the KeyBank
Mortgage Loans or (2) any information contained in or omitted from the
Prospectus regarding the nature and characteristics of the Column Mortgage Loans
acquired from KeyBank and/or the Borrowers and Mortgaged Properties relating to
such Column Mortgage Loans. In that connection, we advise you that we have
relied, to the extent that we may properly do so in the discharge of our
professional responsibilities as experienced securities law practitioners, upon
the judgment and statements of officers and representatives of the Depositor,
Column and the Underwriters in connection with the determination of materiality.
When used in this letter, the term "attention" or words of similar import
mean the conscious awareness of facts or other information of the Sidley &
Austin attorneys currently practicing law with this firm who have been involved
in any material respect in representing any of the Depositor, Column or the
Underwriters in connection with the Transactions. We call to your attention
that, with
D-3D-3
your knowledge and consent, except as described above, such Sidley & Austin
attorneys have not examined or otherwise reviewed any of the Mortgage Files, any
particular documents contained in such files or any other documents with respect
to the Mortgage Loans for purposes of delivering this letter.
The statements set forth herein are being made to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the views or belief expressed herein. This letter is being delivered
solely for the benefit of the persons to which it is addressed in connection
with the Transactions. It may not be quoted, filed with any governmental
authority or other regulatory agency or otherwise circulated or utilized for any
other purpose without our prior written consent.
Very truly yours,
D-3D-4
