MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of August 10,
1999 ("Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc., a
Delaware corporation (the "Company"), Capital Lease Funding, L.P., a Delaware
limited partnership ("CLF"), Prudential Securities Credit Corp., a Delaware
corporation ("Prudential") and Bedford Capital Funding Corp., a New Hampshire
corporation ("Bedford") (Prudential and CLF individually, a "Seller", and
collectively, the "Sellers"; and Bedford and CLF, individually, a "Representing
Party" and collectively, the "Representing Parties").
Whereas, (i) the Corporate Lease Loans (as defined below) were
originated and are owned by CLF, and (ii) the USPS Lease Loans (as defined
below, and together with the Corporate Lease Loans, the "Loans") were originated
by Bedford and simultaneously sold to Prudential, pursuant to terms under which
Bedford would reimburse Prudential for certain losses realized on the
disposition of the USPS Lease Loans in a securitization or in another third
party transaction, and would share in profits realized from such securitization
or other disposition of USPS Lease Loans; and
Whereas, CLF and Prudential desire to sell their respective Loans to
the Company, and Bedford wishes to assign to the Company any retained interest
it may hold in the USPS Lease Loans, and the Company will transfer all of the
Loans, without recourse to the Trustee (as defined below) for the benefit of
Certificateholders (as defined below);
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Purchase and Sale; Assignment; Purchase Price.
(a) CLF hereby agrees to sell, and the Company hereby agrees to
purchase, all right, title and interest of CLF in and to the credit lease backed
commercial mortgage loans described in, and set forth in, the mortgage loan
schedule attached as Schedule I hereto (the "Corporate Lease Loans"). Prudential
hereby agrees to sell, and the Company hereby agrees to purchase, all right,
title and interest of Prudential in and to the credit lease backed commercial
mortgage loans described in, and set forth in, the mortgage loan schedule
attached as Schedule II hereto ("USPS Lease Loans"). The Corporate Lease Loans
and the USPS Lease Loans are collectively referred to herein as the "Loans".
Capitalized terms used and not otherwise defined herein have the meanings given
to them in that certain Pooling and Servicing Agreement, dated as of August 15,
1999 (the "Pooling and Servicing Agreement"), among the Company, as depositor,
Midland Loan Services, Inc., as master servicer (in such capacity, the "Master
Servicer") and as special servicer (in such capacity, the "Special Servicer"),
LaSalle Bank National Association, as trustee (in such capacity, the "Trustee")
and REMIC administrator (in such capacity, the "REMIC Administrator "), and ABN
AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"), pursuant to which the
Corporate Lease-Backed Certificates, Series 1999-CLF1 (the "Certificates") are
being issued.
(b) Pursuant to the Mortgage Loan Purchase and Sale Agreement dated
June 19, 1997, as amended by Amendment No. 1 dated as of August 11, 1999,
Prudential and Bedford intended that the sale of USPS Lease Loans by Bedford to
Prudential, be true sales to Prudential. However, in the event that a court or
other forum recharacterizes such sales and deems Bedford to have retained an
interest therein, Bedford does hereby assign all of such interest to the Company
as set forth in subsection (c)(ii) hereof. Further, (i) CLF and the Company
intend that the sale of the Corporate Lease Loans by CLF to the Company, and
(ii) Bedford and the Company intend that the sale of the USPS Lease Loans by
Bedford to the Company, be true sales and not loans. In order to preserve the
Company's rights hereunder in the event that a court or other forum
recharacterizes the sales of the Loans as loans and as security for the
performance by the Sellers of their obligations to the Company hereunder,
Capital Lease, with respect to the Corporate Lease Loans and Bedford, with
respect to the USPS Lease Loans, hereby each assign and pledge to the Company
for its benefit and for the benefit of its assignees, and grant to the Company
and its assignees, a security interest in such Loans. The assignment, pledge and
grant of security interest contained herein shall be, and each Seller (and, in
the case of Bedford, with respect to any retained interest it may hold) hereby
represent and warrant to the Company, that such security interest is a first
priority security interest.
(c) As of the Closing Date, (i) each Seller hereby sells, transfers,
assigns, sets over and conveys to the Company all the right, title and interest
of each Seller, in and to the Loans owned by such Seller, including without
limitation all interest and principal due on or with respect to the Loans owned
by such Seller after the Cut-off Date, together with all of such Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance policies, and (ii) Bedford hereby transfers,
assigns, sets over, conveys and sells to the Company any right, title and
interest it holds in and to the USPS Lease Loans, including, without limitation,
all interest and principal due on or with respect to the USPS Lease Loans after
the Cut-off Date, together with all of Bedford's right, title and interest in
and to the proceeds of any related title, hazard, primary mortgage or other
insurance policies. The Company hereby directs each Seller and Bedford and each
Seller and Bedford hereby agrees, to deliver to the Trustee all documents,
instruments and agreements required to be delivered by the Company to the
Trustee under the Pooling and Servicing Agreement and such other documents,
instruments and agreements as the Company or the Trustee shall reasonably
request. Each Seller and Bedford agrees with the Company to take, in a timely
manner, all necessary steps under all applicable laws to convey and perfect
conveyance of the title to the Loans owned by the Seller to the Company.
(d) The purchase price for each Seller's and Bedford's entire
beneficial interest in the Loans shall be an amount agreed upon by the parties
in a separate writing, from which Expenses (as defined in Section 13 hereof) may
be deducted, and shall be payable by the Company to each Seller in immediately
available funds as set forth in such separate writing. The closing for the
purchase and sale of the Loans shall take place at the offices of Cadwalader,
Xxxxxxxxxx & Xxxx, New York, New York, at 10:00 a.m. New York time, on the
Closing Date.
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SECTION 2. Representations, Warranties and Covenants of the Sellers.
(a) CLF hereby represents and warrants to, and covenants with, the
Company, and for the benefit of Bear, Xxxxxxx & Co. Inc., Banc of America
Securities, LLC and Prudential Securities Incorporated (the "Underwriters"), as
of the date hereof and as of the Closing Date that:
(i) CLF is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware.
CLF is in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Corporate Lease Loan and to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by CLF, and
the performance and compliance with the terms of this Agreement by CLF,
will not violate CLF's limited partnership agreement, or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets;
(iii) CLF has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution
and delivery by the Company and the other parties hereto (other than
CLF), constitutes a valid, legal and binding obligation of CLF,
enforceable against CLF in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) CLF is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, its
organizational documents or any material agreement, 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 CLF's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of CLF to perform
its obligations under this Agreement or the financial condition of CLF;
(vi) No litigation is pending or, to the best of CLF's
knowledge, threatened against CLF which would prohibit CLF from
entering into this Agreement or, in CLF's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of CLF to perform its obligations under this Agreement or the
financial condition of CLF;
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(vii) During the period from and including the date 180 days
prior to the date hereof through and including the date hereof, neither
CLF nor anyone acting on CLF's behalf has (A) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in
any Certificate or any other similar security to any person in any
manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (D) made any general
solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of
any of the acts described in clauses (A) through (E) above) would
constitute or result in a violation of the Securities Act or any state
securities law relating to or in connection with the issuance of the
Certificates or require registration or qualification pursuant to the
Securities Act or any state securities law of any Certificate not
otherwise intended to be a Public Certificate. In addition, neither CLF
will act, nor has it authorized nor will it authorize any person to
act, in any manner set forth in the foregoing sentence with respect to
any of the Certificates or interests therein. For purposes of this
Section 2(a)(vii), the term "similar security" shall be deemed to
include, without limitation, any security evidencing or, upon issuance,
that would have evidenced an interest in the Loans or any substantial
number thereof;
(viii) No consent, approval, authorization or order of, and no
notice to or filing with, any governmental agency or body or state or
federal court is required to be obtained by CLF for the execution,
delivery and performance of this Agreement by CLF or CLF's consummation
of the transactions contemplated by this Agreement;
(ix) The information regarding the Corporate Lease Loans, the
origination procedures of CLF, and CLF, as delivered to the Company,
is, true, correct and complete in all material respects; and
(x) To the extent of the information included therein in
reliance on the CLF Information, none of the Preliminary Prospectus
Supplement, the Final Prospectus Supplement, the Memorandum or, insofar
as they are required to be filed as part of the Registration Statement
pursuant to the No-Action Letters, any Computational Materials or ABS
Term Sheets with respect to the Public Certificates, or the Approved
Electronic Road Show contains (or will contain, with respect to any
Additional Approved Materials) any untrue statement of a material fact
or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (in the case of any Computational Materials or ABS Terms
Sheets, when read in conjunction with the Final Prospectus Supplement
and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by
investors). (CLF Information, Preliminary Prospectus Supplement, Final
Prospectus Supplement, Memorandum, Registration Statement, No-Action
Letters, Computational
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Materials, ABS Tenn Sheets, Approved Electronic Road Show and Approved
Additional Materials are each defined in Section 6.)
(b) Bedford hereby represents and warrants to, and covenants with, the
Company, and for the benefit of the Underwriters, as of the date hereof and as
of the Closing Date that:
(i) Bedford is a corporation duly organized, validly
existing and in good standing under the laws of the State of New
Hampshire. Bedford is in compliance with the laws of each state in
which any Mortgaged Property is located to the extent necessary to
ensure the enforceability of each USPS Lease Loan and to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by
Bedford, and the performance and compliance with the terms of this
Agreement by Bedford, will not violate Bedford's by-laws or constitute
a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets;
(iii) Bedford has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performances of this
Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization,
execution and delivery by the Company and the other parties hereto
(other than Bedford), constitutes a valid, legal and binding obligation
of Bedford, enforceable against Bedford in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) Bedford is not in violation of, and its execution
and delivery of this Agreement and its performances and compliance with
the terms of this Agreement will not constitute a violation of, its
organizational documents or any material agreement, 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 Bedford's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of Bedford
to perform its obligations under this Agreement or the financial
condition of Bedford;
(vi) No litigation is pending or, to the best of
Bedford's knowledge, threatened against Bedford which would prohibit
Bedford from entering into this Agreement or, in Bedford's good faith
and reasonable judgement, is likely to materially and adversely affect
either the ability of Bedford to perform its obligations under this
Agreement or the financial condition of Bedford;
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(vii) During the period from and including the date 180
days prior to the date hereof through and including the date hereof,
neither Bedford nor anyone acting on Bedford's behalf has (A) offered,
pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any
person in any manner, (B) solicited any offer to buy or to accept a
pledge, disposition or other transfer of any Certificate, any interest
in any Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (D) made any general
solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of
any of the acts described in clauses (A) through (E) above) would
constitute or result in a violation of the Securities Act or any state
securities law relating to or in connection with the issuance of the
Certificates or require registration or qualification pursuant to the
Securities Act or any state securities law of any Certificate not
otherwise intended to be a Public Certificate. In addition, neither
Bedford will act, nor has it authorized nor will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any of the Certificates or interests therein. For purposes
of this Section 2(b)(vii), the term "similar security" shall be deemed
to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Loans or any
substantial number thereof;
(viii) No consent, approval, authorization or order of, and no
notice to or filing with, any governmental agency or body or state or
federal court is required to be obtained by Bedford for the execution,
delivery and performance of this agreement by Bedford or Bedford's
consummation of the transactions contemplated by this Agreement;
(ix) The information regarding the USPS Lease Loans, the
origination procedures of Bedford, and Bedford, as delivered to the
Company, is true, correct and complete in all material respects; and
(x) To the extent of the information included therein
in reliance on the Bedford Information, none of the Preliminary
Prospectus Supplement, the Final Prospectus Supplement, the Memorandum
or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any
Computational Materials or ABS Term Sheets with respect to the Public
Certificates, or the Approved Electronic Road Show contains (or will
contain, with respect to any Additional Approved Materials) any untrue
statement of a material fact or omits to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (in the case of any
Computational Materials or ABS Terms Sheets, when read in conjunction
with the Final Prospectus Supplement and, in the case of the
Memorandum, when read together with the other information specified
therein as being available for review by investors). (Bedford
Information, Preliminary Prospectus Supplement, Final Prospectus
Supplement, Memorandum, Registration Statement, No-Action Letters,
Computational
6
Materials, ABS Term Sheets, Approved Electronic Road Show and Approved
Additional Materials are each defined in Section 6.)
(c) Prudential hereby represents and warrants to, and
covenants with, the Company, and for the benefit of the Underwriters, as of the
date hereof and as of the Closing Date that:
(i) Prudential is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
Prudential is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each USPS Lease Loan and to perform its obligations
under this Agreement;
(ii) The execution and delivery of this Agreement by
Prudential, and the performance and compliance with the terms of this
Agreement by Prudential, will not violate Prudential's by-laws or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) Prudential has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization,
execution and delivery by the Company, constitutes a valid, legal and
binding obligation of Prudential, enforceable against Prudential in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) Prudential is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, its organizational documents or any material agreement,
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 Prudential's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of Prudential to perform its obligations under this
Agreement or the financial condition of Prudential;
(vi) No litigation is pending or, to the best of
Prudential's knowledge, threatened against Prudential which would
prohibit Prudential from entering into this Agreement or, in
Prudential's good faith and reasonable judgment, is likely to
materially and adversely affect
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either the ability of Prudential to perform its obligations under this
Agreement or the financial condition of Prudential;
(vii) Except as otherwise set forth in this Paragraph,
during the period from and including the date 180 days prior to the
date hereof through and including the date hereof, neither Prudential
nor anyone acting on Prudential's behalf has (A) offered, pledged,
sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person
in any manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (D) made any general
solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of
any of the acts described in clauses (A) through (E) above) would
constitute or result in a violation of the Securities Act or any state
securities law relating to or in connection with the issuance of the
Certificates or require registration or qualification pursuant to the
Securities Act or any state securities law of any Certificate not
otherwise intended to be a Public Certificate. In addition, neither
Prudential will act, nor has it authorized nor will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any of the Certificates or interests therein. It is
understood that Prudential Securities Incorporated, an affiliate of
Prudential, is acting as an underwriter with respect to the Class A
Certificates and a placement agent with respect to the other Classes of
Certificates. For purposes of this Section 2(b)(vii), the term "similar
security" shall be deemed to include, without limitation, any security
evidencing or, upon issuance, that would have evidenced an interest in
the Loans or any substantial number thereof;
(viii) No consent, approval. authorization or order of, and no
notice to or filing with, any governmental agency or body or state or
federal court is required to be obtained by Prudential for the
execution, delivery and performance of this agreement by Prudential or
Prudential's consummation of the transactions contemplated by this
Agreement.
SECTION 3. Representations and Warranties of the Sellers and Bedford
Reizarding the Loans; Remedies for Breach and Repurchase.
(a) In each case below, references to the "Seller" means CLF with
respect to the Corporate Lease Loans and Prudential with respect to the USPS
Lease Loans, references to "Representing Party" means CLF with respect to the
Corporate Lease Loans and Bedford with respect to the USPS Lease Loans,
references to Bedford's knowledge refer to Bedford's knowledge as to the USPS
Lease Loans, and references to exceptions listed on Schedule III or Schedule IV
can be found on such schedules under the same subsection designation as that in
which the reference to the exception is found. CLF hereby represents and
warrants to the Company that the following statements with respect to the
Corporate Lease Loans (without making any representations or
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warranties with respect to the USPS Lease Loans, whether such USPS Lease Loans
are referred to (i) specifically herein, (ii) as being included in the meaning
of the word "Loan(s)", or (iii) otherwise) are true and correct as of the date
hereinbelow specified or, if no such date is specified, as of the Closing Date,
and Bedford hereby represents and warrants to the Company that the following
statements with respect to the USPS Lease Loans (without making any
representations or warranties with respect to the Corporate Lease Loans, whether
such Corporate Lease Loans are referred to (i) specifically herein, (ii) as
being included in the meaning of the word "Loan(s)", or (iii) otherwise) are
true and correct as of the date herein below specified or, if no such date is
specified, as of the Closing Date:
(i) Good Title and Conveyance. (A) Immediately prior to
the transfer of Bedford's interests in the USPS Lease Loans as
described in Section 1(b) hereof, Bedford had good and marketable title
to, and was the sole owner and holder of, such Loan (other than, in
certain cases, the right of a sub-servicer to primary service such USPS
Lease Loan), free and clear of any and all liens, encumbrances and
other interests on, in or to such USPS Lease Loan and Bedford had full
right and authority to sell, assign and transfer such USPS Lease Loan;
(B) assuming valid transfer of all of Bedford's right, title and
interest in and to the USPS Lease Loans as provided in Section 1
hereof, immediately prior to the transfer of Prudential's interests in
the USPS Lease Loans pursuant to Section 1 hereof, Prudential had good
and marketable title to, and was the sole owner and holder of, such
Loan (other than, in certain cases, the right of a sub-servicer to
primary service such USPS Lease Loans), free and clear of any and all
liens, encumbrances and other interests on, in or to such USPS Lease
Loans and Prudential had full right and authority to sell, assign and
transfer such USPS Lease Loan to the Company; (C) taken together, the
sale and transfer of Bedford's and Prudential's interest in the USPS
Lease Loans to the Company pursuant to Section 1(b) and (c) hereof will
validly and effectively convey to the Company all legal and beneficial
interest in and to such Loans free and clear of any pledge, lien or
security interest; (D) immediately prior to the transfer thereof by CLF
to the Company, CLF had good and marketable title to, and was the sole
owner and holder of, such Corporate Lease Loan, free and clear of any
and all liens, encumbrances and other interests on, in or to such Loan,
and CLF had full right and authority to sell, assign and transfer such
Loan to the Company and has validly and effectively conveyed (or caused
to be conveyed) to the Company all legal and beneficial interest in and
to such Loans free and clear of any pledge, lien or security interest;
and (E) the Mortgage Note for each Loan is properly endorsed to the
Trustee or its designee and each such endorsement is genuine;
(ii) Mortgage Files. Each Seller and Bedford has
delivered (or caused to be delivered) to the Master Servicer, the
Trustee or the Custodian on the Trustee's behalf a complete Mortgage
File for the Loan, except as may otherwise be expressly permitted under
the Pooling and Servicing Agreement;
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(iii) Mortgage Loan Schedule. The information pertaining to
such Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of the Cut-off Date;
(iv) Debt Service Coverage Ratio. The debt service
coverage ratio with respect to each Loan, based upon Monthly Rental
Payments and any applicable debt service reserve account, is not less
than 1.003 with respect to the Corporate Lease Loans and not less than
1.0 with respect to the USPS Lease Loans now or over the term of the
Loan and the loan-to-value ratio, based, in the case of USPS Lease
Loans, on internal valuations rather than appraisals, is not greater
than 100%;
(v) Permanent Record. Such Loan was not, as of the
Cut-off Date or at any time during the twelve-month period prior
thereto, 30 days or more delinquent in respect of any Monthly Payment
of principal and/or interest required thereunder, without giving effect
to any applicable grace period;
(vi) Separate Tax Parcel. Except in the case of one (1)
USPS Lease Loan listed on Schedule IV, the related Mortgaged Property
is on a separate tax parcel or parcels;
(vii) First Lien. Except as listed on Schedule IV with
respect to two of the USPS Lease Loans, each Mortgage securing such
Loan constitutes a valid first lien upon the related Mortgaged
Property, including, without limitation, all buildings located thereon
and all fixtures attached thereto, subject only to (and such Mortgaged
Property is free and clear of all encumbrances and liens having
priority over the lien of such Mortgage, except for) (A) the lien of
current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, (C) the right of tenants (whether
under ground leases, space leases or operating leases) at the Mortgaged
Property to remain following a foreclosure or similar proceeding
(provided that such tenants are performing under such leases), (D)
exceptions and exclusions specifically referred to in the lender's
title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Loan and (E) if such Loan
is cross-collateralized with any other Loan, the lien of the Mortgage
for such other Loan (the exceptions set forth in the foregoing clauses
(A), (B), (C), (D) and (E), collectively, "Permitted Encumbrances").
Such Permitted Encumbrances do not materially interfere with the
security intended to be provided by the related Mortgage(s), the
current use of the related Mortgaged Property, or the ability of the
related Borrower to timely pay in full the principal and interest on
the Loan. A Form UCC-1 financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest
in the personal property, if any, granted under such Mortgage; any
security agreement, chattel mortgage or equivalent document related to
and delivered in connection with the Loan establishes and creates a
valid and enforceable first lien and first priority security interest
on the property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights
generally or by the application of general principals of equity);
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(viii) Waivers and Modifications. None of the terms of the
Loan have been impaired, waived, altered or modified in any material
respect, except by written instruments, all of which are included in
the related Mortgage File (and all such waivers, alterations and
modifications have been filed and/or recorded or are being submitted
for recordation in all places necessary to perfect, maintain and
continue the validity and priority of the lien of the Mortgage), and
the related Tenant, Mortgagor or guarantor, if any, has not been
released, in whole or in part, from its obligations under the related
Credit Lease or Loan;
(ix) No Offset or Defense. There is no valid offset,
defense or counterclaim to such Loan (including the defense of usury),
nor will the operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any rights thereunder, render the Mortgage
Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, offset, abatement, diminution, defense or
counterclaim except that certain terms and conditions, rights and
remedies provided for in the loan documents may be unenforceable, but
any such unenforceability shall not render the loan documents
unenforceable as a whole, nor will lender be denied the practical
realization of the material benefits of the loan documents; and no such
right of rescission, offset, abatement, diminution, defense or
counterclaim has been asserted with respect to any Loan;
(x) Mortgage Status. Neither the applicable Seller nor
Bedford nor any prior holder of such Loan has satisfied, canceled,
rescinded or subordinated the Loan in whole or in part, released the
Mortgaged Property in whole or in part from the lien of the Mortgage or
executed any instrument that would effect any such satisfaction,
cancellation, rescission, subordination or release. Except with respect
to the Corporate Lease Loans listed on Schedule III, the terms of the
Mortgage do not provide for a release of any portion of the Mortgaged
Property from the lien of the Mortgage except upon payment in full of
all obligations under the Mortgage.
(xi) Casualty; Condemnation. The applicable Seller, and
Bedford have no knowledge (A) that there is any proceeding pending or
threatened for the total or partial condemnation of the related
Mortgaged Property, or (B) that there is any material damage at the
related Mortgaged Property that materially and adversely affects the
value of such Mortgaged Property. In the event that the related Credit
Lease may be terminated or rent may be abated upon the occurrence of a
casualty or condemnation, (other than pursuant to exercise of an option
by the tenant to purchase the fee interest of the Mortgagor for a price
at least equal to the outstanding principal balance of the Loan plus
accrued interest (a "Purchase Option")), such Loan has the benefit of a
noncancelable Lease Enhancement Policy for which the entire premium has
been paid in full;
(xii) Legal Compliance. At origination, such Loan
complied in all material respects with all requirements of federal,
state and local laws, including, without limitation, laws pertaining to
usury, relating to the origination of such Loan;
11
(xiii) Title Insurance. The lien of each Mortgage is insured
by an ALTA lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the applicable jurisdiction
(or in the case of the USPS Lease Loans listed on Schedule IV (A), the
Iowa State Guaranty Agency), insuring (subject to (a) the lien of
current real property taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable, and (b) the exceptions
(general and specific) set forth in such policy, none of which,
individually or in the aggregate, materially interferes with the use of
the Mortgaged Property as contemplated by the related Credit Lease or
materially detracts from the benefit of the first priority lien of the
Mortgage) the applicable Representing Party, its successors and
assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Loan after all advances of principal; the
Representing Party is the sole named insured of such policy; all
premiums thereon have been paid; such policy has been issued or
endorsed to the Trustee for the benefit of the Certificateholders
without the consent of or any notification to the insurer, and is in
full force and effect upon the consummation of the transactions
contemplated by this Agreement; no claims have been made under such
policy and such Representing Party has no knowledge of any matter which
would impair or diminish the coverage of such policy; the insurer
issuing such policy is qualified to do business in the jurisdiction in
which the Mortgaged Property is located; such policy contains no
exclusion for or affirmatively insures (a) access to a public road, (b)
that there are no encroachments of any part of the buildings thereon
over easements (except for any Mortgaged Property located in
jurisdictions where such affirmative insurance is not available) and
(c) that the area shown on the survey is the same as the property
legally described in the Mortgage (except with respect to some USPS
Lease Loans with principal balances at origination of less than
$500,000 with respect to which there are no surveys and the title
policy contains an exception with respect thereto, as set forth on
Schedule IV (Part B)); each such title insurance policy is in an amount
of at least 100% of the original principal amount of the Loan;
(xiv) No Holdbacks. The proceeds of such Loan have been
fully disbursed (except in those cases where the full amount of the
Loan has been funded but a portion thereof is being held in escrow
pending the satisfaction of certain criteria), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each loan as to completion of any on-site or
off-site improvement and as to disbursements of any funds escrowed for
such purpose, which requirements were to have been complied with on or
before the Closing Date, have been complied with or any such funds so
escrowed have not been released; no cash deposits, letters of credit,
pledged accounts, surety bonds or other cash equivalent items have been
or are held by or for the account of the applicable Seller or
Representing Party to assure compliance by the Mortgagor with any of
its obligations under the Credit Lease except as otherwise set forth in
any Borrower Reserve Agreement;
(xv) Insurance. The Mortgaged Property and all
improvements thereon are covered by insurance policies, or in the case
of certain Corporate Lease Loans, by the Tenant's agreement to
self-insure, providing coverage against loss or damage sustained by (i)
fire and extended perils included within the classification "All Risks
of Physical Loss" in
12
an amount not less than the principal balance of the Mortgage Note, or,
in the case of the Corporate Lease Loans, the full replacement value of
the Mortgaged Property's improvements, and sufficient to prevent the
Mortgagor from being deemed a co-insurer; such policies provide
coverage on a full replacement cost basis and contain no reduction for
depreciation; (ii) except for those Corporate Lease Loans listed on
Schedule III (Part A) (which are Bond-Type Leases and other Credit
Leases where the Tenant may not xxxxx rent for casualty), business
interruption or rental loss insurance in an amount at least equal to 12
months of operations of the Mortgaged Property; (iii) flood insurance
(if any portion of the Mortgaged Property is located in an area
identified by the Federal Emergency Management Agency as having special
flood hazards); (iv) comprehensive general liability insurance in
amounts as are generally required by prudent commercial mortgage
lenders for similar properties; and (v) workers' compensation insurance
(where applicable). Each Corporate Lease Loan where the Credit Lease
has Tenant casualty termination rights, is covered by a Lease
Enhancement Policy, or the related Credit Lease contains a Purchase
Option. The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction and has a claims paying ability
or financial strength rating from the Rating Agency of not less than
"A", or in the case of some Corporate Lease Loans, as long as the
Credit Lease is in full force and effect, the claims paying ability or
financial strength rating as specified or permitted under the Credit
Lease, which rating is at least equal to "A-", except for the Corporate
Lease Loan listed on Schedule III (Part B). The insurance policies
contain a standard mortgage clause naming the mortgagee, its successors
and assigns as additional insureds, and provide that they are not
terminable and may not be reduced without thirty (30) days prior
written notice to the mortgagee; all premiums due and payable through
the Closing Date have been made; no notice of termination or
cancellation with respect to any such policies has been received by the
applicable Seller or Bedford; and the insurance coverage required under
each mortgage is in full force and effect with respect to the related
Mortgaged Property. Each Mortgage requires that the Mortgagor maintain
insurance as described above or permits the mortgagee to require
insurance as described above, except that in the case of some Corporate
Lease Loans, so long as the Credit Lease is in full force and effect,
the Credit Lease's insurance requirements are deemed acceptable by the
mortgagee. The Mortgage for each Loan provides that proceeds paid under
any such casualty insurance policy will (or, at the mortgagee's option,
will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Loan;
(xvi) No Mortgagor Bankruptcy. As of the Closing Date,
the related Mortgagor was not, to the best of the applicable Seller's
and Bedford's actual knowledge, a debtor in any state or federal
bankruptcy or insolvency proceeding;
(xvii) Policies. In the case of a Loan with a Lease
Enhancement Policy and/or an Extended Amortization Policy and/or a
residual value insurance policy (any such Loan, an "RI Loan"), the
entire premium has been paid in full for each such policy, such
policies are each in full force and effect, and the legal, valid and
binding obligation of the maker thereof, enforceable in accordance with
their respective terms, except as such enforcement may be
13
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of
creditors generally and by general principles of equity (regardless of
whether such 'enforcement is considered in a proceeding in equity or at
law);
(xviii) Sources of Payments. There is no obligation on the
applicable Seller's or Bedford's part or on any other party to make
supplemental payments in addition to those made by the Mortgagor (other
than (a) the obligations of the Tenant under the related Credit Lease
and (b) with respect to the USPS Lease Loans listed on Schedule IV,
under which there are additional obligors), and the Loan contains no
provisions whereby Monthly Loan Payments may be paid, in whole or in
part, from any source other than the Mortgagor (other than from Monthly
Rental Payments, by the Tenant under the related Credit Lease and from
the Borrower Reserve Fund) or from funds deposited in any separate
account established by the applicable Seller or Representing Party, the
Mortgagor or any third party on the Mortgagor's behalf;
(xix) Trustee under Deed of Trust. In the case of any
Mortgage which is a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and
currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law, and no fees or expenses
are, or will become, payable to the trustee under the deed of trust,
except in connection with a trustee's sale after default by the
Mortgagor or in connection with the release of the Mortgaged Property
or related security for the Loan following the payment of the Loan in
full;
(xx) Credit Leases. The Mortgaged Property relating to
each Loan is subject to a Credit Lease, and such Credit Lease is in
full force and effect, and is a legal, valid, binding and enforceable
agreement of the related Tenant, except as may be limited by
bankruptcy, insolvency or other laws affecting the rights of creditors
generally, and general principles of equity. To the best of the
applicable Seller's and Bedford's knowledge, no default by the
Mortgagor or the Tenant has occurred under such Credit Lease and there
is no existing condition which, but for the passage of time or the
giving of notice, or both, would result in a default under the terms of
such Credit Lease;
(xxi) Assignment of Leases. The Mortgage File contains an
Assignment of Leases, either as a separate instrument or incorporated
into the related Mortgage, which creates in favor of the Trustee a
valid, perfected and enforceable lien, of the same priority as the
related Mortgage, in the property and rights described therein (except
as enforceability may be limited by bankruptcy or other laws affecting
creditor's rights generally, or by the application of general
principles of equity), including the right to Basic Rent and, to the
extent payable under each Credit Lease, additional rent due under the
related Credit Lease. As of the Closing Date, the Company shall have
the full right to assign to the Trustee such Assignment of Leases and
the lien created thereby as described in the immediately preceding
sentence. No person other than the Mortgagor owns any interest in any
payments due under the related Credit Leases;
14
(xxii) Priority. Except with respect to all of the USPS Lease
Loans and the Corporate Lease Loan listed on Schedule III (Part A), the
Credit Lease relating to each Loan is subordinate in right to the
related Mortgage subject to the terms and conditions of a
subordination, non-disturbance and attornment agreement between the
lender and the Tenant (except in the case of the Corporate Lease Loan
listed on Schedule III (Part B), under which such subordination terms
are contained in the Credit Lease); any subleases entered into by
Tenant will be subject and subordinate to the Credit Lease and will not
relieve the Tenant of its obligations under the Credit Lease; in the
event that the Trustee acquires title to a Mortgaged Property by
foreclosure or otherwise, the lessor's interest under the related
Credit Lease is freely assignable by the Trustee and its successors and
assigns to any person without the consent of the Tenant, and, in the
event the lessor's interest is so assigned, the Tenant will be
obligated to recognize the assignee as lessor under such Credit Lease,
except in the case of the Corporate Lease Loan listed on Schedule III
(Part B), where the related guarantor has directly guaranteed the
payment and performance of the Loan;
(xxiii) Credit Lease Term. The Credit Lease relating to each
Loan has an original term ending on or after the date the Mortgagor is
required to deposit its final payment on the related Loan with the
Trustee or Servicer, except with respect to the Corporate Lease Loans
listed on Schedule III which Loans are covered by an Extended
Amortization Policy and the USPS Lease Loans listed on Schedule IV;
(xxiv) Basic Rent Sufficient. Each remaining payment of Basic
Rent due under each Credit Lease relating to each Loan is sufficient to
pay each Monthly Loan Payment due under the related Loan in full on or
prior to the Due Date thereof without giving effect to any applicable
grace periods) currently and over the term of the Loan, except for (1)
the USPS Lease Loans listed on Schedule IV, (2) the Corporate Lease
Loans listed on Schedule III (Part A), where the initial term of the
related Credit Lease expires prior to the maturity date of the Loan,
but which Loan is covered by an Extended Amortization Policy, in which
the Extension Insurer agrees to either pay an amount equal to the
unpaid principal balance and accrued but unpaid interest on the Loan in
full or pay an amount equal to all monthly principal and interest on
the Loan from lease expiration to loan maturity, in the event the
related Tenant does not exercise its option to extend the Credit Lease
and the related Mortgagor defaults in the payment of such amounts, (3)
the Corporate Lease Loans listed on Schedule III (Part B) which are
covered by residual value insurance policies, and (4) the Corporate
Lease Loan listed on Schedule III (Part C), where the related guarantor
has guaranteed the Loan. The interest rate on the Loan is a fixed rate.
The Basic Rent under the Credit Lease are payable without notice or
demand, and without setoff, recoupment, abatement or reduction, except
as described in paragraphs (1iv), (1xiii) and (1xiv);
(xxv) Cross-Collateralization. Each Mortgage Note is not,
and has not been since the date of origination of the related Loan,
secured by any collateral except the lien of the related Mortgage, an
assignment of the related leases, and any related security agreement,
and the related Mortgaged Property does not secure any other loan or
obligation not
15
represented by the related Mortgage Note except (A) for those Corporate
Lease Loans listed on Schedule III, which related Mortgaged Properties
are each owned by separate Mortgagors, which Mortgagors executed a
single Mortgage Note for both Mortgaged Properties under one Loan as
joint and several obligors on the Mortgage Note, and (B) for those USPS
Lease Loans listed on Schedule IV, which have maintenance reserve funds
established pursuant to such USPS Lease Loans which are
cross-collateralized with regard to other USPS Lease Loans with a
common or affiliated Mortgagor. No Loan is cross-defaulted with any
other loan or obligation. The Loan does not contain any equity
participation by the originator and, is a whole loan and not a
participation interest in a mortgage loan;
(xxvi) Valid and Binding Obligation. The Mortgage Note and
Mortgage(s) for such Loan and all other documents and instruments
evidencing, guaranteeing, insuring or otherwise securing such Loan are
each 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
legislation), enforceable in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally and by general principles
of' equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(xxvii) No Sale of Mortgaged Property. Other than as set forth
in Exhibit IV, to the best of the applicable Seller's and Bedford's
knowledge, no sale of any Mortgaged Property is pending or contemplated
by the Mortgagor and, to the best of the applicable Seller's and
Bedford's knowledge, there is no assignment of any Credit Lease by any
Tenant contemplated or pending, and no person has any outstanding
exercisable rights of record with respect to the purchase or sale of
all or any portion of such Mortgaged Property, including, without
limitation, any right of first offer or refusal or purchase option
except those which would exceed the then current principal balance of
the Loan plus accrued but unpaid interest or would otherwise require
the consent of the originator;
(xxviii) Taxes. There are no delinquent taxes, ground rents,
insurance premiums, assessments, including, without limitation,
assessments payable in future installments, or other similar
outstanding charges (and, to the actual knowledge of the applicable
Representing Party, at origination of such Loan, there were no
delinquent water charges or sewer rents) affecting the related
Mortgaged Property;
(xxix) REMIC LTV. (1) The Loan is directly secured by a
Mortgage on a commercial property or a United States postal facility,
and (2) the fair market value of such real property was at least equal
to 80% of the principal amount of the Loan (a) at origination (or, if
the Loan has been modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time when the Loan was not
in default or default with respect thereto was not reasonably
foreseeable, the date of the last such modification) or (b) at the
Closing Date; provided that the fair market value of the real property
interest must first be
16
reduced by (A) the amount of any lien on the real property interest
that is senior to the Loan (unless such senior lien also secures a
Loan, in which event the computation described in (a) and (b) shall be
made on an aggregated basis) and (B) a proportionate amount of any lien
that is in parity with the Loan (unless such other lien secures a Loan
that is cross-collateralized with such Loan, in which event the
computation described in (a) and (b) shall be made on an aggregate
basis);
(xxx) Subordination Agreement and Estoppel Letter. With
respect to Corporate Lease Loans, each Tenant has delivered an estoppel
letter and to the extent required to make the Credit Lease subordinate
to the Mortgage, a subordination, non-disturbance and attornment
agreement with respect to each such Credit Lease, except with respect
to one Corporate Lease Loan as set forth on Schedule III (Part A).
Where the Tenant is a guarantor of the Credit Lease, each guarantor has
delivered a guarantor estoppel certificate or equivalent, (A) except
for those Corporate Lease Loans described in Schedule III (Part B),
where the guaranty was executed either contemporaneously with, or
within 30 days of loan closing, and (B) except for one Corporate Lease
Loan described in Schedule III (Part C), where the guarantor refused to
supply a guarantor estoppel certificate. With respect to the USPS Lease
Loans, the Mortgagor has delivered a power of attorney to the Tenant
and the Tenant has delivered a questionnaire or letter to the mortgagee
indicating that there are no known defaults under the related Credit
Lease and the related Credit Lease is in full force and effect;
(xxxi) Mortgage Provisions. The Mortgage Note, Mortgage and
Assignment of Leases for each Loan contain customary and enforceable
provisions for commercial mortgage loans secured by properties such as
the Mortgaged Properties, so as to render the rights and remedies of
the holder adequate for the realization against the Mortgaged Property
of the benefits of the security, including realization by judicial, or
if applicable, nonjudicial foreclosure subject to the effect of
bankruptcy and similar laws affecting the rights of creditor and the
application of principles of equity;
(xxxii) Local Law Compliance. Based on title endorsements,
legal opinions and other third party letters received at closing, the
Mortgaged Property is in compliance with all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the
construction, occupancy and use of such Mortgaged Property. To the best
of the applicable Representing Party's knowledge based on customary due
diligence performed by prudent commercial mortgage lenders, all
inspections, licenses and certificates required, including certificates
of occupancy, whether by law, ordinance, regulation or insurance
standards currently required to be made or issued with regard to the
construction, occupancy and use of the Mortgaged Property, have been
obtained and are in full force and effect. Any non-conformity with
zoning laws constitutes a legal non-conforming use or structure which,
in the event of casualty or destruction, may be restored or repaired to
the full extent of the use or structure at the time of such casualty,
or for which law and ordinance insurance coverage has been obtained in
amounts customarily required by prudent commercial mortgage lenders;
17
(xxxiii) Environmental Compliance. In the Mortgage, the
Mortgagor represents and warrants that it has not and will not use,
cause or permit to exist on the related Mortgaged Property any
hazardous materials in any manner that violates federal, state or local
laws, ordinances, regulations, orders, directives or policies governing
the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The Mortgagor
agrees to indemnify, defend and hold the lender and its successors
and/or assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, expenses, and claims
of any kind whatsoever (including attorney's fees and costs) paid,
incurred, or suffered by, or asserted against, any such party resulting
from a breach of any environmental representation, warranty or covenant
given by the Mortgagor under the Mortgage. A Phase I Environmental
Assessment, or in the case of USPS Lease Loans, an environmental
screening (an "Environmental Screening"), was performed on the related
Mortgaged Property by a professional experienced in environmental
matters with respect to each Mortgaged Property in connection with the
origination of the related Loan (none of which is dated more than 12
months prior to the Closing Date, except for those Corporate Lease
Loans described in Schedule III, which have Phase I Environmental
Assessments which are dated not more than 31 months prior to the
Closing Date and those USPS Lease Loans described in Schedule IV which
have Environmental Screenings which are dated as indicated in Schedule
IV) and either (x) no such Phase I Environmental Assessment or
Environmental Screening reveals any known circumstances or conditions
with respect to the related Mortgaged Property that rendered such
Mortgaged Property, at the date of such Phase I Environmental
Assessment or Environmental Screening, as applicable, in violation of
any applicable environmental laws or (y) if any such Phase I
Environmental Assessment or Environmental Screening does reveal any
such circumstances or conditions with respect to the related Mortgaged
Property, then either (i) the same have been remediated in all material
respects, or (ii) sufficient funds have been escrowed for purposes of
effecting such remediation, or (iii) other responsible party is
currently taking or has covenanted in the future to take such actions,
if any, with respect to such circumstances or conditions as have been
recommended by the Phase I Environmental Assessment or Environmental
Screening or required by the applicable governmental regulatory
authority (including implementation of an operations and maintenance
agreement), or (iv) appropriate environmental insurance has been
obtained and is in full force and affect. To the applicable Seller's
and Bedford's knowledge, there are no circumstances or conditions with
respect to such Mortgaged Property not revealed in such Phase I
Environmental Assessment or Environmental Screening that render such
Mortgaged Property in violation of any applicable environmental laws.
Each Mortgage requires the related Mortgagor to comply, and to cause
the related Mortgaged Property to be in compliance with all applicable
federal, state and local environmental laws and regulations. The Credit
Lease tenant, if applicable, has expressly agreed to indemnify the
related Mortgagor from any claims of any nature arising as a result of
any hazardous materials affecting the property caused by the Credit
Lease tenant and arising after commencement of the Credit Lease, except
for those Credit Leases listed on Schedule III attached hereto;
18
(xxxiv) Transfers and Subordinate Debt. The Mortgage contains
a "due on sale" clause that provides for the acceleration of the
payment of the unpaid principal balance of the Loan if, without the
prior written consent of the holder (except in certain limited
intra-family transfers or certain transfers of less than 49% of the
ultimate beneficial ownership of the Mortgagor), the Mortgaged Property
subject to the Mortgage, or any interest therein, is directly or
indirectly transferred or sold, except that, in the case of the USPS
Lease Loans, transfers of the Mortgaged Property are permitted under
the due on sale provisions (i) with the prior written consent of the
lender; (ii) by devise or descent or by operation of law upon the death
of a partner, member or stockholder of the Mortgagor or any general
partner thereof; or (iii) upon the sale, transfer or hypothecation of a
partnership, shareholder or membership interest in the Mortgagor, by
the current partner(s), shareholder(s) or member(s) to an immediate
family member (i.e., parents, spouses, siblings, children or
grandchildren) of such partner, shareholder or member, or to a
principal (or a trust for the benefit of any such person). The Mortgage
prohibits any further pledge or lien on the Mortgaged Property, whether
equal or subordinate to the lien of the Mortgage, without the prior
written consent of the holder of the related Loan;
(xxxv) Escrow Deposits. All escrow deposits (including capital
improvements and environmental remediation reserves) relating to such
Loan that were required to be delivered to the mortgagee under the
terms of the related 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 the applicable Seller or Bedford or
any of their respective agents (which shall include the Master
Servicer);
(xxxvi) Special-Purpose Entity. Except with respect to one
Corporate Lease Loan listed on Schedule III and the USPS Lease Loans
listed on Schedule IV, each Mortgagor is an entity whose organizational
documents provide that it is, and at least so long as the Loan is
outstanding will continue to be, a special purpose entity. For this
purpose, "special purpose entity" means a person, other than an
individual, which is formed solely for the purpose of owning and
operating a special property, which does not engage in any business
unrelated to such property and the financing thereof, and which does
not have any assets other than those related to its interest in the
property or the financing thereof or any indebtedness other than as
permitted by the related Mortgage; maintains its own books, records and
accounts, in each case which are separate and apart from the books,
records and accounts of any other person; conducts business in its own
name and uses separate stationery, invoices and checks; does not
guarantee or assume the debts or obligations of any other person; does
not commingle its assets or funds with those of any other person;
transacts business with affiliates on an arm's length basis pursuant to
written agreements; and holds itself out as being a legal entity,
separate and apart from any other person. Each entity's organizational
documents provide that any dissolution and winding up or insolvency
filing for such entity requires the unanimous consent of all partners
or members, as applicable. Each entity's organizational documents
provide that they may not be amended with respect to the special
purpose entity (as defined above) requirements during the term of the
Loan.
19
In addition, except for certain exceptions described in Schedule IV,
each borrower or group of affiliated businesses under USPS Lease Loans
with an original aggregate principal of at least $500,000, are entities
who are "special purpose entities" formed solely for the purpose of
owning and operating a single property, does not engage in any business
unrelated to such property and the financing thereof, and does not have
any assets other than those related to its interest in the property or
the financing thereof or any indebtedness other than as permitted by
the related Mortgage;
(xxxvii) Mortgagor's Interest in Mortgaged Property. The
related Mortgagor under each Loan has good and indefeasible title in
fee simple to the related Mortgaged Property comprising real estate and
improvements owned by the Mortgagor, except for any portion thereof
subject to a ground lease or sub-ground lease which, in the case of the
Corporate Lease Loans listed on Schedule III and in the case of USPS
Lease Loans listed on Schedule IV, is secured in whole or in part by a
leasehold estate and addressed in (lxvii) below, and except for any
Permitted Encumbrances. The building and improvements on the Mortgaged
Property are owned by the Mortgagor and are used and occupied for
commercial purposes in accordance with applicable law;
(xxxviii) Default. There is no payment default, and to the
applicable Seller's and Bedford's knowledge, there is no other material
default, breach, violation or event of acceleration under any of the
related Mortgage Note, Mortgage or Assignment of Leases; no such
default or breach has been waived by the applicable Seller or Bedford
on its behalf or, to the applicable Seller's or Bedford's knowledge, by
the applicable Seller's or Bedford's predecessors in interest with
respect to the Loans; and, to the applicable Seller's or Bedford's
knowledge, no event has occurred which, with the passing of time or
giving of notice would constitute a material default or breach, except
with respect to (A) the USPS Lease Loans listed on Schedule IV (Part
A), under each of which the related borrower has received notice of the
imposition of a mechanic's or materialmen's lien in amounts indicated
on such Schedule, but in each case, the final title insurance policy
was issued without exception for the related mechanic's and/or
materialmen's lien, (B) the USPS Lease Loan listed on Schedule IV (Part
B), as to which there will be a rent abatement that will be covered by
reserves, and (C) the USPS Lease Loans listed on Schedule IV (Part C)
as to which the USPS has received a court order prohibiting the payment
of rent in the amount of $16,000. The Loans listed on Schedule IV have
not been accelerated and no foreclosure or power of sale proceeding has
been initiated in respect of the related Mortgage and there is no
expectation by Prudential or Bedford that such defaults will not be
cured or that acceleration of the Loan and foreclosure will result from
any such default;
(xxxix) Location. The related Mortgaged Property (i) is
located on or adjacent to a dedicated road, or has access to an
irrevocable easement permitting ingress and egress; (ii) is served by
public utilities and services generally available in the surrounding
community; and (iii) is serviced by well or public water and sewer
systems (or septic facilities);
20
(xl) Improvements. All of the material improvements
which form part of any related Mortgaged Property lay wholly within the
boundaries and building restriction lines of such property, except for
encroachments that are insured against by the lender's title insurance
policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroach upon such
Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property. With respect to each Loan,
the property legally described in the survey obtained, if any, for the
related Mortgaged Property for purposes of the origination thereof is
the same as the property legally described in the Mortgage;
(xli) Insurance Policies. All premiums with respect to
the insurance policies insuring each Mortgaged Property have been paid
in a timely manner or escrowed to the extent required by the Mortgage
Loan documents and the applicable Seller and Bedford have not received
any notice of cancellation. The applicable Seller and Bedford have no
knowledge that any action, omission, misrepresentation, negligence,
fraud or similar occurrence has taken place on the part of any person
that would reasonably be expected to result in the failure or
impairment of full and timely coverage under any such insurance policy;
(xlii) Legal Proceedings. The applicable Representing Party
has no actual knowledge of any pending litigation or other legal
proceedings, and had no actual knowledge of pending litigation or other
legal proceedings at the time of origination, based on due diligence
customarily performed by such Representing Party at the time of
origination, involving the related Mortgagor or the related Mortgaged
Property that can reasonably be expected to materially interfere with
the security intended to be provided by the related Mortgage, the
current use of the related Mortgaged Property, or the current ability
of the Mortgaged Property to generate net operating income sufficient
to service the Loan;
(xliii) Reports. Each Mortgage requires the Mortgagor to
provide the holder of the Loan with financial statements of the
Mortgagor and related information not less often than annually, or upon
the request of the applicable Seller;
(xliv) Selection Process. The applicable Seller and Bedford
took no action in selecting the Loans for sale, assignment and transfer
to the Company hereunder which to the applicable Seller's knowledge
would result in delinquencies and losses on Loans being materially in
excess of delinquencies and losses on the applicable Seller's actual
portfolio of commercial mortgage loans;
(xlv) Fully-Amortizing Loan. Except for the USPS Lease Loans
listed on Schedule IV, and the Corporate Lease Loans listed on Schedule
III (Part A), each Loan is fully- amortizing over its original term. No
Loan has a shared appreciation feature, other
21
contingent interest feature or negative amortization and no Mortgagor
has an option to extend the ten-ns of the related Loan (other than as
listed in Schedule III (Part B));
(xlvi) Tenant Notice Obligation. Each Tenant has agreed or,
with respect to USPS Lease Loans, is required pursuant to internal
postal regulations, to notify the related mortgagee of any default
under the related Credit Lease and to provide the mortgagee with
additional time and opportunity to cure, (A) except for the Corporate
Lease Loans listed on Schedule III (Part A), in which the applicable
mortgagee is entitled to receive notice of default and is granted the
opportunity to cure within the same time the landlord is permitted to
cure; all such Corporate Lease Loans listed on Schedule III, however,
provide that it is an event of default under the related Mortgage if
the Mortgagor, as landlord under the Credit Lease, does not cure such
default under the Credit Lease within one-half (1/2) the time permitted
the Mortgagor, as landlord under the Credit Lease, (B) except for the
Corporate Lease Loan listed on Schedule III (Part B), the related
Credit Lease of which is a Bond-Type Lease, (C) certain Corporate Lease
Loans listed on Schedule III (Part C) which provide for the mortgagee
to receive notice of any default under the related Credit Lease but the
mortgagee does not have an express right to cure and the related Credit
Leases are either a Bond-Type Lease or a Triple Net Lease, and (D)
which time, in the case of the USPS Lease Loans, is determined by the
Tenant to be reasonable;
(xlvii) Occupancy. Except for the Corporate Lease Loans listed
on Schedule III where (i) the Mortgaged Property is subleased or has
been assigned or (ii) a material portion of the Mortgaged Property is
leased to another party other than the Tenant under the Credit Lease,
the related Mortgaged Property is not subject to any lease other than
the related Credit Lease, no person has any possessory interest in, or
right to occupy, the related Mortgaged Property except under and
pursuant to such Crcdit Lease and the Tenant under the related Credit
Lease is in occupancy of the Mortgaged Property;
(xlviii) No Release of Tenant Obligation. To the knowledge of
the applicable Seller and Bedford, no Tenant under a Credit Lease (nor
Credit Lease guarantor, if applicable) has been released, in whole or
in part, from its obligations under the Credit Lease (or guaranty, as
applicable);
(xlix) Right to Assign. Under the terms of the Credit Lease,
the Tenant is not permitted to assign or sublet its interest or
obligations under the Credit Lease unless such Tenant remains fully
liable thereunder;
(1) Lockboxes. Except with respect to the Corporate
Lease Loan listed on Schedule III, each Tenant, whether under a Credit
Lease or otherwise is required to make all rental payments directly to
the mortgagee, its successors and assigns under the related Loan;
(li) Construction or Substantial Rehabilitation. No Mortgage
is secured by a Mortgaged Property under construction or substantial
rehabilitation or where construction
22
has not yet commenced, except for Mortgages relating to the Corporate
Lease Loans listed on Schedule III, which Loans have related Credit
Leases that are ground leases;
(1ii) Guaranty. The Corporate Lease Loans listed on
Schedule III (Part A) each have Credit Leases that are guaranteed by
the rated parent or affiliate of the Tenant. With respect to any Credit
Lease guaranteed by the rated parent or affiliate of the Tenant, to the
knowledge of the applicable Seller and Bedford, each such guaranty is
in full force and effect, and no default exists thereunder. The
borrower has agreed not to amend or release the guaranty without the
mortgagee's consent, and the guarantors have agreed not to amend or
release the guaranty without the mortgagee's consent, except for those
Corporate Lease Loans listed on Schedule III (Part B), wherein the
guarantor has not expressly agreed not to amend or release the
guaranty, but which Loans each have personal recourse guaranties to
principals of the borrower for guaranty modifications or releases made
without the consent of the applicable Seller, its successors and
assigns. In the event any Credit Lease is accompanied by a guaranty
from the rated parent or affiliate of the Tenant, (1) such guaranty is
legal, valid and binding against the guarantor, (2) to the extent the
Credit Lease was modified prior to the origination date, the guaranty
covers the Credit Lease as so modified, (3) no guaranty contains any
express provisions making such guaranty conditional, revocable or
contingent, or grants any express right of offset, counterclaim or
defense, except for the Corporate Lease Loans listed on Schedule III
(Part C), where the guaranty is a guaranty of payment of monetary
obligations and contains an indemnification for damages resulting from
the breach of non-monetary obligations of the Tenant under the related
Credit Lease, (4) the guaranty is a guaranty of both the performance
and payment of the financial obligations of the Tenant, and (5) the
guaranty is binding on the guarantor, its successors and assigns and
may not be amended or released by the Mortgagor without the Trustee's
consent;
(liii) Bond-Type Leases and Termination of Payments. Each
Bond-Type Lease listed on the attached Schedule III is a bondable lease
with no termination or rent abatement rights by the Tenant, except in
connection with the exercise of a Purchase Option. As to the Bond-Type
Leases, the obligations of the Tenant under the Credit Lease,
including, but not limited to, the obligation of the Tenant to pay
fixed and additional rent, are not affected by reason of any damage to
or destruction of any portion of the Mortgaged Property, any taking of
the Mortgaged Property or any part thereof by condemnation or
otherwise, or any prohibition, limitation, interruption, restriction,
or interference of the Tenant's use, occupancy or enjoyment of the
Mortgaged Property; provided, however, that the Credit Lease may permit
a lease termination in any such event if notice by the Tenant of such
termination is accompanied by the exercise of a Purchase Option;
(liv) No Lessor Obligations. As to the Credit Leases
(other than the Bond-Type Leases), the Mortgagor does not have any
monetary obligations under the related Credit Lease (except as
described herein and in paragraph (1xvii)), and every obligation
associated with managing, owning, developing and operating the
Mortgaged Property, including, but not limited to, the costs associated
with utilities, taxes, insurance, capital and structural
23
improvements and maintenance and repairs, either is an obligation of
Tenant or is an obligation of Mortgagor as the landlord under the
Credit Lease, but is fully reimbursable by Tenant, except as to (i)
anticipated maintenance, repair or replacement obligations which may
permit the related Tenant to either (A) offset against or xxxxx
payments of rent (including Basic Rent) or (B) terminate such Credit
Lease, in the case of any Double Net Leases as listed on the attached
Schedule III, which obligations are mitigated by Borrower Reserve
Funds, excess cash flow, and the respective obligations of the
Mortgagor under the Credit Lease and the Master Servicer and the
Special Servicer under this Agreement to perform Borrower Credit Lease
Obligations, (ii) obligations which may give rise to additional
termination or abatement rights ("Additional Obligations") under the
Double Net and Triple Net Leases listed on the attached Schedule III,
which Additional Obligations are mitigated by Borrower Reserve Funds,
excess cash flow, and the respective obligations of the Mortgagor under
the Credit Lease and the Master Servicer and the Special Servicer under
this Agreement to perform Borrower Credit Lease Obligations, and (iii)
USPS Lease Loans, under which (A) the only reimbursement obligations of
the Tenant are limited to reimbursement for real estate taxes (except
in the case of one USPS Lease Loan with respect to which there is no
reimbursement obligation, as set forth on the attached Schedule IV
(Part A)), and (B) in the case of the USPS Lease Loans listed on
Schedule IV (Part B), the Tenant is obligated to perform all ordinary
maintenance obligations other than maintaining major mechanical
elements including roof, structure, HVAC, parking, periodic painting
and boilers, and in the case of all other USPS Lease Loans, the Tenant
is not obligated to perform any maintenance. As to the Bond-Type
Leases, the Mortgagor does not have any monetary obligations under the
related Credit Lease, and every monetary obligation associated with
managing, owning, developing and operating the Mortgaged Property
(including, but not limited to, utilities, taxes, insurance, ground
rents, easement agreements, maintenance and repairs), is an obligation
of the Tenant. As to the Credit Leases (other than the Bond-Type
Leases), the Mortgagor, as landlord under the Credit Lease, does not
have any nonmonetary obligations under the Credit Lease, the breach of
which would result in the abatement of rent, a right of setoff or
termination of the Credit Lease, other than (i) the maintenance
obligations described herein and in paragraph (1xvii) under any Double
Net Leases listed on Schedule III, which are mitigated by Borrower
Reserve Funds, and the respective obligations of the Mortgagor under
the Credit Lease and the Master Servicer and the Special Servicer under
this Agreement to perform Borrower Credit Lease Obligations, and (ii)
Additional Obligations under the Double Net and Triple Net Leases
listed on the attached Schedule III, which Additional Obligations are
mitigated by Borrower Reserve Funds and the respective obligations of
the Mortgagor under the Credit Lease and the Master Servicer and the
Special Servicer under this Agreement to perform Borrower Credit Lease
Obligations. As to the Bond-Type Leases, the Mortgagor does not have
any continuing nonmonetary obligations under the related Credit Lease,
the performance of which would involve a material expenditure of funds;
(lv) Lease Remedies. Each Credit Lease contains customary and
enforceable provisions which render the rights and remedies of the
lessor thereunder adequate for the
24
enforcement and satisfaction of the lessor's rights thereunder, except
that under the Credit Leases relating to the USPS Lease Loans, the
lessor thereunder must rely upon standard common-law remedies;
(lvi) Liens. Except with respect to the USPS Lease Loans
listed on Schedule IV, as of the date of origination of such Loan and,
to the applicable Representing Party's knowledge, as of the Closing
Date, there are no mechanics' or similar liens or claims which have
been filed for work, labor or material and, to the applicable Seller's
and Bedford's knowledge, there are no claims outstanding that under
applicable law could give rise to such lien, affecting the related
Mortgaged Property which are or may be a lien prior to, or equal or
coordinate with, the lien of the related Mortgage;
(lvii) Borrower Concentration. As of the Closing Date, not
more than 5% of the aggregate outstanding principal amount of the Loans
have the same Mortgagor or, to each Seller and Bedford's best
knowledge, are to Mortgagors which are affiliates of each other, except
as to the Corporate Lease Loans described on Schedule III, each of
which have a non-consolidation opinion and borrowers which are
bankruptcy remote, and except as to the USPS Lease Loans described in
Schedule IV;
(lviii) Servicing. No other person currently has been granted
or conveyed the right to service the Loans or receive any consideration
in connection therewith, except for Midland Loan Services, Inc., except
that ORIX Real Estate Capital Markets, LLC has been engaged as a
subservicer with respect to the USPS Lease Loans;
(lix) REMIC Compliance; Qualified Mortgage. Each Loan and
related collateral comply with all REMIC rules and regulations. Each
Mortgage Loan constitutes a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation ss.1.860G-2(f)(2) that treats a defective
obligation as a "qualified mortgage" or any substantially similar
successor provision);
(lx) Servicing Practices. The servicing and collection
practices used with respect to the Loans have been legal and meet
customary standards utilized by prudent commercial mortgage loan
servicers;
(lxi) Originator Authorized. To the extent required under
applicable law as of the Closing Date and necessary for the
enforceability or collectability of the Loan, the originator of such
Loan was authorized to do business in the jurisdiction in which the
related Mortgaged Property is located at all times when it held the
Loan;
(lxii) Defeasance. Each Loan containing provisions for
defeasance of mortgage collateral requires that (A) defeasance may not
occur prior to the time permitted by applicable REMIC rules and
regulations (if applicable), (B) the replacement collateral consist of
U.S. govenunent securities in an amount sufficient to make all
scheduled payments under
25
the Mortgage Note when due, (C) independent certified public
accountants certify that the collateral is sufficient to make such
payments, (D) the loan be assumed by a "special purpose entity" (as
defined in (xxvi)) above designated by the Mortgagor and approved by
the holder of the Loan, and (E) counsel provide an opinion that the
trustee has a perfected security interest in such collateral prior to
any other claim or interest;
(lxiii) Tenant Obligations. The obligations of the Tenant
under any Credit Lease, including, but not limited to, the obligation
of the Tenant to pay fixed and additional rent, are not affected by
reason of: any damage to or destruction of any portion of the leased
property or any taking of the leased property or any part thereof by
condemnation or otherwise, except for the Credit Leases listed on
Schedule III (Part A) and the USPS Lease Loans which are covered by (A)
casualty Lease Enhancement Policies, and the Credit Leases listed on
Schedule III (Part B) and the USPS Credit Leases which are covered by
(B) condemnation Lease Enhancement Policies, and except for those
Credit Leases listed on Schedule III (Part C) under which Tenant may
terminate the Credit Lease by reason of damage or destruction or
condemnation of the property or any part thereof, but under which
Credit Leases the Tenant must exercise a Purchase Option;
(lxiv) Maintenance Obligations. Except with respect to the
Corporate Lease Loans listed on Schedule III, any anticipated
maintenance, repair, or replacement obligations imposed by any easement
or reciprocal easement agreement either is a direct obligation of the
Tenant or is an obligation or liability of the Mortgagor, as landlord
under the Credit Lease, the costs and expenses of complying therewith
are reimbursable by Tenant;
(lxv) Modification of the Credit Lease. Each Loan provides
that the related Credit Lease cannot be modified without the consent of
the mortgagee thereunder, and, except with respect to USPS Lease Loans,
the Tenants have agreed that no amendment, modification, termination or
surrender of the Credit Lease (except as expressly permitted by the
Credit Lease) will be effective without the prior written consent of
the applicable Seller or its successors and assigns, except for (i)
those Credit Leases listed on Schedule III, in which the Tenants under
the related Credit Leases have not expressly agreed to the foregoing,
but which Loans include personal recourse guaranties to principals of
the Mortgagor, as landlord under the Credit Lease, for modifications
made without the consent of the applicable Seller or its successors and
assigns, and (ii) the USPS Lease Loans, as to which the United States
Postal Service has not agreed that any amendment, modification,
termination or surrender thereof will be ineffective without the prior
written consent of the Seller or its successors and assigns;
(lxvi) Loan Underwriting. Each Loan complies, in all material
respects, with all of the terms, conditions and requirements of the
applicable Representing Party's and Prudential's underwriting standards
in effect at the time or origination of such Loan;
26
(lxvii) Ground Leases. With respect to the Corporate Lease
Loans listed on Schedule III and the USPS Lease Loans listed on
Schedule IV (Part X), each of which is secured by, among other things,
a Mortgage constituting a valid first lien on an unencumbered interest
of the Mortgagor as lessee under a ground lease (the "Ground Lease"),
but not by the related fee interest in such portion of the Mortgaged
Property, the applicable Representing Party represents and warrants
that (except in the case of one USPS Lease Loan listed on Schedule IV
(Part Y), as to which the representations and warranties relate to the
Mortgagor's subleasehold interest and not the leasehold interest of the
related ground sublessor):
(A) The Ground Lease or a memorandum regarding it has
been duly recorded. The interest of the Mortgagor may
be encumbered by the related Mortgage and the Ground
Lease does not restrict the use of the related
Mortgaged Property by such Mortgagor, its successors
or assigns in a manner that would adversely affect
the security provided by the related Mortgage, except
in the case of Ground Leases related to the four (4)
USPS Lease Loans listed on Schedule IV (Part A) in
which the related Credit Lease is restricted to a
United States postal facility. To the applicable
Seller's and Bedford's best knowledge, there has been
no material change in the terms of such Ground Lease
since its recordation, except by written instruments,
all of which are included in the related Mortgage
File.
(B) Except in the case of the USPS Lease Loans, the
lessor under such Ground Lease has agreed in writing
and included in the related Mortgage File that the
Ground Lease may not be amended, modified, canceled
or terminated without the prior written consent of
the originator and its assigns and that any such
action without such consent is not binding on the
originator, its successors or assigns.
(C) The Ground Lease has an original term (or an original
term plus one or more optional renewal terms, which,
under all circumstances, may be exercised, and will
be enforceable, by the originator, except in the case
of the four (4) USPS Lease Loans listed on Schedule
IV (Part C), which do not explicitly permit the
originator to exercise such option but do not
prohibit assignment by the Mortgagor of the right to
exercise such option) that extends not less than 10
years beyond the stated maturity of the related Loan.
(D) The Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the Mortgage other than Permitted Encumbrances and
such Ground Lease is, and provides that it shall
remain prior to any mortgage or other lien upon the
related fee interest.
(E) Except for fixed, currently determinable rent
increases, such Ground Lease does not permit any
increase in the amount of Monthly Rental Payment
27
payable by the Tenant thereunder during the term of
the Loan; for any such Ground Lease that has a fixed,
currently determinable rent increase, the related
Loan's debt service coverage will not be affected by
any such rent increase.
(F) The Ground Lease is assignable to the originator
under the leasehold estate and its assigns without
the consent of the ground lessor thereunder, except
in the case of one (1) USPS Lease Loan listed on
Schedule IV (Part F), with respect to which the
lessor's consent may not unreasonably be withheld.
(G) The Ground Lease is in full force and effect and, to
the applicable Seller or Bedford's actual knowledge
after due inquiry (which in the case of four (4) USPS
Lease Loans listed on Schedule IV (Part G), is based
solely on representations received from the related
Mortgagor), no default has occurred, nor is there any
existing condition which, but for the passage of time
or giving of notice, would result in a default under
the terms of the Ground Lease.
(H) Such Ground Lease (or other written agreement signed
by lessor) requires the lessor to give notice of any
default by the Tenant to the mortgagee, except with
respect to nonmonetary defaults in the case of the
USPS Lease Loan listed on Schedule IV (Part H); and
such Ground Lease (or other written agreement)
further provides that no notice given thereunder is
effective against the mortgagee unless a copy has
been given to the mortgagee.
(I) Except in the case of the USPS Lease Loan listed on
Schedule IV (Part I) with respect to cure of
nomnonetary defaults, the mortgagee is permitted a
reasonable opportunity (including, where necessary
sufficient time to gain possession of the interest of
the Mortgagor under the Ground Lease through legal
proceedings) to cure any default under the Ground
Lease, which is curable after the receipt of notice
of any default before the ground lessor may terminate
the Ground Lease. All cure rights of the Mortgagor
under the Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be
exercised by or on behalf of the originator.
(J) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance
proceeds and (in the case of the USPS Lease Loans, to
the extent payable to the Mortgagor, as described on
Schedule IV (Part J), condemnation awards (other than
in respect of a total or substantially total taking),
will be applied either (A) 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 repair or restoration progresses, or (B)
to the payment of the
28
outstanding principal balance of the Loan, together
with any accrued interest thereon.
(K) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related condemnation
award (in the case of the USPS Lease Loans, to the
extent payable to the Mortgagor) in respect of a
total or substantially total taking of the related
Mortgaged Property will be applied first to the
payment of the outstanding principal balance of the
Loan, together with any accrued interest thereon,
except in cases where a different allocation would
not be viewed as commercially unreasonable by a
prudent commercial mortgage lender, taking into
account the relevant duration of the Ground Lease and
the related Mortgage, and the ratio of the market
value of the related Mortgaged Property to the
outstanding principal balance of such Loan.
(L) Except in the case of the USPS Lease Loans, the
Ground Lease requires the lessor thereunder to enter
into a new lease with the lender upon termination of
the Ground Lease for any reason, including rejection
of the Ground Lease in a bankruptcy proceeding;
(lxviii) Prepayment Premium. With respect to such Loan, any
prepayment premium constitutes a "customary prepayment penalty" within
the meaning of Treasury Regulations Section 1.860G-1(b)(2);
(lxix) Termination of Credit Lease by Tenant. The Tenant
cannot terminate the Credit Lease for any reason, prior to the payment
in full of or the payment of funds sufficient to pay in full (1) the
principal balance of the Loan, (2) all accrued and unpaid interest on
the Loan and (3) any other sums due and payable under the Loan, as of
the termination date; except for a termination due to a default by the
related Mortgagor under the Credit Lease, as described in (lvi) above,
or a termination due to casualty or condemnation as described in (lv)
and (lxvi) above, or, termination with respect to certain Corporate
Lease Loans set forth in Schedule III, by exercise of a Purchase Option
not related to casualty or condemnation, for a purchase price in an
amount at least equal to the sum of outstanding principal on the Loan,
interest due on the Loan and a prepayment premium;
(lxx) Full Force and Effect. The Credit Lease is in full
force and effect and, to the applicable Seller's and Bedford's actual
knowledge, no right or claim of rescission, offset, abatement,
diminution, defense or counterclaim to a Credit Lease has been asserted
with respect thereto, nor is there any existing condition which, but
for the passage of time or giving of notice, would result in a right or
claim of rescission, offset, abatement, diminution, defense or
counterclaim under the terms of any Credit Lease, except with respect
to one USPS Lease Loan listed on Schedule IV.
29
It is understood and agreed that the representations and warranties set forth in
this Section 3(a) shall survive delivery of the respective Mortgage Files to the
Trustee or a Custodian on its behalf and shall inure to the benefit of the
Persons for whose benefit they were made for so long as the Trust remains in
existence, notwithstanding any restrictive or qualified endorsement or
assignment. Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth in Section 2 above which materially
and adversely affects the interests of the Certificateholders or any party
hereto or a breach of any of the representations and warranties set forth in
this Section 3(a) which materially and adversely affects the value of any Loan
or the interests therein of the Certificateholders, the party discovering such
breach shall give prompt written notice to each of the other parties hereto.
Except as expressly set forth herein neither the Company, the Trustee, the
Fiscal Agent, the Custodian, the Master Servicer nor the Special Servicer is
under any obligation to discover any breach of the above mentioned
representations and warranties. It is further understood and agreed that Bedford
makes no representations or warranties with regard to the Corporate Lease Loans
and that Bedford has no obligation to cure any breach of any representation or
warranty made by CLF with respect to a Corporate Lease Loan nor to repurchase
any Corporate Lease Loan. It is also further understood and agreed that CLF
makes no representations or warranties with regard to the USPS Lease Loans and
that CLF's obligation to cure any breach of any representation or warranty made
by Bedford with respect to a USPS Lease Loan or to repurchase any USPS Lease
Loan is limited to that set forth in Section 3(b)(ii) hereof.
(b) Upon discovery by a Seller, Bedford, the Company, the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or the Custodian
of a breach of any of the representations and warranties made in subsection (a)
above (a "Breach"), or of a Document Defect pursuant to Section 2.03 of the
Pooling and Servicing Agreement, in respect of any Loan, which materially and
adversely affects the interests of the Certificateholders or MBIA Insurance
Corporation, a New York domiciled insurance company ("MBIA") in such Loan, the
party discovering such Breach or, in the case of a Document Defect, the Trustee,
shall give prompt written notice to the other parties. If the Representing Party
is the party providing notification, it shall indicate in the notice the date it
discovered the Breach. The Trustee shall notify in writing, CLF with respect to
any Corporate Lease Loan, and Bedford and CLF with respect to any USPS Lease
Loan, of such Breach or Document Defect. The earlier of the date notice is given
by the Trustee to the Representing Party, or the date of discovery by the
Representing Party of a Breach (as notified by the Representing Party to the
Trustee and indicated in the Trustee's notice) shall be the "Trigger Date". The
applicable Representing Party agrees it shall, or a party authorized by it
shall, take the following actions, within the time periods set forth below:
(i) Bedford agrees that with respect to a USPS Lease
Loan, it shall, by no later than sixty (60) days following the related
Trigger Date, either (A) cure the relevant Breach or Document Defect;
(B) repurchase such Loan from the Trust Fund at the Purchase Price in
the manner set forth in Section 3(c); (C) provide a certification to
the Trustee (a "Bedford Certification") that (i) such Breach or
Document Defect is not reasonably susceptible of correction or cure
within such sixty (60) day period, (ii) such Breach or Document Defect
and the proposed cure thereof does not and will not cause the related
Loan to fail to be a
30
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code, (iii) Bedford is diligently prosecuting the correction or cure of
such breach or Document Defect, and (iv) the Master Servicer has not
determined in writing that any Advance for such Mortgage Loan during
such additional 60-day period would be a Nonrecoverable Advance. If
Bedford provides a Bedford Certification within sixty (60) days
following a Trigger Date, then with respect to such USPS Lease Loan,
Bedford shall have an additional period of sixty (60) days in which to
correct or cure such Breach or Document Defect, or failing such
correction or cure, to repurchase such Loan. The Trustee shall provide
CLF with a facsimile copy of all Bedford Certifications promptly upon
receipt.
(ii) CLF agrees that with respect to a USPS Lease Loan:
(x) if Bedford has not taken any of the
actions set forth in Section 3(b)(i)(A), (B) or (C) hereof
within the specified time period, then CLF shall, by no later
than ninety (90) days following the related Trigger Date,
either (A) cure the relevant Breach or Document Defect; (B)
repurchase such Loan from the Trust Fund at the Purchase Price
in the manner set forth in Section 3(c) hereof; (C) provide a
certification to the Trustee (a "CLF Certification") that (i)
such Breach or Document Defect is not reasonably susceptible
of correction or cure within such ninety (90) day period, (ii)
such Breach or Document Defect and the proposed cure thereof
does not and will not cause the related Loan to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code, (iii) CLF is diligently prosecuting the
correction or cure of such breach or Document Defect, and (iv)
the Master Servicer has not determined in writing that any
Advance for such Mortgage Loan during such additional 90-day
period would be a Nonrecoverable Advance. If CLF provides a
CLF Certification within ninety (90) days following a Trigger
Date, then with respect to such USPS Lease Loan, CLF shall an
additional period of ninety (90) days in which to correct or
cure such Breach or Document Defect, or failing such
correction or cure, to repurchase such Loan.
(y) if Bedford has timely provided a Bedford
Certification to the Trustee, pursuant to paragraph
3(b)(i)(C), and Bedford has not cured the Breach or
repurchased such USPS Lease Loan within one-hundred twenty
(120) days following the Trigger Date, then by no later than
one-hundred eighty (180) days following the Trigger Date, CLF
shall either (i) cure such Breach in all material respects or
(ii) purchase such Loan from the Trust Fund at the Purchase
Price in the manner set forth in Section 3(c) hereof.
(iii) CLF agrees that with respect to a Corporate Lease
Loan, it shall, by no later than ninety (90) days following the related
Trigger Date, either (A) cure the relevant Breach or Document Defect;
(B) repurchase such Loan from the Trust Fund at the Purchase Price in
the manner set forth in Section 3(c); (C) provide a CLF Certification
with respect to such Corporate Lease Loan, in which case, with respect
to such Corporate Lease Loan, CLF shall
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have an additional period of ninety (90) days in which to correct or
cure such Breach or Document Defect, or failing such correction or
cure, to repurchase such Loan.
(c) The purchase of any Loan by either Bedford or CLF, as applicable
(or an authorized representative thereof) (the "Repurchaser") pursuant to
Section 3(b) shall be effected by delivering the Purchase Price thereof to the
Master Servicer for deposit in the Collection Account. The Trustee, upon receipt
of any Officers' Certificate from the Master Servicer to the effect that such
deposit has been made, will release or cause to be released to the Repurchaser,
the related Mortgage File and will execute and deliver such instruments of
transfer or assignment (in recordable form if recording is appropriate), in each
case without recourse, representation or warranty, as shall be necessary to vest
in the Repurchaser, title to any Loan released pursuant hereto. In connection
with such repurchase, the Master Servicer will release to the Repurchaser all
documents and records maintained by the Master Servicer and requested by the
Repurchaser; provided that the Master Servicer, its assignee or any affiliate
thereto may retain copies of such documents and records at its own expense. The
Repurchaser shall be responsible for the payment of all reasonable expenses of
the Trustee and the Master Servicer incurred in connection with such repurchase.
SECTION 4. Closing.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of CLF,
Bedford and Prudential specified herein shall be true and correct as of
the Closing Date;
(b) All documents specified in Section 5 of this
Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to the Company, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof;
(c) Each Seller and Bedford, as applicable, shall have
delivered to and deposit with, or cause to be delivered to and
deposited with, the Trustee or a Custodian appointed thereby, the
Mortgage File for each Loan assigned by each Seller, in accordance with
Section 2.01(c) of the Pooling and Servicing Agreement;
(d) Each Seller and Bedford, as applicable, shall have
delivered and released to the Company, the Trustee, the Master Servicer
or a Custodian, as applicable, all documents and funds required to be
so delivered pursuant to this Agreement;
(e) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date shall have
been complied with, and each of CLF, Bedford and Prudential shall have
the ability to comply with all terms and conditions and perform all
duties and obligations required to be complied with or performed after
the Closing Date;
32
(f) Each Seller and Bedford shall have paid all fees
and expenses payable by it to the Company or otherwise pursuant to this
Agreement;
(g) Neither the Underwriting Agreement nor the
Certificate Purchase Agreement shall have been terminated in accordance
with its terms and the conditions described in Sections 6(a)(i),
6(a)(ii) and 6(c) in the Underwriting Agreement shall have been
satisfied;
(h) There shall not have been any change, or any
development involving a prospective change, in or affecting, the
business or properties of either Representing Party or any of its
affiliates the effect of which would be so material and adverse as to
make it impracticable or inadvisable to proceed with the offering;
(i) The Pooling and Servicing Agreement shall have been
executed and delivered by the parties thereto; and
(j) The results of the examination and audit performed
by the Underwriters and their affiliates pursuant to Section 9 hereof
shall be satisfactory to the Underwriters and their affiliates in their
sole determination and the parties shall have agreed to the form and
contents of the Mortgage information to be disclosed in the Memorandum
and the Prospectus Supplement.
All parties hereto agree to use their best efforts to perform
their respective obligations hereunder in a manner that will enable the Company
to purchase the Loans on the Closing Date.
SECTION 5. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the
Company, CLF, Bedford, and Prudential, and the Pooling and Servicing
Agreement duly executed and delivered by the Company and the other
parties thereto;
(b) An Officer's Certificate substantially in the form
of Exhibit A-1 hereto, executed by the general partner of CLF, in his
or her individual capacity, and dated the Closing Date, attaching
thereto as exhibits the articles of incorporation, resolutions and
by-laws of the general partner of CLF;
(c) An Officer's Certificate substantially in the form
of Exhibit B-1 hereto, executed by Bedford, in his or her individual
capacity, and dated the Closing Date, attaching thereto as exhibits the
articles of incorporation, resolutions and by-laws of Bedford;
33
(d) An Officer's Certificate substantially in the form
of Exhibit C-1 hereto, executed by Prudential, in his or her individual
capacity, and dated the Closing Date, attaching thereto as exhibits the
articles of incorporation, resolutions and by-laws of Prudential;
(e) A certificate of good standing issued by the
Secretary of State of the State of New Hampshire with respect to
Bedford, a certificate of good standing issued by the Secretary of
Delaware with respect to Prudential, a certificate of good standing
issued by the Secretary of State of the State of Delaware with respect
to CLF and the general partner of CLF, each dated not earlier than 45
days prior to the Closing Date;
(f) A certificate of the general partner of CLF
substantially in the form of Exhibit A-2 hereto, executed by the
authorized signatory of the general partner of CLF and dated the
Closing Date;
(g) A certificate of Bedford substantially in the form
of Exhibit B-2 hereto, executed by the authorized signatory of Bedford
and dated the Closing Date;
(h) A certificate of Prudential substantially in the
form of Exhibit C-2 hereto, executed by the authorized signatory of
Prudential and dated the Closing Date;
(i) A written opinion of Xxxx X. XxXxxxxx, Esq., or
other counsel for CLF, a written opinion of Xxxxxx Xxxxx, Esq., or
other counsel for Bedford, and a written opinion of Xxxx Xxxxxxxxxx,
Esq., or other counsel for Prudential, each, in form and substance
satisfactory to the Company, and subject to such reasonable assumptions
and qualifications as may be required by counsel for each Seller and
acceptable to counsel for the Company), dated the Closing Date and
addressed to the Company, the Underwriters and each Rating Agency, and
MBIA, together with such other written opinions as may be required by a
Rating Agency; and
(j) Such further certificates, opinions and documents
as the Company may reasonably request.
SECTION 6. Indemnification.
(a) Each Representing Party, severally and not jointly,
agrees to indemnify and hold harmless the Company, MBIA, the Underwriters, their
respective officers and directors, and each person, if any, who controls the
Company or the Underwriters within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against any and all losses, claims, damages or other
liabilities including, without limitation, the costs of investigation, legal
defense, and any amounts paid in settlement of any claim or litigation
("Liabilities"), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or
34
regulation, at common law, by contractual arrangement or otherwise, insofar as
such Liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact or any
omission or alleged omission to state therein a material fact necessary to make
the statement therein, in light of the circumstances in which they were made,
not misleading, contained in (A) the Registration Statement, the Memorandum (as
defined below), the Preliminary Prospectus Supplement (as defined below) or the
Final Prospectus Supplement (as defined below), as the case may be, (B) the
electronic road show that is available as of the Closing Date and utilized in
road shows conducted through the facilities of Bloomberg L.P. (the "Approved
Electronic Road Show"), (C) insofar as,they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any (1)
"Computational Materials", within the meaning of the no-action letter dated May
20, 1994, issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated,
and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994, issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters") and the filing of
such material is a condition of the relief granted in such letter, and (2)
"Structural Term Sheets" and "Collateral Term Sheets" (collectively, "ABS Term
Sheets") within the meaning of the no-action letter dated February 17, 1995,
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter", and together with the Xxxxxx Letters,
the "No-Action Letters") and the filing of such material is a condition of the
relief granted in such letter, and (D) such additional writings or other
materials that may be used from time to time, use of which has been approved in
writing by the Representing Party against which indemnification is sought as of
the date specified in such approval (the "Approved Additional Materials"), which
date shall be the first date of use on which the writings or other materials as
to which approval is sought contain Representing Party information that does not
contain an untrue statement or omission of a material fact, and which approval
shall not be unreasonably withheld, conditioned or delayed in connection with
the offer or sale of any of the Certificates; provided that with respect to (A),
(B), (C) and (D), only if and to the extent that such untrue statement, alleged
untrue statement, omission or alleged omission was made in reliance upon the
summaries, reports, documents and other written and computer materials and all
other written and electronic information regarding the Loans, the related Credit
Leases, the related Mortgaged Properties, the related Mortgagors, the related
insurance policies insuring individual Loans and the underwriting of the Loans,
fumished to the Company and/or the Underwriters, directly or indirectly, (a)
solely with respect to CLF, by CLF or approved by CLF and used in connection
with the preparation of the Memorandum, the Preliminary Prospectus Supplement,
the Final Prospectus Supplement, any Computational Materials or ABS Term Sheets,
the Approved Electronic Road Show or the Approved Additional Materials (the
foregoing written information, the "CLF Information"), or (b) solely with
respect to Bedford, by Bedford or approved by Bedford and used in connection
with the preparation of the Memorandum, the Preliminary Prospectus Supplement,
the Final Prospectus Supplement, any Computational Materials or ABS Term Sheets,
the Approved Electronic Road Show or the Approved Additional Materials (the
foregoing written information, the "Bedford Information").
35
Notwithstanding anything to the contrary contained herein (i) neither
Representing Party shall have any obligation to so indemnify and hold harrnless
any Person to the extent that any Liabilities arise out of or are based upon
factual information contained in the Memorandum, the Preliminary Prospectus
Supplement, the Final Prospectus Supplement, Computational Materials or ABS Term
Sheets, the Electronic Road Show or the Approved Additional Materials, as the
case may be, with respect to the Loans delivered by the other Representing Party
or Prudential, and (ii) neither Representing Party shall have any obligation to
indemnify and hold harrnless any Person based on any statement contained in the
Preliminary Prospectus Supplement which statement was corrected in the Final
Prospectus Supplement.
(b) (i) The Company agrees to indemnify and hold harinless each
Representing Party and MBIA, their respective officers and directors, and each
person, if any, who controls each Representing Party or MBIA within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all Liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law, by contractual arrangement
or otherwise, insofar as such Liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (other than with respect
to the Preliminary Prospectus Supplement or the Prospectus Supplement included
therein, as to which only the Specified Sections, as defined below, shall be
considered for purposes of this indemnification), the Preliminary Prospectus
Base, as defined below, or the Final Prospectus Base, as defined below, or (to
the extent they relate to information contained in the Specified Sections) the
Preliminary Prospectus Supplement, the Final Prospectus Supplement, the
Memorandum or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Public Certificates, or in any
revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any Computational
Materials or ABS Term Sheets, when read in conjunction with the Final Prospectus
Supplement and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided that
the Company will not be liable in any such case to the extent that such
Liability arises out of or is based upon any such untrue statement, alleged
untrue statement, omission or alleged omission made in reliance upon CLF
Information, Bedford Information, or information provided by MBIA or the
Underwriters. The Company shall have no obligation to indemnify and hold
harmless any Person based on any statement contained in the Preliminary
Prospectus Supplement which statement was corrected in the Final Prospectus
Supplement.
(ii) For purposes of the foregoing, "Registration Statement" shall mean
the registration statement No. 333-61783 filed by the Company on Form S-3 on
August 18, 1998 and declared effective on September 11, 1998; "Preliminary
Prospectus" shall mean the preliminary prospectus dated August 3, 1999 (the
"Preliminary Prospectus Base"), as supplemented by the preliminary prospectus
supplement dated August 3, 1999 (the "Preliminary Prospectus
36
Supplement"), relating to the Public Certificates; "Final Prospectus" shall mean
the final prospectus dated August 3, 1999 (the "Final Prospectus Base"), as
supplemented by the prospectus supplement dated August 10, 1999 (the "Final
Prospectus Supplement"), relating to the Public Certificates; "Specified
Sections" shall mean the sections in the Preliminary Prospectus Supplement and
the Final Prospectus Supplement entitled "Certain Federal Income Tax
Consequences", "Certain ERISA Considerations", "Legal Investments ", "Use of
Proceeds" and in the sections of the "Summary of Prospectus Supplement" thereof,
entitled "Tax Status", "Certain ERISA Considerations" and "Legal Investment";
"Memorandum" shall mean the private placement memorandum dated August 10, 1999,
relating to the Private Certificates. This indemnity agreement will be in
addition to any liability which the Sellers may otherwise have.
(c) Promptly after receipt by any person entitled to indemnification
under this Section 6 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against either Representing Party (the "indemnifying
party") under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the omission to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 6; provided, however, that any increase in
such liability as a result of such failure to notify shall not be an expense of
the indemnifying party. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party or parties shall have reasonably concluded that there may be
legal defenses available to it or them and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election to assume
the defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Company and the indemnifying party,
representing all the indemnified parties under Section 6(a) or Section 6(b) who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time period after notice of commencement
of the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall only be
in respect of the counsel referred to in such clause (i) or (iii).
37
An indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent; provided, however, that such
consent was not unreasonably withheld. However, if settled with such consent,
the indemnifying party shall indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. If an
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if such
settlement provides for release of the indemnified party in connection with all
matters relating to the proceeding that have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 6 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Liabilities (i) in such proportions as is appropriate to reflect the
relative benefits received by the applicable Represeiating Parties on the one
hand and the Underwriters on the other hand from the offer and sale of the
Certificates, which shall be deemed to be in the same proportion as (x) the
total proceeds from the offering received by the Company bear to (y) the profit
the Underwriters receive on resale of the Certificates, after taking into
account gains and losses from related hedging costs, or (ii) if the allocation
provided by clause (i) above is not appropriate by Applicable Law, in such
proportion as is appropriate to reflect the relative fault of the indemnified
and indemnifying parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the indemnified and
indemnifying parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and each Representing Party agree that it would not be
just and equitable if contribution pursuant to Section 6(d) were determined by
pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 6(d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 6 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 6, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the indemnified party that received such payment
shall promptly refund the amount so paid to the indemnifying party. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
38
Underwriters' obligations to indemnify and contribute as provided in Section 6
are several in proportion to their respective underwriting obligations and not
joint. The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section
6 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company, any
of its directors or officers, or any person controlling the Company and (iii)
acceptance of and payment for any of the Certificates.
SECTION 7. Third Party Beneficiaries.
(a) The Underwriters, the Trustee, MBIA and the Certificateholders are
intended third party beneficiaries of the representations, warranties and
covenants made by each Representing Party and Prudential, as applicable in
Sections 2, 3(a), 6 and 9 of this Agreement and, to the extent they affect the
rights of the Underwriters, the Trustee, MBIA and the Certificateholders as
third party beneficiaries under Sections 2, 3(a), 6 and 9, as applicable, the
covenants of such Representing Party or Prudential made in the other provisions
of this Agreement. It is acknowledged that such representations, warranties,
covenants and indemnities of such Representing Party and Prudential may be
enforced by the Underwriters and the Trustee (on its own behalf and on the
behalf of the Certificateholders) and MBIA to the same extent as if they were
parties hereto.
(b) Each of the officers, directors, employees, agents, controlling
persons and affiliates of the Underwriters is an intended third party
beneficiary of the representations, warranties, covenants and indemnities of
each Representing Party and Prudential, as applicable, set forth in Sections 2,
3(a), 6 and 9, as applicable, of this Agreement and, to the extent they affect
the rights of such persons and entities as third party beneficiaries under such
Sections 2, 3(a), 6 and 9, as applicable, the covenants of such Representing
Party or Prudential made in the other provisions of this Agreement. It is
acknowledged and agreed that such representations, warranties, covenants and
indemnities may be enforced by or on behalf of such persons or entities against
such Representing Party or Prudential to the same extent as if any such person
or entity was a party hereto.
SECTION 8. Conveyance of Mortgage Loans.
It is intended that the conveyance of the Loans and the related rights
and property by each Seller or of Bedford to the Company, as provided in this
Section be, and be construed as, an absolute transfer of the Loans by such
Seller to the Company. It is, further, not intended that such conveyance be
deemed a pledge of the Loans by such Seller to the Company to secure a debt or
other obligation of such Seller, as the case may be. However, in the event that
the Loans are held to be property of either Seller or of Bedford, or if for any
reason this Agreement is held or deemed to create a security interest in the
Loans, then it is intended that, (i) this Agreement shall also be deemed to be a
security agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the
39
conveyance provided for in this Section shall be deemed to be a grant by each
Seller and Bedford to the Company of a security interest in all of its right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to (A) the Mortgage Notes, Credit Leases,
the Mortgages, any related insurance policies and all other documents in the
related Mortgage Files, (B) all amounts payable to the holders of the Loans in
accordance with the terms thereof and (C) all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, whether in the form of cash, instruments, securities or other
property; (iii) the possession by the Company or its agent of the 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" or possession by a purchaser or a Person designated by such secured
party, for purposes of perfecting the security interest pursuant to the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction (including, without limitation, Section 9-305 or 9-115 thereof);
and (iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Company for the purpose of perfecting
such security interest under applicable law. Each Seller, Bedford and the
Company 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 Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, the Company shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
SECTION 9. Examination of Mortgage Files and Due Diligence Review.
(a) Each Representing Party shall (i) deliver to the Underwriters on or
before the Closing Date a diskette acceptable to the Underwriter which contains
such information about the Corporate Lease Loans or the USPS Loans, as
applicable, as may be reasonably requested by the Underwriters, (ii) deliver to
the Underwriters investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Loan pool and made
available at the Underwriters' headquarters, and (iii) otherwise cooperate fully
with the Underwriters in their examination of the credit files, underwriting
documentation and Mortgage Files for the Loans and its due diligence review of
the Loans. The fact that the Underwriters have conducted or have failed to
conduct any partial or complete examination of the credit files, underwriting
documentation or Mortgage Files for the Loans shall not. affect the right of the
Underwriters or the Trustee to require the applicable Representing Party to cure
any material Document Defect or material breach, or to repurchase or replace the
defective Loans pursuant to Section 3 of this Agreement.
(b) On or prior to the Closing Date, each Representing Party and
Prudential shall allow representatives of any of the Underwriters, the Trustee,
the Master Servicer, the Special Servicer, MBIA and each Rating Agency to
examine and audit all books, records and files pertaining to the Corporate Lease
Loans or the USPS Lease Loans, as applicable, each Representing Party's and
40
Prudential's underwriting procedures and each Representing Party's and
Prudential's ability to perform or observe all of the terms, covenants and
conditions of this Agreement. Such examinations and audits shall take place at
one or more offices of such Representing Party or Prudential during normal
business hours and shall not be conducted in a manner that is disruptive to such
Representing Party's or Prudential's normal business operations upon reasonable
advance prior notice. In the course of such examination and audits, the
Representing Party or Prudential, as the case may be, will make available to
such representatives of any of the Underwriters, the Trustee, the Master
Servicer, the Special Servicer, MBIA and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of knowledgeable
and responsible individuals who are familiar with the Corporate Lease Loans or
the USPS Lease Loans, as the case may be, and the terms of this Agreement, and
each Representing Party and Prudential, as the case may be, shall cooperate
fully with any such examination and audit in all material respects. On or prior
to the Closing Date, each Representing Party shall provide the Underwriter with
all material information regarding its financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to such Representing Party's financial condition,
financial statements as provided to the Underwriter or other developments
affecting such Representing Party's ability to consummate the transactions
contemplated hereby or otherwise affecting such Representing Party in any
material request. Each Representing Party and Prudential shall make its
representatives and facilities available to the extent reasonably required under
this Section 9(b) free of charge, but in all other respects each Person
conducting any such examination or audit shall do so at its own cost and
expense.
SECTION 10. 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 telex or telegraph and confirmed by a similar mailed
writing, if to the Company, addressed to the Company at Bear Steams Commercial
Mortgage Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Senior Managing Director, telecopy number: (000) 000-0000, (with copies to
O'Melveny & Xxxxx LLP, 153 East 53rd Street, 54th floor, New York, N.Y. 10022,
Attention: Xxxx Xxxxxxx, Esq., telecopy number: (000) 000-0000, or to such other
address as may hereafter be fumished to each Representing Party in writing by
the Company; and if to each Representing Party, addressed to CLF at Capital
Lease Funding, L.P., 000 Xxxxxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. XxXxxxxx, telecopy number: (000) 000-0000 (with a copy to
Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxx, Esq., telecopy number: (000) 000-0000), and, if to
Bedford at Bedford Capital Funding Corp., 000 Xxxxx Xxxxx Xxxx, Xxxxxxx, XX
00000-0000, Attention: R. Xxxxxxx Xxxx, telecopy number: (000) 000-0000 (with a
copy to Xxxxxx Xxxxx, Xxxxxx X. Xxxxx and Associates, P.L.L.C., 00 Xxxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, telecopy number: (000) 000-0000), or to such other
address as may hereafter be furnished to the Company in writing by each
Representing Party; and if to Prudential, to Prudential Securities Credit Corp.,
at Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Xxx Xxxxx, telecopy number: (000) 000-0000.
41
SECTION 11. 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 each of CLF, Bedford and Prudential submitted pursuant hereto, shall
remain operative and in full force and effect and shall survive delivery of the
Loans by each Seller to the Company or, at the direction of the Company, to the
Trustee.
SECTION 12. Assignment.
The Sellers and Bedford expressly acknowledge and agree that the
Company shall assign its interest under this Agreement to the Trustee as may be
required to effect the purposes of the Pooling and Servicing Agreement. The
Sellers and Bedford further acknowledge and agree that (i) such assignment may
be made without further notice to, or consent of, the Sellers or Bedford, (ii)
the Trustee shall succeed to such of the rights of the Company as shall be so
assigned, and (iii) such rights shall be enforceable directly by the Trustee (or
the Master Servicer on behalf of the Trustee).
SECTION 13. Reimbursement for Expenses.
CLF and Bedford each agree to pay or reimburse, as applicable,
its pro rata share, based on the percentage that represents the amount the
purchase price for the (i) the Corporate Lease Loans, in the case of CLF, or
(ii) the USPS Lease Loans, in the case of Bedford, bears to the total purchase
price for all Loans, for fees and expenses of the following parties or for the
following items (the "Expenses"), to the extent such fees or expenses arise from
or relate to the transaction contemplated hereunder and the Corporate
Lease-Backed Certificates, Series 1999-CLF transaction:
1. Xxxxx'x Investor Services Inc.
2. Standard & Poor's
3. Cost of Residual
4. Bank of America Management/Underwriting Fees
5. Prudential Management/Underwriting Fees
6. Bear Xxxxxxx Management/Underwriting Fees
7. X.X. Xxxxxxxxx
8. Cadwalader Xxxxxxxxxx & Xxxx
9. O'Melveny & Xxxxx
10. Sidley & Austin
11. Ernst & Young
12. Shelf-Filing Fee
13. La Salle/ABN Amro
14. Rating Agency Surveillance
15. Lease Enhancement Insurance Policy Premiums
42
The purchase price for the Loans shall be determined before giving
effect to the Expenses. The Sellers and Bedford agree that the Company is
entitled to deduct from the purchase price of the Loans, amounts sufficient to
pay the Expenses. In addition, the Sellers and Bedford further agree that the
Company is authorized to withhold from the payment of the purchase price of the
Loans, as a reserve for payment of the Expenses, the amount of $350,000. The
Company is authorized to apply such reserved amounts in payment of or in
reimbursement for the Expenses. Any reserve amount remaining after payment of or
reimbursement for the Expenses shall be released to CLF and Prudential in the
same proportion as Expenses were borne hereunder by CLF and Bedford,
respectively.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreeiiient that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable 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 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 17. Further Assurances.
Each Seller, Bedford and the Company 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.
43
SECTION 18. Successors and Assigns.
The rights and obligations of each Representing Party and Prudential
under this Agreement shall not be assigned by such Representing Party or
Prudential without the prior written consent of the Company, except that any
person into which a Representing Party or Prudential may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which such Representing Party or Prudential is a
party, or any person succeeding to all or substantially all of the business of
such Representing Party or Prudential, shall be the successor to such
Representing Party or Prudential hereunder. The Company has the right to assign
its interest under this Agreement, in whole or in part, as may be required to
effect the purposes of the Pooling and Servicing Agreement, and the assignee
shall, to the extent of such assignment, succeed to the rights and obligations
hereunder of the Company. Subject to the foregoing, this Agreement shall bind
and inure to the benefit of and be enforceable by each Representing Party,
Prudential and the Company, and their permitted successors and assigns, and, to
the extent set forth in Section 7, the third party beneficiaries identified in
such Section 7.
SECTION 19. Amendments.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced; provided, however, that notwithstanding the foregoing and any other
provisions of this Agreement, no term or provision of this Agreement shall be
waived or modified in any manner that would affect the rights hereunder of any
third party beneficiary identified in Section 7 hereof without the written
consent of such third party beneficiary.
SECTION 20. Entire Agreement.
Except as otherwise expressly stated herein, this Agreement constitutes
the entire agreement and understanding of the parties with respect to the
matters and transactions contemplated hereby. This Agreement supersedes any
prior agreements and/or understandings, written or oral, with respect to such
matters and transactions.
44
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
CAPITAL LEASE FUNDING, L.P.
By: CLF Holdings, Inc.
a General Partner
By:
-----------------------------------
Name: Xxxx X. XxXxxxxx
Title: Vice President
BEDFORD CAPITAL FUNDING CORP.
By:
-----------------------------------
Name:
Title:
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By:
-----------------------------------
Name:
Title:
PRUDENTIAL SECURITIES CREDIT CORP.
By:
-----------------------------------
Name:
Title:
45
SCHEDULE I
CORPORATE LEASE LOAN SCHEDULE
I-1
SCHEDULE II
USPS LEASE LOAN SCHEDULE
II-1
SCHEDULE III
EXCEPTIONS TO CORPORATE LEASE LOAN REPRESENTATIONS AND
WARRANTIES
Section 3(a)(x): Mortgage Status
The following provide for a release of a portion of the secured Property:
Loan Number Tenant Name
----------- ------------
2472 Home Depot U.S.A., Inc. (Lodi, NJ)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
4000 Chase Manhattan Mortgage Corp. (Columbus, OH)
The following loan permits a substitution of the secured Property:
Loan Number Tenant Name
----------- ------------
4194 Accor (Issaquah, WA)
Section 3(a)(xv): Insurance
Part A Bond-Type Leases
-----------------------
Loan Number Tenant Name
----------- ------------
2020 Rite Aid Corporation (Cadillac, MI)
4194 Accor (Issaquah, WA)
4136 Bed, Bath & Beyond, Inc. (Mission Viejo, CA)
1684NBC Koninklijke Ahold, N.V. (Xxxxxx Plains, NJ)
0000 Xxxxxxx Xxxx Xxxxxx, Xxx. (Xxxxxxxx, XX)
3589 Circuit City Stores, Inc. (Fayetteville, AR)
3588 Circuit City Stores, Inc. (Lake Charles, LA)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
961 Rite Aid Corporation (Portland, MI)
III-1
Credit Leases not abated for casualty
-------------------------------------
Loan Number Tenant Name
----------- ------------
2072 Xxxx'x Companies, Inc. (Dallas, TX)
1210 Rite Aid Corporation (Xxxx, MI)
1777 Rite Aid Corporation (Alpena, MI)
2553 CVS Corporation (Brooklyn, NY)
4005 CVS Corporation (Columbus, OH)
2850 Rite Aid Corporation (East Greenbush, NY)
2503 Rite Aid Corporation (Hazleton, PA)
1883 Rite Aid Corporation (Henderson, NV)
2580 Koninklijke Ahold, N.V. (Hicksville, NY)
3999 American Stores Company (Las Vegas, NV)
2025 Rite Aid Corporation (Las Vegas, NV)
3631 Koninklijke Ahold, N.V. (Xxxxxxx Xxxxx, MA)
1690 Rite Aid Corporation (Muskegon, MI)
2603 Rite Aid Corporation (Nanticoke, PA)
3068 CVS Corporation (North Bellmore, NY)
2598 Xxxx-Xxxxx Stores, Inc. (Rainsville, AL)
1356 CVS Corporation (Roanoke, VA)
1778 Rite Aid Corporation (Sault Ste. Xxxxx, MI)
2275NB CVS Corporation (Vernon, CT)
1583 Rite Aid Corporation (Warrenton, NC)
3143NB XxXxxxxx'x Corporation (Washington, DC)
2459 CVS Corporation (Whitpain Township, PA)
4194 Accor (Issaquah, WA)
Part B Rating
-------------
The following Loan is insured by an insurer with an Ambest rating of "Superior":
Loan Number Tenant Name
----------- ------------
2906NB Exkerd Corporation (Atlanta, GA)
III-2
Section 3(a)(xxii): Priority
The following Loan is not subordinate in right to the related Credit Lease:
Part A
------
Loan Number Tenant Name
----------- ------------
4194 Accor (Issaquah, WA)
In the following Credit Lease, the Tenant is not expressly obligated to
recognize an assignee of the lessor, but the related guarantor has directly
guaranteed payment and performance of the Loan:
Part B
------
Loan Number Tenant Name
----------- ------------
3802 Middlesex Mutual Assurance Company (Middletown, CT)
Section 3(a)(xxiii): Credit Lease Term
Loan Number Tenant Name
----------- ------------
2490 X. Xxxxxxxxx XXX (Xxxxxx, XX)
0000XX Koninklijke Ahold, N.V. (Boiling Springs, SC)
2521 CVS Corporation (Kokomo, IN)
2522 CVS Corporation (Anderson, IN)
Section 3(a)(xxiv): Basic Rent Sufficient
Part A - Extended Amortization Loans
------------------------------------
Loan Number Tenant Name
----------- ------------
2490 X. Xxxxxxxxx XXX (Xxxxxx, XX)
0000XX Koninklijke Ahold, N.V. (Boiling Springs, SC)
2521 CVS Corporation (Kokomo, IN)
2522 CVS Corporation (Anderson, IN)
III-3
Part B - Residual Insurance Loans
---------------------------------
Loan Number Tenant Name
----------- ------------
4194 Accor (Issaquah, WA)
4136 Bed, Bath & Beyond (Mission Viejo, CA)
4000 Chase Manhattan Mortgage (Columbus, OH)
0000 Xxxxxxx Xxxx (Xxxxxxxx, XX)
3589 Circuit City (Fayetteville, AR)
3588 Circuit City (Lake Charles, LA)
4008 Eckerd (Lenior, NC)
2524 Eckerd (New Kensington, PA)
3380 Eckerd (Newnan, GA)
2515 Eckerd (Rostraver, PA)
4001 Lowe's (Bloomington, IN)
2910 Xxxx Xxxxx (Plover, WI)
2764 Walgreen (Colonial Heights, VA)
2504P Walgreen (Dallas, TX)
2745 Walgreen (Portsmouth, VA)
2071NB Wal-Mart (Valdosta, GA)
2575 Xxxx-Xxxxx (Columbus, MS)
0000 Xxxx-Xxxxx (Xxxxxxxxxx, XX)
Part C - Guaranteed Loan
------------------------
Loan Number Tenant Name
----------- ------------
3802 Middlesex Mutual Assurance Company (Middletown, CT)
Section 3(a)(xxv): Cross-Collateralization
Loan Number Tenant Name
----------- ------------
2521 CVS Corporation (Kokomo, IN)
2522 CVS Corporation (Anderson, IN)
III-4
Section 3(a)(xxx): Subordination Agreement and Estoppel Letter
Part A
------
Loan Number Tenant Name
----------- ------------
4194 Accor (Issaquah, WA) - Lease is not
subordinate to mortgage, but Tenant
agrees to attorn.
Part B
------
Loan Number Tenant Name
----------- ------------
1385 CVS Corporation (Binghamton, NY)
4194 Universal Commercial Credit Leasing VI(Issaquah,WA)
2490 Xxxx'x Supermarkets, Inc. (Gorham, NH)
Part C
------
Loan Number Tenant Name
----------- ------------
2071NB Walmart Real Estate Business Trust (Valdosta, GA)
Section 3(a)(xxxiii): Environmental Compliance
Except the following which are within 21 months of closing:
Loan Number Tenant Name
----------- ------------
2522 CVS Corporation (Anderson, IN)
2553 CVS Corporation (Brooklyn, NY)
2521 CVS Corporation (Kokomo, IN)
1705 CVS Corporation (Oswego, NY)
1356 CVS Corporation (Roanoke, VA)
2275NB CVS Corporation (Vernon, CT)
2031NB CVS Corporation (Washington, NC)
4008 Eckerd Corporation (Lenior, NC)
2472 Home Depot USA, Inc. (Lodi, NJ)
2437NB Koninklijke Ahold, N.V. (Boiling Springs, SC)
2072 Xxxx'x Companies, Inc. (Dallas, TX)
2910 Xxxx Xxxxx Company (Plover, WI)
1210 Rite Aid Corporation (Alma, MI)
2586 Rite Aid Corporation (Andalusia, AL)
III-5
Loan Number Tenant Name
----------- ------------
1583 Rite Aid Corporation (Warrenton, NC)
2745 Walgreen Co. (Portsmouth, NJ)
2673NB Walgreen Co. (Topeka, KS)
2598 Xxxx-Xxxxx Stores, Inc. (Rainsville, AL)
And the following within 31 months of closing:
Loan Number Tenant Name
----------- ------------
1704 CVS Corporation (Binghampton, NY)
1240 CVS Corporation (New Bedford, MA)
1323 CVS Corporation (Queesnbury, NY)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
1690 Rite Aid Corporation (Muskegon, MI)
1848 Rite Aid Corporation (Niles, MI)
961 Rite Aid Corporation (Portland, MI)
2504P Walgreen Co. (Dallas, TX)
Credit Lease Exceptions (no tenant environmental indemnification)
Loan Number Tenant Name
----------- ------------
2437NB Koninklijke Ahold, N.V. (Boiling Springs, SC)
4000 Chase Manhattan Mortgage Corp. (Columbus, OH)
3006 Eckerd Corporation (Greenville, SC)
2906NB Xxxxxx Xxxxxxxxxxx (Xxxxxxx, XX)
0000XX Xxxxxx Corporation (Decatur, GA)
1587 Eckerd Corporation (Fayetteville, NC)
2396NB Eckerd Corporation (Marietta, GA)
3380 Eckerd Corporation (Newnan, GA)
2724 Eckerd Corporation (Amsterdam, NY)
2586 Rite Aid Corporation (Andalusia, AL)
2521 CVS Corporation (Kokomo, IN)
2591NBC Xxxx'x Cinema (Stonington, CT)
1583 Rite Aid Corporation (Warrenton, NC)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
2910 Xxxx Xxxxx Company (Plover, WI)
1356 CVS Corporation (Roanoke, VA)
III-6
Loan Number Tenant Name
----------- ------------
2031NB CVS Corporation (Washington, NC)
2025 Rite Aid Corporation (Las Vegas, NV)
2503 Rite Aid Corporation (Hazleton, PA)
3143NB XxXxxxxx'x Corporation (Washington, NC)
4008 Eckerd Corporation (Lenior, NC)
1883 Rite Aid Corporation (Henderson, NV)
2200 Walgreen Co. (Chesterfield, VA)
2764 Walgreen Co. (Colonial Heights, VA)
2504P Walgreen Co. (Dallas, TX)
2745 Walgreen Co. (Portsmouth, NJ)
2104NBC Walgreen Co. (Perth Amboy, NJ)
2023NB Walgreen Co. (Cape Coral, FL)
2673NB Walgreen Co. (Topeka, KS)
2071NB Wal-Mart Stores, Inc. (Valdosta, GA)
Section 3(a)(xxvi): Special-Purpose Entity
Loan Number Tenant Name
----------- ------------
3802* Middlesex Mutual Assurance Company (Middletown, CT)
*Middlesex Loan - Non-SPE- Borrower is 100% wholly owned subsidiary of Tenant.
Section 3(a)(xxxvii): Mortgagor's Interest in Mortgaged Property
Leasehold Estates
-----------------
Loan Number Tenant Name
----------- ------------
3068 CVS Corporation (North Bellmore, NY)
2752 CVS Corporation (Upper Darby, PA)
III-7
Fee and Leasehold Estates
-------------------------
Loan Number Tenant Name
----------- ------------
1704 CVS Corporation (Binghamton, NY)
2472 Home Depot (Lodi, NJ)
Section 3(a)(xiv): Fully-Amortizing Loans:
Part A
------
Loan Number Tenant Name
----------- ------------
4194 Accor (Issaquah, WA)
4136 Bed, Bath & Beyond (Mission Viejo, CA)
4000 Chase Manhattan Mortgage (Columbus, OH)
0000 Xxxxxxx Xxxx (Xxxxxxxx, XX)
3589 Circuit City (Fayetteville, AR)
3588 Circuit City (Lake Charles, LA)
4008 Eckerd (Lenoir, NC)
2524 Eckerd (New Kensington, PA)
3380 Eckerd (Newnan, GA)
2515 Eckerd (Rostraver, PA)
4001 Lowe's (Bloomington, IN)
2910 Xxxx Xxxxx (Plover, WI)
2764 Walgreen (Colonial Heights, VA)
2504P Walgreen (Dallas, TX)
2745 Walgreen (Portsmouth, VA)
2071NB Wal-Mart (Valdosta, GA)
2575 Xxxx-Xxxxx (Columbus, MS)
2598 Xxxx-Xxxxx (Rainsville, AL)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
Part B
------
Loan Number Tenant Name
----------- ------------
3802 Middlesex Mutual Assurance Company (Middletown, CT)
4000 Chase Manhattan Mortgage (Columbus, OH)
III-8
Section 3(a)(xlvi): Tenant Notice Obligation
Part A (NNN and NN)
Loan Number Tenant Name
----------- ------------
3999 American Stores Company (Las Vegas, NV)
1704* CVS Corporation (Binghampton, NY)
1705* CVS Corporation (Oswego, NY)
1298* CVS Corporation (Medford, NY)
1323* CVS Corporation (Queensbury, NY)
2031NB* CVS Corporation (Washington, DC)
2459* CVS Corporation (Whitpain Township, PA)
2522* CVS Corporation (Anderson, IN)
2521* CVS Corporation (Kokomo, IN)
2553 CVS Corporation (Brooklyn, NY)
1240* CVS Corporation (New Bedford, MA)
3068* CVS Corporation (North Bellmore, NY)
2839* CVS Corporation (Rochester, NY)
2752* CVS Corporation (Upper Darby, PA)
2724* Xxxxxx Xxxxxxxxxxx (Xxxxxxxxx, XX)
0000XX Eckerd Corporation (Atlanta, GA)
2434NB Eckerd Corporation (Decatur, GA)
1587* Eckerd Corporation (Fayetteville, NC)
3006 Eckerd Corporation (Greenville, SC)
4008* Eckerd Corporation (Lenoir, NC)
2396NB* Eckerd Corporation (Marietta, GA)
2524 Eckerd Corporation (New Kensington, PA)
3380* Eckerd Corporation (Newnan, GA)
2515 Eckerd Corporation (Rostraver, PA)
3143NB XxXxxxxx'x Corporation (Washington, DC)
0000 Xxxxxxxxxxx Xxxxx, X.X. (Xxxxxxx Xxxxx, XX)
2200* Walgreen Co. (Chesterfield, VA)
2764* Walgreen Co. (Colonial Heights, VA)
2504P* Walgreen Co. (Dallas, TX)
2104NBC* Walgreen Co. (Perth Amboy, NJ)
2580 Koninklijke Ahold, N.V. (Hicksville, NY)
2910 Xxxx Xxxxx Company (Plover, WI)
III-9
Loan Number Tenant Name
----------- ------------
2202* Walgreen Co. (Orlando, FL)
2745* Walgreen Co. (Portsmouth, NJ)
2575 Xxxx-Xxxxx Stores (Columbus, MS)
2598 Xxxx-Xxxxx Stores (Rainsville, AL)
Part B (Bond)
Loan Number Tenant Name
----------- ------------
4136 Bed, Bath & Beyond (Mission Viejo, CA)
*Denotes Double Net Leases
Part C
Loan Number Tenant Name
----------- ------------
3590 (Bond) Circuit City Stores, Inc. (Anniston, AL)
3588 (Bond) Circuit City Stores, Inc. (Lake Xxxxxxx, CA)
1587 (Bond) Eckerd Corporation (Fayetteville, NC)
3589 (Bond) Circuit City Stores, Inc. (Fayetteville, AR)
2071NB (Triple Net) Wal-Mart (Valdosta, GA)
4194 (Bond) Accor (Issaquah, WA)
Section 3(a)(xlvii): Occupancy
Loan Number Tenant Name
----------- ------------
1583 Rite Aid Corporation (Warrenton, NC)
2910 Xxxx Xxxxx Company (Plover, WI)
0000 Xxxxxxxxxxx Xxxxx, X.X. (Xxxxxxx Xxxxx, XX)
Section 3(a)(l): Lockboxes
Loan Number Tenant Name
----------- ------------
3802 (rent is not paid Middlesex Mutual Assurance Company (Middletown, CT)
directly to Lender)
III-10
Section 3(a)(li): Construction or Substantial Rehabilitation
Loan Number Tenant Name
----------- ------------
0000 Xxxxxxxxxxx Xxxxx, X.X. (Xxxxxxx Xxxxx, XX)
2580 Koninklijke Ahold, N.V. (Hicksville, NY)
Section 3(a)(lii): Guaranty
Part A
------
4194 Accor (Issaquah, WA)
3999 American Stores Company (Las Vegas, NV)
2522 CVS Corporation (Anderson, IN)
2724 Eckerd Corporation (Amsterdam, NY)
2524 Eckerd (New Kensington, PA)
2591NBC Xxxx'x Cinema (Stonington, CT)
2490 X. Xxxxxxxxx XXX (Xxxxxx, XX)
0000XX Koninklijke Ahold, N.V. (Boiling Springs, SC)
2580 Koninklijke Ahold, N.V. (Hicksville, NY)
0000 Xxxxxxxxxxx Xxxxx, X.X. (Xxxxxxx Xxxxx, XX)
1684NBC Koninklijke Ahold, N.V. (Xxxxxx Plains, NJ)
1210 Rite Aid Corporation (Xxxx, MI)
1777 Rite Aid Corporation (Alpena, MI)
2586 Rite Aid Corporation (Anadalusia, AL)
2020 Rite Aid Corporation (Cadillac, MI)
2850 Rite Aid Corporation (East Greenbush, NY)
2503 Rite Aid Corporation (Hazleton, PA)
1883 Rite Aid Corporation (Henderson, NV)
2025 Rite Aid Corporation (Las Vegas, NV)
2603 Rite Aid Corporation (Nanticoke, PA)
1690 Rite Aid Corporation (Muskegon, MI)
1848 Rite Aid Corporation (Niles, MI)
961 Rite Aid Corporation (Portland, MI)
1778 Rite Aid Corporation (Sault Ste. Xxxxx, MI)
1583 Rite Aid Corporation (Warrenton, NC)
2071NB Wal-Mart Stores, Inc. (Valdosta, GA)
2575 Xxxx-Xxxxx Stores, Inc. (Columbus, MS)
2598 Xxxx-Xxxxx Stores, Inc. (Rainsville, AL)
III-11
Part A
------
4194 Accor (Issaquah, WA)
1704 CVS Corporation (Binghampton, NY)
2553 CVS Corporation (Brooklyn, NY)
4005 CVS Corporation (Columbus, OH)
1298 CVS Corporation (Medford, NY)
1240 CVS Corporation (New Bedford, MA)
3068 CVS Corporation (North Bellmore, NY)
1705 CVS Corporation (Oswego, NY)
1323 CVS Corporation (Queensbury, NY)
2839 CVS Corporation (Rochester, NY)
2752 CVS Corporation (Upper Darby, PA)
2275NB CVS Corporation (Vernon, CT)
2459 CVS Corporation (Whitpain Township, PA)
Part B
------
Loan Number Tenant Name
----------- ------------
3999 Lucky Stores, Inc./American Drug Stores(Las Vegas, NV)
2522 Hook SuperR (Anderson, IN)
2724 Xxx'x Incorporated (Amsterdam, NY)
2524 Thrift Drug, Inc. (New Kensington, PA)
2490 Xxxx'x Supermarkets, Inc. (Gorham, NH)
1684NBC Mayfair Supermarkets, Inc. (Xxxxxx Plains, NJ)
1210 Rite Aid of Michigan, Inc. (Xxxx, MI)
1777 Rite Aid of Michigan, Inc. (Alpena, MI)
1690 Rite Aid of Michigan, Inc. (Muskegon, MI)
1848 Rite Aid of Michigan, Inc. (Niles, MI)
1583 Xxxx Drug, Inc. (Warrenton, NC)
2071NB Walmart Real Estate Business (Valdosta, GA)
2575 Xxxx-Xxxxx Xxxxxxxxxx, Inc. (Columbus, MS)
2598 Xxxx-Xxxxx Atlanta, Inc. (Rainsville, AL)
1704 CVS of Binghamton, NY (Binghamton, NY)
2553 Bronx CVS, Inc. (Brooklyn, NY)
4005 Columbus Polaris CVS, Inc.
1298 Medford CVS, Inc. (Medford, NY)
0000 Xx. Xxxxxxxx Xxxxx Xxxx XXX, Xxx.(Xxx Xxxxxxx, XX)
3068 Jerusalem North Bellmore CVS, Inc.(North Bellmore, NY)
III-12
Loan Number Tenant Name
----------- ------------
1705 CVS Center Inc. (Oswego, NY)
1323 Queensbury CVS, Inc. (Queensbury, NY)
2839 CVS Lyell Xxxxxxx Xxxxx, LLC (Rochester, NY)
0000 Xxxxxxxxx Xxxxxx CVS, Inc. (Upper Xxxxx Township, PA)
2275NB Tolland CVS, Inc. (Vernon, CT)
2459 Whitpain CVS, Inc.
Part C
------
Loan Number Tenant Name
----------- ------------
2437NB Koninklijke Ahold, N.V. (Boiling Springs, SC)
2580 Koninklijke Ahold, N.V. (Hicksville, NY)
0000 Xxxxxxxxxxx Xxxxx, X.X. (Xxxxxxx Xxxxx, XX)
1684NBC Koninklijke Ahold, N.V. (Xxxxxx Plains, NJ)
Section 3(a)(liii): Bond-Type Leases and Termination of Payments
Loan Number Tenant Name
----------- ------------
2020 Rite Aid Corporation (Cadillac, MI)
4194 Accor (Issaquah, WA)
4136 Bed, Bath & Beyond (Mission Viejo, CA)
1684NBC Koninklijke Ahold, N.V. (Xxxxxx Plains NJ)
0000 Xxxxxxx Xxxx Xxxxxx, Xxx. (Xxxxxxxx, XX)
3589 Circuit City Stores, Inc. (Fayetteville, AR)
3588 Circuit City Stores, Inc. (Lake Charles, LA)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
961 Rite Aid Corporation (Portland, MI)
Section 3(a)(liv): No Lessor Obligations
Triple Net Leases
-----------------
Loan Number Tenant Name
----------- ------------
3999* American Stores Company (Las Vegas, NV)
4000 Chase Manhattan (Columbus, OH)
2553 CVS Corporation (Brooklyn, NY)
2275NB* CVS Corporation (Vernon, CT)
2906NB* Eckerd Corporation (Atlanta, GA)
XXX-00
0000XX* Xxxxxx Corporation (Decatur, GA)
3006* Eckerd Corporation (Greenville, SC)
0000 Xxxxxx Xxxxxxxxxxx (Xxx Xxxxxxxxxx, XX)
2515 Eckerd Corporation (Rostraver, PA)
2591NBC* Xxxx'x Cinema (Stonington, CT)
2580 Koninklijke Ahold NV (Hicksville, NY)
0000 Xxxxxxxxxxx Xxxxx XX (Xxxxxxx Xxxxx, XX)
3434 LaSalle Bank National Association (Chicago, IL)
2072 Xxxx'x Companies, Inc. (Dallas, TX)
3143NB XxXxxxxx'x Corporation (Washington, DC)
2910 Xxxx Xxxxx Company (Plover, WI)
1777 Rite Aid Corporation (Alpena, MI)
1883 Rite Aid Corporation (Henderson, NV)
2025 Rite Aid Corporation (Las Vegas, MI)
1778 Rite Aid Corporation (Sault Ste. Xxxxx, MI)
3581 Sterling Jewelers, Inc. (Orlando, FL)
2071NB* Wal-Mart Stores, Inc. (Valdosta, GA)
2575 Xxxx-Xxxxx Stores, Inc. (Columbia, MS)
2598 Xxxx-Xxxxx Stores, Inc. (Xxxxxxxxx, AL)
* Denotes 1-year latent defect provision
Double Net Leases
-----------------
Loan Number Tenant Name
----------- -----------
2522 CVS Corporation (Anderson, IN)
4005 CVS Corporation (Columbus, OH)
1704 CVS Corporation (Binghamton, NY)
2521 CVS Corporation (Kokomo, IN)
1298 CVS Corporation (Medford, NY)
1240 CVS Corporation (New Bedford, MA)
3068 CVS Corporation (North Bellmore, NY)
1705 CVS Corporation (Oswego, NY)
4003 CVS Corporation (Portsmouth, OH)
1323 CVS Corporation (Queensbury, NY)
1356 CVS Corporation (Roanoke, VA)
2839 CVS Corporation (Rochester, NY)
2752 CVS Corporation (Upper Darby, PA)
III-14
Loan Number Tenant Name
----------- ------------
2031NB CVS Corporation (Washington, NC)
2459 CVS Corporation (Whitpain Township, PA)
2724 Eckerd Corporation (Amsterdam, NY)
1587 Eckerd Corporation (Fayetteville, NC)
4008 Eckerd Corporation (Lenior, NC)
2396NB Eckerd Corporation (Marietta, GA)
3380 Eckerd Corporation (Newnan, GA)
4002 International Business Machines Corp. (Rochester, MN)
2490 J. Xxxxxxxx XXX (Xxxxxx, XX)
0000XX Koninklijke Ahold, N.V. (Boiling Springs, SC)
4001 Lowes Companies (Bloomington, IN)
1210 Rite Aid Corporation (Alma, MI)
2586 Rite Aid Corporation (Andalusia, AL)
2850 Rite Aid Corporation (East Greenbush, NY)
2503 Rite Aid Corporation (Hazleton, PA)
1690 Rite Aid Corporation (Muskegon, MI)
2603 Rite Aid Corporation (Nanticoke, PA)
1848 Rite Aid Corporation (Niles, MI)
1583 Rite Aid Corporation (Warrenton, NC)
4009 Walgreen Co. (Austin, TX)
2200 Walgreen Co. (Chesterfield, VA)
2764 Walgreen Co. (Colonial Heights, VA)
2504P Walgreen Co. (Dallas, TX)
2202 Walgreen Co. (Orlando, FL)
2104NBC Walgreen Co. (Perth Amboy, NJ)
2745 Walgreen Co. (Portsmouth, NJ)
0000XX Xxxxxxxx Xx. (Xxxxxx, KS)
2472 Home Depot (Lodi, NJ) (However, tenant cannot offset
against base rent for any monetary default)
III-15
Potential Landlord Obligations
------------------------------
Loan Number Tenant Name
----------- ------------
2575 Xxxx-Xxxxx Stores, Inc.(Columbus, OH)-Landlord liable
for special assessments for which a reserve has been
established, and Lender procured "warm body" guaranty).
3999 American Stores Company (Las Vegas, NV)
(Certain tax increases resulting from
Shopping Center development not payable
by Tenant; special and general area
environmental assessments).
4001 Xxxx'x Companies, Inc. (Bloomington, IN) (Special
Assessments).
4009 Walgreen Co.(Austin, TX)(Tenant not liable for special
assessments that are "impact" fees).
Section 3(a)(lvii): Borrower Concentration
Loan Number Tenant Name
----------- ------------
1684NBC Koninklijke Ahold, N.V. (Xxxxxx Plains, NJ)
2025 Rite Aid Corporation (Las Vegas, NV)
2472 Home Dept U.S.A., Inc. (Lodi, NJ)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
3999 American Stores Company (Las Vegas, NV)
4000 Chase Manhattan Mortgage Corp. (Columbus, OH)
Section 3(a)(lxiii): Tenant Obligations
Part A: Casualty Lease Enhancement Policies
-----------------------------------
Loan Number Tenant Name
----------- ------------
2072 Xxxx'x Home Centers, Inc. (Addison, TX)
1210 Rite Aid Corporation (Alma, MI)
2586 Rite Aid Corporation (Andalusia, AL)
1704 CVS Corporation (Binghamton, NY)
2437NB Koninklijke Ahold, N.V. (Boiled Springs, SC)
2764 Walgreen Corporation (Colonial Heights, VA)
2575 Xxxx-Xxxxx Stores, Inc. (Columbus, MS)
2504 Walgreen Corporation (Dallas, TX)
3006 Eckerd Corporation (East Greensville, SC)
III-16
Loan Number Tenant Name
----------- ------------
2490 X. Xxxxxxxxx PLC (Gotham, NH)
2503 Rite Aid Corporation (Xxxxxxxx, PA)
1883 Rite Aid Corporation (Xxxxxxxxx, NV)
2025 Rite Aid Corporation (Las Vegas, NV)
2472 Home Dept U.S.A., Inc. (Lodi, NJ)
1298 CVS Corporation (Medford, NY)
1690 Rite Aid Corporation (Muskegon, MI)
1240 CVS Corporation (New Bedford, MA)
3380 Eckerd Corporation (Newnan, GA)
1848 Rite Aid Corporation (Niles, MI)
3068 CVS Corporation (North Bellmore, NY)
2910 Xxxx Xxxxx Company (Plover, WI)
2745 Walgreen Corporation (Portsmouth, VA)
1323 CVS Corporation (Queensbury, NY)
2839 CVS Lyell Xxxxxxx Xxxxx, L.L.C. (Rochester, NY)
2071NB Wal-Mart Stores, Inc. (Valdosta, GA)
2275NB CVS Corporation (Vernon, CT)
3143NB XxXxxxxx'x Corporation (Washington, DC)
2459 CVS Corporation (Whitpain Township, PA)
2724 Eckerd Corporation (Amsterdam, NY)
2522 CVS Corporation (Anderson, IN)
0000 Xxxxxxx Xxxxx (Xxxxxxxxxx, XX)
4009 Walgreen Co. (Cedar Park, TX)
4000 Chase Manhattan Mortgage Corp. (Columbus, OH)
4005 CVS Corporation (Columbus, OH)
2434NB Eckerd Corporation (East Greenbush, NY)
2850 Rite Aid Corporation (East Greenbush, NY)
4194 Accor (Issaquah, WA)
0938 Walgreen Co. (Kerrville, TX)
2521 CVS Corporation (Kokomo, IN)
3588 Circuit City Stores, Inc. (Lake Charles, LA)
0000 Xxxxxxxx Xxxxxx (Xxx Xxxxx, XX)
3631 Koninklijke Ahold, N.V. (Cotuit, MA)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
4136 Bed, Bath and Beyond (Mission Viejo, CA)
III-17
Loan Number Tenant Name
----------- ------------
2579NB Thrifty Payless, Inc. (Moses Lake, WA)
2603 Rite Aid Corporation (Nanticoke, PA)
0000 Xxxxxx Xxxxxxxxxxx (Xxx Xxxxxxxxxx, XX)
4008 Eckerd Corporation (Orlando, FL)
3581 Sterling Jewelers, Inc. (Orlando, FL)
1705 CVS Corporation (Oswego, NY)
2910 Xxxx Xxxxx Company (Plover, WI)
0961 Rite Aid Corporation (Portland, MI)
4003, 4004 CVS Corporation (Portsmouth, OH)
4002 International Business Machines Corp. (Rochester, MN)
2515 Eckerd Corporation (Rostraver Township, PA)
1778 Rite Aid Corporation (Sault Ste. Xxxxx, MI)
2591NBC Xxxx'x Cinemas Limited (Xxxxxxxxxx, XX)
0000XX Wal-Mart Stores, Inc. (Valdosta, GA)
4007 Rite Aid Corporation (Walla Walla, WA)
1583 Rite Aid Corporation (Warrenton, NC)
4006 Rite Aid Corporation (Wheelersburg, OH)
Part B: Condemnation Lease Enhancement Policies
---------------------------------------
Loan Number Tenant Name
----------- ------------
2072 Xxxx'x Home Centers, Inc. (Addison, TX)
1210 Rite Aid Corporation (Alma, MI)
2586 Rite Aid Corporation (Andalusia, AL)
1704 CVS Corporation (Binghamton, NY)
4001 Xxxx'x Companies, Inc. (Bloomington, IN)
2437NB Koninklijke Ahold, N.V. (Boiling Springs, SC)
2553 CVS Corporation (Brooklyn, NY)
2689 CVS Brooklyn Eighteenth Avenue, LLC (Brooklyn, NY)
2764 Walgreen Corporation (Colonial Heights, VA)
2575 Xxxx-Xxxxx Stores, Inc. (Columbus, MS)
2504 Walgreen Corporation (Dallas, TX)
3006 Eckerd Corporation (East Greenville, SC)
2490 X. Xxxxxxxxx PLC (Gotham, NH)
2503 Rite Aid Corporation (Xxxxxxxx, PA)
III-18
Part B: Condemnation Lease Enhancement Policies
---------------------------------------
Loan Number Tenant Name
----------- ------------
1883 Rite Aid Corporation (Henderson, NV)
2580 Rite Aid Corporation (Hicksville, NY)
2025 Rite Aid Corporation (Las Vegas, NV)
2472 Home Depot U.S.A., Inc. (Lodi, NJ)
1298 CVS Corporation (Medford, NY)
1690 Rite Aid Corporation (Muskegon, MI)
1240 CVS Corporation (New Bedford, MA)
3380 Eckerd Corporation (Newnan, GA)
1848 Rite Aid Corporation (Niles, MI)
3068 CVS Corporation (North Bellmore, NY)
2745 Walgreen Corporation (Portsmouth, VA)
2910 Xxxx Xxxxx Company (Plover, WI)
1323 CVS Corporation (Queensbury, NY)
2598 Xxxx-Xxxxx Stores, Inc. (Rainesville, AL)
2839 CVS Lyell Xxxxxxx Xxxxx, L.L.C. (Rochester, NY)
2071NB Wal-Mart Stores, Inc. (Valdosta, GA)
2275NB CVS Corporation (Vernon, CT)
3143NB XxXxxxxx'x Corporation (Washington, DC)
2459 CVS Corporation (Whitpain Township, PA)
2724 Eckerd Corporation (Amsterdam, NY)
2522 CVS Corporation (Anderson, IN)
3590 Circuit City Stores, Inc. (Anniston, AL)
0000 Xxxxxxx Xxxxx (Xxxxxxxxxx, XX)
2020 Rite Aid Corporation (Cadillac, MI)
4009 Walgreen Co. (Cedar Park, TX)
4000 Chase Manhattan Mortgage Corp. (Columbus, OH)
4005 CVS Corporation (Columbus, OH)
2434NB Eckerd Corporation (East Greenville, SC)
2850 Rite Aid Corporation (East Greenbush, NY)
3589 Circuit City Stores, Inc. (Fayetteville, AR)
1587 Eckerd Corporation (Fayetteville, NC)
4194 Accor (Issaquah, WA)
0938 Walgreen Co. (Kerrville, TX)
III-19
Part B: Condemnation Lease Enhancement Policies
---------------------------------------
Loan Number Tenant Name
----------- ------------
2521 CVS Corporation (Kokomo, IN)
3588 Circuit City Stores, Inc. (Lake Charles, LA)
0000 Xxxxxxxx Xxxxxx (Xxx Xxxxx, XX)
3631 Koninklijke Ahold, N.V. (Cotuit, MA)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
4136 Bed, Bath and Beyond (Mission Viejo, CA)
2579NB Thrifty Payless, Inc. (Moses Lake, WA)
2603 Rite Aid Corporation (Nanticoke, PA)
0000 Xxxxxx Xxxxxxxxxxx (Xxx Xxxxxxxxxx, XX)
4008 Eckerd Corporation (Orlando, FL)
3581 Sterling Jewelers, Inc. (Orlando, FL)
1705 CVS Corporation (Oswego, NY)
2910 Xxxx Xxxxx Company (Plover, WI)
0961 Rite Aid Corporation (Portland, MI)
4003, 4004 CVS Corporation (Portsmouth, OH)
4002 International Business Machines Corp. (Rochester, MN)
2515 Eckerd Corporation (Rostraver Township, PA)
1778 Rite Aid Corporation (Sault Ste. Xxxxx, MI)
2591NBC Xxxx'x Cinemas Limited (Xxxxxxxxxx, XX)
0000XX Wal-Mart Stores, Inc. (Valdosta, GA)
4007 Rite Aid Corporation (Walla Walla, WA)
1583 Rite Aid Corporation (Warrenton, NC)
4006 Rite Aid Corporation (Wheelersburg, OH)
2580 Rite Aid Corporation (Hicksville, NY)
Part C: Purchase Option - Bond-Type Leases
----------------------------------
Loan Number Tenant Name
----------- ------------
2020 Rite Aid Corporation (Cadillac, MI)
4194 Accor (Issaquah, WA)
4136 Bed, Bath & Beyond, Inc. (Mission Viejo, CA)
1684NBC Koninklijke Ahold, N.V. (Xxxxxx Plains, NJ)
0000 Xxxxxxx Xxxx Xxxxxx, Xxx. (Xxxxxxxx, XX)
III-20
Part C: Purchase Option - Bond-Type Leases
----------------------------------
Loan Number Tenant Name
----------- ------------
3589 Circuit City Stores, Inc. (Fayetteville, AR)
3588 Circuit City Stores, Inc. (Lake Charles, LA)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
961 Rite Aid Corporation (Portland, MI)
Section 3(a)(lxiv): Maintenance obligations:
Loan Number Tenant Name
----------- ------------
3999 American Stores Company (Las Vegas, NV) (REA
Obligations - DSCR of 1.05)
4005 CVS Corporation (Columbus, OH) (REA Obligations -
DSCR of 1.06)
4000 Chase Manhattan Mortgage Corp. (Columbus, OH) (REA
Obligations - DSCR of 1.37)
Section 3(a)(lxv): Modification of Credit Lease
Loan Number Tenant Name
----------- -----------
2522 CVS Corporation (Anderson, IN)
1704 CVS Corporation (Binghamton, NY)
2553 CVS Corporation (Brooklyn, NY)
4005 CVS Corporation (Columbus, OH)
2521 CVS Corporation (Kokomo, IN)
1298 CVS Corporation (Medford, NY)
1240 CVS Corporation (New Bedford, MA)
3068 CVS Corporation (North Bellmore, NY)
1705 CVS Corporation (Oswego, NY)
4003 CVS Corporation (Portsmouth, OH)
1323 CVS Corporation (Queensbury, NY)
1356 CVS Corporation (Roanoke, VA)
2839 CVS Corporation (Rochester, NY)
2752 CVS Corporation (Upper Xxxxx Township, PA)
2275NB CVS Corporation (Vernon, CT)
2031NB CVS Corporation (Washington, NC)
III-21
Section 3(a)(lxv): Modification of Credit Lease
Loan Number Tenant Name
----------- ------------
2459 CVS Corporation (Whitpain Township, PA)
2472 Home Depot USA, Inc. (Lodi, NJ)
3434 LaSalle Bank National Association (Chicago, IL)
3143 XxXxxxxx'x Corporation (Washington, DC)
3802 Middlesex Mutual Assurance Company (Middletown, CT)
2745 Walgreen Co. (Portsmouth, VA)
0000XX Xxxxxxxx Xx. (Xxxxxx, KS)
Section 3(a)(lxvii): Ground Leases
Loan Number Tenant Name
----------- ------------
3068 CVS Corporation (North Bellmore, NY)
2472 Home Depot U.S.A., Inc. (Lodi, NJ)*
2752 CVS Corporation (Upper Darby, PA)
1385 CVS Corporation (Binghamton, NY)*
*Fee and Leasehold Estate
Section 3(a)(lxix): Termination of Credit Lease by Tenant
Loan Number Tenant Name:
----------- ------------
4136 Bed, Bath and Beyond (Mission Viejo, CA)
4194 Accor (Issaquah, WA)
III-22
SCHEDULE IV
EXCEPTIONS TO USPS LEASE LOAN REPRESENTATIONS AND WARRANTIES
Section 3(a)(vi).
The following Loan is not a separate tax parcel, however, the ground
lessor has agreed not to build on the remainder of the tax parcel unless it has
divided the property so that the property subject to the ground lease is a
separate tax parcel:
Loan # Location of Property
------ --------------------
00 Xxx Xxxxxx, XX
Section 3(a)(vii): First Lien
Loan # Location of Property
------ --------------------
58 Buckley, WA Mechanic's lien in the amount of
$11,308.08 is superior to the related
Mortgage, however, the mechanic's lien
has been properly bonded over and a final
title policy issued without exception for
the particular mechanic's lien.
8 Lizella, GA Mechanic's lien in the amount of
$8,116.22 is superior to the related
Mortgage, but the final title policy has
been issued without an exception because
the existence of the mechanic's lien was
not discovered through error of the title
company in its record search and,
therefore, the title company has assumed
responsibility for the mechanic's lien.
Section 3(a)(xiii): Title Insurance
Part A
------
Loan # Property Location
------ -----------------
21 Polk City, IA The three loans referred to in this
00 Xxx Xxxxxx, XX paragraph are each secured by property
00 Xxxxx Xxxxxxx, XX situated in the State of Iowa and in lieu
of ALTA lender's title policies being
issued with regard to such Mortgaged
Properties, a policy was issued by the
Iowa State Guarantee Agency, a division
of the Iowa Insurance Department, as
is customary in the State of Iowa.
Part B
------
Loan # Location of Property
------ --------------------
1 Xxxxxxxxxxx,XX
0 Xxxxxxxxx, XX
5 Dorton, KY
0 Xxxx Xxxxxx, XX
00 Xxxxx, XX
11 Greenville, ME
00 Xxxxxxxxxxx, XX
00 Xxxxx, XX
19 Dayton, OH
27 Hominy, OK
28 Warner, OK
29 Vian, OK
34 McCarr, KY
00 Xxxxx, XX
00 Xxxxxxx, XX
50 Pulteney, NY
57 Fort Duchesne, UT
66 English, IN
67 Greenville, IN
00 Xxxxxxx, XX
00 Xxxxxxxx, XX
87 Palmyra, ME
93 Chocura, XX
00 XxXxxxxxxxx, XX
IV-2
Loan # Location of Property
------ --------------------
00 Xxxx Xxxxxxxxxx, XX
98 Xxxxxx, IN
000 Xxxxxxx, XX
Section 3(a)(xviii): Sources of Payments
Loan # Property Location
------ -----------------
00 Xxxxxxx Xxxx, XX The Mortgagor of the two USPS Lease
69 Columbus, NM Loans referred to in this paragraph is a
limited liability company and the
principals of the limited liability
company have been added as makers of the
Mortgage Note.
Section 3(a)(xxiii): Credit Lease Term
Sixty (60) of the USPS Credit Leases have an original term ending
before the Mortgagor is required to deposit its final payment on the related
Loan and are as follows:
Loan # Location of Property
------ --------------------
1 Xxxxxxxxxxx, XX
0 Xxxxxxxxx, XX
0 Xxxx Xxxxxx, XX
00 Xxxxxxxxxxx, XX
17 Dadeville, VA
18 Reedsville, WV
19 Dayton, OH
00 Xxxx Xxxx, XX
00 Xxxxxxxx, XX
00 Xxxxxxxx, XX
00 Xxxxx, XX
26 Ossippe, NH
27 Hominy, OK
28 Warner, OK
29 Vian, OK
30 Gallup, NM - Finance Xxxxxxx
00 Xxx Xxxxxx, XX
33 Truro, IA
34 McCarr, KY
36 Elgin, OK
39 Perkinston, MS
IV-3
Loan # Location of Property
------ --------------------
40 Xxx Xxxx, XX
00 Xxxxxxx, XX
42 Xxxxxx, XX
00 Xxxxxxxxxxxx, XX
45 Progreso, TX
47 Xxxxxx, NY
48 Xxxxxxx, TX
00 Xx Xxxx, XX
00 Xxxx, XX
54 Xxxxxxxx, MT
55 Wilsall, MT
56 Xxxxx, MN
00 Xxxxxxx, XX
00 Xxxxxxx, XX
60 Mt. Olive, MS
66 English, IN
67 Greenville, IN
00 Xxxxxxxx, XX
00 Xxxxxx, XX
00 Xxxxx Xxxxxxx, XX
00 Xxxx Xxxxxxx, XX
00 Xxxxxxx, XX
00 Xxxxxxxx, XX
81 Poth, TX
00 Xxxxxxx, XX
00 Xxxxxxxx, XX
00 Xxxxxx Xxxx, XX
00 Xxxx, XX
89 Quitman, TX
90 Lytle, TX
92 Cleveland, VA
00 Xxxx Xxxxxxxxxx, XX
98 Xxxxxx, IN
99 Xxxxxxxxxxxx, XX
000 Xxxxxxx, XX
000 Xxxxxxxx, XX
000 Xxxxx, XX
000 Xxxxxxxx, XX
000 Xxxxxx, XX
The above listed USPS Lease Loans are not covered by an Extended
Amortization Policy.
IV-4
Section 3(a)(xxiv): Basic Rent Sufficient
In addition to the USPS Lease Loans listed as an exception to Section
3(a)(xxiii) above, eighteen (18) other USPS Lease Loans have final remaining
balances and are as follows:
Loan # Location of Property
------ --------------------
1 Xxxxxxxxxxx, XX
0 Xxxxxxxxx, XX
4 Xxxxxxx, XX
0 Xxxxxx, XX
6 Danville, WA
7 Pawtucket, RI-- Central Falls Br.
0 Xxxx Xxxxxx, XX
00 Xxxxx, XX
11 Greenville, ME
12 Frenchville, ME
00 Xxxxxxxxx, XX
00 Xxxxxxxxxxxx, XX
00 Xxxxx, XX
00 Xxxxxxxxxx, XX
00 Xxxx Xxxx, XX
00 Xxxxxxxx, XX
23 Riverton, WY
25 Imigon, OR
Section 3(a)(xxv): Cross Collateralization
Thirty-nine (39) maintenance reserve funds established as part of the
USPS Lease Loans are cross-collateralized with one or more USPS Lease Loans
issued to common or affiliated Mortgagors as follows:
Loan # Location of Property
------ --------------------
2, 47 and 65 Berkshire, NH; Xxxxxx, NY; Corbettsville, NY
66 and 67 English, IN and Greenville, IN
45 and 48 Progreso, TX and Xxxxxxx, TX
17, 18 and 92 Daleville, VA; Reedsville, WV; Cleveland, VA
11 and 12 Greenville, ME and Frenchville, ME
10, 21 and 00 Xxxxx, XX; Xxxx Xxxx, XX; North Liberty, IA
79 and 83 Beaumont, MS and Kirtland, NM
71 and 00 Xxxxx Xxxxxx, XX xxx Xxxx Xxxxxxx, XX
89 and 000 Xxxxxxx, XX xxx Xxxxxx Xxxx, XX
5, 34 and 00 Xxxxxx, XX, XxXxxx, XX and Xxxxxxx, KY
32, 33, 52 and 00 Xxx Xxxxxx, XX; Truro, IA; Cambridge, IA; Xxxxx, MN
IV-5
86, 98 and 99 Henryville, IN; Xxxxxx, IN; Xxxxxxxxxxxx, XX
00, 28, 29, 36, 72, Hominey, OK; Warner, OK; Vian, OK; Eglin, OK; LaVernia,
81, 88 and 105 TX; Poth, TX; Lytle, TX; Comanche, TX
Section 3(a)(xxvii): No Sale of Mortgaged Property
The Mortgagors on the following Loans have indicated an intention to
sell the underlying Mortgaged Properties:
Loan # Location of Property
------ --------------------
00 Xxx Xxxxxx, XX
00 Xxxxx, XX
52 Cambridge, IA
56 Xxxxx, MN
Section 3(a)(xxxiii): Environmental Compliance
The following USPS Lease Loans have Environmental Screenings older than
twelve (12) months:
Loan # Location of Property Environmental Screening
------ -------------------- -----------------------
1 Barnesville, MN 5/5/97
2 Berkshire, NY 7/1/97
3 Knoxville, TN 9/18/97
0 Xxxxxxx, XX 00/0/00
0 Xxxxxx, XX 9/18/97
6 Danville, WA 11/5/97
0 Xxxxxxxxx, XX-Xxxxxxx Xxxxx Br. 8/1/97
9 West Xxxxxx, ME 10/3/97
10 Afton, IA 10/16/97
11 Greenville, ME 12/6/97
12 Frenchville, ME 12/2/97
13 Colebrook, NH 11/6/97
14 Johnsonville, NY 12/16/97
15 Xxxxx, NH 12/2/97
17 Daleville, VA 9/23/97
18 Reedsville, WV 10/21/97
19 Dayton, OH 10/2/97
20 Sanbornton, NH 11/26/97
21 Polk City, IA 12/2/97
22 Placitas, NM 1/6/98
23 Riverton, WY 12/2/97
24 Epsom, NH 9/16/97
IV-6
Loan # Location of Property Environmental Screening
------ -------------------- -----------------------
25 Imigon, OR 1/22/98
26 Ossipee, NH 2/24/98
27 Hominy, OK 2/20/98
28 Warner, OK 2/19/98
29 Vian, OK 2/19/98
30 Gallup, NM - Finance Station 3/9/98
00 Xxxxxxxx Xxxxxxx, XX 3/9/98
32 New Vienna, IA 3/12/98
33 Truro, IA 3/13/98
34 McCarr, KY 3/6/98
35 Nantucket, MA 1/26/98
36 Elgin, OK 2/20/98
37 Xxxxxx, GA 3/9/98
39 Perkinston, MS 4/1/98
40 Sun City, CA 10/3/97
41 Xxxxxxx, WA 2/16/98
42 Carlin, NV 4/15/98
43 Brooktondale, NY 3/16/98
44 Milford, NY 3/17/98
45 Progreso, TX 4/20/98
00 Xxx Xxxxxx, XX 5/27/98
47 Xxxxxx, NY 3/3/98
48 Hidalgo, TX 4/20/98
49 De Xxxx, IA 5/1/98
50 Pulteney, NY 10/29/97
51 Morgantown, IN 6/29/98
52 Cambridge, IA 5/1/98
54 Xxxxxxxx, MT 3/11/98
56 Xxxxx, MN 3/4/98
65 Corbettsville, NY 6/17/98
70 Xxxxxx, TX 4/30/98
72 La Vernia, TX 6/11/98
IV-7
Section 3(a)(xxxvi): Special-Purpose Entity
Generally, each borrower or group of affiliated businesses under USPS
Lease Loans with an original aggregate principal of at least $500,000, are
"special purpose entities" formed solely for the purposes of (i) owning and
operating a single property, (ii) not engaging in any business unrelated to such
-property and financing thereof, (iii) not having any assets other than those
related to its interest in the property or financing thereof or (iv) any
indebtedness other than is permitted by the related Mortgage. Exceptions to the
imposition of the above policy are as follows:
Loan # Mortgagor Cut-Off Date Balance
------ --------- --------------------
19 Dayton Holdings $ 371,943
40 Nebraska Holdings $ 737,803
45 Xxx Xxxxxx $ 317,398
48 Xxx Xxxxxx $ 581,797
61 Xxxxxx Xxxxxx $ 687,302
Section 3(a)(xxxvii): Mortgagor's Interest in Mortgaged Property
USPS Lease Loan Ground Leases:
Loan # Location of Property
------ --------------------
11 Greenville, ME
22 Placitas, NM
00 Xxxxxxxxx Xxxxxx, XX
00 Xxxxxxx, XX
00 Xxx Xxxxxx, XX
00 Xxxxxxx, XX
IV-8
Section 3(a)(xxxviii): Default
Part A
------
Loan # Location of Property
------ --------------------
00 Xxx Xxxxxx, XX With respect to the three (3) referenced
58 Buckley, WA USPS Lease Loans, a default, breach,
82 Lizella, GA violation or event of acceleration
existing under a Mortgage or Note has
been waived with regard to the occurrence
of the borrower having received notice of
imposition of a mechanic's/materialman's
lien in the amounts of $7,318.35,
$11,308.06 and $8,116.22, respectively,
but in each case, the final title
insurance policy was issued without
exception for the related mechanic's/
materialman's lien.
Part B
------
The Cambridge, IA Loan (Loan #52) is subject to rent abatement because
the USPS completed work the owner was required to complete, at a cost of
$8,797.24. The abatement will offset rent otherwise payable on the 30th day of
each of July, August and September. The amount of deferred maintenance and
monthly reserves are sufficient to offset the rent that will be abated. The
borrower monthly maintenance reserve is cross-collateralized with Loan #32, Loan
#33 and Loan #56, which, in aggregate, is equal to $16,430.66.
Part C
------
Loan # Location of Property
------ --------------------
00 Xxx Xxxxxx, XX With respect to the four (4) reference
33 Truro, IA USPS Lease Loans, the USPS has received a
52 Cambridge, IA court order against paying rent to the
56 Xxxxx, MN owner in the aggregate amount of $16,000
to secure the claim of a construction
subcontractor related to work performed
on the Mortgaged Property located at
Xxxxx, MN, for which appropriate reserves
have been established.
IV-9
Section 3(a)(xlv): Fully-Amortizing Loan
Eighteen (18) USPS Lease Loans have stated original terms to maturity
that are shorter than would be necessary to fully amortize the loan and are the
same as listed and identified in this Schedule Section 3(a)(xxiv).
Section 3(a)(liv): No Lessor Obligations:
Part A
With respect to the following property, real estate taxes are part of
the monthly borrowing reserve:
Loan # Location of Property
------ --------------------
34 McCarr, KY
Part B
------
The Tenant is responsible for ordinary maintenance obligations with
respect to the following USPS Lease Loans:
Loan # Location of Property
------ --------------------
3 Xxxxxxxxx, XX
0 Xxxxxxx, XX
6 Danville, WA
19 Dayton, OH
20 Sanbornton, XX
00 Xxxxxxxx, XX
23 Riverton, WY
24 Xxxxx, XX
00 Irrigon, OR
26 Ossipee, NH
30 Gallup, NM-Finance Xxxxxxx
00 Xxxxxxxx Xxxxxxx, XX
39 Xxxxxxxxxx, XX
00 Xxxxxxx, XX
42 Carlin, NV
00 Xxx Xxxxxx, XX
00 Xxxxxxx, XX
53 Mora, NM
55 Wilsall, MT
00 Xxxx Xxxxxxxx, XX
00 Xxxxxxx, XX
IV-10
Loan # Location of Property
------ --------------------
60 Xx. Xxxxx, XX
00 Xxxxxxxx, XX
00 Xxxxx Xxxxxxx, XX
00 Xxxxxxx Xxxx, XX
69 Columbus, NM
00 Xxxxx Xxxxxx, XX
00 Xxxx Xxxxxxx, XX
79 Beaumont, MS
80 Spokane, WA - Xxxxxx Xxxxx Xxx.
00 Xxxxxxxx, XX
00 Xxxxxx Xxxx, XX
00 Xxxx, XX
93 Chocura, NH
000 Xxxxxx, XX
00 XxXxxxxxxxx, XX
00 Xxxx Xxxxxxxxxx, XX
Section 3(a)(lvi): Liens
With regard to mechanic's liens applicable to any Mortgaged Property,
see exceptions stated with regard to Section 3(a)(vii) which are incorporated
herein by this reference.
Section 3(a)(lvii): Borrower Concentration
As regards USPS Lease Loans, borrowers with more than 5% of the
aggregate outstanding principal amount of USPS Lease Loans are as follows:
Aggregate Cut-Off
Loan # Location of Property Cut-Off Date Balance ($) Date Balance ($)
------ -------------------- ------------------------ -----------------
27 Hominy, OK 393,211.85
28 Warner, OK 291,579.05
29 Vian, OK 304,057.62
36 Elgin, OK 307,460.81
72 La Vemia, TX 606,163.37
81 Poth, TX 421,637.69
90 Lytle, TX 502,037.21
104 Xxxxx, TX 469,744.93
000 Xxxxxxxx, XX 474,755.74
000 Xxxxxxxxx, XX 501,698.79 4,272,377.06
22 Placitas, NM 778,965.29
00 Xxxxxxxx, XX 873,712.49
IV-11
Loan # Location of Property Cut-Off Date Balance ($) Date Balance ($)
------ -------------------- ------------------------ -----------------
30 Gallup, NH-- Finance 1,015,118.75
Station
80 Spokane, WA-- Sunset 1,153,653.25 3,821,449.78
Hill Xxxxxxx
00 Xxxxx Xxxxxx, XX 1,223,417.73
00 Xxxx Xxxxxxx, XX 1,184,640.88
000 Xxxxxx, XX 956,167.15 3,364,225.76
Section 3(a)(lxvii): Ground Leases
Part X. USPS Lease Loan Ground Leases:
Loan # Location of Property
------ --------------------
11 Greenville, ME
22 Placitas, NM
00 Xxxxxxxxx Xxxxxx, XX
00 Xxxxxxx, XX
00 Xxx Xxxxxx, XX
00 Xxxxxxx, XX
Part Y. The following USPS Lease Loan is secured by a subleasehold
mortgage:
Loan # Location of Property
------ --------------------
00 Xxxxxxxxx Xxxxxx, XX
Part A. The use of the Mortgaged Property is restricted to a United
States Postal facility in four (4) USPS Lease Loans as follows:
Loan # Location of Property
------ --------------------
80 Spokane, WA
00 Xxxxxxxxx Xxxxxx, XX
00 Xxxxxxx, XX
00 Xxx Xxxxxx, XX
Part B. None of the ground leases provide that the ground leases may
not be amended, modified, cancelled or terminated without the prior written
consent of the originator or its assigns.
Part C. The following USPS Lease Loans do not specifically provide that
the originator or its assigns may exercise renewal options, however, there is no
restriction on the ability of the Mortgagor to assign rights to extend the term:
IV-12
Loan # Location of Property
------ --------------------
80 Spokane, WA
00 Xxxxxxxxx Xxxxxx, XX
00 Xxxxxxxx, XX
00 Xxxxxxx, XX
Part F. The following ground lease is not assignable to the originator
or its assigns without consent of the lessor, which consent may not be
unreasonably withheld:
Loan # Location of Property
------ --------------------
35 Nantucket, MA
Part G. The estoppel representations for the following ground leases
were given solely by the related Mortgagor:
Loan # Location of Property
------ --------------------
11 Greenville, ME
22 Placitas, NM
00 Xxxxxxx, XX
00 Xxxxxxxxx, XX
Part H. The ground lease for the following USPS Lease Loan requires
that notice of a payment default be given to the mortgagee, but there may be no
notice requirement for nonmonetary defaults.
Loan # Location of Property
------ --------------------
41 Langley, WA
Part I. The ground lease for the following USPS Lease Loan provides an
opportunity to cure for payment defaults, but there may not be an opportunity to
cure for nonmonetary defaults.
Loan # Location of Property
------ --------------------
41 Langley, WA
Part J. None of the ground leases specifically allocate insurance and
condemnation proceeds but the loan agreements for each USPS Lease Loan provide
the mortgagee with the option to apply the insurance proceeds to payment of
mortgage debt or restoration of the mortgaged premises and the mortgages grant a
security interest in condemnation awards and an assignment thereof to the
related mortgagee.
Part K. See Part J above.
IV-13
Part L. None of the ground leases related to USPS Lease Loans contain a
provision pursuant to which the lessor thereunder is required to enter into a
new lease upon termination of the ground lease for any reason including
rejection of the ground lease in a bankruptcy proceeding.
Section 3(a)(lxx): Full Force and Effect
The Cambridge, IA Loan (Loan #52) is subject to rent abatement because
the USPS completed work the owner was required to complete, at a cost of
$8,797.24. The abatement will offset rent otherwise payable on the 30th day of
each of July, August and September. The amount of deferred maintenance and
monthly reserves are sufficient to offset the rent that will be abated. The
borrower monthly maintenance reserve is cross-collateralized with Loan #32, Loan
#33 and Loan #56, which, in aggregate, is equal to $16,430.66.
XX-00
XXXXXXX X-0
FORM OF OFFICER'S CERTIFICATE OF A GENERAL
PARTNER OF CLF
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Corporate Lease-Backed Pass-Through Certificates
Series 1999-CLF1
AUGUST ___, 1999
CERTIFICATE OF A GENERAL PARTNER OF
CAPITAL LEASE FUNDING, L.P.
I, Xxxx X. XxXxxxxx, hereby certify that I am the Vice President of CLF
Holdings, Inc. (the "Corporation"), a general partner of Capital Lease Funding,
L.P. ("CLF"), and certify further as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the
certificate of limited partnership of CLF, which was certified by the Delaware
Secretary of State's Office as of ______________ ___, 1999 (the "Certificate of
Limited Partnership"), which Certificate of Limited Partnership has not been
modified, amended or rescinded since such date, and is in full force and effect
as of the date hereof;
2. Attached hereto as Exhibit B is a certificate of the Secretary of
State of Delaware dated ______________ ___, 1999, with respect to the good
standing of CLF;
3. Attached hereto as Exhibit C are the resolutions (the "Resolutions")
of the Corporation adopted by the unanimous written consent of the directors of
the Corporation as of ______________ ___, 1999.
4. The Resolutions (a) represent the only resolutions of the board of
directors of the Corporation relating to the sale of a segregated pool of
credit-lease backed commercial mortgage loans to Bear Xxxxxx Commercial Mortgage
Securities Inc. ("Bear Xxxxxxx") pursuant to that certain Mortgage Loan Purchase
and Sale Agreement, dated as of August 10, 1999, by and among CLF, Bedford
Capital Funding Corp., Prudential Securities Credit Corp. and Bear Xxxxxxx (the
"Mortgage Loan Purchase and Sale Agreement"); (b) have not been revoked or
modified by any subsequent action of the Corporation's Directors; and (c) are in
full force and effect as of the date hereof;
5. Attached hereto as Exhibit D are true and correct copies of the
certificate of incorporation of the Corporation and the certificate of amendment
of certificate of incorporation of the Corporation, each of which was certified
by the Delaware Secretary of State's Office as of ______________ ___, 1999
(together, the "Certificate of Incorporation"), which Certificate of
A-1-1
Incorporation has not been modified, amended or rescinded since such date, and
is in full force and effect as of the date hereof;
6. Attached hereto as Exhibit E is a true and correct copy of the
By-Laws of the Corporation, as in effect on the date hereof;
7. Attached hereto as Exhibit F is a certificate of the Secretary of
State of Delaware dated ______________ ___, 1999, with respect to the good
standing of the Corporation;
8. There are no actions, suits or proceedings pending or, to the best
of my knowledge, threatened, against or affecting CLF which, if adversely
determined individually or in the aggregate, would materially and adversely
affect CLF's ability to perform its obligations under the Mortgage Loan Purchase
and Sale Agreement; and
9. Each person who, as a partner or representative of CLF, signed the
Mortgage Loan Purchase and Sale Agreement or any other agreement, document, or
certificate delivered on or before the date hereof in connection with the
transactions contemplated thereby was, at the respective times of such signing
and delivery, and is now, duly elected or appointed, qualified and acting as
such officer or representative, and the signature of such persons appearing on
such documents are their genuine signatures.
[SIGNATURE PAGE FOLLOWS]
A-1-2
IN WITNESS WHEREOF, I have hereunto signed by name as of the date first
above written.
CAPITAL LEASE FUNDING, L.P.
By: CLF Holdings, Inc.
a General Partner
By: __________________________________
Xxxx XxXxxxxx
Vice President
The undersigned, an officer of CLF Holdings, Inc., hereby certifies
that Xxxx X. XxXxxxxx is the duly elected and qualified and acting Vice
President of CLF Holdings, Inc. and that the signature appearing above is his
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first
above written.
By: ________________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF A GENERAL PARTNER
OF CAPITAL LEASE FUNDING, L.P.
August ___, 1999
Certificate of CLF Holdings, Inc.
---------------------------------
In connection with the execution and delivery by Capital Lease Funding,
L.P. ("CLF") of, and the consummation of the various transactions contemplated
by that certain Mortgage Loan Purchase and Sale Agreement, dated as of August
10, 1999 (the "Mortgage Loan Purchase and Sale Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. ("Bear Xxxxxxx") as purchaser, Prudential
Securities Credit Corp. and CLF as sellers, and Bedford Capital Funding Corp. as
a Representing Party, CLF Holdings, Inc., a general partner of CLF, hereby
certifies that (i) the representations and warranties of CLF in the Mortgage
Loan Purchase and Sale Agreement 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) CLF has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part required under the Mortgage Loan
Purchase and Sale Agreement to be performed or satisfied at or prior to the date
hereof. Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Mortgage Loan Purchase and Sale Agreement.
Certified as of the date first above written.
CLF HOLDINGS, INC.
By: CLF Holdings, Inc.
a General Partner
By:___________________________________
Xxxx XxXxxxxx
Vice President
X-0-0
XXXXXXX X-0
FORM OF OFFICER'S CERTIFICATE OF BEDFORD
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Corporate Lease-Backed Pass-Through Certificates
Series 1999-CLF1
AUGUST ___, 1999
CERTIFICATE OF BEDFORD CAPITAL FUNDING CORP.
I, _____________, hereby certify that I am the ___________ of Bedford
Capital Funding Corp. ("Bedford"), and certify further as follows:
10. Attached hereto as Exhibit A is a true and correct copy of the
certificate of incorporation of Bedford, which was certified by the New
Hampshire Secretary of State's Office as of ____________ __, 1999 (the
"Certificate of Incorporation"), which Certificate of Incorporation has not been
modified, amended or rescinded since such date, and is in full force and effect
as of the date hereof;
11. Attached hereto as Exhibit B is a certificate of the Secretary of
State of New Hampshire dated ________ ___, 1999, with respect to the good
standing of Bedford;
12. Attached hereto as Exhibit C are the resolutions (the
"Resolutions") of Bedford adopted by the unanimous written consent of the
directors of Bedford as of __________ __, 1999;
13. The Resolutions (a) represent the only resolutions of the board of
directors of Bedford relating to the sale of a segregated pool of credit-lease
backed commercial mortgage loans to Bear Xxxxxxx Commercial Mortgage Securities
Inc. ("Bear Xxxxxxx") pursuant to that certain Mortgage Loan Purchase and Sale
Agreement, dated as of August 10, 1999, by and among Capital Lease Funding,
L.P., Bedford, Prudential Securities Credit Corp. and Bear Xxxxxxx (the
"Mortgage Loan Purchase and Sale Agreement"); (b) have not been revoked or
modified by any subsequent action of Bedford's Directors; and (c) are in full
force and effect as of the date hereof;
14. Attached hereto as Exhibit D is a true and correct copy of the
By-Laws of Bedford, as in effect on the date hereof;
15. There are no actions, suits or proceedings pending or, to the best
of my knowledge, threatened, against or affecting Bedford which, if adversely
determined individually or in the aggregate, would materially and adversely
affect Bedford's ability to perform its obligations under the Mortgage Loan
Purchase and Sale Agreement; and
B-1-1
16. Each person who, as a representative of Bedford, signed the
Mortgage Loan Purchase and Sale Agreement or any other agreement, document, or
certificate delivered on or before the date hereof in connection with the
transactions contemplated thereby was, at the respective times of such signing
and delivery, and is now, duly elected or appointed, qualified and acting as
such officer or representative, and the signature of such persons appearing on
such documents are their genuine signature.
[SIGNATURE PAGE FOLLOWS]
B-1-2
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first
above written.
BEDFORD CAPITAL FUNDING CORP.
By:_________________________________________
Name:
Title:
The undersigned, an officer of Bedford Capital Funding Corp., hereby
certifies that ________________ is the duly elected and qualified and acting
_________________ of Bedford Capital Funding Corp. and that the signature
appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first
above written.
By:_________________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF BEDFORD CAPITAL FUNDING CORP.
August ____, 1999
Certificate of Bedford Capital Funding Corp.
--------------------------------------------
In connection with the execution and delivery by Bedford Capital
Funding Corp. ("Bedford") of, and the consummation of the various transactions
contemplated by that certain Mortgage Loan Purchase and Sale Agreement, dated as
of August 10, 1999 (the "Mortgage Loan Purchase and Sale Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc. ("Bear Xxxxxxx") as purchaser,
Prudential Securities Credit Corp. and Capital Lease Funding, L.P. as sellers,
and Bedford as a Representing Party, Bedford hereby certifies that (i) the
representations and warranties of Bedford in the Mortgage Loan Purchase and Sale
Agreement 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) Bedford has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Mortgage Loan Purchase and Sale
Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Mortgage Loan Purchase and Sale Agreement.
Certified as of the date first above written.
BEDFORD CAPITAL FUNDING CORP.
By:_________________________________________
Name:
Title:
B-2-1
EXHIBIT C-1
FORM OF OFFICER'S CERTIFICATE OF PRUDENTIAL
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Corporate Lease-Backed Pass-Through Certificates
Series 1999-CLF1
AUGUST ___, 1999
CERTIFICATE OF PRUDENTIAL SECURITIES CREDIT CORP.
I, ___________, hereby certify that I am the _____________ of
Prudential Securities Credit Corp. ("Prudential"), and certify further as
follows:
17. Attached hereto as Exhibit A is a true and correct copy of the
certificate of incorporation of Prudential, which was certified by the Delaware
Secretary of State's Office as of ___________ __, 1999 (the "Certificate of
Incorporation"), which Certificate of Incorporation has not been modified,
amended or rescinded since such date, and is in full force and effect as of the
date hereof;
18. Attached hereto as Exhibit B is a certificate of the Secretary of
State of Delaware dated ______________ __, 1999, with respect to the good
standing of Prudential;
19. Attached hereto as Exhibit C are the resolutions (the
"Resolutions") of Prudential adopted by the unanimous written consent of the
directors of Prudential as of __________ ___, 1999;
20. The Resolutions (a) represent the only resolutions of the board of
directors of Prudential relating to the sale of a segregated pool of
credit-lease backed commercial mortgage loans to Bear Xxxxxxx Commercial
Mortgage Securities Inc. ("Bear Xxxxxxx") pursuant to that certain Mortgage Loan
Purchase and Sale Agreement, dated as of August 10, 1999, by and among Capital
Lease Funding, L.P., Bedford Capital Funding Corp., Prudential and Bear Xxxxxxx
(the "Mortgage Loan Purchase and Sale Agreement"); (b) have not been revoked or
modified by any subsequent action of Prudential's Directors; and (c) are in full
force and effect as of the date hereof;
21. Attached hereto as Exhibit D is a true and correct copy of the
By-Laws of Prudential, as in effect on the date hereof;
22. There are no actions, suits or proceedings pending or, to the best
of my knowledge, threatened, against or affecting Prudential which, if adversely
determined individually or in the aggregate, would materially and adversely
affect Prudential's ability to perform its obligations under the Mortgage Loan
Purchase and Sale Agreement; and
C-1-1
23. Each person who, as a representative of Prudential, signed the
Mortgage Loan Purchase and Sale Agreement or any other agreement, document, or
certificate delivered on or before the date hereof in connection with the
transactions thereby was, at the respective times of such signing and delivery,
and is now, duly elected or appointed, qualified and acting as such officer or
representative, and the signature of such persons appearing on such documents
are their genuine signatures.
[SIGNATURE PAGE FOLLOWS]
C-1-2
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first
above
written.
PRUDENTIAL SECURITIES CREDIT CORP.
By:_________________________________________
Name:
Title:
The undersigned, an officer of Prudential Securities Corp., hereby
certifies that ______________ is the duly elected and qualified and acting
_______________ of Prudential Securities Credit Corp. and that the signature
appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first
above written.
By:_________________________________________
Name:
Title:
C-1-3
EXHIBIT C-2
FORM OF CERTIFICATE OF PRUDENTIAL SECURITIES CREDIT CORP.
August ____, 1999
Certificate of Prudential Securities Credit Corp.
-------------------------------------------------
In connection with the execution and delivery by Prudential Securities
Credit Corp. ("Prudential") of, and the consummation of the various transactions
contemplated by that certain Mortgage Loan Purchase and Sale Agreement, dated as
of August 10, 1999 (the "Mortgage Loan Purchase and Sale Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc. ("Bear Xxxxxxx") as purchaser,
Prudential and Capital Lease Funding L.P. as sellers, and Bedford Capital
Funding Corp. as a Representing Party, Prudential hereby certifies that (i) the
representations and warranties of Prudential in the Mortgage Loan Purchase and
Sale Agreement 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)
Prudential has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part required under the Mortgage Loan
Purchase and Sale Agreement to be performed or satisfied at or prior to the date
hereof. Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Mortgage Loan Purchase and Sale Agreement.
Certified as of the date first above written.
PRUDENTIAL SECURITIES CREDIT CORP.
By:_________________________________________
Name:
Title:
C-2-1
