MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 12, 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 "Mortgage Loans")
identified on the schedule annexed hereto as Exhibit A (the "Mortgage Loan
Schedule"), as such schedule may be amended from time to time pursuant to the
terms hereof. Each Mortgage Loan was originated by Column, Credit Suisse First
Boston Mortgage Capital LLC ("CSFB Mortgage Capital") or Union Capital
Investments, LLC ("Union Capital"). With respect to those Mortgage Loans
identified on the Mortgage Loan Schedule as having been originated by CSFB
Mortgage Capital (each such Mortgage Loan, a "CSFB Mortgage Capital Mortgage
Loan"), Column is the beneficiary, either directly or by way of assignment, of
certain representations and warranties made by CSFB Mortgage Capital, with
respect to the CSFB Mortgage Capital Mortgage Loans pursuant to the Seller's
Warranty Certificate dated as of June 13, 2001 (the "CSFB Mortgage Capital
Agreement"), from CSFB Mortgage Capital in favor of the Seller. Column desires
to assign to CSFB Mortgage Securities all of its right, title and interest in,
to and under the CSFB Mortgage Capital Agreement. With respect to those Mortgage
Loans identified on the Mortgage Loan Schedule as having been originated by
Union Capital (each such Mortgage Loan, a "Union Capital Mortgage Loan"), Column
is the beneficiary, either directly or by way of assignment, of certain
representations and warranties made by Union Capital, with respect to the Union
Capital Mortgage Loans pursuant to the Seller's Warranty Certificate dated as of
June 13, 2001 (the "Union Capital Agreement"), from Union Capital in favor of
the Seller. Column also desires to assign to CSFB Mortgage Securities all of its
right, title and interest in, to and under the Union Capital Agreement.
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 loans that includes the Mortgage Loans. 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 June 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 (in such capacity, the "Master
Servicer") and as special servicer (in such capacity the "Special Servicer"),
and Xxxxx Fargo Bank Minnesota, N.A., trustee (the "Trustee"), relating to the
issuance of CSFBMSC's Commercial Mortgage Pass-Through Certificates, Series
2001-CK3 (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 to
the Trust contemporaneously with its purchase of the Mortgage Loans hereunder.
CSFB Mortgage Securities intends to sell the Registered Certificates to
Credit Suisse First Boston Corporation ("CSFB"), McDonald Investments Inc.
("McDonald"), First Union Securities, Inc. ("First Union Securities") and
Xxxxxxx Xxxxx Barney Inc. ("SSBI"), pursuant to an underwriting agreement, dated
as of the date hereof (the "Underwriting Agreement"), among CSFB Mortgage
Securities, CSFB, McDonald, First Union Securities and SSBI; and CSFB Mortgage
Securities intends to sell the remaining Certificates (the "Non-Registered
Certificates") to CSFB, pursuant to a certificate purchase agreement, dated as
of the date hereof (the "Certificate Purchase Agreement"), between CSFB Mortgage
Securities, and CSFB. The Registered Certificates are more fully described in
the prospectus dated June 5, 2001 (the "Basic Prospectus"), and the supplement
to the Basic Prospectus dated June 12, 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 June 12, 2001 (the
"Confidential Offering Circular"), as it may be amended or supplemented at any
time hereafter.
Column will indemnify CSFB Mortgage Securities, CSFB, McDonald, First Union
Securities, SSBI and certain related parties with respect to the disclosure
regarding the Mortgage Loans and contained in the Prospectus, the Confidential
Offering Circular and certain other disclosure documents and offering materials
relating to the Certificates, pursuant to an indemnification agreement, dated
the date hereof (the "Indemnification Agreement"), among Column, CSFB Mortgage
Securities, CSFB, McDonald, First Union Securities 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 Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on June 13, 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 June 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 such date, whether or not
received, of $760,203,311, subject to a variance of plus or minus 5%. The
purchase price for the Mortgage Loans shall be 100% of such aggregate principal
balance, together with accrued interest on the Mortgage Loans at their
respective Net Mortgage Rates from and including June 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) On and as of the Closing Date, subject only to receipt of the purchase
price referred to in Section 1 hereof and the other conditions to the Seller's
obligations set forth herein, the
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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, 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 and
(ii) all of the right, title and interest of the Seller in, to and under the
CSFB Mortgage Capital Agreement and the Union 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).
(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 any Additional Collateral (other than reserve
funds and escrow payments) with respect to each Mortgage Loan. In addition, with
respect to each Mortgage Loan as to which any Additional Collateral is in the
form of a Letter of Credit as of the Closing Date, the Seller shall cause to be
prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are necessary to cause the
recognition of the Purchaser or its designee as the beneficiary of such Letter
of Credit and drawing party thereunder. Unless the Purchaser notifies the Seller
in writing to the contrary, the designated recipient of the items 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 document that is
required to be part of the Mortgage File for any Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(iv) the Seller shall otherwise use commercially reasonable efforts to
cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
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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 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 that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans; provided, however, the Seller shall not be
required to deliver any attorney-client privileged communication or internal
credit analysis; 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.
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, 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.
(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 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.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
to the Purchaser, as provided herein, as a sale of the Mortgage Loans 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
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transfer as a sale (as opposed to a secured loan) and to reflect that the
Mortgage Loans are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all reasonable actions required under applicable
law to effectuate the transfer of the Mortgage Loans 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.
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, 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, 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 expressly
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. The respective representations and warranties of the parties hereto
set forth in Exhibits B-1 and B-2 are hereinafter referred to collectively as
the "Corporate Representations".
(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, 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, CSFB, McDonald, First Union Securities 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
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"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 CSFB Mortgage Capital pursuant to the CSFB Mortgage
Capital Agreement or by Union Capital pursuant to the Union Capital Agreement,
each of the representations and warranties set forth in Exhibit C (other than,
in the case of a Replacement Mortgage Loan substituted by CSFB Mortgage Capital
or by Union Capital, the representations and warranties set forth in Paragraph
(d) of Exhibit B-1 and Paragraph 2 of Exhibit C). 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.
(e) It is understood and agreed that the representations and warranties set
forth in or made pursuant to 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 notwithstanding any restrictive or qualified
endorsement or assignment. With respect to the Corporate Representations, such
survival shall continue for so long as any of the Mortgage Loans remains
outstanding.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Upon discovery of any Material Breach or Material Document Defect, the
Purchaser or its designee shall notify the Seller thereof in writing and request
that the Seller correct or cure such Breach or Document Defect. Within 90 days
of the earlier of discovery or receipt of written notice by the Seller that
there has been a Material Breach or a Material Document Defect (such 90-day
period, the "Initial Resolution Period"), the Seller shall (i) cure such
Material Breach or Material Document Defect, as the case may be, in all material
respects (other than omissions solely due to a document not having been returned
by the applicable recording office) or (ii) repurchase each affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and, if applicable, the terms of the Pooling
and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller shall
certify in writing to the Purchaser (i) that any such Material Breach or
Material Document Defect, as the case may be, does not and will not cause the
Defective Mortgage Loan to fail to be a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) that 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) that
the Seller has commenced and is diligently proceeding with the correction or
cure of such Material Breach or Material Document Defect, as the case may be,
within the applicable Initial Resolution Period, (iv) what actions the Seller is
pursuing in connection with the correction or cure thereof, and (v) 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, 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
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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 or Material Document Defect with respect to a
Mortgage Loan, it will notify the Purchaser. For purposes of remediating a
Material Breach or Material Document Defect with respect to any Mortgage Loan,
"Resolution Extension Period" shall mean the 90-day period following the end of
the applicable Initial Resolution Period.
If one or more of the Mortgage Loans constituting a Cross-Collateralized
Group are the subject of a Breach or Document Defect, then, for purposes of (i)
determining whether such Breach or Document Defect is a Material Breach or
Material Document Defect, as the case may be, and (ii) the application of
remedies, such Cross-Collateralized Group shall be treated as a single Mortgage
Loan.
Whenever one or more mortgage loans are substituted 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 correction or cure, in all material respects, 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 CSFB Mortgage Capital or Union Capital, to CSFB Mortgage Capital
or Union 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, the Certificateholders or the Trustee
on behalf of the Certificateholders with respect to such Breach or Document
Defect.
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The remedies provided for in this Section 5 with respect to any Material
Document Defect or Material Breach with respect to any Mortgage Loan shall apply
to any REO Property.
(b) If, with respect to any CSFB Mortgage Capital Mortgage 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 Mortgage Loan, then the Purchaser shall promptly so
notify the Seller (and, in any event, shall so notify the Seller concurrently
with any notice of such breach to CSFB Mortgage Capital). In addition, if the
price at which any CSFB Mortgage Capital Mortgage Loan is required to be
repurchased by CSFB Mortgage Capital, or the additional cash amount to be paid
together with the delivery of one or more Replacement Mortgage Loans substituted
by CSFB Mortgage Capital for any CSFB Mortgage Capital Mortgage Loan, in either
case in connection with a breach of CSFB Mortgage 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).
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 Mortgage Loan,
then the Purchaser shall promptly so notify the Seller (and, in any event, shall
so notify the Seller concurrently with any notice of such breach to Union
Capital). In addition, if the price at which any Union Capital Mortgage 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 Mortgage 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 shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that the Purchaser shall
have (i) 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 the legal and beneficial ownership of such
Defective Mortgage 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) delivered to
the Seller the Mortgage File for such Defective Mortgage Loan, (iii) in the case
of a CSFB Mortgage Capital Loan, re-assigned to the Seller 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 a Union
Capital Mortgage Loan, re-assigned to the Seller the rights in respect of such
Union Capital Mortgage Loan under the Union Capital Agreement that were assigned
to the Purchaser hereunder.
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SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx, 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 each of the Seller
and the Purchaser 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 by it 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;
(vii) The Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) 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;
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(ii) Each of the Pooling and Servicing Agreement and the Indemnification
Agreement, duly executed by the respective parties thereto;
(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, CSFB, McDonald, First Union Securities, 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 organizational
documents 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 30 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 in-house counsel, 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 Xxxxxx Xxxxx & Xxxx, 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 Xxxxxx Xxxxx & Xxxx, 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 Xxxxxx Xxxxx & Xxxx, dated the Closing Date and
addressed to the Interested Parties (other than the Rating Agencies), 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, CSFB, McDonald, First Union Securities,
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 Mortgage 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
10
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.
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: (i) the Term Sheet for the Joint
Conduit Securitizations between Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, Prudential Securities Incorporated, Prudential Mortgage Capital
Company, LLC, Column Financial, Inc. and KeyBank National Association, as
supplemented and modified by the Term Sheet for the Joint Securitizations among
Column Financial, Inc., Credit Suisse First Boston Corporation and KeyBank
National Association for Calendar Year 2001 (together, the "Original Term
Sheet"); and (ii) that certain term sheet dated as of May 31, 2001 and entitled
CSFB 2001-CK3, Terms Relating to Joint Securitization between Credit Suisse
First Boston, KeyBank National Association and First Union National Bank (the
"First Union Term Sheet"; and, together with the Original Term Sheet, 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: Xxxxxxx Xxxxxxx, 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. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans 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 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 provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a
11
first priority security interest in all of the Seller's right, title and
interest in and to the Mortgage Loans and all amounts payable to the holder(s)
of the Mortgage Loans 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 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 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, 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 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 Purchaser and
the Seller 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
12
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 to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its 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.
13
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]
14
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:
A-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK3
JUNE 13, 2001
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
1 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx XX 00000 CSFBMC Column
2 Atrium Mall 000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 CSFBMC Column
0 Xxxxxxx Xxxxx 0000 Xxxxxxx Xxx Xxxx XX 00000 CSFBMC Column
Expressway
4 Alliance GT 5 Loan Column
0x Xxxxxx Xxxx 0000 Xxxxxxxx Xxxxxxx XX 00000 Column Column
4b Harbour Town 0000 Xxxxx Xxxxxxx Xxxxxxxxx XX 00000 Column Xxxxxx
Xxxx
0x Xxxx Xxxxx 0000 Xxxxxx Xxxxx Xxxxx XX 00000 Column Column
4d Southpoint 00000 Xxxxxx Xxxxx Xxxxxxx XX 00000 Column Column
5 Alliance GT 6 Loan Column
5a Country Walk 000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 Column Column
5b Hunter's Chase 00000 Xxxxxxxx Xxxxxxx XX 00000 Column Column
5c Oakdale Villas 0000 Xxxxxx Xxxx Xxxxxx Xxxxxx XX 00000 Column Column
5d The Park 0000 Xxxxxxxxx Xxxxxxxx XX 00000 Column Column
Drive
5e Twin Rivers 000 Xxxxxxx Xxxxxxxx XX 00000 Column Column
Xxxxxxxxx Xxxxx
0x Xxxxxxxxx 000 Xxxx Xxxx Xxxxxxxxxx XX 00000 Column Column
6 Rambus, Inc. 0000 - 0000 Xx Xxx Xxxxx XX 00000 Column Column
Camino Real
ORIG REM.
ORIG REM. TERM TO TERM TO INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. MATURITY MATURITY ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (3) TERM TERM (4) (4) (MONTHS) RATE
- --------- ------- ----------- ---- ---- --- --- -------- --------
1 Leasehold $105,000,000 $105,000,000 N/A N/A 60 56 60 6.6300%
2 Fee 49,150,000 49,044,686 360 357 120 117 0 6.8900%
3 Fee/ 48,300,000 48,113,668 360 354 120 114 0 7.7600%
Leasehold
4 42,258,112 42,258,112 354 354 112 112 0 8.5600%
4a Fee
4b Fee
4c Fee
4d Fee
5 34,523,645 34,523,645 354 354 112 112 0 8.5100%
5a Fee
5b Fee
5c Fee
5d Fee
5e Fee
5f Fee
6 Fee 29,200,000 29,165,204 360 358 120 118 0 7.7800%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (5) (YES/NO) (6) PROVISION DATE FEES
- ----------- ------- ---- ------- ------------ ------------ ---------- --------
1 Actual/360 $588,182 3/11/2001 2/11/2006 Yes Lock/28_ 11/11/2005 0.0519%
Def/29_0%/3
2 Actual/360 323,373 4/11/2001 3/11/2011 Yes Lock/27_ 11/11/2010 0.0519%
Def/89_0%/4
3 Actual/360 346,361 1/11/2001 Yes Lock/30_ 8/11/2010 0.0519%
Def/86_0%/4
4 Actual/360 327,995 7/1/2001 Yes Lock/26_ 4/1/2010 0.0519%
Def/82_0%/6
4a
4b
4c
4d
5 Actual/360 266,729 7/1/2001 Yes Lock/26_ 4/1/2010 0.0519%
Def/82_0%/6
5a
5b
5c
5d
5e
5f
6 Actual/360 209,798 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
A-1
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
7 Foothill Village Shopping 0000 Xxxxx Xxxx Xxxx Xxxx XX 00000 CSFBMC Column
Center Foothill Drive
8 Silverthorne Factory X-00 xxx Xxxxxxx 0 Xxxxxxxxxxxx XX 00000 Column Column
Outlet Stores
0 Xxxxx Xxxxxxx 00000-00000 Xxxxxx Xxxxx XX 00000 Column Column
Xxxxxxx Xxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxx - Xxxxxx 000 Xxxxx Xxxxxx Xxxxxx XX 00000 Column Column
11 Peninsula Marketplace 19021-19125 Xxxxxxxxxx Xxxxx XX 00000 Column Column
Xxxxxxxxxx Xxxxxx
00 Best Western La Playa 0000 Xxxxx Xxxxxxx Xxxxx XX 00000 Column Column
Atlantic Avenue
13 Kennestone Physicians 00 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 Column Column
Center
00 Xxxxxx Xxxxxx 0000-0000 Xxx Xxxxxx Xxxxx XX 00000 CSFBMC Column
Xxxxx Xxxx
00 Xxxxxx Xxxxx Xxxxxxx 000-00 Xxxxxx Xxxxx Xxxxxxx Xxxx XX 00000 Union Capital Column
00 Xxxxxxx Xxxx Xxxxxx 0000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000 XXXXXX Xxxxxx
Xxxxxxxxx
00 Xxx Xxxx Shopping Center 000-000 Xxxxxxx Xxx Xxxx XX 00000 Column Column
Xxxxxx Xxxx
00 000 Xxxxxxxxxxxx Xxxx 000 Xxxxxxxxxxxx Xxxxx Xxxxxx XX 00000 CSFBMC Column
Road
19 Pirates Landing Apartments 0000 Xxxx Xxxx 0 Xxxxxxxx XX 00000 Column Column
00 Xxxxxxxxxx Xxxx Apartments 000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 Column Column
00 Xxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxxx XX 00000 Column Column
Drive
22 Del Mar Office Park 7301 & 0000X Xxxx Xxxx Xxxxx XX 00000 Column Column
Palmetto Xxxx Xxxx
00 Xxxxxxxxxxx Xxxxxxx I 000-X Xxxxxxx Xxxxx Xxxxxxx XX 00000 Union Capital Column
24 The Overlook Apartments 000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Column Column
25 Whisperwood Apartments 000 Xxxxxxx Xxxxx Xxxxxxx XX 00000 Column Column
00 Xxxx Xxxx Xxxxxx Xxxxxxxx 000 Xxxx Xxxx Xxxxx Xxxxxxxx XX 00000 Column Column
Xxxxxx
00 Xxxxxxxxx Xxxxx Shopping 000-000 Xxxx Xxxxx Xxxxxxx XX 00000 Column Column
Center Hills Drive
ORIG REM.
ORIG REM. TERM TO TERM TO INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. MATURITY MATURITY ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (3) TERM TERM (4) (4) (MONTHS) RATE
- --------- ------- ----------- ---- ---- --- --- -------- --------
7 Fee 25,200,000 25,119,903 360 355 120 115 0 8.0000%
8 Fee/Leasehold 23,200,000 23,152,226 300 298 120 118 0 7.5500%
9 Fee 22,800,000 22,768,908 360 358 120 118 0 7.2500%
10 Fee 17,000,000 16,986,471 300 299 120 119 0 8.1700%
11 Fee 16,150,000 16,102,932 360 356 120 116 0 7.6500%
12 Fee 16,000,000 16,000,000 300 300 120 120 0 8.4700%
13 Fee/Leasehold 15,100,000 15,080,166 360 358 120 118 0 7.4000%
14 Fee 13,050,000 13,027,205 360 357 120 117 0 7.6500%
15 Fee 12,000,000 11,984,039 360 358 120 118 0 7.3500%
16 Fee 12,000,000 11,962,199 360 355 120 115 0 8.0400%
17 Fee 11,400,000 11,385,877 360 358 120 118 0 7.6300%
18 Leasehold 11,100,000 11,088,497 360 358 114 112 0 8.3000%
19 Fee 11,100,000 11,083,945 360 358 120 118 0 7.0100%
20 Fee 10,300,000 10,294,520 360 359 120 119 0 7.5100%
21 Fee 9,600,000 9,569,717 360 356 120 116 0 7.2500%
22 Fee 9,315,000 9,303,070 360 358 120 118 0 7.5000%
23 Fee 8,500,000 8,488,694 360 358 120 118 0 7.3500%
24 Fee 8,400,000 8,400,000 360 360 120 119 24 7.3100%
25 Fee 8,360,000 8,348,429 360 358 120 118 0 7.1900%
26 Fee 8,300,000 8,285,705 360 357 120 117 0 7.7000%
27 Fee 8,000,000 7,985,709 360 357 120 117 0 7.5700%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (5) (YES/NO) (6) PROVISION DATE FEES
- ----------- ------- ---- ------- ------------ ------------ ---------- --------
7 Actual/360 184,909 2/11/2001 1/11/2011 Yes Lock/29_ 9/11/2010 0.0519%
Def/87_0%/4
8 Actual/360 172,201 5/11/2001 Yes Lock/26_ 1/11/11 0.0519%
Def/91_0%/3
9 Actual/360 155,536 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
10 Actual/360 133,129 6/11/2001 5/11/2011 Yes Lock/25_ 10/11/10 0.0519%
Def/88_0%/7
11 Actual/360 114,587 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
12 Actual/360 128,513 7/11/2001 Yes Lock/24_ 3/11/2011 0.0519%
Def/93_0%/3
13 Actual/360 104,549 5/11/2001 No N/A 4/11/2006 0.0519%
14 Actual/360 92,592 4/11/2001 3/11/2011 Yes Lock/27_ 11/11/2010 0.0519%
Def/89_0%/4
15 Actual/360 82,677 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
16 Actual/360 88,387 2/11/2001 1/11/2011 Yes Lock/29_ 10/11/2010 0.0519%
Def/88_0%/3
17 Actual/360 80,728 5/11/2001 Yes Lock/26_ 1/11/2011 0.0519%
Def/91_0%/3
18 Actual/360 83,781 5/11/2001 10/11/2010 Yes Lock/26_ 6/11/2010 0.0519%
Def/84_0%/4
19 Actual/360 73,923 5/11/2001 Yes Lock/26_ 1/11/2011 0.0519%
Def/91_0%/3
20 Actual/360 72,090 6/11/2001 Yes Lock/25_ 2/11/2011 0.0519%
Def/92_0%/3
21 Actual/360 65,489 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
22 Actual/360 65,132 5/11/2001 Yes Lock/26_ 10/11/2010 0.1319%
Def/88_0%/6
23 Actual/360 58,563 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
24 Actual/360 57,645 6/11/2001 Yes Lock/25_ 2/11/2011 0.0819%
Def/92_0%/3
25 Actual/360 56,690 5/11/2001 Yes Lock/26_ 1/11/2011 0.0519%
Def/91_0%/3
26 Actual/360 59,176 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
27 Actual/360 56,321 4/11/2001 Yes Lock/27_ 9/11/2010 0.1019%
Def/87_0%/6
A-2
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
28 Chapel Ridge 000-000 XX Xxxxx Xxx'x Xxxxxx XX 00000 Column Column
Xxxxxx Xxxx
00 Baptist North Physicians 0000 Xxxxxxx Xxxxxxx XX 00000 Column Column
Xxxxxx Xxxxxxx Xxxxxx
Xxxxx
00 Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 Column Column
Way
31 Squire Apartments - 0000 Xxxxxxxxxxx Xxxxxxxx XX 00000 Union Capital Column
Xxxxxxxx Xxxxx
00 TURFWAY CORPORATE CENTER 71, 73 & 75 Xxxxxxxx XX 00000 Column Column
(2) Xxxxxxxx Xxxxxxxxx
00 XXXXXX XXXXX XXXXXXXXXX 0000 & 5991 Meijer Xxxxxxx XX 00000 Column Column
CENTER (2) Drive
34 Mesa Mobile Home Park 0000 Xxxx Xxxx Xxxx Xxxxxxxxxx XX 00000 Union Capital Column
35 Cartersville Physicians 000 Xxx Xxxxx Xxxxxxxxxxxx XX 00000 Column Column
Center Xxxxxx Parkway
36 316 Business Center 1000 Hurricane Xxxxxxxxxxxxx XX 00000 Column Column
Xxxxxx Xxxx
00 Xxxxx Xxxxxx Shopping 000-000 Xxxxxx Xxxx Xxxxxx XX 00000 Column Column
Center Avenue
38 Holiday Inn - Barstow 0000 Xxxx Xxxx Xxxxxxx XX 00000 CSFBMC Column
Xxxxxx
00 Xxxxx Xxxxx Apartments 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 Union Capital Column
00 Xxxxxx Xxxxxx Xxxxxxxx 0000 & 0000 Xxxxxx XX 00000 Column Column
Xxxxxxx Xxxxxxxxx
00 Alamo Garden Apartments 0000 Xxxxx Xxxxx Xxxxxxxxx XX 00000 Column Column
42 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxx Xxxxx XX 00000 Column Column
Building Street North
43 51st & Olive Square 0000-0000 Xxxx Xxxxxxxx XX 00000 Column Column
Shopping Center Olive Avenue
44 River Gardens Apartments 0000 Xxxxx Xxxxxx Xxxxx XX 00000 Column Column
Avenue
00 Xxxxxx Xxxxxxxxxx Xxxx 000-000 Xxxxxx Xxxxxxxx XX 00000 Column Column
Industrial Parkway
46 Valmont Office Building 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000 Column Column
47 Best Western Mission 00000 Xxxxxxxxx Xxxxxxx Xxxxx XX 00000 CSFBMC Column
Hills Inn Boulevard
ORIG REM.
ORIG REM. TERM TO TERM TO INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. MATURITY MATURITY ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (3) TERM TERM (4) (4) (MONTHS) RATE
- --------- ------- ----------- ---- ---- --- --- -------- --------
28 Fee 7,165,000 7,155,229 360 358 120 118 0 7.2500%
29 Leasehold 7,000,000 6,990,805 360 358 120 118 0 7.4000%
30 Fee 6,900,000 6,875,826 360 354 120 114 0 8.1600%
31 Fee 6,700,000 6,691,088 360 358 120 118 0 7.3500%
32 Fee 5,503,563 5,503,563 346 346 106 106 #N/A 8.6300%
33 Fee 1,000,000 992,856 360 346 120 106 #N/A 8.6300%
34 Fee 6,200,000 6,180,442 360 356 120 116 0 7.2500%
35 Fee 6,000,000 5,992,119 360 358 120 118 0 7.4000%
36 Fee 5,900,000 5,882,285 360 356 120 116 0 7.5000%
37 Fee 5,775,000 5,764,997 360 357 120 117 0 7.6800%
38 Leasehold 5,600,000 5,564,151 300 292 120 112 0 9.1200%
39 Fee 5,350,000 5,342,884 360 358 120 118 0 7.3500%
40 Fee 5,250,000 5,241,060 360 357 120 117 0 7.7400%
41 Fee 5,000,000 4,993,726 360 358 120 118 0 7.5800%
42 Fee 4,800,000 4,793,852 360 358 120 118 0 7.5000%
43 Fee 4,750,000 4,735,338 360 356 120 116 0 7.3600%
44 Fee 4,500,000 4,493,863 360 358 120 118 0 7.2500%
45 Fee 4,500,000 4,492,117 360 357 120 117 0 7.6400%
46 Fee 4,500,000 4,487,066 360 356 120 116 0 7.7200%
47 Fee 4,350,000 4,323,799 300 293 120 113 0 8.8700%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (5) (YES/NO) (6) PROVISION DATE FEES
- ----------- ------- ---- ------- ------------ ------------ ---------- --------
28 Actual/360 48,878 5/11/2001 Yes Lock/26_ 1/11/2011 0.0519%
Def/91_0%/3
29 Actual/360 48,467 5/11/2001 No N/A 4/11/2006 0.0519%
30 Actual/360 51,401 1/1/2001 Yes Lock/30_ 6/1/2010 0.0519%
Def/84_0%/6
31 Actual/360 46,161 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
32 Actual/360 43,200 7/1/2001 Yes Lock/26_ 10/1/2009 0.0819%
Def/91_0%/3
33 Actual/360 7,781 5/1/2000 Yes Lock/28_ 10/1/2009 0.0819%
Def/86_0%/6
34 Actual/360 42,295 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
35 Actual/360 41,543 5/11/2001 No N/A 4/11/2006 0.0519%
36 Actual/360 41,254 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
37 Actual/360 41,094 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
38 Actual/360 47,456 11/11/2000 10/11/2010 Yes Lock/32_ 3/11/2010 0.0519%
Def/81_0%/7
39 Actual/360 36,860 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
40 Actual/360 37,575 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
41 Actual/360 35,235 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
42 Actual/360 33,562 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
43 Actual/360 32,759 3/11/2001 Yes Lock/40_ 8/11/2010 0.0519%
Def/74_0%/6
44 Actual/360 30,698 5/11/2001 Yes Lock/26_ 1/11/2011 0.0519%
Def/91_0%/3
45 Actual/360 31,897 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
46 Actual/360 32,145 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
47 Actual/360 36,119 12/11/2000 11/11/2010 Yes Lock/31_ 7/11/2010 0.0519%
Def/85_0%/4
A-3
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
00 Xxxxxxx Xxxxx 00000 Xxxxxx Xxxxxxxxxxx XX 00000 Column Column
Boulevard
00 Xxx Xxxxx Xxxxxx - Xxxxxx 0000-0000 Xxxxxxxx Xxxxxx XX 00000 Column Column
Avenue and
36700-36800 Xxxxx
Xxxxxxxxx
00 000 Xxxxxxxxx Xxxxxxxx 000 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000 Column Column
00 Xxxxx Xxxxxxx 0000 Xxxxxxx Xxxx Xxxxx XX 00000 Column Column
Professional Center
52 Tri Cities Plaza Shopping 0000 Xxxx Xxxx Xxxx Xxxxx XX 00000 Column Column
Center Xxxxxx
00 Xxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Column Column
54 0000 Xxxxx Xxxxxxxx 0000 Xxxxx Xxxx Xxxx Xxxx XX 00000 Column Column
Highland Drive
55 No. 0000 Xxxxxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx XX 00000 Column Column
Street
56 Walgreens - Joliet 000 Xxxx Xxxxxx Xxxxxx XX 00000 Column Column
57 Four Seasons Apartments 000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 Union Capital Column
00 Xxxxxxxx Xxxxx Xxxxxxxx 0000 Xxxxx Xxxxxxxxxxx XX 00000 Column Column
Center Expressway 77/83
59 Normandy Village 0000 XxXxxxx Xxxxxx Xxxxx Xxxxx XX 00000 Column Column
Xxxxxxxxxx
00 Xxxxx Xxxxxxx Apartments 000 Xxxxxx Xxxxxx Xxxxxx XX 00000 Column Column
61 00000 Xxxxxx Xxxxxx 00000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 Column Column
Office Xxxxxxxx
00 Xxxxxxx Xxxxx Apartments 000 Xxxxx Xxxx Xxxxxxxx XX 00000 Column Xxxxxx
Xxxxxx & 000-000
Xxxxxxx Xxxxx
63 2600 Beltline 2600 Beltline Xxxxxxx XX 00000 Column Column
Avenue
64 Northacre Mobile Home Park 0000 Xxxxx Xxxxx Xxxxxxxxxxxx XX 00000 Column Column
Xxxxxx
00 Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxx Xxxx XX 00000 Column Column
97
66 Burlington/Kroger Outlet 1795-1799 Xxxxxxx Xxxxxxxx XX 00000 Column Column
Drive
67 000-000 Xxxx Xxxx Xxxx 000-000 Xxxx Xxxx Xxxxxxxx XX 00000 Column Column
East
ORIG REM.
ORIG REM. TERM TO TERM TO INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. MATURITY MATURITY ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (3) TERM TERM (4) (4) (MONTHS) RATE
- --------- ------- ----------- ---- ---- --- --- -------- --------
48 Fee 4,237,500 4,229,972 360 357 120 117 0 7.5900%
49 Fee 4,100,000 4,093,449 360 357 120 117 0 7.9600%
50 Fee 3,460,000 3,453,470 360 357 120 117 0 7.3700%
51 Fee 2,550,000 2,547,094 360 358 120 118 0 7.9500%
52 Fee 2,500,000 2,495,280 300 298 120 118 0 8.0000%
53 Fee 2,500,000 2,479,581 240 235 120 115 0 8.2000%
54 Fee 2,300,000 2,291,889 360 355 120 115 0 7.5300%
55 Fee 2,250,000 2,232,807 240 236 120 116 0 7.1200%
56 Fee 2,200,000 2,193,575 360 356 120 116 0 7.6400%
57 Fee 2,150,000 2,148,803 360 359 120 119 0 7.3700%
58 Fee 1,840,000 1,830,861 300 295 120 115 0 8.1600%
59 Fee 1,830,000 1,819,793 180 178 180 178 0 8.0000%
60 Fee 1,800,000 1,797,844 360 358 120 118 0 7.7600%
61 Fee 1,750,000 1,744,746 360 356 120 116 0 7.5000%
62 Fee 1,600,000 1,597,360 360 357 60 57 0 7.8500%
63 Fee 1,560,000 1,557,174 360 357 120 117 0 7.5200%
64 Fee 1,550,000 1,545,073 360 355 120 115 0 8.0000%
65 Leasehold 1,550,000 1,544,629 360 355 120 115 0 7.6100%
66 Fee 1,425,000 1,420,571 360 355 120 115 0 8.1000%
67 Fee 1,362,000 1,357,671 360 355 120 115 0 8.0000%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (5) (YES/NO) (6) PROVISION DATE FEES
- ----------- ------- ---- ------- ------------ ------------ ---------- --------
48 Actual/360 29,891 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
49 Actual/360 29,970 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
50 Actual/360 23,886 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
51 Actual/360 18,622 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
52 Actual/360 19,295 5/11/2001 Yes Lock/26_ 1/11/2011 0.0519%
Def/91_0%/3
53 Actual/360 21,223 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
54 Actual/360 16,129 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
55 Actual/360 17,607 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
56 Actual/360 15,594 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
57 Actual/360 14,842 6/11/2001 Yes Lock/25_ 2/11/2011 0.0519%
Def/92_0%/3
58 Actual/360 14,397 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
59 Actual/360 17,488 5/11/2001 Yes Lock/26_ 10/11/2015 0.0519%
Def/148_0%/6
60 Actual/360 12,908 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
61 Actual/360 12,236 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
62 Actual/360 11,573 4/11/2001 Yes Lock/27_ 9/11/2005 0.0519%
Def/27_0%/6
63 Actual/360 10,929 4/11/2001 3/11/2011 Yes Lock/27_ 11/11/2010 0.0519%
Def/89_0%/4
64 Actual/360 11,373 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
65 Actual/360 10,955 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
66 Actual/360 10,556 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
67 Actual/360 9,994 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
A-4
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
00 Xxxxxxx Xxxxx Apartments 0000 Xxxxx Xxxx Xxxxxxxx XX 00000 Column Column
69 Fairwood Apartments 0000 Xxxxxx Xxxx Xxxxxx XX 00000 Column Column
00 Xxxxxxx Xxxxxxxx Xxxxxxx 0000 Xxxxxxxx Xxxxxxxx XX 00000 Column Column
Xxxxxxx
71 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 Column Column
72 Holiday Acres 0000 Xxxxx Xxxx Xxxxxxxx XX 00000 Union Capital Column
00 Xxxx Xxxxxx Xxxxx 0000 Xxxx Xxxxxx Xxx Xxxxxxx XX 00000 Column Column
Boulevard
74 Alba Village Apartments 11115-11119 Xxxx Xxxxxxxxx XX 00000 Column Column
Avenue
00 Xxxxxx Xxxxxxx Apartments 0000 Xxxxx Xxxxxx Xxxx XX 00000 Column Column
Xxxxx Road
76 Pond View Mobile Home Park 000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 Column Column
Street
00 Xxxxxxx Xxxx Xxxxxx 0000 Xxxxx Xxxxxx IL 60506 Column Column
Edgelawn Drive
00 XX XXX Xxxxxxxxxx 0000 & 0000 Xxxxx Xxxxx XX 00000 Column Column
Burbank Drive and
446 & 000 Xxxx
Xxxxxx Xxxxxxxxx
79 MacArthur Apartments 000 Xxxxx Xxxxxx XX 00000 Column Column
XxxXxxxxx Xxxxxxxxx
00 Xxxxxx Xxxxx Apartments 000 Xxxxxx Xxxxx Xxxxxxxxx XX 00000 Column Column
00 Xxxx Xxxxxxx Xxxxx 0000-0000 Xxxx Xxxxxx CA 93711 Column Column
Xxxxxxxx Xxxxxx Xxxx Xxxxxx
00 Xxxxxxx Xxxxxx Apartments 000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Column Column
00 Xxxxxxxxx Xxxxxxx 0000-0000 Xxxxx Xxxxxxx Xxxxx XX 00000 Column Column
Xxxxxxxxx Xxxx
00 Xxxxxx Townhomes 14901-14963 Xxxxxx Xxxxxxx XX 00000 Column Column
Xxxxxx
00 Xxxxxxxxxx Xxxxx Shopping 0000 Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Column Column
Center
00 Xxxxxxxxx Xxxxxxx 0000-0000 Xxxxxxxxx XX 00000 Column Column
Apartments Briarcliff
87 Xxxx Xxxxx Business Park 0000-0000 Xxxx Xxxxxx XX 00000 Column Column
Xxxxxxxx Avenue
ORIG REM.
ORIG REM. TERM TO TERM TO INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. MATURITY MATURITY ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (3) TERM TERM (4) (4) (MONTHS) RATE
- --------- ------- ----------- ---- ---- --- --- -------- --------
68 Fee 1,360,000 1,356,092 300 297 120 117 0 7.7500%
69 Fee 1,300,000 1,297,297 300 298 120 118 0 7.5000%
70 Fee 1,300,000 1,293,918 300 295 120 115 0 8.5000%
71 Fee 1,280,000 1,278,131 360 358 120 118 0 6.9700%
72 Fee 1,260,000 1,257,891 360 357 60 57 0 7.8000%
73 Fee 1,250,000 1,243,888 300 295 120 115 0 8.2500%
74 Fee 1,200,000 1,198,323 360 358 120 118 0 7.1500%
75 Fee 1,200,000 1,198,323 360 358 120 118 0 7.1500%
76 Fee 1,200,000 1,196,143 360 355 120 115 0 7.9500%
77 Fee 1,163,000 1,159,506 360 355 120 115 0 8.2500%
78 Fee 1,120,000 1,113,753 180 178 180 178 0 8.0000%
79 Fee 1,080,000 1,076,929 300 297 120 117 0 7.8000%
80 Fee 1,050,000 1,048,655 360 358 120 118 0 7.5000%
81 Fee 1,050,000 1,047,021 360 355 120 115 0 8.5000%
82 Fee 1,020,000 1,017,069 300 297 120 117 0 7.7500%
83 Fee 1,011,000 1,009,786 360 358 120 118 0 7.7500%
84 Fee 960,000 958,484 360 357 120 117 0 8.0000%
85 Fee 850,000 847,912 360 356 120 116 0 8.5000%
86 Fee 845,000 843,650 360 357 120 117 0 7.9600%
87 Fee 800,000 796,730 300 296 120 116 0 8.2500%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (5) (YES/NO) (6) PROVISION DATE FEES
- ----------- ------- ---- ------- ------------ ------------ ---------- --------
68 Actual/360 10,272 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
69 Actual/360 9,607 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
70 Actual/360 10,468 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
71 Actual/360 8,490 5/11/2001 No N/A 5/11/2005 0.0519%
72 Actual/360 9,070 4/11/2001 Yes Lock/27_ 9/11/2005 0.0519%
Def/27_0%/6
73 Actual/360 9,856 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
74 Actual/360 8,105 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
75 Actual/360 8,105 5/11/2001 Yes Lock/26_ 1/11/2011 0.0519%
Def/91_0%/3
76 Actual/360 8,763 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
77 Actual/360 8,737 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
78 Actual/360 10,703 5/11/2001 Yes Lock/26_ 10/11/2015 0.0519%
Def/148_0%/6
79 Actual/360 8,193 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
80 Actual/360 7,342 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
81 Actual/360 8,074 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
82 Actual/360 7,704 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
83 Actual/360 7,243 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
84 Actual/360 7,044 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
85 Actual/360 6,536 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
86 Actual/360 6,177 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
87 Actual/360 6,308 3/11/2001 Yes Lock/28_ 8/11/2010 0.0519%
Def/86_0%/6
A-5
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
88 0000-0000 Xxxx Xxx 0000-0000 Xxxx Xxx Xxxxxx XX 00000 Column Column
89 Xxxxxxxxx Apartments 000 Xxxx Xxxxx Xxxxx Xxxxxxx XX 00000 Column Column
Hill Street
90 Garpat Apartments 0000 Xxxx Xxxxxxx Xxxxx XX 00000 Column Column
Xxxxxx
00 Xxxx Xxxxxx Apartments 0000 Xxxx Xxxxxx Xxxxxxx XX 00000 Column Column
TOTAL/WEIGHTED AVERAGE:
ORIG REM.
ORIG REM. TERM TO TERM TO INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. MATURITY MATURITY ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (3) TERM TERM (4) (4) (MONTHS) RATE
- --------- ------- ----------- ---- ---- --- --- -------- --------
88 Fee 770,000 766,235 300 295 120 115 0 8.2500%
89 Fee 750,000 749,102 360 358 120 118 0 7.7600%
90 Fee 550,000 547,009 180 178 180 178 0 8.2600%
91 Fee 500,000 499,227 360 357 120 117 0 8.0700%
$761,433,820 $760,203,311
============ ============
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (5) (YES/NO) (6) PROVISION DATE FEES
- ----------- ------- ---- ------- ------------ ------------ ---------- --------
88 Actual/360 6,071 2/11/2001 Yes Lock/29_ 7/11/2010 0.0519%
Def/85_0%/6
89 Actual/360 5,378 5/11/2001 Yes Lock/26_ 10/11/2010 0.0519%
Def/88_0%/6
90 Actual/360 5,339 5/11/2001 Yes Lock/26_ 10/11/2015 0.0519%
Def/148_0%/6
91 Actual/360 3,693 4/11/2001 Yes Lock/27_ 9/11/2010 0.0519%
Def/87_0%/6
(1) Unless otherwise indicated, none of the mortgage loans are
cross-collateralized with other mortgage loans.
(2) The Underlying Mortgage Loans secured by Meijer Drive Industrial Center and
Turfway Corporate Center are cross-collateralized and cross- Defaulted,
respectively.
(3) Assumes a Cut-off Date of June 2001.
(4) 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.
(5) Anticipated Repayment Date.
(6) "Yes" means that Defeasance is permitted notwithstanding the Lockout
Period.
X-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 perform under
this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(d) 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 Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would
B-1-1
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 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 do not constitute all or substantially all of the
assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud its present or future creditors.
(l) The Seller will be solvent at all relevant times prior to, and will not
be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser,
as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans 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.
(n) 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.
(o) No proceedings looking toward liquidation, dissolution or bankruptcy of
the Seller are pending or contemplated.
(p) The principal place of business and chief executive office of the
Seller is located in Atlanta, 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 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
B-2-1
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-2-2
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" AND
OTHER WORDS AND PHRASES OF LIKE IMPORT 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 WITHOUT HAVING CONDUCTED ANY INDEPENDENT
INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO (EXCEPT AS
EXPRESSLY SET FORTH HEREIN).
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 Mortgage Loans is true, complete (consistent with
the definition of Mortgage Loan Schedule in 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 Mortgage Loans in June 2001.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Mortgage Loans to the Purchaser, the Seller had good title to, and was the sole
owner of, each Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each Mortgage 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 (except for
certain servicing rights). Subject to the completion of all missing information
(including, without limitation, the names of assignees and endorsees and 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 Mortgage Loan free and clear of any pledge, lien, charge, security
interest or other encumbrance (except for certain servicing rights). The sale of
the Mortgage 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.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Due Date for such Mortgage
Loan in June 2001 without giving effect to any applicable grace period, nor was
any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in June 2001.
4. Lien; Valid Assignment. Except as otherwise set forth on Schedule C-4,
the Mortgage related to and delivered in connection with each Mortgage 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, and there are no liens and/or
encumbrances that are pari passu with the lien of such Mortgage, in any event
except for (a) the lien for current real estate taxes, ground rents, 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,
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referred to in a pro forma title policy or a "marked-up" commitment), 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 Mortgage 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 "marked-up" commitment) or appearing
of record, 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 Mortgage 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 Mortgage Loan, (e)
the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property which the Seller did not require to
be subordinated to the lien of such Mortgage, which rights do not materially
interfere 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 Mortgage Loan, (f) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group, and (g) if the
related Mortgaged Property consists of one or more units in a condominium, the
related condominium declaration (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 of the assignee and any related recording
information which is not yet available to the Seller) and constitutes a legal,
valid, binding and, subject to the limitations and 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 Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the limitations and 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 subject to the exceptions set forth
in Paragraph 4; 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 of the assignee and any related recording
information which is not yet available to the Seller), and constitutes a legal,
valid, binding and, subject to the limitations and exceptions set forth in
Paragraph 13 below, enforceable assignment of such Assignment of Leases from the
relevant assignor to the Trustee. If an Assignment of Leases exists with respect
to any Mortgage Loan (whether as part of the related Mortgage or separately),
then the related Mortgage or related Assignment of Leases, subject to applicable
law, provides for the appointment of a receiver for the collection of rents or
for the related mortgagee to enter into possession to collect the rents if there
is an Event of Default.
6. Mortgage Status; Waivers and Modifications. In the case of each Mortgage
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) the related Mortgaged Property has not
been released from the lien of such Mortgage and (c) the related Borrower has
not been released from its obligations under such
C-2
Mortgage, in whole or in material part, in each such event in a manner which
would materially interfere with the benefits of the security intended to be
provided by such Mortgage.
7. Condition of Property; Condemnation. In the case of each Mortgage Loan,
except as set forth in an engineering report prepared in connection with the
origination of such Mortgage Loan, the related Mortgaged Property is, to the
Seller's knowledge (after inquiry of its servicer, which servicer may be an
affiliate of the Seller), free and clear of any damage that would materially and
adversely affect its value as security for such Mortgage Loan (except in any
such case where an escrow of funds or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). The Seller has not received
notice and has no knowledge of any proceeding pending for the condemnation of
all or any material portion of the Mortgaged Property securing any Mortgage
Loan. To the Seller's knowledge (based solely on surveys (if any) and/or the
lender's title policy (or, if not yet issued, a pro forma title policy or
"marked up" commitment) obtained in connection with the origination of each
Mortgage Loan), except as otherwise set forth on Schedule C-7, as of the date of
the origination of each Mortgage Loan, (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, marketability or current use of such
Mortgaged Property, and (b) no improvements on adjoining properties 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. Except as otherwise set forth on Schedule C-8, Each
Mortgaged Property securing a Mortgage Loan is covered by an American Land Title
Association (or an equivalent form of) lender's title insurance policy (the
"Title Policy") (or, if such policy is yet to be issued, by a pro forma policy
or a "marked up" commitment) in the original principal amount of such Mortgage
Loan after all advances of principal, insuring that the related Mortgage is a
valid first priority lien on such Mortgaged Property, subject only to the
exceptions stated in the Title Policy. 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, to the Seller's knowledge, no material
claims have been made thereunder and no claims have been paid thereunder. To the
Seller's knowledge, no 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
Mortgage 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 if a survey was
reviewed or prepared in connection with the origination of the related Mortgage
Loan, the area shown on such survey is the same as the property legally
described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating
C-3
to leasing, repairs or other matters with respect to the related Mortgaged
Property), and there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and, subject to the
limitations and exceptions set forth in Paragraph 13 below, enforceable
provisions 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,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage 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 Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12 (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials, lead-based paint
and radon) (a) an environmental site assessment, an environmental site
assessment update or a transaction screen was performed by an independent
third-party environmental consultant with respect to each Mortgaged Property
securing a Mortgage Loan in connection with the origination of such Mortgage
Loan, (b) a report of each such assessment, update or screen, if any (an
"Environmental Report"), has been delivered to the Purchaser, and (c) either:
(i) no such Environmental Report, if any, provides that as of the date of the
report there is a material violation of applicable environmental laws with
respect to any known 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 one or more of the following are true--(A) a party not related to the
related Borrower was identified as a responsible party for such condition or
circumstance, (B) the related Borrower was required to provide additional
security and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Borrower provided a "no further action" letter or other evidence
acceptable to the Seller, in its sole discretion, 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, a qualified 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 2% of
the outstanding principal balance of the related Mortgage Loan, (F) there exists
an escrow of funds reasonably estimated to be sufficient for purposes of
effecting such remediation, (G) the related Borrower or other responsible party
is currently taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority, (H) the related Mortgaged Property is insured under a policy of
insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances
C-4
and conditions or (I) a responsible party provided a guaranty or indemnity to
the related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation and, as of the date of origination of the related
Mortgage Loan, such responsible party had, in the Seller's sole discretion, an
appropriate net worth in light of the environmental matters covered by such
guaranty or indemnity. To the Seller's knowledge, there are no significant or
material circumstances or conditions with respect to such 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 Mortgage
Loan encumbering the Mortgaged Property requires the related Borrower to comply
with all applicable federal, state and local environmental laws and regulations.
Each of the Mortgage Loans identified on Schedule C-12 are covered by
environmental insurance policies and each such policy is in the amount at least
equal to 125% of the principal balance of the Mortgage Loan, has a term ending
no sooner than the date which is five years after the maturity date of the
Mortgage Loan to which it relates and do not provide for a deductible or the
premium and the deductible amount are held in escrow.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower with respect to each Mortgage
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 or other similar 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), 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 or unenforceability 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 valid defense,
counterclaim or right of offset or rescission 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, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
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 Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable 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. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least six (6) months (or a specified
dollar amount which, in the reasonable judgement of the Seller, will cover no
less than six months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the improvements
on a Mortgaged Property securing any Mortgage Loan
C-5
was, at the time of the origination of such Mortgage 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 Mortgage 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. With respect to each Mortgage
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 institutional commercial mortgage lender and
which was set forth in the related Mortgage or that would not otherwise
materially and adversely affect the security intended to be provided by the
related Mortgage, the Mortgage for each Mortgage 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 all or part of the
related Mortgaged Property or to the payment of amounts due under such Mortgage
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 Mortgage 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). In the case of each Mortgage Loan, the related Mortgaged Property is
covered by comprehensive general liability insurance in an amount at least equal
to $1 million.
15. Taxes and Assessments. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there are no
delinquent property taxes or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan prior to the due date of such
Mortgage Loan in June 2001 that are a lien of priority equal to or higher than
the lien of the related Mortgage and that have not been paid or 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. To the Seller's knowledge, no Borrower under a
Mortgage Loan is a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. Except as otherwise set forth on Schedule C-17,
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 based on such other due diligence considered reasonable by prudent
commercial mortgage lenders in the lending area where the subject Mortgaged
Property is located (including, without limitation, when commercially
reasonable, a representation of the related Borrower at the time of origination
of the subject Mortgage Loan), the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan are in
C-6
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 Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the interest
of a Borrower as a lessee under a ground lease of all or a material portion of a
Mortgaged Property (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 Mortgaged Property or such material portion thereof (the "Fee Interest"),
then, except as otherwise set forth on Schedule C-18:
(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 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) 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 the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, 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
either has been obtained or cannot be unreasonably withheld); provided that
such Ground Lease has not been terminated and all amounts owed thereunder
have been paid;
(d) 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;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan. In
addition, if required by such Ground Lease, the lessor thereunder has
received notice of the lien of the related Mortgage in accordance with the
provisions of such Ground Lease. Furthermore, such Ground Lease further
provides that no notice of termination given under such Ground Lease is
effective against the mortgagee under such Mortgage Loan unless a copy has
been delivered to such mortgagee in the manner described in such Ground
Lease;
(f) The mortgagee under such Mortgage 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;
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(g) Such Ground Lease either (i) has an original term which extends
not less than ten (10) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior to the
5th anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of the Borrower's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than ten (10)
years beyond the Stated Maturity Date of such Mortgage 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 Mortgage Loan fails to
cure a default of the lessee under such Ground Lease following notice
thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds with respect to the
leasehold interest will be applied either (i) to the 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
Mortgage Loan together with any accrued interest thereon;
(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 Mortgage Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
written consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury regulation section
1.860G-2(a) (but without regard to the rule in Treasury regulation section
1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither the
Seller nor, to the Seller's knowledge, any prior holder of such Mortgage Loan
has 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 Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage 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
Mortgage 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, provides for any
C-8
contingent or additional interest in the form of participation in the cash flow
of the related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage 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 Mortgage 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 balance thereof in addition to the
principal portion of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, except as otherwise set
forth on Schedule C-22, there are no pending actions, suits or proceedings by or
before any court or governmental authority against or affecting the Borrower
under any Mortgage 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 Mortgage Loan or
the current ability of the Borrower to pay principal, interest or any other
amounts due under such Mortgage Loan.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule C-23,
none of the Mortgage 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 the Seller's knowledge, except as otherwise set forth on Schedule C-23, and
except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage 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 the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage 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. Each Mortgage Loan complied with, or was exempt from, all
applicable usury laws in effect at its date of origination.
26. Licenses and Permits. Except as otherwise set forth on Schedule C-26,
to the Seller's knowledge, as of the date of origination of each Mortgage 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 Mortgage Loan, (v) a
zoning report from a zoning consultant, or (vi) other due diligence that a
commercially reasonable originator of similar mortgage loans in the jurisdiction
where the related Mortgaged Property is located, 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.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized with
any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans,
C-9
the sum of the amounts of the respective Mortgages recorded on the related
Mortgaged Properties with respect to such Mortgage Loans is at least equal to
the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. 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 Mortgage Loan or (ii) delivery of U.S.
Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of 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; and provided, further, that certain Cross-Collateralized Groups of
Mortgage Loans may permit the related Borrower to obtain the release of one or
more of the related Mortgaged Properties by substituting comparable real estate
property, subject to, among other conditions precedent, receipt of confirmation
from each Rating Agency that such release and substitution will not result in a
qualification, downgrade or withdrawal of any of its then-current ratings of the
Certificates; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then the
related Mortgage Loan documents provide that the related Borrower is responsible
for the payment of all reasonable costs and expenses incurred by the related
mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. Except as set forth on Schedule C-32, in connection with
the origination of each Mortgage Loan, the Seller or an affiliate thereof
inspected, or caused the inspection of, the related Mortgaged Property.
33. No Material Default. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan (other than payments due but not yet 30
days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that 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.
34. Due-on-Sale. Subject to exceptions set forth in the related loan
documents, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent
C-10
of the holder, the Mortgaged Property subject to such Mortgage, or any
controlling interest in the related Borrower, is directly or indirectly
transferred or sold.
35. Single Purpose Entity. Except as otherwise described on Schedule C-35,
the Borrower on each Mortgage Loan with a Cut-off Date Principal Balance of
$15,000,000 or more, was, as of the origination of the Mortgage Loan, a Single
Purpose Entity. For this purpose, a "Single Purpose Entity" shall mean an
entity, other than an individual, whose organizational documents provide
substantially to the effect that it was formed or organized solely for the
purpose of owning and operating one or more of the Mortgaged Properties securing
the Mortgage Loans and prohibit it from engaging in any business unrelated to
such Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any material assets
other than those related to its interest in and operation of such Mortgaged
Property or Properties, or any indebtedness other than as permitted by the
related Mortgage(s) or the other related Mortgage Loan documents, that it has
its own books and records and accounts separate and apart from any other person,
that it holds itself out as a legal entity (separate and apart from any other
person), that it will not guarantee or assume the debts of any other person,
that it will not commingle assets with affiliates, and that it will not transact
business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
37. Tax Parcels. Except as otherwise described on Schedule C-37 of this
Agreement, each Mortgaged Property constitutes one or more complete separate tax
lots or is subject to an endorsement under the related Title Policy or in
certain instances an application has been made to the applicable governing
authority for creation of separate tax lots which shall be effective for the
next tax year.
38. ARD Loans. Except as otherwise described on Schedule C-38, As of the
Closing Date, each ARD Loan requires scheduled monthly payments of principal. If
any ARD Loan is not paid in full by its Anticipated Repayment Date, and assuming
it is not otherwise in default, the rate at which such ARD Loan accrues interest
will increase to the sum of the original Mortgage Rate and a specified margin
(such margin, the "Additional Interest Rate").
39. Security Interests. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property or healthcare facility, then (a) the
security agreements, financing statements or other instruments, if any, related
to the Mortgage Loan secured by such Mortgaged Property establish and create a
valid security interest in all items of personal property owned by the related
Borrower which are material to the conduct in the ordinary course of the
Borrower's business on the related Mortgaged Property, subject only to purchase
money security interests, personal property leases and security interests to
secure revolving lines of credit and similar financing; and (b) one or more
Uniform Commercial Code financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a Uniform Commercial Code financing statement under applicable law). The related
assignment of such security interest (but for insertion of the name of the
assignee and any related
C-11
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and binding assignment thereof
from the relevant assignor to the Trustee.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to each Mortgage Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
41. Commencement of Amortization. Except as otherwise set forth on Schedule
C-41, each Mortgage Loan begins to amortize prior to its stated maturity date
or, in the case of an ARD Loan, prior to its Anticipated Repayment Date.
42. Servicing Rights. Except as otherwise 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 Mortgage Loan or receive any consideration in
connection therewith.
43. Recourse. The related Mortgage Loan Documents contain provisions
providing for recourse against the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower for damages
sustained in connection with the Borrower's fraud, material (or, alternatively,
intentional) misrepresentation or misappropriation of any tenant security
deposits (in some cases, only after foreclosure or an action in respect
thereof), rent (in some cases, only after an event of default), insurance
proceeds or condemnation proceeds. The related Mortgage Loan Documents contain
provisions pursuant to which the related Borrower, a principal of such Borrower
or an entity controlled by a principal of such Borrower has agreed to indemnify
the mortgagee for damages resulting from violations of any applicable
environmental laws.
44. Assignment of Collateral. There is no material collateral securing any
Mortgage 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 Mortgage Loan includes a fee simple
and/or leasehold estate or interest in real property and the improvements
thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage 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 Mortgage Loan
are conveyed hereunder to the Purchaser. Any and all material requirements under
each Mortgage Loan as to completion of any material improvements and as to
disbursement 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 respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the related
Mortgage requires the related Borrower, in some cases at the request of the
lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and rent rolls (if there is more than one
C-12
tenant) for the related Mortgaged Property and/or financial statements of the
related Borrower, and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related Mortgage
or Mortgage Note provides a grace period for delinquent Monthly Payments no
longer than 15 days from the applicable Due Date (or, alternatively, 5 days from
notice to the related Borrower of the default).
49. Disclosure to Environmental Insurer. If the Mortgaged Property securing
any Mortgage 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 that 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.
50. Healthcare Facilities. To the Seller's knowledge, with respect to any
Mortgaged Property securing a Mortgage Loan that is operated as a healthcare
facility, as of origination of such Mortgage Loan, the operator with respect to
such facility held all material certificates, licenses and permits required by
applicable law for the operation of such facility and was in material compliance
with all applicable state and federal laws and regulations. In addition, the
loan documents for such Mortgage Loan provide that all material certificates,
licenses and permits reasonably necessary for the operation of such facility
will continue to be maintained.
C-13
SCHEDULE C-4
LIEN; VALID ASSIGNMENT
1. The Mortgaged Property identified on the Mortgage Loan Schedule as Best
Western La Playa includes the related Borrower's interest under a lease on
an adjacent 50-foot strip that is leased by the related Borrower from the
City of Daytona Beach and used for additional parking. The related Mortgage
may not create a first lien on this strip.
2. The Mortgaged Property identified on the Mortgage Loan Schedule as Baptist
North is encumbered by 13 right-of-way easements to Sawnee Electric
Membership Corporation.
3. The Mortgaged Property identified on the Mortgage Loan Schedule as
Kennestone Physician Center is affected by a Power Line Easement recorded
in Deed Book 12157.
C-4-1
SCHEDULE C-7
CONDITION OF PROPERTY EXCEPTIONS
1. The Mortgaged Property identified on the Mortgage Loan Schedule as Oak Park
Shopping Plaza has a street sign which encroaches on a sanitary sewer
easement and building improvements which encroach on a storm drain
easement.
2. The Mortgaged Property identified on the Mortgage Loan Schedule as
Peninsula Marketplace has improvements which encroach on three separate
blanket easements.
3. The Mortgaged Property identified on the Mortgage Loan Schedule as Pirates
Landing Apartments has a fence which does not follow the Mortgaged
Property's boundary.
4. The Mortgaged Property identified on the Mortgage Loan Schedule as River
Gardens Apartments has multiple encroachments on easements.
5. The Mortgaged Property identified on the Mortgage Loan Schedule as
Whisperwood Apartments encroaches on a setback.
6. The Mortgaged Property identified on the Mortgage Loan Schedule as Alamo
Garden Apartments has multiple encroachments on easements.
7. A portion of the pool deck on the Mortgaged Property identified on the
Mortgage Loan Schedule as Best Western La Playa encroaches onto the
adjacent property owned by the City of Daytona Beach, which adjacent
property is subject to the lease described on Schedule C-4.
C-7-1
SCHEDULE C-8
TITLE INSURANCE EXCEPTIONS
The portion of the Mortgaged Property identified on the Mortgage Loan Schedule
as Best Western La Playa that is leased by the related Borrower from the City of
Daytona Beach is not covered by the Title Policy issued for such Mortgaged
Property.
C-8-1
SCHEDULE C-12
ENVIRONMENTAL CONDITIONS
1. The Mortgaged Properties identified by the following names on the Mortgage
Loan Schedule were, in connection with the origination of the related
Mortgage Loans, the subject of an environmental investigation that related
solely to asbestos-containing materials, lead-based paint and radon:
PROPERTY NAME
-------------
00 Xxxx 00xx Xxxxxx
0000-0000 Xxxx Xxx
000-000 Xxxx Xxxx Xxxx
Xxxxx Xxxxx
Burlington/Kroger Outlet
Chelsea Court Apartments
Concord Square Apartments
Country Club Square
Xxxxxx Court Apartments
Fairwood Apartments
Garpat Apartments
Lake Forest Plaza
MacArthur Apartments
Xxxxxxx Shopping Village
North Village Professional Center
Northacre Mobile Home Park
Northridge Plaza Shopping Center
Pine Street Apartments
Pond View Mobile Home Park
Xxxx Xxxxxxx Plaza Shopping Center
Xxxx Gates Business Park
Stratford Gardens
Woodfield Village Apartments
EL CID Apartments
Xxxxxxxxx Apartments
Normandy Village Apartments
Royal Terrace Apartments
Xxxxxx Townhomes
C-12-1
2. The Mortgaged Properties identified by the following names on the Mortgage
Loan Schedule are covered by a lender environmental insurance policy:
PROPERTY NAME
-------------
00 Xxxx 00xx Xxxxxx
0000-0000 Xxxx Xxx
000-000 Xxxx Xxxx Xxxx
Xxxxx Xxxxx
Burlington/Kroger Outlet
Chelsea Court Apartments
Concord Square Apartments
Country Club Square
Xxxxxx Court Apartments
Fairwood Apartments
Garpat Apartments
Lake Forest Plaza
MacArthur Apartments
Xxxxxxx Shopping Village
North Village Professional Center
Northacre Mobile Home Park
Northridge Plaza Shopping Center
Pine Street Apartments
Pond View Mobile Home Park
Xxxx Xxxxxxx Plaza Shopping Center
Xxxx Gates Business Park
Stratford Gardens
Woodfield Village Apartments
EL CID Apartments
Xxxxxxxxx Apartments
Normandy Village Apartments
Royal Terrace Apartments
Xxxxxx Townhomes
C-12-2
SCHEDULE C-17
LOCAL LAW COMPLIANCE EXCEPTIONS
1. The Mortgaged Property identified on the Mortgage Loan Schedule as 316
Business Center is not currently a legal subdivision.
2. The Mortgaged Property identified on the Mortgage Loan Schedule as Tri
Cities Plaza Shopping Center is not currently a legal subdivision.
3. The Mortgaged Property identified on the Mortgage Loan Schedule as Alba
Village Apartments violates the Building and Housing Code.
4. The Mortgaged Property identified on the Mortgage Loan Schedule as Oak Park
Shopping Plaza has a street sign which encroaches on a sanitary sewer
easement and building improvements which encroach on a storm drain
easement.
5. The Mortgaged Property identified on the Mortgage Loan Schedule as
Peninsula Marketplace has improvements which encroach on three separate
blanket easements.
6. The Mortgaged Property identified on the Mortgage Loan Schedule as Pirates
Landing Apartments has a fence which does not follow the Mortgaged
Property's boundary.
7. The Mortgaged Property identified on the Mortgage Loan Schedule as River
Gardens Apartments has multiple encroachments on easements.
8. The Mortgaged Property identified on the Mortgage Loan Schedule as
Whisperwood Apartments encroaches on a setback.
9. The Mortgaged Property identified on the Mortgage Loan Schedule as Alamo
Garden Apartments has multiple encroachments on easements.
10. A portion of the pool deck on the Mortgaged Property identified on the
Mortgage Loan Schedule as Best Western La Playa encroaches onto the
adjacent property owned by the City of Daytona Beach, which adjacent
property is subject to the lease described on Schedule C-4.
11. The Mortgaged Property identified on the Mortgage Loan Schedule as Alba
Village is subject to various building and housing code violations for
which a $10,000 escrow was established.
12. The Borrower under the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as Valley Terrace Apartments is
unable to produce a related certificate of occupancy.
X-00-0
XXXXXXXX X-00
XXXXXXXXX XXXXXX ONLY
1. Best Western La Playa.
(a) The lease for the portion of the Mortgaged Property identified on the
Mortgage Loan Schedule as Best Western La Playa that is leased by the
related Borrower from the City of Daytona Beach does not create a
financeable leasehold estate and does not comply with the
representations and warranties.
2. Silverthorne Factory Outlet Stores.
(a) The lease for the portion of the Mortgaged Property identified on the
Mortgage Loan Schedule as Silverthorne Factory Outlet Stores which
covers 3.834 acres and is used only for parking does not comply with
the representations and warranties.
3. Almaden Plaza.
(a) The owners in fee of the Mortgaged Property identified on the Mortgage
Loan Schedule as Almaden Plaza have a dispute with the related
Borrower concerning the amount of percentage rent owed by the related
Borrower under the related Ground Lease with respect to the portion of
such Mortgaged Property occupied by Xxxxxx & Xxxxx, Inc.
(b) The owners in fee of the Mortgaged Property identified on the Mortgage
Loan Schedule as Almaden Plaza allege that the related Borrower has
violated provisions of the Ground Lease for such Mortgaged Property by
granting two rights of ways with respect to parcels of such Mortgaged
Property to various governmental agencies.
(c) The Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Almaden Plaza provides that the tenant thereunder
must apply all related casualty insurance proceeds to the repair or
restoration of such Mortgaged Property, except that during the last
five years of the term of such Ground Lease such tenant may instead
elect to terminate the Ground Lease and pay such insurance proceeds to
the fee owner of such Mortgaged Property. The Ground Lease provides
that no such election may be made without the prior written approval
of the related leasehold mortgagee. The Ground Lease further provides
that in the case of a total taking of such Mortgaged Property, the
Ground Lease terminates and any portion of the award representing
compensation for the taking of land (but not the buildings and
improvements thereon) is to be paid to the fee owner of such Mortgaged
Property.
C-18-1
(d) The Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Almaden Plaza has an original term that ends on May
31, 2015. The Stated Maturity Date of the related Mortgage Loan is
December 11, 2010.
(e) The Ground Lease for the Mortgaged Property is silent regarding
assignments except with respect to financings.
(f) The mortgagee generally has the same time period within which to cure
defaults on the part of the ground tenant as does the ground tenant.
4. 000 Xxxxxxxxxxxx Xxxx.
(a) The current term of the Ground Lease for the Mortgaged Property
identified on the Mortgage Loan Schedule as 000 Xxxxxxxxxxxx Xxxx
expires December 31, 2023, but the Stated Maturity Date for the
related Mortgage Loan is October 11, 2030.
5. Baptist North.
(a) The Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Baptist North prohibited transfers/assignments
(except in a foreclosure) for the first five years of the Ground
Lease, and places limitations (except in a foreclosure) on transfers
to a person operating in acute care hospital unless such transferee
owns the Baptist North Hospital.
(b) The mortgagee has the same cure period as lessee under the Ground
Lease for the Mortgaged Property identified on the Mortgage Loan
Schedule as Baptist North.
(c) The Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Baptist North provides that, after the occurrence of
an event of default, lessor may initiate a buy-out procedure under
which the leased land and the Ground Lease improvements are to be
appraised and then the lessor may elect to either purchase the Ground
Lease improvements from the lessee or to sell the leased land to the
lessee.
6. Kennestone Physician Center.
(a) The Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Kennestone Physician Center provides that the
leasehold interest may not be assigned without the ground lessor's
consent except to a permitted assignee satisfying the criteria set
forth in the Ground Lease.
(b) The mortgagee has the same cure period (plus 30 days) as lessee under
the Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Kennestone Physician Center.
C-18-2
(c) The Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Kennestone Physician Center prohibits ground lessee
to sublet without the prior approval of the owner of the adjacent
hospital, which approval shall not be unreasonably withheld.
(d) The Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Kennestone Physician Center provides that, after the
occurrence of an event of default, lessor may initiate a buy-out
procedure under which the leased land and the Ground Lease
improvements are to be appraised and then the lessor may elect to
either purchase the Ground Lease improvements from the lessee or to
sell the leased land to the lessee.
(e) The Ground Lease for the Mortgaged Property identified on the Mortgage
Loan Schedule as Kennestone Physician Center provides that, if the
ground lessee elects to sell the improvements, then the ground lessor
has a right of first refusal to purchase those improvements at either
the bid offer or fair market value.
7. Barstow.
(a) One of the Ground Leases for the Mortgaged Property identified on the
Mortgage Loan Schedule as Barstow provides that the leasehold interest
may not be assigned or sublet without the ground lessor's consent,
which consent is not to be unreasonably withheld.
(b) One of the Ground Leases for the Mortgaged Property identified on the
Mortgage Loan Schedule as Barstow has a December 31, 2010 expiration
date.
C-18-3
SCHEDULE C-22
LEGAL PROCEEDINGS EXCEPTIONS
1. With respect to the Mortgaged Property identified on the Mortgage Loan
Schedule as Del Mar Office Park, litigation was commenced against a
predecessor in title to the related Borrower alleging violations at such
Mortgaged Property under the Americans with Disability Act.
2. With respect to the Mortgaged Property identified on the Mortgage Loan
Schedule as Xxxxxxxxx Plaza Shopping Center, litigation is pending against
the related Borrower and the prior owner of such Mortgaged Property
alleging that such prior owner breached provisions of a lease of a portion
of such Mortgaged Property by prohibiting the tenant thereunder from
operating off-track betting facilities.
3. With respect to the Mortgaged Property identified on the Mortgage Loan
Schedule as Xxxxx Plaza, litigation is pending entitled Xxxxxxx x. Xxxxxx,
Xxxxxxxxxx County, PA, Court of Common Pleas CP 99-05406.
4. The owners in fee of the Mortgaged Property identified on the Mortgage Loan
Schedule as Almaden Plaza have a dispute with the related Borrower
concerning the amount of percentage rent owed by the related Borrower under
the related Ground Lease with respect to the portion of such Mortgaged
Property occupied by Xxxxxx & Noble, Inc. The lender has been advised that
the fee owners and the related Borrower have agreed to mediate this
dispute.
C-22-1
SCHEDULE C-23
OTHER MORTGAGE LIENS EXCEPTIONS
1. The Mortgage Loan secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as Baptist North Physicians Center permits the
related Borrower to obtain secondary financing that is secured by such
Mortgaged Property in an amount not to exceed 5% of such Mortgage Loan's
original principal balance.
2. The Mortgage Loan secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as Kennestone Physician Center permits the related
Borrower to obtain secondary financing that is secured by such Mortgaged
Property in an amount not to exceed 5% of such Mortgage Loan's original
principal balance.
3. The Mortgage Loan secured by the Mortgaged Property identified on the
Mortgage Loan Schedule as Cartersville Physicians Center permits the
related Borrower to obtain secondary financing that is secured by such
Mortgaged Property in an amount not to exceed 5% of such Mortgage Loan's
original principal balance.
C-23-1
SCHEDULE C-26
LICENSES AND PERMITS EXCEPTIONS
1. The borrower under the Mortgage Loan secured by the Mortgage Property
identified on the Mortgage Loan Schedule as Best Western La Playa operates
a restaurant on such Mortgaged Property. The license required to operate
such restaurant has expired.
2. The Borrower under the Mortgage Loan secured by the Mortgaged Property
identified on the Mortgage Loan Schedule as Valley Terrace Apartments is
unable to produce a related certificate of occupancy.
C-26-1
SCHEDULE C-35
SINGLE PURPOSE ENTITY
1. With respect to the Mortgaged Property identified on the Mortgage Loan
Schedule as Kennestone Physician Center, the related Borrower owns a 37%
interest in a limited liability company which owns a parking deck that
benefits the Mortgaged Property, but which is not collateral for the
related Mortgage Loan.
C-35-1
SCHEDULE C-37
TAX PARCEL EXCEPTIONS
1. The Mortgaged Property identified on the Mortgage Loan Schedule as 316
Business Center is not currently a legal subdivision.
2. The Mortgaged Property identified on the Mortgage Loan Schedule as Tri
Cities Plaza Shopping Center is not currently a legal subdivision.
3. A portion of the Mortgaged Property identified on the Mortgage Loan
Schedule as Xxxxxxx Court Apartments is on a tax parcel shared with an
adjoining property.
C-37-1
SCHEDULE C-38
ARD LOANS
1. The Mortgaged Property identified on the Mortgage Loan Schedule as 000
Xxxxxxx Xxxxxx does not provide for any amortization prior to the related
Anticipated Repayment Date.
C-38-1
SCHEDULE C-41
COMMENCEMENT OF AMORTIZATION
1. The Mortgaged Property identified on the Mortgage Loan Schedule as 000
Xxxxxxx Xxxxxx does not provide for any amortization prior to the related
Anticipated Repayment Date.
C-41-1
SCHEDULE C-42
MORTGAGE LOANS SUBJECT TO THE
SERVICING RIGHTS OF THIRD PARTIES
The Mortgage Loans secured by the Mortgaged Properties identified on the
Mortgage Loan Schedule by the following names are subject to the servicing
rights of third parties:
(a) Almaden Plaza;
(b) Overlook Apartments;
(c) Xxxxxxxxx Plaza Shopping Center;
(d) Turfway Corporate Center
(e) Meijer Drive Industrial Center; and
(f) Del Mar Office Park.
C-42-1
SCHEDULE C-43
RECOURSE
1. The Mortgage Loans secured by the Mortgaged Properties identified on the
Mortgage Loan Schedule as Mesquite Plaza and Xxxx Xxxxxxx Plaza Shopping
Center, respectively, are each fully recourse to the related Borrower.
C-43-1
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CK3
CERTIFICATE OF SECRETARY OF COLUMN FINANCIAL, INC.
I, Xxxx X. Xxxxx, hereby certify that I am a duly appointed Assistant
Secretary of Column Financial, Inc. ("Column"), a Delaware corporation, and
further certify as follows:
1. Attached hereto as Exhibit A are true and correct copies of the
Certificate of Incorporation and By-Laws of Column, which Certificate of
Incorporation and By-Laws are, on the date hereof, and have been at all times
since the formation of Column, in full force and effect.
2. Attached hereto as Exhibit B are the resolutions of the board of
directors of Column authorizing and approving Column's execution, delivery and
performance of the Mortgage Loan Purchase Agreement, dated as of June 12, 2001
(the "Mortgage Loan Purchase Agreement"), between Credit Suisse First Boston
Mortgage Securities Corp. ("CSFBMSC") as purchaser and Column as seller.
3. Attached hereto as Exhibit C is a certificate of good standing of Column
issued by the Secretary of State of the State of Delaware within ten (10) 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 which 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, dated as of
June 12, 2001 (the "Indemnification Agreement") among Column, CSFBMSC, Credit
Suisse First Boston Corporation, McDonald Investments Inc., First Union
Securities, Inc. and Xxxxxxx Xxxxx Barney Inc., 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 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 such persons appearing on any such document are their genuine
signatures.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
D-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
June __, 2001.
By:
-------------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK1
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 dated as of March 5, 2001 (the
"Mortgage Loan Purchase Agreement") between Credit Suisse First Boston Mortgage
Securities Corp. ("CSFBMSC"), as purchaser, and Column, as seller, and that
certain Indemnification Agreement dated as of March 5, 2001 (the
"Indemnification Agreement"), among Column, CSFBMSC, Credit Suisse First Boston
Corporation, McDonald Investments Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated and Xxxxxxx Xxxxx Barney Inc. (together, the Mortgage Loan Purchase
Agreement and the Indemnification Agreement are referred to as 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 with the same effect as if made on the
date hereof, and (ii) Column has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part required under the
Mortgage Loan Purchase Agreement 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 March, 2001.
COLUMN FINANCIAL, INC.
By:
----------------------------------------
Name:
Title:
D-2-1
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL,
PURSUANT TO SECTION 7(VI)
June ___, 2001
To the Parties Listed on Annex A hereto
Re Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CK3
--------------------------------------------------------------
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston Corporation
("CSFB") and have acted as special counsel to Column Financial, Inc. (the
"Mortgage Loan Seller") in connection with certain matters relating to: (i) its
sale to Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor")
of certain multifamily and commercial mortgage loans pursuant to that certain
(the "Mortgage Loan Purchase Agreement"), dated as of June 12, 2001, by and
between the Depositor and the Mortgage Loan Seller and (ii) its providing
indemnities to the Depositor, CSFB, McDonald Investments Inc. ("McDonald"),
First Union Securities, Inc. ("FUS") and Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI") as
set forth in the Indemnification Agreement (the "Indemnification Agreement"),
dated June 12, 2001, by and among the Mortgage Loan Seller, the Depositor, CSFB,
McDonald, FUS and SSBI. Capitalized terms used and not otherwise defined herein
have the meanings given to them in the Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, I have examined and relied upon
originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Indemnification Agreement and the Mortgage Loan Purchase
Agreement (together, the "Agreements"), and such certificates, corporate records
and other documents, agreements, instruments and opinions, as I have deemed
appropriate as a basis for the opinions hereinafter expressed. In connection
with such examination, I have assumed the genuineness of all signatures (other
than with respect to the Mortgage Loan Seller), the authenticity of all
documents, agreements and instruments submitted to me as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to me as copies or specimens and the
authenticity of the originals of such documents, agreements and instruments
submitted to me as copies or specimens and the accuracy of the matters set forth
in the documents, agreements and instruments I reviewed, to the extent such
matters do not constitute legal conclusions upon which I have been asked to
opine. As to any facts material to such opinions that were not known to me, I
have relied upon statements, certificates and representations of officers and
other representatives of the Depositor, the Mortgage Loan Seller and of public
officials.
D-3A-2
Based upon and subject to the foregoing, I am of the opinion that:
1. The Mortgage Loan Seller is incorporated, validly existing and in good
standing under the laws of the State of Delaware, with requisite power
and authority to execute and deliver the Agreements, and to perform
its obligations thereunder.
2. The execution, delivery and performance of the Agreements have been
duly authorized by the Mortgage Loan Seller and the Agreements have
been duly executed and delivered by the Mortgage Loan Seller.
3. The execution and delivery by the Mortgage Loan Seller of the
Agreements, the performance by the Mortgage Loan Seller of its
obligations under the Agreements and the consummation by the Mortgage
Loan Seller of the transactions therein contemplated, do not conflict
with or result in a breach or violation of the Mortgage Loan Seller's
certificate of incorporation or bylaws or, to my knowledge, conflict
with or result in a breach or violation of any material indenture,
agreement or instrument to which the Mortgage Loan Seller is a party
or by which it or any of its property is bound, or any judgment,
decree or order applicable to the Mortgage Loan Seller, of any New
York State or federal court, regulatory body, administrative agency or
other governmental authority, other than potential conflicts, breaches
or violations which individually and in the aggregate are not
reasonably expected to have a material adverse effect on the ability
of the Mortgage Loan Seller to perform its obligations under the
Agreements.
4. To my knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against the Mortgage
Loan Seller (a) asserting the invalidity of any of the Agreements, (b)
seeking to prevent the consummation of any of the transactions
contemplated by the Agreements or (c) which would materially and
adversely affect the performance by the Mortgage Loan Seller of its
obligations under, or the validity or enforceability (with respect to
the Mortgage Loan Seller) of, the Agreements. For purposes of the
opinion set forth in this paragraph, I have not regarded any legal or
governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has manifested
to the Mortgage Loan Seller a present intention to initiate such
proceedings.
I am a member of the Bar of the State of New York and this opinion is
limited to the laws of the State of New York, the General Corporation Law of the
State of Delaware and the federal laws of the United States of America (in each
case without regard to conflicts of laws principles). I am not licensed to
practice law in the State of Delaware, and the opinions in paragraph (1) above
as to the Delaware General Corporation Law is based solely on standard
compilations of the official statutes of Delaware. I express no opinion as to
the effect of the laws of any other jurisdiction on matters addressed in this
opinion.
This opinion is limited to the matters specifically addressed herein, and I
express no opinion as to any other matters relating to, or which may arise in
connection with, the consummation of the transaction contemplated by the
Agreements.
D-3A-3
I am furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose.
Very truly yours,
D-3A-4
Annex A
-------
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
D-3A-5
EXHIBIT D-3B
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX,
PURSUANT TO SECTION 7(VII)
June 13, 2001
Credit Suisse First Boston
Mortgage Securities Corp. Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Fitch, Inc.
000 Xxxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
First Union Securities, Inc. Xxxxxxx Xxxxx Xxxxxx Inc.
One First Union Center 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CK3
--------------------------------------------------------------
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
June 12, 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) except to the extent expressly addressed by our opinions
below, 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 by our
opinions 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.
D-3B-2
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 and,
where expressly referred to below, the federal laws of the United States of
America (without regard to conflicts of law principles). 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:
1. The Agreement constitutes a valid, legal and binding agreement of
Column, enforceable against Column in accordance with its terms.
2. No consent, approval, authorization or order of any federal or State of
New York court or governmental agency or body is required for the consummation
by Column of the transactions contemplated by the Agreement, except for those
consents, approvals, authorizations or orders that previously have been
obtained.
3. Column's execution, delivery and performance of the Agreement will not
in any material respect conflict with or result in a material violation of any
federal or State of New York statute or regulation of general applicability in
transactions of the type contemplated by the Agreement.
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 XXXXXX XXXXX & XXXX,
PURSUANT TO SECTION 7(VIII)
June 13, 2001
Credit Suisse First Boston
Mortgage Securities Corp. Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Fitch, Inc.
000 Xxxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
First Union Securities, Inc. Xxxxxxx Xxxxx Xxxxxx Inc.
One First Union Center 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"), Column Financial, Inc. ("Column") and Credit
Suisse First Boston Mortgage Capital LLC ("CSFBMC") with respect to certain
matters in connection with the following transactions (collectively, the
"Transactions"):
(i) the sale by CSFBMC, and the purchase by Column, of a segregated
pool of multifamily and commercial mortgage loans (collectively, the
"CSFBMC Mortgage Loans"), pursuant to a Xxxx of Sale dated as of June 12,
2001 (the "CSFBMC Xxxx of Sale") and a Seller's Warranty Certificate dated
as of June 12, 2001 (the "CFSBMC Warranty Certificate" and together with
the CSFBMC Xxxx of Sale, the "CSFBMC Sale Documents"), each executed by
CSFBMC as seller in favor of Column as purchaser (such Transaction, the
"CSFBMC Sale");
(ii) the sale by Column, and the purchase by the Depositor, of the
CSFBMC Mortgage Loans and certain other multifamily and commercial mortgage
loans (the CSFBMC Mortgage Loans and such other mortgage loans,
collectively, the "Column Mortgage Loans"), pursuant to the Mortgage Loan
Purchase Agreement dated as of June 12, 2001 (the "Column Mortgage Loan
Purchase Agreement"), between Column as seller and the Depositor as
purchaser (such Transaction, the "Column Sale");
D-3C-1
(iii) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (collectively, the "KeyBank Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of June 12, 2001
(the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank as seller
and the Depositor as purchaser (such Transaction, the "KeyBank Sale");
(iv) the sale by First Union National Bank ("First Union"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (collectively, the "First Union Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of June 12, 2001
(the "First Union Mortgage Loan Purchase Agreement"), between First Union
as seller and the Depositor as purchaser (such Transaction, the "First
Union Sale");
(v) the creation of a commercial mortgage trust (the "Trust"), and the
issuance of an aggregate $1,126,966,710 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK3 (the
"Certificates"), consisting of 21 classes designated Class X-0, Xxxxx X-0,
Class A-3, Class A-4, Class B, Class C, Class D, Class A-X., Class E, Class
F, Class G-1, Class G-2, 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 June 12, 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 and special
servicer, and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
(vi) the transfer of the Column Mortgage Loans, the KeyBank Mortgage
Loans and the First Union 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");
(vii) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB"), McDonald Investments Inc., First Union
Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc. (collectively, in such
capacity, the "Underwriters") of the Class X-0, Xxxxx X-0, Class A-3, Class
A-4, Class B, Class C and Class D Certificates (collectively, the "Publicly
Offered Certificates"), pursuant to the Underwriting Agreement dated as of
June 12, 2001 (the "Underwriting Agreement"), between the Depositor and the
Underwriters; and
(viii) the sale by the Depositor, and the purchase by CSFB (in such
capacity, the "Initial Purchaser") of the Class A-X, Class E, Class F,
Class G-1, Class G-2, 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 June 12, 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 CSFBMC Sale Documents, the Column Mortgage
Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase Agreement and the
First Union 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.
D-3C-2
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 CSFBMC under the Federal Bankruptcy Code, as amended (Title 11 of
the United States Code) (the "Bankruptcy Code"), the CSFBMC Sale would be
treated by a court as a true sale of the CSFBMC Mortgage Loans from CSFBMC
to Column rather than as a loan secured by the CSFBC Mortgage Loans, such
that the CSFBMC Mortgage Loans would not, on such basis, constitute
property of CSFBMC's estate under Section 541(a)(1) of the Bankruptcy Code
or property of CSFBMC subject to the automatic stay provisions of Section
362(a) of the Bankruptcy Code that would be applicable to the property of
CSFBMC in such a proceeding;
(ii) 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; and
(iii) 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.
For purposes of this opinion letter, we have reviewed the following
documents and all exhibits thereto (collectively, the "Relevant Documents"):
(i) the Agreements;
(ii) a certificate of CSFBMC regarding the CSFBMC Sale, a copy of
which is attached hereto;
(iii) a certificate of Column regarding the Column Sale, a copy of
which is attached hereto;
(iv) a certificate of the Depositor regarding the Transfer to the
Trust, a copy of which is attached hereto; and
(v) 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
D-3C-3
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 CSFBMC Sale
Documents, the Column Mortgage Loan Purchase Agreement, the KeyBank Mortgage
Loan Purchase Agreement, the First Union 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 CSFBMC, Column, KeyBank, First Union 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:
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 CSFBMC Sale, the Column Sale and the Transfer 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
CSFBMC, Column and the Depositor, respectively, receive new value and
consideration constituting at least reasonably equivalent value and fair
consideration.
3. Following the CSFBMC Sale, the Column Sale and the Transfer to the
Trust, none of CSFBMC, Column or the Depositor has the right to unilaterally
modify or alter the terms of such Transactions. The consideration received by
CSFBMC in connection with the CSFBMC Sale, by Column in connection with the
Column Sale 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.
D-3C-4
4. No provision exists whereby the terms of the Certificates, the Pooling
and Servicing Agreement, the Column Mortgage Loan Purchase Agreement or the
CSFBMC Sale Documents may be unilaterally modified by CSFBMC, Column or the
Depositor following the CSFBMC Sale, the Column Sale and the Transfer to the
Trust.
5. Pursuant to the CSFBMC Sale Documents, it is the intention of CSFBMC and
Column that the CSFBMC Sale constitute a sale by CSFBMC to Column of all of
CSFBMC's right, title and interest in and to the CSFBMC Mortgage Loans. 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 CSFBMC Sale Documents, CSFBMC will treat the CSFBMC Sale as a sale (as
opposed to a secured loan) under generally accepted accounting principles in the
United States ("GAAP"), 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 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 Initial Purchaser as a sale (as opposed to a secured loan)
under GAAP.
6. After the completion of the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, 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 (a) in the case
of CSFBMC, in connection with a material breach of certain representations,
warranties and covenants made by such party with respect to each CSFBMC Mortgage
Loan in the CSFMBC Warranty Certificate and (b) 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.
7. There is no agreement, arrangement or understanding, written or
otherwise (including, without limitation, with respect to the CSFBMC Sale,
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.
8. After the completion of the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or the Depositor will take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
9. Immediately before the CSFBMC Sale, CSFBMC owned the CSFBMC Mortgage
Loans free and clear of any adverse claims or other interests. Immediately
before the Column Sale, Column owned the Column Mortgage Loans (other than the
CSFBMC 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. Immediately before the
First Union Sale, First Union owned the First Union Mortgage Loans free and
clear of any adverse
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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. In connection with the
First Union Sale, First Union will have validly and effectively conveyed to the
Depositor all legal and beneficial ownership in and to each First Union 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 (except insofar as the sale
of the Certificates by the Depositor to the Underwriters and the Initial
Purchaser may be construed as a transfer of beneficial interests in the Mortgage
Loans). 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 CSFBMC and Column has taken all actions required under
applicable law to effectuate the CSFBMC Sale. 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 CSFBMC Sale, the Column Sale and the Transfer to
the Trust, none of CSFBMC, Column or the Depositor had any intent to hinder,
delay or defraud its present or future creditors.
12. After giving effect to the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, the value of the assets of each of CSFBMC, 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 CSFBMC, Column and the
Depositor, respectively.
13. After giving effect to the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or 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 CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or 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)
C-3C-6
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 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 CSFBMC under the Bankruptcy Code, the CSFBMC Sale would be
treated by a court as a true sale of the CSFBMC Mortgage Loans from CSFBMC
to Column, rather than as a loan secured by the CSFBMC Mortgage Loans, such
that the CSFBMC Mortgage Loans would not, on such basis, constitute
property of CSFBMC's estate under Section 541(a)(1) of the Bankruptcy Code
or property of CSFBMC subject to the automatic stay provisions of Section
362(a) of the Bankruptcy Code that would be applicable to the property of
CSFBMC in such a proceeding.
2. 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.
3. 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
C-3C-7
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)
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 written consent.
Very truly yours,
--------
(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 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-8
EXHIBIT D-3D
FORM OF LETTER OF SIDLEY XXXXXX XXXXX & XXXX,
PURSUANT TO SECTION 7(IX)
June 13, 2001
Credit Suisse First Boston First Union Securities, Inc.
Mortgage Securities Corp. One First Union Center
Eleven Madison Avenue Charlotte, North Carolina 28288
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxxxx Xxxxx Barney Inc.
Eleven Madison Avenue 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 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-CK3
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("Column") and
Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor") with
respect to certain matters in connection with the following transactions
(collectively, the "Transactions"):
(a) 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;
(b) 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 June 12, 2001 (the "Column Mortgage Loan Purchase
Agreement"), between Column as seller and the Depositor as purchaser;
(c) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (collectively, the "KeyBank Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of June 12, 2001
(the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank as seller
and the Depositor as purchaser;
D-3D-1
(d) the sale by First Union National Bank ("First Union"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (collectively, the "First Union Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of June 12, 2001
(the "First Union Mortgage Loan Purchase Agreement"), between First Union
as seller and the Depositor as purchaser;
(e) the creation of a commercial mortgage trust (the "Trust"), and the
issuance of an aggregate $1,126,966,710 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK3 (the
"Certificates"), consisting of 21 classes designated Class X-0, Xxxxx X-0,
Class A-3, Class A-4, Class B, Class C, Class D, Class A-X, Class E, Class
F, Class G-1, Class G-2, 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 June 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 and special servicer, and
Xxxxx Fargo Bank Minnesota, N. A., as trustee (in such capacity, the
"Trustee");
(f) the transfer of the Column Mortgage Loans, the KeyBank Mortgage
Loans and the First Union 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
(g) the sale by the Depositor, and the purchase by Credit Suisse First
Boston Corporation ("CSFB"), McDonald Investments Inc. ("McDonald") Xxxxxxx
Xxxxx Xxxxxx Inc. ("SSBI") and First Union Securities, Inc. ("First Union",
and, together with CSFB, McDonald and SSBI, in such capacity, the
"Underwriters"), of the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class
B, Class C and Class D Certificates (collectively, the "Publicly Offered
Certificates"), pursuant to the Underwriting Agreement dated as of June 12,
2001 (the "Underwriting Agreement"), between the Depositor and the
Underwriters.
The Pooling and Servicing Agreement, the Underwriting Agreement, the Column
Mortgage Loan Purchase Agreement, the First Union 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 June 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 June 12, 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
D-3D-2
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 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, the First
Union 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, Column, KeyBank
and First Union, (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 and Column. 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 and, in the
case of those Column Mortgage Loans identified in the Prospectus Supplement
under the heading "Description of the Underlying Mortgage Loans--Significant
Mortgage Loans", 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 (z) any information contained in or omitted from
the Prospectus regarding the nature and characteristics of the First Union
Mortgage Loans and/or the borrowers and mortgaged properties relating to the
First Union Mortgage Loans. In that connection, we advise you that we have
relied, to the
D-3D-3
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 Xxxxxx
Xxxxx & Xxxx attorneys currently practicing law with this firm who have been
involved in any material respect in representing the Depositor and/or Column in
connection with the Transactions. We call to your attention that, with your
knowledge and consent, except as described above, such Sidley Xxxxxx Xxxxx &
Xxxx 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 beliefs 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