EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 27, 2003, between Column Financial, Inc., a Delaware
corporation ("Column"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller"), and Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB Mortgage
Securities"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "Purchaser"), and KeyBank National Association,
a national banking association ("KeyBank"), as an additional party (in such
capacity, together with its successors and permitted assigns hereunder, the
"Additional Party").
RECITALS
Column desires to sell, assign, transfer, set over and otherwise
convey to CSFB Mortgage Securities, without recourse, and CSFB Mortgage
Securities desires to purchase, subject to the terms and conditions set forth
herein, the multifamily and commercial mortgage loans (collectively, the
"Exhibit A-1 Loans") identified on the schedule annexed hereto as Exhibit A-1,
as such schedule may be amended from time to time pursuant to the terms hereof.
Column acquired all of the Exhibit A-1 Loans from KeyBank in March 2003. In
connection with its sale of the Exhibit A-1 Loans to Column, KeyBank agreed to
make certain representations and warranties with respect to the Exhibit A-1
Loans, and to cause the delivery of certain documents with respect to the
Exhibit A-1 Loans, to any person or entity that acquired the Exhibit A-1 Loans
from Column, in accordance with the terms and provisions of the mortgage loan
purchase agreement whereby Column acquired the Exhibit A-1 Loans from KeyBank.
In satisfaction of its agreement with Column, KeyBank, as Additional Party, is
making the representations and warranties in this Agreement, and delivering or
causing the delivery of the documents required by this Agreement, with respect
to the Exhibit A-1 Loans.
In addition, KeyBank also previously sold to Column in December 2002
the multifamily and commercial mortgage loans (collectively, the "Exhibit A-2
Loans" and, collectively with the Exhibit A-1 Loans, the "Mortgage Loans")
identified on the schedule annexed hereto as Exhibit A-2 (together with Exhibit
A-1, the "Mortgage Loan Schedule"), to Column Financial, Inc. ("Column"). Column
has entered into a separate mortgage loan purchase agreement with CSFB Mortgage
Securities, whereby Column has agreed to sell the Exhibit A-2 Loans, together
with certain other multifamily and commercial mortgage loans, to CSFB Mortgage
Securities (such agreement, the "Other MLPA"). In connection with its sale of
the Exhibit A-2 Loans to Column, KeyBank agreed to make certain representations
and warranties with respect to the Exhibit A-2 Loans to any person or entity
that acquired those Mortgage Loans from Column, in accordance with the terms and
provisions of the mortgage loan purchase agreement whereby Column acquired the
Exhibit A-2 Loans from KeyBank. In satisfaction of its agreement with Column,
KeyBank is making the representations and warranties in this Agreement with
respect to the Exhibit A-2 Loans.
CSFB Mortgage Securities intends to create a trust (the "Trust"), the
primary assets of which will be a segregated pool of multifamily and commercial
mortgage loans that includes the Mortgage Loans. Beneficial ownership of the
assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch,
Inc. and/or Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies").
The Trust will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement dated as of April 11, 2003 (the "Pooling and
Servicing Agreement"), among CSFB Mortgage Securities, as depositor, KeyCorp
Real Estate Capital Markets, Inc. d/b/a KeyBank Real Estate Capital, as master
servicer and special servicer, and Xxxxx Fargo Bank Minnesota, N.A., as trustee.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement as
in full force and effect on the Closing Date (as defined in Section 1 hereof).
It is anticipated that CSFB Mortgage Securities will transfer the Mortgage Loans
to the Trust contemporaneously with its purchase of the Mortgage Loans hereunder
or under the Other MLPA, as applicable.
CSFB Mortgage Securities intends to sell certain classes of the
Certificates (collectively, the "Publicly Offered Certificates") to Credit
Suisse First Boston LLC ("CSFB LLC"), Xxxxxxx, Xxxxx & Co. and McDonald
Investments Inc. (collectively in such capacity, the "Underwriters"), pursuant
to an underwriting agreement dated as of March 27, 2003 (the "Underwriting
Agreement), among CSFB Mortgage Securities and the Underwriters, and CSFB
Mortgage Securities intends to sell certain classes of the remaining
Certificates (the "Privately Offered Certificates") to CSFB LLC, pursuant to a
certificate purchase agreement dated as of March 27, 2003 (the "Certificate
Purchase Agreement"), between CSFB Mortgage Securities and the CSFB LLC. The
Publicly Offered Certificates are more fully described in a prospectus dated
March 27, 2003 (the "Basic Prospectus"), and the supplement to the Basic
Prospectus dated March 27, 2003 (the "Prospectus Supplement" and, together with
the Basic Prospectus, the "Prospectus"), as each may be amended or supplemented
at any time hereafter. The Privately Offered Certificates are more fully
described in a confidential offering circular dated March 27, 2003 (the
"Confidential Offering Circular"), as it may be amended or supplemented at any
time hereafter.
KeyBank will indemnify CSFB Mortgage Securities, CSFB LLC, the other
Underwriters and certain related parties with respect to the disclosure
regarding the Mortgage Loans contained in the Prospectus, the Confidential
Offering Circular and certain other disclosure documents and offering materials
relating to the Certificates, pursuant to an indemnification agreement dated as
of March 27, 2003 (the "Indemnification Agreement"), among KeyBank, CSFB
Mortgage Securities, CSFB LLC and the other Underwriters.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Exhibit A-1 Loans. The purchase and sale of the
Exhibit A-1 Loans shall take place on April 11, 2003 or
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such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on the respective Due Dates for the
Exhibit A-1 Loans in April 2003 (individually and collectively, the "Cut-off
Date"), the Exhibit A-1 Loans will have an aggregate principal balance, after
application of all payments of principal due on the Exhibit A-1 Loans on or
before the Cut-off Date, whether or not received, of $171,417,338, subject to a
variance of plus or minus 5%. The consideration for the Exhibit A-1 Loans shall
be cash in the amount of 104.4% of such aggregate principal balance of the
Exhibit A-1 Loans, together with accrued interest on the Exhibit A-1 Loans at
their respective Net Mortgage Rates from and including the Cut-off Date to but
not including the Closing Date, which cash amount the Purchaser shall pay to the
Seller on the Closing Date by wire transfer in immediately available funds or by
such other method as shall be mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Exhibit A-1 Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Exhibit A-1 Loans, including all interest and principal received on or with
respect to the Exhibit A-1 Loans after the Cut-off Date (other than scheduled
payments of interest and principal due on or before the Cut-off Date), together
with all of the right, title and interest of the Seller in and to the proceeds
of any related title, hazard or other insurance policies and any escrow, reserve
or other comparable accounts related to the Exhibit A-1 Loans.
(b) The Purchaser shall be entitled to receive all scheduled payments
of principal and interest due on the Exhibit A-1 Loans after the Cut-off Date,
and all other recoveries of principal and interest collected thereon after the
Cut-off Date (other than scheduled payments of principal and interest due on the
Exhibit A-1 Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to (and, upon receipt by the Purchaser, if applicable,
shall be delivered to) the Seller).
(c) On or before the Closing Date, the Additional Party shall, at its
expense, subject to Section 18 hereof, with the reasonable cooperation of the
Seller, deliver to and deposit with, or cause to be delivered to and deposited
with, the Purchaser or its designee the Mortgage File and any Additional
Collateral (other than reserve funds and escrow payments) with respect to each
Mortgage Loan. In addition, with respect to each Mortgage Loan, as to which any
Additional Collateral is in the form of a Letter of Credit as of the Closing
Date, the Additional Party shall cause to be prepared, executed and delivered to
the issuer of each such Letter of Credit such notices, assignments and
acknowledgments as are required under such Letter of Credit to assign, without
recourse, and/or to re-issue, to the Purchaser or its designee the Additional
Party's rights as the beneficiary thereof and drawing party thereunder. The
designated recipient of the items described in the first sentence of this
paragraph, and the designated beneficiary under each Letter of Credit referred
to in the second sentence of this paragraph, shall be the Trustee. The Purchaser
hereby acknowledges that the assignment and/or re-issue process will require the
Additional Party to deliver each original Letter of Credit to the issuing entity
and the Purchaser hereby agrees that the Additional Party shall have up to
forty-five (45) days to complete each such assignment and/or re-issue; provided,
however, that if the
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Master Servicer determines to make a draw under any such Letter of Credit before
the assignment and/or re-issue has been completed, then the Additional Party
will cooperate with the Master Servicer in making the presentation and draw on
the Letter of Credit and, if necessary, shall make such presentation and draw in
its own name pursuant to the written instructions of the Master Servicer and
shall deliver the proceeds thereof to the Master Servicer for the benefit of the
Trust. If such a draw is not honored as a result of the assignment and/or
re-issue process being incomplete, the Additional Party shall be liable to the
Trust for all expenses, damages or losses, including, but not limited to,
reimbursement of interest charged by the Master Servicer for any Advance made in
lieu of the such draw, up to an amount not to exceed the amount of such draw,
plus Advance Interest, and related expenses resulting from the failure of the
draw to be so honored.
If the Additional Party cannot deliver on the Closing Date any
original or certified recorded document or original policy of title insurance
which is to be delivered as part of the related Mortgage File for any Exhibit
A-1 Loan solely because the Additional Party is delayed in making such delivery
by reason of the fact that such original or certified recorded document has not
been returned by the appropriate recording office or such original policy of
title insurance has not yet been issued, then the Additional Party shall deliver
such documents to the Purchaser or its designee, promptly upon the Additional
Party's receipt thereof.
In addition, the Additional Party shall, at its expense, deliver to
and deposit with, or cause to be delivered to and deposited with, the Purchaser
or its designee, on or before the Closing Date, the following items (except to
the extent that any of the following items are to be retained by a subservicer
that will continue to act on behalf of the Purchaser or its servicing agent):
(i) originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls, third-party underwriting
reports, insurance policies, legal opinions, tenant estoppels and any other
documents that the Purchaser or its servicing agent reasonably deems necessary
to service the subject Exhibit A-1 Loan in the possession or under the control
of the Additional Party or the Seller that relate to the Exhibit A-1 Loans and,
to the extent they are not required to be a part of a Mortgage File for any
Exhibit A-1 Loan, originals or copies of all documents, certificates and
opinions in the possession or under the control of the Additional Party or the
Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Exhibit A-1 Loans (provided that the
Additional Party shall not be required to deliver any attorney-client privileged
communication or any other documents or materials prepared by the Additional
Party or its affiliates solely for internal credit analysis and other internal
uses); and (ii) all unapplied reserve funds and escrow payments in the
possession or under the control of the Additional Party or the Seller that
relate to the Exhibit A-1 Loans. The designated recipient of the items described
in clauses (i) and (ii) of the preceding sentence shall be the Master Servicer.
In connection with the foregoing paragraphs of this Section 2(c), each
of the Additional Party and the Seller is a designated recipient, or shall
otherwise be the beneficiary, of all certifications relating to the Exhibit A-1
Loans made and/or delivered by the Trustee pursuant to Section 2.02(a) and
Section 2.02(b) of the Pooling and Servicing Agreement. To the extent that those
certifications and/or the related exception reports reflect Document Defects
with respect to the Exhibit A-1 Loans, those certifications and/or the related
exception reports shall
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constitute notice to the Additional Party for purposes of Section 5 upon receipt
thereof by the Additional Party.
(d) The Additional Party shall be responsible for all reasonable fees
and out-of-pocket costs and expenses associated with recording and/or filing any
and all assignments and other instruments of transfer with respect to the
Exhibit A-1 Loans that are required to be recorded or filed, as the case may be,
under the Pooling and Servicing Agreement; provided that the Additional Party
shall not be responsible for actually recording or filing any such assignments
or other instruments of transfer. If the Additional Party receives written
notice that any such assignment or other instrument of transfer is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Additional Party shall prepare or cause the preparation of a substitute
therefor or cure such defect, as the case may be; provided that the cost of such
preparation shall be borne by the Purchaser if the loss or return is caused by
the Purchaser's negligence. The Additional Party shall provide the Purchaser or
its designee with a power of attorney to enable it or them to record any loan
documents with respect to the Exhibit A-1 Loans that the Purchaser has been
unable to record. Unless the Purchaser notifies the Additional Party in writing
to the contrary, the designated recipients of the power of attorney referred to
in the preceding sentence shall be the Trustee.
(e) Upon the sale of Certificates representing at least 10% of the
total fair value of all the Certificates to unaffiliated third parties, the
Seller shall, under generally accepted accounting principles ("GAAP"), report
its transfer of the Exhibit A-1 Loans to the Purchaser, as provided herein, as a
sale of the Exhibit A-1 Loans to the Purchaser in exchange for the consideration
specified in Section 1 hereof. In connection with the foregoing, upon the sale
of Certificates representing at least 10% of the total fair value of all the
Certificates to unaffiliated third parties, the Seller shall cause all of its
financial and accounting records to reflect such transfer as a sale (as opposed
to a secured loan). Regardless of its treatment of the transfer of the Exhibit
A-1 Loans to the Purchaser under GAAP, the Seller shall at all times following
the Closing Date cause all of its records and financial statements and any
relevant consolidated financial statements of any direct or indirect parent to
clearly reflect that the Exhibit A-1 Loans have been transferred to the
Purchaser and are no longer available to satisfy claims of the Seller's
creditors.
(f) After the Seller's transfer of the Exhibit A-1 Loans to the
Purchaser, as provided herein, neither the Seller nor the Additional Party shall
take any action inconsistent with the Purchaser's ownership of any of the
Mortgage Loans. Except for actions that are the express responsibility of
another party hereunder or under the Pooling and Servicing Agreement, and
further except for actions that the Seller and/or the Additional Party are
expressly permitted to complete subsequent to the Closing Date, each of the
Seller and the Additional Party shall, on or before the Closing Date, take all
actions required under applicable law to effectuate the transfer of the Exhibit
A-1 Loans by the Seller to the Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Additional Party shall, within 15 days of its discovery or
receipt of notice of any error on the
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Mortgage Loan Schedule, amend such Mortgage Loan Schedule and deliver to the
Purchaser or the Trustee, as the case may be, an amended Mortgage Loan Schedule.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. Each of the Seller and the Additional Party shall reasonably cooperate
with any examination of the Mortgage Files for, and any other documents and
records relating to, the Mortgage Loans, that may be undertaken by or on behalf
of the Purchaser prior to the Closing Date. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of any of
the Mortgage Files for, and/or any of such other documents and records relating
to, any of the Mortgage Loans, shall not affect the Purchaser's right to pursue
any remedy available in equity or at law for a breach of the Additional Party's
representations and warranties made pursuant to Section 4 hereof (subject,
however, to Section 5(d)).
SECTION 4. Representations, Warranties and Covenants of the Seller,
the Additional Party and the Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser and the Additional Party, each of the representations
and warranties set forth in Exhibit B-1 hereto. The Additional Party hereby
makes, as of the Closing Date, to and for the benefit of the Seller and the
Purchaser, each of the representations and warranties set forth in Exhibit B-2
hereto. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller and the Additional Party, each of the representations and
warranties set forth in Exhibit B-3 hereto.
(b) The Additional Party hereby makes, as of the Closing Date (or as
of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser, with respect to each
Mortgage Loan, each of the representations and warranties set forth in Exhibit C
hereto.
(c) The Seller hereby represents and warrants, as of the Closing Date,
to and for the benefit of CSFB Mortgage Securities only, that the Seller has not
dealt with any broker, investment banker, agent or other person (other than the
CSFB Mortgage Securities, CSFB LLC and the other Underwriters) who may be
entitled to any commission or compensation in connection with the sale to the
Purchaser of the Exhibit A-1 Loans. The Additional Party hereby represents and
warrants, as of the Closing Date, to and for the benefit of CSFB Mortgage
Securities only, that the Additional Party has not dealt with any broker,
investment banker, agent or other person (other than the CSFB Mortgage
Securities, CSFB LLC and the other Underwriters) who may be entitled to any
commission or compensation in connection with the sale to the Purchaser of the
Mortgage Loans.
(d) The Additional Party hereby agrees that it shall be deemed to
make, as of the date of substitution, to and for the benefit of the Purchaser,
with respect to any replacement mortgage loan (a "Replacement Mortgage Loan")
that is substituted for a Defective Mortgage Loan (as defined in Section 5(a)
hereof), by the Additional Party pursuant to Section 5(a) of this Agreement,
each of the representations and warranties set forth in Exhibit C hereto
(references therein to "Closing Date" being deemed to be references to the "date
of substitution", references
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therein to "Cut-off Date" being deemed to be references to the "most recent Due
Date for the subject Replacement Mortgage Loan on or before the date of
substitution" and references to "April 2003" and "March 2003" being deemed to be
references to the "month of substitution" and the "month preceding the month of
substitution", respectively). From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes (and, regardless of whether it replaced an
Exhibit A-1 Loan or an Exhibit A-2 Loan, shall also be deemed to constitute a
"Exhibit A-1 Loan" hereunder for all purposes).
(e) It is understood and agreed that the representations and
warranties set forth in this Section 4 shall survive delivery of the respective
Mortgage Files for the Exhibit A-1 Loans to the Purchaser or its designee and
shall inure to the benefit of the Purchaser for so long as any of the Mortgage
Loans remains outstanding, notwithstanding any restrictive or qualified
endorsement or assignment.
(f) For purposes of this Agreement, "Breach" shall mean a breach of
representation and warranty made by the Additional Party with respect to any
Mortgage Loan pursuant to Section 4(b) or 4(d) of this Agreement. Also for
purposes of this Agreement, "Material Breach" shall mean, with respect to any
Mortgage Loan or REO Property, any Breach that materially and adversely affects
the value of, or the interests of the Purchaser (or, for so long as such
Mortgage Loan is subject to the Pooling and Servicing Agreement, of the Trust)
in, such Mortgage Loan or REO Property, or that materially and adversely affects
the interests of any Certificateholder in such Mortgage Loan or REO Property.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Purchaser or one of its servicing agents shall provide the
Additional Party with written notice of any Material Breach with respect to a
Mortgage Loan or any Material Document Defect with respect to an Exhibit A-1
Loan. Within 90 days (or in the case of a Material Document Defect that consists
of the failure to deliver a Specially Designated Mortgage Loan Document with
respect to any Exhibit A-1 Loan, 15 days) of the earlier of discovery or receipt
of written notice by the Additional Party that there has been a Material Breach
with respect to any Mortgage Loan or a Material Document Defect with respect to
any Exhibit A-1 Loan (such 90-day (or, if applicable, 15-day) period, the
"Initial Resolution Period"), the Additional Party shall, subject to Section
5(b), Section 5(c) and Section 5(d) below, (i) correct or cure such Material
Breach or Material Document Defect, as the case may be, in all material respects
or (ii) repurchase the Mortgage Loan affected by such Material Breach (such
Mortgage Loan, a "Defective Mortgage Loan") or the Exhibit A-1 Loan affected by
such Material Document Defect (such Exhibit A-1 Loan, also a "Defective Mortgage
Loan"), as the case may be, at the related Purchase Price, with payment to be
made in accordance with the reasonable directions of the Purchaser; provided
that if the Additional Party shall have delivered to the Purchaser a
certification executed on behalf of the Additional Party by an officer thereof
stating (i) that such Material Breach or Material Document Defect, as the case
may be, does not relate to whether the Defective Mortgage Loan is or, as of the
Closing Date (or, in the case of a Replacement Mortgage Loan, as of the related
date of substitution), was a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) that such
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Material Breach or Material Document Defect, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
the Additional Party has commenced and is diligently proceeding with the cure of
such Material Breach or Material Document Defect, as the case may be, within the
applicable Initial Resolution Period, (iv) what actions the Additional Party is
pursuing in connection with the cure thereof and (v) that the Additional Party
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed the applicable
Resolution Extension Period (as defined below), then the Additional Party shall
have an additional period equal to the applicable Resolution Extension Period to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan;
and provided, further, that, if the Additional Party's obligation to repurchase
any Defective Mortgage Loan as a result of a Material Breach or Material
Document Defect, as applicable, arises within the three-month period commencing
on the Closing Date (or within the two-year period commencing on the Closing
Date if the Defective Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury regulation section
1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, then the Additional Party may, at its option, subject
to the terms, conditions and limitations set forth in the Pooling and Servicing
Agreement, in lieu of repurchasing such Defective Mortgage Loan (but, in any
event, no later than such repurchase would have to have been completed), (i)
replace such Defective Mortgage Loan with one or more substitute mortgage loans
that individually and collectively satisfy the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such
substitution and payment to be effected in accordance with the terms of the
Pooling and Servicing Agreement. Any such repurchase or replacement of a
Defective Mortgage Loan shall be on a whole loan, servicing released basis.
Neither the Seller nor the Additional Party shall have any obligation to monitor
the Mortgage Loans regarding the existence of a Material Breach or Material
Document Defect, but if either such party discovers a Material Breach with
respect to any Mortgage Loan or a Material Document Defect with respect to any
Exhibit A-1 Loan, it will notify the Purchaser.
Notwithstanding the foregoing, if there exists a Breach of any
representation or warranty on the part of the Additional Party set forth in, or
made pursuant to, Section 4(b) or 4(d) of this Agreement relating to whether or
not the Mortgage Loan Documents or any particular Mortgage Loan Document for any
Mortgage Loan for any reason requires the related Borrower to bear the costs and
expenses associated with any particular action or matter under such Mortgage
Loan Document(s), then the Additional Party shall, in accordance with, and no
later than 90 days following the Additional Party's receipt of, the written
directions of the Purchaser or its servicing agent, wire transfer to the account
designated in those directions, the amount of any such costs and expenses
actually paid by the Purchaser that are the basis of such Breach. Upon its
making such wire transfer, the Additional Party shall be deemed to have cured
such Breach in all respects. Provided that such payment is made, this paragraph
describes the sole remedy available to the Purchaser (including, without
limitation, the Certificateholders and the Trustee on their behalf) regarding
any such Breach, regardless of whether it constitutes a Material Breach, and the
Additional Party shall not be obligated to otherwise cure such Breach or
repurchase the affected Mortgage Loan under any circumstances.
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"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to any
Mortgage Loan, 90 days;
(ii) for purposes of remediating a Material Document Defect with
respect to any Exhibit A-1 Loan that is and remains a Performing Pooled
Mortgage Loan throughout the applicable Initial Resolution Period, the
period commencing at the end of the applicable Initial Resolution Period
and ending on, and including, the earlier of (A) the 90th day following the
end of such Initial Resolution Period and (B) the 45th day following the
Additional Party's receipt of written notice from the Purchaser or its
servicing agent of the occurrence of any Servicing Transfer Event with
respect to such Exhibit A-1 Loan subsequent to the end of such Initial
Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Exhibit A-1 Loan that is a Performing Pooled Mortgage Loan
as of the commencement of the applicable Initial Resolution Period, but as
to which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following the
earlier of (A) the end of such Initial Resolution Period and (B) the
Additional Party's receipt of written notice from the Purchaser or its
servicing agent of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Exhibit A-1 Loan that is a Specially Serviced Pooled
Mortgage Loan or has become a Pooled REO Loan as of the commencement of the
applicable Initial Resolution Period, the 30th day following the end of
such Initial Resolution Period; provided that, if the Additional Party did
not receive written notice from the Purchaser or its servicing agent of the
relevant Servicing Transfer Event as of the commencement of the applicable
Initial Resolution Period, then such Servicing Transfer Event will be
deemed to have occurred during such Initial Resolution Period and clause
(iii) of this definition will be deemed to apply;
provided that, except as otherwise set forth in the following two provisos,
there shall be no Resolution Extension Period in respect of a Material Document
Defect involving a Specially Designated Mortgage Loan Document; and provided,
further, that if a Material Document Defect exists with respect to any Exhibit
A-1 Loan, if such Exhibit A-1 Loan is then subject to the Pooling and Servicing
Agreement, and if the Additional Party escrows with the Master Servicer, prior
to the end of the Initial Resolution Period and any Resolution Extension Period
otherwise applicable to the remediation of such Material Document Defect without
regard to this proviso, cash in the amount of the then Purchase Price for such
Exhibit A-1 Loan and subsequently delivers to the Master Servicer, on a monthly
basis, such additional cash as may be necessary to maintain a total escrow equal
to the Purchase Price for such Exhibit A-1 Loan as such price may increase over
time (the total amount of cash delivered to the Master Servicer with respect to
any Exhibit A-1 Loan as contemplated by this proviso or the immediately
following proviso, the "Purchase Price Security Deposit"), then the Resolution
Extension Period applicable to the
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remediation of such Material Document Defect shall be extended until the
earliest of (i) the second anniversary of the Closing Date, (ii) the date on
which such Exhibit A-1 Loan is no longer outstanding and part of the Trust Fund
and (iii) if such Exhibit A-1 Loan becomes a Specially Serviced Pooled Mortgage
Loan under the Pooling and Servicing Agreement, the date, if any, on which the
Special Servicer determines in its reasonable, good faith judgment that such
Material Document Defect will materially interfere with or delay the realization
against the related Mortgaged Property or materially increase the cost thereof;
and provided, further, that if the Material Document Defect referred to in the
preceding proviso consists of a failure to deliver a Specially Designated
Mortgage Loan Document, and if the Additional Party delivers to the Master
Servicer a Purchase Price Security Deposit equal to 25% of the outstanding
principal balance of the subject Exhibit A-1 Loan, then the Resolution Extension
Period applicable to the remediation of such Material Document Defect shall be
extended to the 15th day following the end of the applicable Initial Resolution
Period.
The Purchaser or its servicing agent shall establish, and maintain any
Purchase Price Security Deposit delivered to it with respect to any Exhibit A-1
Loan in, one or more accounts (individually and collectively, the "Purchase
Price Security Deposit Account") and shall be entitled to make withdrawals from
such account(s) for the following purposes: (i) to cover any costs and expenses
resulting from the applicable Material Document Defect; (ii) upon any discounted
payoff or other liquidation of such Exhibit A-1 Loan, to cover any Realized Loss
related thereto; and (iii) if the Additional Party so directs, or if the balance
on deposit in the Purchase Price Security Deposit Account declines, and for 45
days remains, below the Purchase Price for such Exhibit A-1 Loan (except where a
Purchase Price Security Deposit equal to 25% of the outstanding principal
balance of the subject Exhibit A-1 Loan is permitted to be delivered in order to
obtain a 15-day Resolution Extension Period with respect to the failure to
deliver a Specially Designated Mortgage Loan Document), or if such Material
Document is not remedied on or before the second anniversary of the Closing
Date, or if such Exhibit A-1 Loan becomes a Specially Serviced Pooled Mortgage
Loan under the Pooling and Servicing Agreement and the Special Servicer
determines in its reasonable, good faith judgment that such Material Document
Defect will materially interfere with or delay the realization against the
related Mortgaged Property or materially increase the cost thereof, to apply the
Purchase Price Security Deposit to a full or partial, as applicable, payment of
the Purchase Price for such Exhibit A-1 Loan (with the Additional Party to pay
any remaining balance of such Purchase Price). The Additional Party may obtain a
release of the Purchase Price Security Deposit for any Exhibit A-1 Loan (net of
any amounts payable therefrom as contemplated by the prior sentence) upon such
Exhibit A-1 Loan's being paid in full or otherwise satisfied, liquidated or
removed from the Trust Fund or upon the subject Material Document Defect's being
remedied in all material respects and all associated fees and expenses being
paid in full. The Additional Party may direct the Purchaser or its servicing
agent to invest or cause the investment of the funds deposited in any Purchase
Price Security Deposit Account in one or more Permitted Investments that bear
interest or are sold at a discount and that mature, unless payable on demand, no
later than the Business Day prior to the next Master Servicer Remittance Date.
The Purchaser or its servicing agent shall act upon the written instructions of
the Additional Party with respect to the investment of funds in any Purchase
Price Security Deposit Account in such Permitted Investments; provided that in
the absence of appropriate written instructions from the Additional Party, the
Purchaser shall have no obligation to invest or direct the investment of funds
in such Purchase Price Security Deposit
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Account. All income and gain realized from the investment of funds deposited in
any Purchase Price Security Deposit Account shall be for the benefit of the
Additional Party and shall be withdrawn by the Purchaser or its servicing agent
and remitted to the Additional Party on each Master Servicer Remittance Date
(net of any losses incurred and any deposits required to be made by the
Additional Party as contemplated by the second proviso to the prior paragraph),
and the Additional Party shall remit to the Purchaser from the Additional
Party's own funds for deposit into such Purchase Price Security Deposit Account
the amount of any realized losses (net of realized gains) in respect of such
Permitted Investments immediately upon realization of such net losses and
receipt of written notice thereof from the Purchaser; provided that the
Additional Party shall not be required to make any such deposit for any realized
loss which is incurred solely as a result of the insolvency of the federal or
state depository institution or trust company that holds such Purchase Price
Security Deposit Account. Neither the Purchaser nor any of its servicing agents
shall have any responsibility or liability with respect to the investment
directions of the Additional Party, the investment of funds in any Purchase
Price Security Deposit Account in Permitted Investments or any losses resulting
therefrom.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Additional
Party as contemplated by Section 5(a), then, prior to the subject repurchase or
substitution, the Purchaser or its servicing agent shall use its best efforts,
subject to the terms of such Mortgage Loans, to prepare and, to the extent
necessary and appropriate, have executed by the related Borrower and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased or replaced, on the one hand, and the remaining Mortgage Loans
therein, on the other hand, such that those two groups of Mortgage Loans are
each secured only by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly corresponding thereto (as to each such group, the "Primary
Real Property Collateral"); provided that, if the affected Cross-Collateralized
Group is then subject to the Pooling and Servicing Agreement, then no such
termination shall be affected unless and until the Trustee and the Master
Servicer shall have received (i) an Opinion of Counsel from independent counsel
to the effect that such termination will not cause an Adverse REMIC Event to
occur with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to either Grantor Trust Pool and (ii) written confirmation from each
Rating Agency that such termination will not cause an Adverse Rating Event to
occur with respect to any Class of Rated Certificates; and provided, further,
that the Additional Party may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of terminating the cross-collateralization.
All costs and expenses incurred by the Purchaser and its servicing agents
pursuant to this paragraph (to the extent not reimbursed by the related
Borrower) shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased or replaced.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the prior paragraph for
any reason (including, but not limited to, the Additional Party's failure to
satisfy any of the conditions set forth in the first proviso to the first
sentence of the prior paragraph), if the Additional Party has not elected to
purchase the entire affected Cross-Collateralized Group, and if such
Cross-Collateralized Group is then subject to the Pooling and Servicing
Agreement, then, to the extent that the Additional Party is required to
repurchase or replace any Mortgage Loan in that Cross-Collateralized Group
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in the manner prescribed above while the Trust continues to hold any other
Mortgage Loan in that Cross-Collateralized Group, the Trustee, on behalf of the
Trust, and the Additional Party each hereby agrees to forbear from enforcing any
remedies against the other's Primary Real Property Collateral but may exercise
remedies against the Primary Real Property Collateral securing the Mortgage
Loans in that Cross-Collateralized Group held by it; provided that the Trustee
and the Master Servicer shall have received, at the expense of the Additional
Party, an Opinion of Counsel from independent counsel to the effect that (i) the
exercise of remedies by the Additional Party, on the one hand, or the Trust, on
the other hand, with respect to the Primary Real Property Collateral securing
the respective Mortgage Loan(s) in such Cross-Collateralized Group held by such
party would not materially and adversely affect the rights of the other such
party to proceed against the Primary Real Property Collateral for the respective
Mortgage Loan(s) in such Cross-Collateralized Group held by such other party and
(ii) the foregoing arrangement would not result in an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool. Any Additional Collateral (including any reserve or other
cash collateral or letters of credit) securing the subject Cross-Collateralized
Group shall be allocated between the Mortgage Loans therein held by the
Additional Party, on the one hand, and the Trust, on the other hand, in
accordance with the related Mortgage Loan documents, or otherwise on a pro rata
basis based upon the outstanding principal balances of their respective Mortgage
Loans in such Cross-Collateralized Group. All other terms of the Mortgage Loans
in such Cross-Collateralized Group shall remain in full force and effect,
without any modification thereof. The Borrowers under the respective
Cross-Collateralized Groups of Mortgage Loans are intended third-party
beneficiaries of the provision set forth in this paragraph. The provisions of
this paragraph may not be modified with respect to any Mortgage Loan in a
Cross-Collateralized Group without the related Borrower's consent.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the second preceding
paragraph for any reason (including, but not limited to, the Additional Party's
failure to satisfy any of the conditions set forth in the first proviso to the
first sentence of the second preceding paragraph) and the forbearance
arrangement in respect of such Cross-Collateralized Group cannot be effected as
contemplated by the preceding paragraph for any reason (including, but not
limited to, the Additional Party's failure to satisfy any of the conditions set
forth in the proviso to the first sentence of the prior paragraph), then the
entire Cross-Collateralized Group shall be repurchased or replaced if the
subject Material Breach or Material Document Defect, as the case may be, is not
remedied in all material respects by the end of the applicable Initial
Resolution Period and any applicable Resolution Extension Period.
Whenever one or more mortgage loans are substituted by the Additional
Party for a Defective Mortgage Loan as contemplated by Section 5(a), the
Additional Party shall (i) deliver the related Mortgage File for each such
substitute mortgage loan to the Purchaser or its designee (which designee,
unless otherwise stated, is the Trustee), (ii) certify that such substitute
mortgage loan satisfies or such substitute mortgage loans satisfy, as the case
may be, all of the requirements of the definition of "Qualifying Substitute
Mortgage Loan" set forth in the Pooling and Servicing Agreement and (iii) send
such certification to the Purchaser or its designee. No mortgage loan may be
substituted for a Defective Mortgage Loan as contemplated by Section 5(a) if the
Defective Mortgage Loan to be replaced was itself a Replacement Mortgage Loan,
in
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which case, absent cure of the relevant Material Breach or Material Document
Defect, the Defective Mortgage Loan will be required to be repurchased as
contemplated hereby. Monthly Payments due with respect to each Replacement
Mortgage Loan (if any) after the related date of substitution, and Monthly
Payments due with respect to each Defective Mortgage Loan (if any) after the
Cut-off Date (or, in the case of a Replacement Mortgage Loan, after the date on
which it is added to the Trust Fund) and on or prior to the related date of
repurchase or replacement, shall belong to the Purchaser. Monthly Payments due
with respect to each Replacement Mortgage Loan (if any) on or prior to the
related date of substitution, and Monthly Payments due with respect to each
Defective Mortgage Loan (if any) after the related date of repurchase or
replacement, shall belong to the Additional Party.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by Section 5(a), the Additional Party shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser or its servicing agent.
(b) It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Additional Party pursuant to Section 5(a) that
the Purchaser (which shall include the Trustee) shall have executed and
delivered such instruments of transfer or assignment then presented to it by the
Additional Party, in each case without recourse, as shall be necessary to vest
in the Additional Party the legal and beneficial ownership of such Defective
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Purchaser hereunder.
(c) If, on or after October 11, 2004, the Additional Party receives
notice of a Material Document Defect with respect to any Exhibit A-1 Loan, which
Material Document Defect constitutes a Recording Omission, and if such Exhibit
A-1 Loan is still subject to the Pooling and Servicing Agreement, then the
Additional Party, with the consent of the Controlling Class Representative,
which consent may be granted or withheld in its sole discretion, in lieu of
repurchasing or replacing such Exhibit A-1 Loan (as and to the extent
contemplated by Section 5(a) above), but in no event later than such repurchase
would have to have been completed, establish a Recording Omission Credit or a
Recording Omission Reserve with the Master Servicer. In furtherance of the
preceding sentence, the Purchaser or its servicing agent shall establish one or
more accounts (individually and collectively, the "Special Reserve Account"),
each of which shall be an Eligible Account, and the Purchaser or its servicing
agent shall deposit any Recording Omission Reserve into the Special Reserve
Account within one Business Day of receipt. The Additional Party may direct the
Purchaser or its servicing agent to invest or cause the investment of the funds
deposited in the Special Reserve Account in one or more Permitted Investments
that bear interest or are sold at a discount and that mature, unless payable on
demand, no later than the Business Day prior to the next Master Servicer
Remittance Date. The Purchaser or its servicing agent shall act upon the written
instructions of the Additional Party with respect to the investment of funds in
the Special Reserve Account in such Permitted Investments, provided that in the
absence of appropriate written instructions from the Additional Party, the
Purchaser shall have no obligation to invest or direct the investment of funds
in such
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Special Reserve Account. All income and gain realized from the investment of
funds deposited in such Special Reserve Account shall be for the benefit of the
Additional Party and shall be withdrawn by the Purchaser or its servicing agent
and remitted to the Additional Party on each Master Servicer Remittance Date
(net of any losses incurred), and the Additional Party shall remit to the
Purchaser from the Additional Party's own funds for deposit into such Special
Reserve Account the amount of any realized losses (net of realized gains) in
respect of such Permitted Investments immediately upon realization of such net
losses and receipt of written notice thereof from the Purchaser; provided that
the Additional Party shall not be required to make any such deposit for any
realized loss which is incurred solely as a result of the insolvency of the
federal or state depository institution or trust company that holds such Special
Reserve Account. Neither the Purchaser nor any of its servicing agents shall
have any responsibility or liability with respect to the investment directions
of the Additional Party, the investment of funds in the Special Reserve Account
in Permitted Investments or any losses resulting therefrom. A Recording Omission
Credit shall (i) entitle the Purchaser or its servicing agent to draw upon the
Recording Omission Credit on behalf of the Purchaser upon presentation of only a
sight draft or other written demand for payment, (ii) permit multiple draws by
the Purchaser or its servicing agent, and (iii) be issued by such issuer and
contain such other terms as the Purchaser or its servicing agent may reasonably
require to make such Recording Omission Credit reasonably equivalent security to
a Recording Omission Reserve in the same amount. Once a Recording Omission
Reserve or Recording Omission Credit is established with respect to any Exhibit
A-1 Loan, the Purchaser or its servicing agent shall, from time to time,
withdraw funds from the related Special Reserve Account or draw upon the related
Recording Omission Credit, as the case may be, and apply the proceeds thereof to
pay the losses or expenses directly incurred by the Purchaser or its servicing
agent as a result of a Recording Omission. The Recording Omission Reserve or
Recording Omission Credit or any unused balance thereof with respect to any
Exhibit A-1 Loan will be released to the Additional Party by the Purchaser upon
the earlier of the Additional Party's cure of all Recording Omissions with
respect to such Exhibit A-1 Loan (provided that the Purchaser has been
reimbursed with respect to all losses and expenses relating to Recording
Omissions with respect to such Exhibit A-1 Loan) and such Exhibit A-1 Loan's no
longer being a part of the Trust Fund under the Pooling and Servicing Agreement.
(d) It is understood and agreed that the obligations of the Additional
Party set forth in this Section 5 to cure a Material Breach with respect to any
Mortgage Loan or a Material Document Defect with respect to any Exhibit A-1
Loan, repurchase or replace the related Defective Mortgage Loan(s) or establish
a Recording Omission Credit or a Recording Omission Reserve with respect to the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser, the Certificateholders or the Trustee on behalf of the
Certificateholders with respect to a Breach with respect to any Mortgage Loan or
a Document Defect in respect of any Exhibit A-1 Loan.
(e) If the Additional Party disputes that a Material Document Defect
exists with respect to any Exhibit A-1 Loan or a Material Breach exists with
respect to a Mortgage Loan or otherwise refuses (i) to effect a correction or
cure of such Material Document Defect or Material Breach, (ii) to repurchase the
related Defective Mortgage Loan from the Purchaser or its assignee or (iii) to
replace the related Defective Mortgage Loan with a Qualifying Substitute
Mortgage Loan, each in accordance with the foregoing provisions of this Section
5, then
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(provided that (i) the Defective Mortgage Loan is then subject to the
Pooling and Servicing Agreement, (ii) the applicable Initial Resolution Period
and any applicable Resolution Extension Period has expired and (iii) the
Defective Mortgage Loan is then in default and is then a Specially Serviced
Pooled Mortgage Loan) the Special Servicer may, subject to the Servicing
Standard, modify, work-out or foreclose, sell or otherwise liquidate (or permit
the liquidation of) the Defective Mortgage Loan pursuant to the terms of the
Pooling and Servicing Agreement, while pursuing the repurchase claim, and such
action shall not be a defense to the repurchase claim or alter the applicable
Purchase Price.
If any REO Property in respect of any Defective Mortgage Loan is
subject to the Pooling and Servicing Agreement, then the Additional Party shall
be notified promptly and in writing by the Special Servicer of any offer that it
receives to purchase such REO Property. Upon the receipt of such notice by the
Additional Party, the Additional Party shall then have the right to repurchase
such REO Property from the Trust at a purchase price equal to the amount of such
offer. The Additional Party shall have three (3) Business Days to purchase such
REO Property from the date that it was notified of such offer. The Special
Servicer shall be obligated to provide the Additional Party with any appraisal
or other third-party reports relating to such REO Property within its possession
to enable the Additional Party to evaluate such REO Property. Any sale of a
Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of any related
REO Property, to a Person other than the Additional Party shall be (i) without
recourse of any kind (either expressed or implied) by such Person against the
Additional Party and (ii) without representation or warranty of any kind (either
expressed or implied) by the Additional Party to or for the benefit of such
Person.
The fact that a Material Breach or Material Document Defect is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Defective Mortgage Loan or REO Property) shall not prejudice any
claim of the Trust against the Additional Party for repurchase of the subject
Defective Mortgage Loan or REO Property. The provisions of this Section 5
regarding remedies against the Additional Party for a Material Breach with
respect to any Mortgage Loan or Material Document Defect with respect to any
Exhibit A-1 Loan shall also apply to the related REO Property.
If the Additional Party fails to correct or cure the Material Breach
or Material Document Defect or purchase the subject REO Property, then the
provisions above regarding notice of offers related to such REO Property and the
Additional Party's right to purchase such REO Property shall apply. If a court
of competent jurisdiction issues a final order that the Additional Party is or
was obligated to repurchase the related Defective Mortgage Loan or REO Property
or the Additional Party otherwise accepts liability, then, after the expiration
of any applicable appeal period, but in no event later than the termination of
the Trust pursuant to the Pooling and Servicing Agreement, the Additional Party
will be obligated to pay to the Trust the amount, if any, by which the
applicable Purchase Price exceeds any Liquidation Proceeds received upon such
liquidation (including those arising from any sale to the Additional Party);
provided that the prevailing party in such action shall be entitled to recover
all costs, fees and expenses (including reasonable attorneys' fees) related
thereto.
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SECTION 6. Closing. The closing of the sale of the Exhibit A-1 Loans
(the "Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time,
on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of each of the Seller
and the Additional Party made pursuant to Section 4 of this Agreement shall
be true and correct in all material respects as of the Closing Date;
(ii) all documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects the obligations of the Seller
or the Additional Party hereunder), to the Seller or the Additional Party,
as applicable, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) the Additional Party shall have delivered and released to the
Purchaser or its designee, all documents, funds and other assets required
to be delivered thereto pursuant to Section 2 of this Agreement;
(iv) the result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) all other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and each of the Seller and the Additional Party
shall have the ability to comply with all terms and conditions and perform
all duties and obligations required to be complied with or performed after
the Closing Date;
(vi) the Seller shall have received the consideration for the Exhibit
A-1 Loans, as contemplated by Section 1;
(vii) the Additional Party shall have paid all fees and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement; and
(viii) neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of
the following:
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(i) this Agreement, duly executed by the Purchaser, the Seller and the
Additional Party;
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) each of the certificates, opinions and documents required to be
delivered by or on behalf of the Seller pursuant to clauses (iii), (iv)
(v), (vi) and (vii) of Section 7 of the Other MLPA;
(iv) an Officer's Certificate substantially in the form of Exhibit
D-1A hereto, executed by the Secretary or an assistant secretary of the
Additional Party, in his or her individual capacity, and dated the Closing
Date, and upon which CSFB Mortgage Securities, CSFB LLC, the other
Underwriters and the Rating Agencies (collectively, for purposes of this
Section 7, the "Interested Parties") may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Additional
Party authorizing the Additional Party's entering into the transactions
contemplated by this Agreement, and (B) the organizational documents of the
Additional Party;
(v) a certificate of good standing with respect to the Additional
Party issued by the Comptroller of the Currency not earlier than 30 days
prior to the Closing Date, and upon which the Interested Parties may rely;
(vi) a Certificate of the Additional Party substantially in the form
of Exhibit D-1B hereto, executed by an executive officer of the Additional
Party on the Additional Party's behalf and dated the Closing Date, and upon
which the Interested Parties may rely;
(vii) a written opinion of in-house counsel for the Additional Party,
dated the Closing Date and addressed to the Interested Parties and the
respective parties to the Pooling and Servicing Agreement, which opinion
shall be substantially in the form of Exhibit D-2A hereto (with such
additions, deletions or modifications as may be required by either Rating
Agency);
(viii) a written opinion of Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx
LLP, special counsel for the Additional Party, dated the Closing Date and
addressed to the Interested Parties and the respective parties to the
Pooling and Servicing Agreement, which opinion shall be substantially in
the form of Exhibit D-2B hereto (with such additions, deletions or
modifications as may be required by either Rating Agency);
(ix) copies of all other opinions rendered by counsel for the Seller
or the Additional Party to the Rating Agencies in connection with the
transactions contemplated by this Agreement, including, but not limited to,
with respect to the characterization of the transfer of the Exhibit A-1
Loans hereunder as a true sale, with each such opinion to be addressed to
CSFB Mortgage Securities, CSFB LLC, the other Underwriters and the Trustee
or accompanied by a letter signed by such counsel stating that CSFB
Mortgage
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Securities, CSFB LLC, the other Underwriters and the Trustee may rely on
such opinion as if it were addressed to them as of date thereof;
(x) a letter from Xxxxxxxxxx Xxxxxxx & Xxxxx, P.C., special counsel
for the Additional Party, dated the Closing Date and addressed to CSFB
Mortgage Securities, CSFB LLC and the other Underwriters, which letter
shall be substantially in the form of Exhibit D-2C hereto;
(xi) one or more comfort letters from Ernst & Young LLP, certified
public accountants, dated the date of any preliminary Prospectus
Supplement, the Prospectus Supplement and the Confidential Offering
Circular, respectively, and addressed to, and in form and substance
acceptable to, CSFB Mortgage Securities, CSFB LLC, the other Underwriters
and their respective counsel, stating in effect that, using the assumptions
and methodology used by CSFB Mortgage Securities, all of which shall be
described in such letters, they have recalculated such numbers and
percentages relating to the Mortgage Loans set forth in any preliminary
Prospectus Supplement, the Prospectus Supplement and the Confidential
Offering Circular, compared the results of their calculations to the
corresponding items in any preliminary Prospectus Supplement, the
Prospectus Supplement and the Confidential Offering Circular, respectively,
and found each such number and percentage set forth in any preliminary
Prospectus Supplement, the Prospectus Supplement and the Confidential
Offering Circular, respectively, to be in agreement with the results of
such calculations; and
(xii) such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date or any Rating
Agency may require and in a form reasonably acceptable to the Purchaser,
the Seller and the Additional Party.
SECTION 8. Costs. Whether or not this Agreement is terminated, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated pursuant to the terms of the settlement
agreement dated the Closing Date.
SECTION 9. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed, by registered mail, postage prepaid, by overnight mail
or courier service, or transmitted by facsimile and confirmed by similar mailed
writing: if to the Purchaser, addressed to the Purchaser at 00 Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, Telecopy No.:
(000) 000-0000 (with a copy to Xxxxxx XxXxxxxxx, Telecopy No.: (000) 000-0000),
or such other address as may be designated by the Purchaser to the other parties
hereto in writing; or, if to the Seller, addressed to the Seller at 0000
Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx
Xxxxxx, Telecopy No.: (000) 000-0000, or such other address as may be designated
by the Seller to the other parties hereto in writing; or, if to the Additional
Party, addressed to the Additional Party at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx
Xxxx, Xxxxxxxx 00000, Attention: X.X. Xxxxx, Telecopy No.: (000) 000-0000 (with
a copy to 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxx),
or such other address as may be designated by the Additional Party to the other
parties hereto in writing.
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SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
together constitute but one and the same instrument. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller or the Additional
Party, without the consent of such other party.
SECTION 11. Characterization. The parties hereto agree that it is
their express intent that the conveyance contemplated by this Agreement be, and
be treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Exhibit A-1 Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Exhibit A-1 Loans by the Seller to secure a debt or other obligation of the
Seller. However, in the event that, notwithstanding the intent of the parties,
the Exhibit A-1 Loans are held to continue to be property of the Seller, then:
(a) this Agreement shall be deemed to be a security agreement under applicable
law; (b) the transfer of the Exhibit A-1 Loans provided for herein shall be
deemed to be a grant by the Seller to the Purchaser of a first priority security
interest in all of the Seller's right, title and interest in and to the Exhibit
A-1 Loans and all amounts payable to the holder(s) of the Exhibit A-1 Loans in
accordance with the terms thereof (other than scheduled payments of interest and
principal due on or before the Cut-off Date) and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (c) the assignment by CSFB Mortgage Securities to the Trustee of
its interests in the Exhibit A-1 Loans as contemplated by Section 16 hereof
shall be deemed to be an assignment of any security interest created hereunder;
(d) the possession by the Purchaser of the related Mortgage Notes and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest under applicable law; and (e)
notifications to, and acknowledgments, receipts or confirmations from, persons
or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, bailees, agents or securities
intermediaries (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. The Seller and the Purchaser shall,
to the extent consistent with this Agreement, take such actions, including,
without limitation, the filing of UCC financing statements, as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Exhibit A-1 Loans, such security interest would be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of this Agreement and the Pooling and Servicing Agreement.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller or the Additional Party delivered pursuant hereto, shall
remain operative and in full force and effect and shall survive
-19-
delivery of the Exhibit A-1 Loans by the Seller to the Purchaser,
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER,
THE ADDITIONAL PARTY AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO
THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK
CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances. The Seller, the Additional Party and
the Purchaser agree to execute and deliver such instruments and take such
further actions as the other party may, from time to time, reasonably request in
order to effectuate the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The respective rights and
obligations of the Seller and the Additional Party under this Agreement shall
not be assigned by the Seller or the Additional Party, as applicable, without
the prior written consent of the Purchaser, except that any person into which
the Seller or the Additional Party may be merged or consolidated, or any
corporation or other legal entity resulting from any merger, conversion or
consolidation to which the Seller or the Additional Party is a party, or any
person succeeding to all or substantially all of the business of the Seller or
the Additional Party, shall be the successor to the Seller or the Additional
Party, as the case may be, hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its rights and obligations
under this Agreement, in
-20-
whole or in part, to the Trustee for the benefit of the registered holders and
beneficial owners of the Certificates. To the extent of any such assignment, the
Trustee, for the benefit of the registered holders and beneficial owners of the
Certificates, shall be the Purchaser hereunder. In connection with the transfer
of any Mortgage Loan by the Trust as contemplated by the terms of the Pooling
and Servicing Agreement, the Trustee, for the benefit of the registered holders
and beneficial owners of the Certificates, is expressly authorized to assign its
rights and obligations under this Agreement, in whole or in part, to the
transferee of such Mortgage Loan. To the extent of any such assignment, such
transferee shall be the Purchaser hereunder (but solely with respect to such
Mortgage Loan that was transferred to it). Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Additional Party and the Purchaser, and their respective successors
and permitted assigns.
SECTION 17. Information. On or before the Closing Date, the Additional
Party shall provide the Purchaser with such information about the Additional
Party, the Mortgage Loans and the Additional Party's underwriting and servicing
procedures as is (i) customary in commercial mortgage loan securitization
transactions, (ii) required by a Rating Agency or a governmental agency or body
or (iii) reasonably requested by the Purchaser for use in a public or private
disclosure document.
SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans are, in the case of each such particular group of Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms, cross-defaulted
and cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group of the Exhibit A-1 Loans only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Exhibit A-1 Loans in such
Cross-Collateralized Group, the inclusion of the original of such document in
the Mortgage File for any of the Exhibit A-1 Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Exhibit A-1 Loan.
SECTION 19. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein, and
this Agreement supersedes any prior agreements and/or understandings, written or
oral, with respect to such matters.
* * *
[SIGNATURE PAGE FOLLOWS]
-21-
IN WITNESS WHEREOF, the Seller, the Additional Party and the Purchaser
have caused this Agreement to be duly executed by their respective officers as
of the day and year first above written.
COLUMN FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Official
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Exhibit A-1
Mortgage Loan Schedule -- Part 1
[See attached list of Mortgage Loans]
A-1-1
Zip
# Crossed Loan Name Address City State Code
-----------------------------------------------------------------------------------------------------------------------------------
7 2300 Imperial Building 0000 Xxxx Xxxxxxxx Xx Xxxxxxx XX 00000
Highway
-----------------------------------------------------------------------------------------------------------------------------------
8 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
12 The Shops at Cambridge 0000 Xxxx Xxxxx Xxxx Xxxx XX 00000
Crossing
-----------------------------------------------------------------------------------------------------------------------------------
13 (A) Xxxxxx B Portfolio Please see Exhibit A-1 Please see Exhibit Please see Exhibit Please see Exhibit
in the Prospectus A-1 in the A-1 in the A-1 in the
Supplement Prospectus Prospectus Prospectus
Supplement Supplement Supplement
-----------------------------------------------------------------------------------------------------------------------------------
14 (A) 596 Xxxxxx 000 Xxxxxx Xxxxxx Xxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxx Xxxxxx Medical Campus 000-000 Xxxxx Xxxx Xxxxxx XX 00000
Street
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxx Xxxx 000 Xxxxxxxx Xxxx Xxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
45 Clovis Country Shopping 0000-0000 Xxxx Xxxxxx Xxxxxx XX 00000
Center
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxx Xxxx Xxxxxxx 0000 Xxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxx - Xxxxxxxxxxx, 000 Xxxxx Xxxxx Xxxx Xxxxxxxxxxx XX 00000
IL
-----------------------------------------------------------------------------------------------------------------------------------
53 Allsize Storage 0000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
61 Circuit City - Colonial 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxx XX 00000
Heights, VA
-----------------------------------------------------------------------------------------------------------------------------------
66 Sav-On Drug Store - 00000 Xxxxxxxxxx Xxx Xxxxxxxxx XX 00000
Lancaster, CA
-----------------------------------------------------------------------------------------------------------------------------------
72 Walgreens - Grand Rapids, 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxx XX 00000
MI Avenue, NE
-----------------------------------------------------------------------------------------------------------------------------------
83 CVS - Indianapolis, IN 0000 Xxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
89 Sandalwood Apartment 0000 00xx Xxxxxx Xxxxxxx XX 00000
Complex
-----------------------------------------------------------------------------------------------------------------------------------
92 Xxxxxx Apartments 000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Original Cut-off Date Interest Original
Loan Principal Principal Maturity/ARD Only Amortization
# Crossed Seller Balance Balance Balance Period Term
---------------------------------------------------------------------------------------------
7 KeyBank $31,000,000 $30,863,048 $23,924,040 0 300
---------------------------------------------------------------------------------------------
8 KeyBank $30,000,000 $29,906,469 $25,290,890 0 360
---------------------------------------------------------------------------------------------
12 KeyBank $22,000,000 $21,981,038 $18,580,924 0 360
---------------------------------------------------------------------------------------------
13 (A) KeyBank $15,150,000 $15,117,047 $12,835,359 0 360
---------------------------------------------------------------------------------------------
14 (A) KeyBank $ 5,525,000 $ 5,512,982 $ 4,680,881 0 360
---------------------------------------------------------------------------------------------
19 KeyBank $16,000,000 $15,954,217 $13,667,857 0 360
---------------------------------------------------------------------------------------------
21 KeyBank $15,700,000 $15,507,167 $12,169,284 0 300
---------------------------------------------------------------------------------------------
45 KeyBank $ 5,728,000 $ 5,706,262 $ 4,613,842 0 324
---------------------------------------------------------------------------------------------
50 KeyBank $ 4,950,000 $ 4,946,287 $ 4,244,692 0 360
---------------------------------------------------------------------------------------------
51 KeyBank $ 4,800,000 $ 4,789,627 $ 4,071,439 0 360
---------------------------------------------------------------------------------------------
53 KeyBank $ 4,687,000 $ 4,666,949 $ 3,642,850 0 300
---------------------------------------------------------------------------------------------
61 KeyBank $ 4,154,250 $ 4,145,273 $ 3,523,703 0 360
---------------------------------------------------------------------------------------------
66 KeyBank $ 3,410,000 $ 3,399,765 $ 2,891,884 0 360
---------------------------------------------------------------------------------------------
72 KeyBank $ 2,900,000 $ 2,891,702 $ 2,477,299 0 360
---------------------------------------------------------------------------------------------
83 KeyBank $ 2,219,750 $ 2,214,866 $ 1,876,720 0 360
---------------------------------------------------------------------------------------------
89 KeyBank $ 2,200,000 $ 2,012,827 $ 1,703,280 0 300
---------------------------------------------------------------------------------------------
92 KeyBank $ 1,826,000 $ 1,801,813 $ 1,622,254 0 360
---------------------------------------------------------------------------------------------
A-1-2
Remaining Original Remaining Mortgage First
Amortization Term to Term to Interest Interest Calculation Monthly Payment Maturity
Term Maturity Maturity Rate (30/360 / Actual/360) Payment Date Date
---------------------------------------------------------------------------------------------------------
297 120 117 5.900% Actual/360 $197,843 2/1/2003 1/1/2028
---------------------------------------------------------------------------------------------------------
357 120 117 5.800% Actual/360 $176,026 2/1/2003 1/1/2013
---------------------------------------------------------------------------------------------------------
359 120 119 5.850% Actual/360 $129,787 4/1/2003 3/1/2013
---------------------------------------------------------------------------------------------------------
358 120 118 5.970% Actual/360 $ 90,540 3/1/2003 2/1/2033
---------------------------------------------------------------------------------------------------------
358 120 118 5.970% Actual/360 $ 33,019 3/1/2003 2/1/2033
---------------------------------------------------------------------------------------------------------
357 120 117 6.250% Actual/360 $ 98,515 2/1/2003 1/1/2033
---------------------------------------------------------------------------------------------------------
291 120 111 6.500% 30/360 $106,008 8/11/2002 7/11/2012
---------------------------------------------------------------------------------------------------------
321 120 117 5.910% Actual/360 $ 35,421 2/1/2003 1/1/2030
---------------------------------------------------------------------------------------------------------
359 120 119 6.370% Actual/360 $ 30,865 4/1/2003 3/1/2033
---------------------------------------------------------------------------------------------------------
358 120 118 6.010% Actual/360 $ 28,809 3/1/2003 2/1/2033
---------------------------------------------------------------------------------------------------------
297 120 117 6.110% Actual/360 $ 30,514 2/1/2003 1/1/2013
---------------------------------------------------------------------------------------------------------
358 120 118 6.010% Actual/360 $ 24,934 3/1/2003 2/1/2033
---------------------------------------------------------------------------------------------------------
357 120 117 6.000% Actual/360 $ 20,445 2/1/2003 1/1/2033
---------------------------------------------------------------------------------------------------------
357 120 117 6.250% Actual/360 $ 17,856 2/1/2003 1/1/2033
---------------------------------------------------------------------------------------------------------
358 120 118 5.900% Actual/360 $ 13,166 3/1/2003 2/1/2033
---------------------------------------------------------------------------------------------------------
246 120 66 5.990% Actual/360 $ 14,161 11/1/1998 10/1/2023
---------------------------------------------------------------------------------------------------------
340 120 100 7.730% Actual/360 $ 13,056 9/1/2001 8/1/2011
---------------------------------------------------------------------------------------------------------
Contractual
Yield Servicing and Engineering Recurring
Prepayment Provision Defeasance Maintenance Trustee Reserve at Replacement
ARD as of Origination Option Spread Fees Origination Reserve/FF&E
---------------------------------------------------------------------------------------------------------
1/1/2013 Lock/115_0.0%/5 Yes N/A 0.0521% N/A $18,867
---------------------------------------------------------------------------------------------------------
N/A Lock/117_0.0%/3 Yes N/A 0.0521% N/A $28,800
---------------------------------------------------------------------------------------------------------
N/A Lock/116_0.0%/4 Yes N/A 0.0521% $ 43,586 N/A
---------------------------------------------------------------------------------------------------------
2/1/2013 Lock/116_0.0%/4 Yes N/A 0.0521% $205,000 N/A
---------------------------------------------------------------------------------------------------------
2/1/2013 Lock/116_0.0%/4 Yes X/X 0.0000% X/X X/X
---------------------------------------------------------------------------------------------------------
1/1/2013 Lock/113_0.0%/7 Yes N/A 0.0521% N/A $15,271
---------------------------------------------------------------------------------------------------------
N/A Lock/113_0.0%/7 Yes N/A 0.0521% N/A $50,840
---------------------------------------------------------------------------------------------------------
1/1/2013 Lock/116_0.0%/4 Yes N/A 0.1021% N/A $ 4,070
---------------------------------------------------------------------------------------------------------
3/1/2013 Lock/116_0.0%/4 Yes N/A 0.0521% N/A $ 5,118
---------------------------------------------------------------------------------------------------------
2/1/2013 Lock/116_0.0%/4 Yes N/A 0.0521% N/A N/A
---------------------------------------------------------------------------------------------------------
N/A Lock/117_0.0%/3 Yes N/A 0.1021% $ 19,844 $ 7,114
---------------------------------------------------------------------------------------------------------
2/1/2013 Lock/116_0.0%/4 Yes X/X 0.0000% X/X X/X
---------------------------------------------------------------------------------------------------------
1/1/2013 Lock/116_0.0%/4 Yes N/A 0.1021% N/A $ 3,038
---------------------------------------------------------------------------------------------------------
1/1/2013 Lock/116_0.0%/4 Yes X/X 0.0000% X/X X/X
---------------------------------------------------------------------------------------------------------
2/1/2013 Lock/116_0.0%/4 Yes N/A 0.0521% N/A $ 1,519
---------------------------------------------------------------------------------------------------------
10/1/2008 Lock/59_YM1/57_0.0%/4 No T-Flat 0.0521% N/A $35,967
---------------------------------------------------------------------------------------------------------
N/A Lock/117_0.0%/3 Yes N/A 0.0521% $ 13,125 $20,256
---------------------------------------------------------------------------------------------------------
A-1-3
LC & TI Contractual Tax & Initial Initial Other Initial Initial
Reserve at Recurring Insurance Other Reserve Debt Service Replacement
Origination LC&TI Escrows Reserve Description Reserve Reserve
----------------------------------------------------------------------------------------------------------------------------------
$ 20,000 $240,000 Both N/A N/A N/A $ 1,572
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A Both $110,231 Payment of tax liens or satisfaction thereof. N/A $ 2,400
----------------------------------------------------------------------------------------------------------------------------------
$300,000 X/X Xxx X/X X/X X/X X/X
----------------------------------------------------------------------------------------------------------------------------------
$233,675 N/A Both N/A N/A N/A $32,108
----------------------------------------------------------------------------------------------------------------------------------
$ 79,800 X/X Xxxx X/X X/X X/X $ 5,000
----------------------------------------------------------------------------------------------------------------------------------
$ 5,750 $ 69,000 Both N/A N/A N/A $ 1,273
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X Xxxx X/X X/X X/X X/X
----------------------------------------------------------------------------------------------------------------------------------
$ 1,500 $ 18,000 Both $ 10,810 Escrow for rental obligation on old US Books space N/A $ 339
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X Xxxx X/X X/X X/X $ 427
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A Tax $ 12,500 Holdback for Cert of Good Standing - int bearing. N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X Xxxx X/X X/X X/X $ 593
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A Tax $ 12,500 Holdback for Cert of Good Standing - Int Bearing N/A N/A
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X Xxxx X/X X/X X/X $ 253
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X Xxxx X/X X/X X/X X/X
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X Xxx X/X X/X X/X $ 127
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X Xxxx X/X X/X X/X $ 2,997
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X Xxxx X/X X/X X/X $ 1,688
----------------------------------------------------------------------------------------------------------------------------------
Letter
Letter of of Credit Earnout
Credit Description Reserve
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A $1,000,000
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
$2,600,000 Release upon: 1) Estoppel Certificate from tenants establishing N/A
that Borrower has entered in to a Lease with each tenant
2) All costs of TILC have been paid, 3) Earnout Increase
equal to $412,398
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
$500,000 Release upon: 1) Leasing of no less than 3,000 sf with minimum N/A
term of 3 yrs., rental rate of $13.00 psf, and tenant is in
occupancy paying rent
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
N/A N/A N/A
-----------------------------------------------------------------------------------------
A-1-4
Description
Earnout Additional Additional Additional Exisiting of Existing
Reserve Collateral Collateral Collateral Secondary Secondary Description
Description Amount Event Date Description Financing Financing of Lock Box
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A N/A N/A Springing
----------------------------------------------------------------------------------------------------------------------------------
N/A N/A N/A N/A $750,000 Secured Debt Hard
----------------------------------------------------------------------------------------------------------------------------------
Release upon: 1) Delivery of $1,000,000 8/1/2004 Release upon: 1) Delivery of N/A N/A N/A
estoppel for each new tenant estoppel for each new tenant
that has executed a NNN lease that has executed a NNN lease
stating that such tenant is in stating that such tenant is in
occupancy and paying rent, 2) occupancy and paying rent, 2)
Total annual rent of Total annual rent of
$1,284,897 generated from 95% $1,284,897 generated from 95%
of property excluding Wal-Mart of property excluding Wal-Mart
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Springing
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Hard
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Springing
----------------------------------------------------------------------------------------------------------------------------------
N/A $2,600,000 6/20/2003 Release upon: 1) Estoppel N/A N/A Springing
Certificate from tenants
establishing that Borrower has
entered in to a Lease with
each tenant 2) All costs of
TILC have been paid, 3)
Earnout Increase equal to
$412,398
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Springing
----------------------------------------------------------------------------------------------------------------------------------
N/A $ 500,000 2/20/2004 Release upon: 1) Leasing of no N/A N/A Springing
less than 3,000 sf with
minimum term of 3 yrs., rental
rate of $13.00 psf, and tenant
is in occupancy paying rent
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Hard
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Modified
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Hard
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Springing
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Hard
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Hard
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X Springing
----------------------------------------------------------------------------------------------------------------------------------
X/X X/X X/X X/X X/X X/X X/X
----------------------------------------------------------------------------------------------------------------------------------
X-0-0
Xxxxxxx X-0
Mortgage Loan Schedule -- Part 2
[See attached list of Mortgage Loans]
A-2-1
# Crossed Loan Name Address City State
--- ------- ----------------------------------------- ---------------------------------- --------------- --------------
16 (B) Xxxxxxxx Centre Building 2 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxx XX
17 (B) Xxxxxxxx Centre Building 1 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxx XX
18 (B) Xxxxxxxx Centre Building 3 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxx XX
27 Giant Eagle Plaza 1710-1760 Xxxxxxxx Rome Road Columbus OH
28 Abbotts Village Shopping Center 00000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxx XX
46 Timberlake Apartments 000 Xxxxxxxxxx Xxxxx Xxxxxxxxx XX
47 Indiana Business Center 6700 and 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX
48 Pinecrest Shopping Center 000-000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxx XX
56 Best Buy - El Paso, TX 000 Xxxxxxx Xxxx Xxxxx Xx Xxxx XX
57 Sav-On Drug Store - Las Vegas, NV 0000 Xxxx Xxx Xxxx Xxx Xxxxx XX
58 Walgreens - North Clinton 0000 Xxxxx Xxxxxxx Xxxxxx Xxxx Xxxxx XX
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX
00 Xxxx Xxxxxx Xxxxx 000 Xxxx Xxxxxx Xxxx Xxxxxxxxx XX
62 Walgreens - West Jefferson 0000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxxx Xxxxx XX
65 Walgreens - Waterbury, CT 0000 Xxxx Xxxx Xxxxxx Xxxxxxxxx XX
67 Walgreens - Albany, GA 0000 Xxxxxx Xxxx Xxxxxx XX
68 CVS - Raleigh, NC 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX
71 Walgreens - Olive Branch, MS 0000 Xxxxxxx Xxxx Xxxxx Xxxxxx XX
73 Sahara Corporate Center 0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx XX
74 CVS - Wilmington, NC 0000 Xxxxx 00xx Xxxxxx Xxxxxxxxxx XX
75 Walgreens - Burlington, KY 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX
00 Xxxxxxx Xxxx and Xxxxxxx Xxxxx Apartments Please see Exhibit A-1 in the Please see Please see
Prospectus Supplement Exhibit A-1 in Exhibit A-1 in
the Prospectus the Prospectus
Supplement Supplement
77 Premier Self Storage 0000 Xxxx Xxxxxx Xxxxxx XX
78 Walgreens - Anderson, IN 0000 Xxxxx Xxxxxxxxxxxx Xxxx Xxxxxxxx IN
81 Kuhlo Medical Building 0000 Xxxxxxx Xxxx Xxxxxxxx XX
84 401-403 South Washington 000-000 Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX
86 Shurgard Self Storage 00000 Xxxxxxxxx Xxx Xxxx Xxxxx Xxxxxx XX
00 Xxxx Xxxx Xxxxxxx Xxxxx II 0000 Xx Xxxxxx Xxxxx Xxxxxxxxx Xx Xxxxxx Xxxxx XX
Original Cutt-off Date
Mortgage Principal Principal
# Crossed Loan Name Zip Code Loan Seller Balance Balance (1)
--- ------- ----------------------------------------- -------------- ----------- ----------- ------------
16 (B) Xxxxxxxx Xxxxxx Xxxxxxxx 0 00000 Xxxxxx $ 6,225,000 $ 6,196,254
17 (B) Xxxxxxxx Xxxxxx Xxxxxxxx 0 00000 Xxxxxx $ 5,500,000 $ 5,474,602
18 (B) Xxxxxxxx Xxxxxx Xxxxxxxx 0 00000 Xxxxxx $ 4,925,000 $ 4,902,257
00 Xxxxx Xxxxx Xxxxx 00000 Column $12,000,000 $11,963,081
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 00000 Xxxxxx $11,600,000 $11,512,325
00 Xxxxxxxxxx Xxxxxxxxxx 00000 Xxxxxx $ 5,600,000 $ 5,560,135
00 Xxxxxxx Xxxxxxxx Xxxxxx 00000 Xxxxxx $ 5,550,000 $ 5,519,568
00 Xxxxxxxxx Xxxxxxxx Xxxxxx 00000 Xxxxxx $ 5,250,000 $ 5,230,844
56 Best Buy - Xx Xxxx, XX 00000 Column $ 4,400,000 $ 4,384,442
00 Xxx-Xx Xxxx Xxxxx - Xxx Xxxxx, XX 00000 Column $ 4,250,000 $ 4,233,668
00 Xxxxxxxxx - Xxxxx Xxxxxxx 00000 Xxxxxx $ 4,225,000 $ 4,206,469
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 00000 Column $ 4,200,000 $ 4,186,213
00 Xxxx Xxxxxx Xxxxx 00000 Xxxxxx $ 4,176,000 $ 4,158,516
62 Walgreens - West Jefferson 46804 Column $ 4,150,000 $ 4,131,798
65 Walgreens - Xxxxxxxxx, XX 00000 Column $ 3,435,000 $ 3,421,962
00 Xxxxxxxxx - Xxxxxx, XX 00000 Column $ 3,365,000 $ 3,346,759
68 CVS - Xxxxxxx, XX 00000 Column $ 3,200,000 $ 3,190,413
00 Xxxxxxxxx - Xxxxx Xxxxxx, XX 00000 Column $ 2,940,000 $ 2,929,272
73 Sahara Corporate Center 89117 Column $ 2,860,000 $ 2,846,112
74 CVS - Xxxxxxxxxx, XX 00000 Column $ 2,750,000 $ 2,738,054
75 Walgreens - Xxxxxxxxxx, XX 00000 Column $ 2,740,000 $ 2,727,982
00 Xxxxxxx Xxxx and Xxxxxxx Xxxxx Apartments Please see Column $ 2,664,000 $ 2,649,607
Exhibit A-1 in
the Prospectus
Supplement
77 Premier Self Storage 94561 Column $ 2,650,000 $ 2,635,517
78 Walgreens - Xxxxxxxx, XX 00000 Column $ 2,625,000 $ 2,613,487
00 Xxxxx Xxxxxxx Xxxxxxxx 00000 Xxxxxx $ 2,287,000 $ 2,276,654
84 000-000 Xxxxx Xxxxxxxxxx 00000 Column $ 2,175,000 $ 2,167,861
86 Shurgard Self Storage 98038 Column $ 2,150,000 $ 2,141,340
00 Xxxx Xxxx Xxxxxxx Xxxxx XX 00000 Xxxxxx $ 2,070,000 $ 2,058,779
A-2-2
Interest Original Remaining Original Remaining
Maturity/ARD Only Amortization Amortization Term to Term to
# Loan Name Balance(2) Period Term Term Maturity(2) Maturity(2)
--- ----------------------------------------- ------------ -------- ------------ ------------ ----------- -----------
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 $ 5,317,785 0 360 355 120 115
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 $ 4,698,445 0 360 355 120 115
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 $ 4,207,245 0 360 355 120 115
00 Xxxxx Xxxxx Xxxxx $10,137,585 0 360 357 120 117
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx $ 9,555,052 0 324 317 120 113
46 Timberlake Apartments $ 4,336,535 0 300 295 120 115
47 Indiana Business Center $ 4,324,253 0 300 296 120 116
48 Pinecrest Shopping Center $ 4,485,290 0 360 356 120 116
56 Best Buy - El Paso, TX $ 3,775,192 0 360 356 120 116
00 Xxx-Xx Xxxx Xxxxx - Xxx Xxxxx, XX $ 3,604,645 0 360 356 120 116
58 Walgreens - North Clinton $ 3,634,888 0 360 355 120 115
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx $ 3,638,747 0 360 356 120 116
00 Xxxx Xxxxxx Xxxxx $ 3,260,828 0 300 297 120 117
62 Walgreens - West Jefferson $ 3,570,363 0 360 355 120 115
00 Xxxxxxxxx - Xxxxxxxxx, XX $ 2,918,541 0 360 356 120 116
00 Xxxxxxxxx - Xxxxxx, XX $ 2,627,920 0 300 296 120 116
68 CVS - Raleigh, NC $ 2,714,589 0 360 357 120 117
00 Xxxxxxxxx - Xxxxx Xxxxxx, XX $ 2,511,762 0 360 356 120 116
73 Sahara Corporate Center $ 2,477,885 0 360 354 120 114
74 CVS - Wilmington, NC $ 2,130,208 0 300 297 120 117
00 Xxxxxxxxx - Xxxxxxxxxx, XX $ 2,357,300 0 360 355 120 115
00 Xxxxxxx Xxxx and Xxxxxxx Xxxxx Apartments $ 2,081,845 0 300 296 120 116
77 Premier Self Storage $ 2,066,106 0 300 296 120 116
78 Walgreens - Anderson, IN $ 2,258,361 0 360 355 120 115
81 Kuhlo Medical Building $ 1,959,280 0 360 355 120 115
84 000-000 Xxxxx Xxxxxxxxxx $ 1,884,351 0 360 356 120 116
86 Shurgard Self Storage $ 1,692,621 0 300 297 120 117
00 Xxxx Xxxx Xxxxxxx Xxxxx II $ 1,616,580 0 300 296 120 116
Interest
Mortgage Calculation First
Interest (30/360 / Monthly Payment Maturity
# Loan Name Rate Actual/360) Payments Date Date
--- ----------------------------------------- -------- ----------- -------- --------- ---------
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 6.250% Actual/360 $38,328 12/1/2002 11/1/2012
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 6.250% Actual/360 $33,864 12/1/2002 11/1/2012
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 6.250% Actual/360 $30,324 12/1/2002 11/1/2012
00 Xxxxx Xxxxx Xxxxx 5.870% Actual/360 $70,946 2/1/2003 1/1/2013
28 Abbotts Village Shopping Center 6.625% Actual/360 $76,973 10/1/2002 9/1/2012
46 Timberlake Apartments 6.000% Actual/360 $36,081 12/1/2002 11/1/2012
47 Indiana Business Center 6.180% Actual/360 $36,372 1/1/2003 12/1/2012
48 Pinecrest Shopping Center 6.250% Actual/360 $32,325 1/1/2003 12/1/2012
56 Best Buy - El Paso, TX 6.400% Actual/360 $27,522 1/1/2003 12/1/2032
57 Sav-On Drug Store - Las Vegas, NV 6.000% Actual/360 $25,481 1/1/2003 12/1/2032
58 Walgreens - North Clinton 6.500% Actual/360 $26,705 12/1/2002 11/1/2032
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 6.750% Actual/360 $27,241 1/1/2003 12/1/2032
00 Xxxx Xxxxxx Xxxxx 6.250% Actual/360 $27,548 2/1/2003 1/1/2028
62 Walgreens - West Jefferson 6.500% Actual/360 $26,231 12/1/2002 11/1/2032
00 Xxxxxxxxx - Xxxxxxxxx, XX 6.060% Actual/360 $20,727 1/1/2003 12/1/2032
67 Walgreens - Albany, GA 6.250% Actual/360 $22,198 1/1/2003 12/1/2027
68 CVS - Raleigh, NC 6.010% Actual/360 $19,206 2/1/2003 1/1/2033
71 Walgreens - Olive Branch, MS 6.250% Actual/360 $18,102 1/1/2003 12/1/2032
73 Sahara Corporate Center 6.750% Actual/360 $18,550 11/1/2002 10/1/2032
74 CVS - Wilmington, NC 6.010% Actual/360 $17,735 2/1/2003 1/1/2028
00 Xxxxxxxxx - Xxxxxxxxxx, XX 6.500% Actual/360 $17,319 12/1/2002 11/1/2032
76 Bayview East and Xxxxxxx Xxxxx Apartments 6.270% Actual/360 $17,607 1/1/2003 12/1/2012
77 Premier Self Storage 6.200% Actual/360 $17,399 1/1/2003 12/1/2012
78 Walgreens - Anderson, IN 6.500% Actual/360 $16,592 12/1/2002 11/1/2032
81 Kuhlo Medical Building 6.350% Actual/360 $14,231 12/1/2002 11/1/2012
84 000-000 Xxxxx Xxxxxxxxxx 6.750% Actual/360 $14,107 1/1/2003 12/1/2012
86 Shurgard Self Storage 6.500% Actual/360 $14,517 2/1/2003 1/1/2013
00 Xxxx Xxxx Xxxxxxx Xxxxx II 6.250% Actual/360 $13,655 1/1/2003 12/1/2012
A-2-3
Servicing
Yield and
Prepayment Provision as Defeasance Maintenance Trustee
# Loan Name ARD(8) of Origination(9) Option(10) Spread Fees
--- ----------------------------------------- --------- ----------------------- ----------- ----------- ---------
16 Xxxxxxxx Centre Building 2 N/A YM5/116_0.0%/4 No T-Flat 0.0521%
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X YM5/116_0.0%/4 No T-Flat 0.0521%
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X YM5/116_0.0%/4 No T-Flat 0.0521%
00 Xxxxx Xxxxx Xxxxx X/X Lock/117_0.0%/3 Yes N/A 0.0521%
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X Lock/59_YM1/55_0.0%/6 No T-Flat 0.0521%
46 Timberlake Apartments N/A Lock/117_0.0%/3 Yes N/A 0.0521%
00 Xxxxxxx Xxxxxxxx Xxxxxx X/X Lock/117_0.0%/3 Yes N/A 0.0521%
48 Pinecrest Shopping Center N/A Lock/117_0.0%/3 Yes N/A 0.0521%
56 Best Buy - El Paso, TX 12/1/2012 Lock/116_0.0%/4 Yes N/A 0.1021%
57 Sav-On Drug Store - Las Vegas, NV 12/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
58 Walgreens - North Clinton 11/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
00 Xxxxxx Xxxxxx Xxxxxxx Shopping Center 12/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
00 Xxxx Xxxxxx Xxxxx 1/1/2013 Lock/116_0.0%/4 Yes N/A 0.0521%
62 Walgreens - West Jefferson 11/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
00 Xxxxxxxxx - Xxxxxxxxx, XX 12/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
67 Walgreens - Albany, GA 12/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
68 CVS - Raleigh, NC 1/1/2013 Lock/116_0.0%/4 Yes N/A 0.0521%
71 Walgreens - Olive Branch, MS 12/1/2012 Lock/116_0.0%/4 Yes N/A 0.1021%
73 Sahara Corporate Center 10/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
74 CVS - Wilmington, NC 1/1/2013 Lock/116_0.0%/4 Yes N/A 0.0521%
00 Xxxxxxxxx - Xxxxxxxxxx, XX 11/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
00 Xxxxxxx Xxxx xxx Xxxxxxx Xxxxx Xxxxxxxxxx X/X Lock/117_0.0%/3 Yes N/A 0.0521%
77 Premier Self Storage N/A Lock/117_0.0%/3 Yes N/A 0.0521%
78 Walgreens - Anderson, IN 11/1/2012 Lock/116_0.0%/4 Yes N/A 0.0521%
00 Xxxxx Xxxxxxx Xxxxxxxx X/X Lock/117_0.0%/3 Yes N/A 0.1021%
84 000-000 Xxxxx Xxxxxxxxxx X/X Lock/117_0.0%/3 Yes N/A 0.0521%
86 Shurgard Self Storage N/A Lock/117_0.0%/3 Yes N/A 0.0521%
00 Xxxx Xxxx Xxxxxxx Xxxxx II N/A Lock/117_0.0%/3 Yes N/A 0.0521%
Contractual
Engineering Recurring LC & TI Contractual Tax &
Reserve at Replacement Reserve at Recurring Insurance
# Loan Name Origination Reserve/FF&E Origination LC & TI Escrows
--- ----------------------------------------- ----------- ------------ ----------- ----------- ---------
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X $ 2,778 $33,333 Insurance
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X $ 2,778 $33,333 Both
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X $ 2,778 $33,333 Both
00 Xxxxx Xxxxx Xxxxx X/X $16,631 N/A N/A Tax
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X X/X None
46 Timberlake Apartments $100,000 N/A N/A N/A Both
47 Indiana Business Center $ 18,688 N/A $ 2,325 $27,900 Both
48 Pinecrest Shopping Center N/A $15,645 $ 1,279 $15,348 Both
56 Best Buy - El Paso, TX N/A N/A N/A N/A None
57 Sav-On Drug Store - Las Vegas, NV N/A $ 2,568 X/X X/X Xxxx
00 Xxxxxxxxx - Xxxxx Xxxxxxx X/X $ 2,268 N/A N/A None
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X $14,960 $ 575 $ 6,900 Both
00 Xxxx Xxxxxx Xxxxx X/X $ 8,628 $ 1,956 $23,472 Both
00 Xxxxxxxxx - Xxxx Xxxxxxxxx X/X $ 2,174 X/X X/X Xxxx
00 Xxxxxxxxx - Xxxxxxxxx, XX $ 38,035 X/X X/X X/X Xxxx
00 Xxxxxxxxx - Xxxxxx, XX X/X X/X X/X X/X Xxxx
00 XXX - Xxxxxxx, XX N/A $ 1,524 N/A N/A None
71 Walgreens - Olive Branch, MS N/A N/A N/A N/A Insurance
73 Sahara Corporate Center N/A $ 5,600 N/A $43,356 Both
74 CVS - Wilmington, NC N/A $ 1,632 X/X X/X Xxxx
00 Xxxxxxxxx - Xxxxxxxxxx, XX N/A $ 2,174 N/A N/A None
76 Bayview East and Xxxxxxx Xxxxx Apartments $ 61,516 $41,100 N/A N/A Both
77 Premier Self Storage N/A N/A N/A N/A Both
78 Walgreens - Anderson, IN N/A N/A N/A N/A None
00 Xxxxx Xxxxxxx Xxxxxxxx X/X $ 3,828 $ 2,924 $35,088 Both
84 000-000 Xxxxx Xxxxxxxxxx $129,375 $13,068 $55,000 $17,280 Both
86 Shurgard Self Storage N/A $ 7,783 X/X X/X Xxxx
00 Xxxx Xxxx Xxxxxxx Xxxxx XX X/X $ 2,412 $ 1,667 $20,000 Both
A-2-4
Initial Initial Debt Initial
Other Initial Other Reserve Service Replacement Letter of
# Loan Name Reserve Description Reserve Reserve Credit
-- ----------------------------------------- ------- ----------------------- ------------ ----------- ---------
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 $ 4,438 Escrow Agreement N/A N/A N/A
17 Xxxxxxxx Centre Building 1 $ 4,438 Escrow Agreement N/A N/A N/A
18 Xxxxxxxx Centre Building 3 $ 4,438 Escrow Agreement N/A N/A N/A
27 Giant Xxxxx Xxxxx X/X X/X X/X $1,386 $300,000
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X X/X N/A
46 Timberlake Apartments N/A N/A N/A N/A N/A
00 Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X N/A N/A
00 Xxxxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X $1,304 $ 50,000
56 Best Buy - El Paso, TX N/A N/A N/A N/A N/A
57 Sav-On Drug Store - Las Vegas, NV N/A N/A N/A $ 000 X/X
00 Xxxxxxxxx - Xxxxx Xxxxxxx X/X X/X X/X $ 189 N/A
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X $1,247 N/A
00 Xxxx Xxxxxx Xxxxx X/X X/X X/X $ 719 N/A
62 Walgreens - Xxxx Xxxxxxxxx X/X X/X X/X $ 181 N/A
65 Walgreens - Waterbury, CT N/A N/A N/A N/A N/A
67 Walgreens - Albany, GA N/A N/A N/A N/A N/A
68 CVS - Xxxxxxx, XX X/X X/X X/X $ 127 N/A
71 Walgreens - Olive Branch, MS N/A N/A N/A N/A N/A
73 Sahara Corporate Center $99,563 Holdback for completion N/A $ 467 N/A
of building
74 CVS - Wilmington, NC N/A N/A N/A $ 000 X/X
00 Xxxxxxxxx - Xxxxxxxxxx, XX N/A N/A N/A $ 000 X/X
00 Xxxxxxx Xxxx and Xxxxxxx Xxxxx Apartments N/A N/A N/A $3,440 N/A
77 Premier Self Storage N/A N/A N/A N/A N/A
78 Walgreens - Anderson, IN N/A N/A N/A N/A N/A
81 Kuhlo Medical Building $25,563 Holdback to complete N/A $ 319 N/A
818 square feet of
space
00 000-000 South Washington N/A N/A N/A $1,089 N/A
86 Shurgard Self Storage N/A N/A N/A $ 649 N/A
00 Xxxx Xxxx Xxxxxxx Xxxxx XX X/X X/X X/X $ 201 N/A
Earnout Earnout Reserve
# Loan Name Letter of Credit Description Reserve Description
-- ----------------------------------------- ------------------------------------ -------- ------------------------
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
27 Giant Eagle Plaza Release upon: 1)4,900 sf of vacant N/A N/A
space is leased with at least 3-year
term at rate of $13 psf (3,400 of
4,900 already satisfied),
2) Evidence of tenants paying rent
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X
46 Timberlake Apartments N/A N/A N/A
00 Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X
48 Pinecrest Shopping Center Environmental Holdback $200,000 Release upon: 1) No
default, 2) Cousins
Submarine is paying rent
at premises
56 Best Buy - El Paso, TX N/A N/A N/A
57 Sav-On Drug Store - Las Vegas, NV N/A N/A N/A
00 Xxxxxxxxx - Xxxxx Xxxxxxx X/X X/X X/X
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X $200,000 Release upon: 1) Movie
Gallery lease of no less
than 3,750 sf at rate of
$12 psf, 2) Evidence of
tenant in occupancy,
3) No default
00 Xxxx Xxxxxx Xxxxx X/X X/X N/A
62 Walgreens - Xxxx Xxxxxxxxx X/X X/X X/X
65 Walgreens - Waterbury, CT X/X X/X X/X
00 Xxxxxxxxx - Xxxxxx, XX X/X X/X X/X
00 XXX - Xxxxxxx, XX N/A N/A N/A
71 Walgreens - Olive Branch, MS N/A N/A N/A
73 Sahara Corporate Center N/A N/A N/A
74 CVS - Wilmington, NC X/X X/X X/X
00 Xxxxxxxxx - Xxxxxxxxxx, XX X/X X/X X/X
00 Xxxxxxx Xxxx and Xxxxxxx Xxxxx Apartments N/A N/A N/A
77 Premier Self Storage N/A N/A N/A
78 Walgreens - Anderson, IN N/A N/A N/A
00 Xxxxx Xxxxxxx Xxxxxxxx X/X X/X X/X
00 000-000 South Washington N/A N/A N/A
86 Shurgard Self Storage N/A $250,000 Release upon:
1) Stabilized NOI of
$251,593 and effective
gross income of
$429,485, 2) No default
00 Xxxx Xxxx Xxxxxxx Xxxxx XX X/X X/X X/X
A-2-5
Additional Additional
Collateral Collateral
# Loan Name Amount Event Date Additional Collateral Description
-- ----------------------------------------- ---------- ---------- -------------------------------------------------
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
27 Giant Eagle Plaza $300,000 12/20/2003 Release upon: 1) 4,900 sf of vacant space is
leased with at least 3-year term at rate of $13
psf (3,400 of 4,900 already satisfied), 2)
Evidence of tenants paying rent
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X
46 Timberlake Apartments N/A N/A N/A
00 Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X
48 Pinecrest Shopping Center $200,000 8/22/2003 Release upon: 1) No default, 2) Cousins
Submarine is paying rent at premises
56 Best Buy - El Paso, TX N/A N/A N/A
57 Sav-On Drug Store - Las Vegas, NV N/A N/A N/A
00 Xxxxxxxxx - Xxxxx Xxxxxxx X/X X/X X/X
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx $200,000 8/26/2003 Release upon: 1) Movie Gallery lease of no less
than 3,750 sf at rate of $12 psf, 2) Evidence of
tenant in occupancy, 3) No default
00 Xxxx Xxxxxx Xxxxx X/X X/X N/A
62 Walgreens - Xxxx Xxxxxxxxx X/X X/X X/X
65 Walgreens - Waterbury, CT X/X X/X X/X
00 Xxxxxxxxx - Xxxxxx, XX X/X X/X X/X
00 XXX - Xxxxxxx, XX N/A N/A N/A
71 Walgreens - Olive Branch, MS N/A N/A N/A
73 Sahara Corporate Center N/A N/A N/A
74 CVS - Wilmington, NC X/X X/X X/X
00 Xxxxxxxxx - Xxxxxxxxxx, XX X/X X/X X/X
00 Xxxxxxx Xxxx and Xxxxxxx Xxxxx Apartments N/A N/A N/A
77 Premier Self Storage N/A N/A N/A
78 Walgreens - Anderson, IN N/A N/A N/A
00 Xxxxx Xxxxxxx Xxxxxxxx X/X X/X X/X
00 000-000 South Washington N/A N/A N/A
86 Shurgard Self Storage $250,000 6/9/2004 Release upon: 1) Stabilized NOI of $251,593 and
effective gross income of $429,485, 2) No default
00 Xxxx Xxxx Xxxxxxx Xxxxx XX X/X X/X X/X
Description of
Exisiting Exisiting
Secondary Secondary Description
# Loan Name Financing Financing of Lock Box
-- ----------------------------------------- --------- -------------- -----------
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
00 Xxxxxxxx Xxxxxx Xxxxxxxx 0 X/X X/X X/X
27 Giant Xxxxx Xxxxx X/X X/X Springing
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X X/X
46 Timberlake Apartments $350,000 Secured Debt N/A
47 Indiana Business Center N/A N/A Springing
48 Pinecrest Shopping Center N/A N/A N/A
56 Best Buy - El Paso, TX N/A N/A Hard
57 Sav-On Drug Store - Las Vegas, NV N/A N/A Springing
00 Xxxxxxxxx - Xxxxx Xxxxxxx X/X X/X Hard
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx X/X X/X Springing
00 Xxxx Xxxxxx Xxxxx X/X X/X Springing
62 Walgreens - West Jefferson N/A N/A Hard
65 Walgreens - Waterbury, CT X/X X/X Xxxx
00 Xxxxxxxxx - Xxxxxx, XX N/A N/A Hard
68 CVS - Raleigh, NC N/A N/A Springing
71 Walgreens - Olive Branch, MS N/A N/A Hard
73 Sahara Corporate Center N/A N/A Springing
74 CVS - Wilmington, NC X/X X/X Xxxxxxxxx
00 Xxxxxxxxx - Xxxxxxxxxx, XX N/A N/A Hard
00 Xxxxxxx Xxxx and Xxxxxxx Xxxxx Apartments N/A N/A N/A
77 Premier Self Storage N/A N/A N/A
78 Walgreens - Anderson, IN N/A N/A Hard
00 Xxxxx Xxxxxxx Xxxxxxxx X/X X/X X/X
00 000-000 South Washington N/A N/A N/A
86 Shurgard Self Storage X/X X/X X/X
00 Xxxx Xxxx Xxxxxxx Phase II N/A N/A N/A
X-0-0
Xxxxxxx X-0
Representations and Warranties with Respect to the Seller
The Seller hereby represents and warrants that, as of the Closing
Date:
1. The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
2. The execution and delivery by the Seller of, and the performance by
the Seller under, this Agreement, the execution (including, without limitation,
by facsimile or machine signature) and delivery of any and all documents
contemplated by this Agreement, including, without limitation, if necessary,
endorsements of Mortgage Notes, and the consummation by the Seller of the
transactions herein contemplated, will not: (a) violate the Seller's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound or which is applicable to it or any of
its assets, which default or breach, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
3. The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey all of its right, title and interest in and to the
Exhibit A-1 Loans (and, in the event that the related transaction is deemed to
constitute a loan secured by all or part of the Exhibit A-1 Loans, to pledge the
Exhibit A-1 Loans) in accordance with, and under the conditions set forth in,
this Agreement.
5. Assuming due authorization, execution and delivery hereof by the
other parties hereto, this Agreement constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller 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.
6. The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance under and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
B-1-1
7. There are no actions, suits or proceedings pending or, to the best
of the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
8. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan Documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
9. The transfer of the Exhibit A-1 Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
10. The Exhibit A-1 Loans do not constitute all or substantially all
of the assets of the Seller.
11. The Seller is not transferring the Exhibit A-1 Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
12. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Exhibit A-1 Loans to the
Purchaser, as contemplated herein.
13. After giving effect to its transfer of the Exhibit A-1 Loans to
the Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will exceed the
amount of the Seller's debts and obligations, including contingent and
unliquidated debts and obligations of the Seller, and the Seller will not be
left with unreasonably small assets or capital with which to engage in and
conduct its business.
14. The Seller does not intend to, and does not believe that it will,
incur debts or obligations beyond its ability to pay such debts and obligations
as they mature.
15. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
16. In connection with its transfer of the Exhibit A-1 Loans to the
Purchaser as contemplated herein, the Seller is receiving new value and
consideration constituting at least reasonably equivalent value and fair
consideration.
17. The Seller has not transferred all or any portion of its right,
title and interest in, to and under the Exhibit A-1 Loans to any party other
than the Purchaser hereunder, and the Seller is transferring all of its right,
title and interest in and to the Exhibit A-1 Loans to the Purchaser hereunder
free and clear of any pledge, lien, charge, security interest or other
B-1-2
encumbrance by or through the Seller; provided that the right to primary service
the Exhibit A-1 Loans has been transferred to an affiliate of the Additional
Party.
B-1-3
Exhibit B-2
Representations and Warranties with Respect to the Additional Party
The Additional Party hereby represents and warrants that, as of the
Closing Date:
1. The Additional Party is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States.
2. The execution and delivery by the Additional Party of, and the
performance by the Additional Party under, this Agreement, and the consummation
by the Additional Party of the transactions herein contemplated, will not: (a)
violate the Additional Party's organizational documents; or (b) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any indenture,
agreement or other instrument to which the Additional Party is a party or by
which it is bound or which is applicable to it or any of its assets, which
default or breach, in the Additional Party's good faith and reasonable judgment,
is likely to affect materially and adversely either the ability of the
Additional Party to perform its obligations under this Agreement or the
financial condition of the Additional Party.
3. The Additional Party has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
other parties hereto, this Agreement constitutes a valid, legal and binding
obligation of the Additional Party, enforceable against the Additional Party 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.
5. The Additional Party is not in violation of, and its execution and
delivery of this Agreement and its performance under and compliance with the
terms hereof will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Additional Party's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Additional Party to perform
its obligations under this Agreement or the financial condition of the
Additional Party.
6. There are no actions, suits or proceedings pending or, to the best
of the Additional Party's knowledge, threatened against the Additional Party
which, if determined adversely to the Additional Party, would prohibit the
Additional Party from entering into this Agreement or, in the Additional Party's
good faith and reasonable judgment, would be likely to affect materially and
adversely either the ability of the Additional Party to perform its obligations
hereunder or the financial condition of the Additional Party.
B-2-1
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Additional Party of the transactions
contemplated herein, except for those consents, approvals, authorizations and
orders that previously have been obtained and those filings and registrations
that previously have been completed, and except for those filings and recordings
of Mortgage Loan Documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
X-0-0
Xxxxxxx X-0
Representations and Warranties with Respect to the Purchaser
The Purchaser hereby represents and warrants that, as of the Closing
Date:
1. The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Purchaser of, and the performance
by the Purchaser under, this Agreement, and the consummation by the Purchaser of
transactions herein contemplated, will not: (a) violate the Purchaser's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Purchaser is a party or by which it is bound or which is applicable to it or any
of its assets, which default or breach, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
3. The Purchaser has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
other parties hereto, this Agreement constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser 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.
5. The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance under and compliance with the
terms hereof will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
6. There are no actions, suits or proceedings pending or, to the best
of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, would be likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations hereunder or the financial condition
of the Purchaser.
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation
B-3-1
by the Purchaser of the transactions contemplated herein, except for those
consents, approvals, authorizations and orders that previously have been
obtained and those filings and registrations that previously have been
completed, and except for those filings of Mortgage Loan Documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
B-3-2
Exhibit C
Representations and Warranties with Respect to the Mortgage Loans
For purposes of these representations and warranties, the phrases "to
the knowledge of the Additional Party" or "to the Additional Party's knowledge"
shall mean, except where otherwise expressly set forth below, the actual state
of knowledge of the Additional Party or any servicer acting on its behalf or on
behalf of the Seller regarding the matters referred to, in each case: (i) after
the Additional Party's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Additional Party's underwriting standards, at the time of the Additional
Party's origination or acquisition of the particular Mortgage Loan; and (ii)
subsequent to such origination, utilizing the servicing and monitoring practices
customarily utilized by prudent commercial mortgage loan servicers with respect
to securitizable commercial or multifamily, as applicable, mortgage loans. Also
for purposes of these representations and warranties, the phrases "to the actual
knowledge of the Additional Party" or "to the Additional Party's actual
knowledge" shall mean, except where otherwise expressly set forth below, the
actual state of knowledge of the Additional Party or any servicer acting on its
behalf or on behalf of the Seller without any express or implied obligation to
make inquiry. All information contained in documents which are part of or
required to be part of a Mortgage File shall be deemed to be within the
knowledge and the actual knowledge of the Additional Party. Wherever there is a
reference to receipt by, or possession of, the Additional Party of any
information or documents, or to any action taken by the Additional Party or not
taken by the Additional Party or its agents or employees, such reference shall
include the receipt or possession of such information or documents by, or the
taking of such action or the not taking such action by, either of the Additional
Party or any servicer acting on its behalf or on behalf of the Seller.
The Additional Party hereby represents and warrants with respect to
the Mortgage Loans that, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, and subject to Section 18 of this
Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the respective Due Dates for the Mortgage Loans in April 2003.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to Column, KeyBank had good title to, and was the sole owner
of, each Mortgage Loan. Immediately prior to the transfer of the Exhibit A-1
Loans to the Purchaser, the Seller had good title to, and was the sole owner of,
each Exhibit A-1 Loan. KeyBank had, at the time of transfer, full right, power
and authority to sell, transfer and assign each Mortgage Loan to, or at the
direction of, Column, and the Seller has full right, power and authority to
sell, transfer and assign each Exhibit A-1 Loan to, or at the direction of, the
Purchaser, in each case free and clear of any and all pledges, liens, charges,
security interests, participation interests
C-1
and/or other interests and encumbrances (except for certain servicing rights
described on Schedule C-42 hereto or otherwise contemplated by this Agreement,
the Other MLPA or the Pooling and Servicing Agreement). Subject to the
completion of the names and addresses of the assignees and endorsees and any
missing recording information in all instruments of transfer or assignment and
endorsements and the completion of all recording and filing contemplated hereby,
by the Other MLPA and/or by the Pooling and Servicing Agreement, KeyBank
previously has validly and effectively conveyed to Column all legal and
beneficial interest in and to each Mortgage Loan, and the Seller will have
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Exhibit A-1 Loan, in each case free and clear of any
pledge, lien, charge, security interest or other encumbrance (except for certain
servicing rights described on Schedule C-42 hereto or otherwise contemplated by
this Agreement, the Other MLPA or the Pooling and Servicing Agreement). The sale
of the Exhibit A-1 Loans to the Purchaser or its designee does not, and the sale
of the Mortgage Loans to Column did not, require the Seller or the Additional
Party to obtain any governmental or regulatory approval or consent that has not
been obtained. Each Mortgage Note is, or shall be as of the Closing Date,
properly endorsed to the Purchaser or its designee, or in blank, and each such
endorsement is genuine.
3. Payment Record. No scheduled payment of principal and interest due
under any Mortgage Loan on the Due Date in March 2003 and on any Due Date in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
March 2003 was 30 days or more delinquent, without giving effect to any
applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except as otherwise set forth on Schedule C-4 hereto, and, further, except for
the following (collectively, the "Permitted Encumbrances"): (a) the lien for
current real estate taxes, water charges, sewer rents and assessments not yet
due and payable; (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and are referred to in the
related lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or title policy commitment meeting the requirements
described in Paragraph 8 below); (c) exceptions and exclusions specifically
referred to in the related lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or title policy commitment
meeting the requirements described in Paragraph 8 below); (d) other matters to
which like properties are commonly subject; (e) the rights of tenants (as
tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property; (f) condominium declarations of record and identified in the
related lender's title insurance policy (or, if not yet issued, identified in a
pro forma title policy or title policy commitment meeting the requirements
described in Paragraph 8 below); and (g) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group. With respect to
each Mortgage Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided by the
related Mortgage, the current principal use of the related Mortgaged Property or
the ability of the related Mortgaged Property to generate income sufficient to
service such Mortgage Loan. The related assignment of the Mortgage for each
Mortgage Loan, as contemplated by clause (iv) of the definition of "Mortgage
File" in the
C-2
Pooling and Servicing Agreement, executed and delivered in favor of the Trustee,
or in blank, is in recordable form (but for insertion of the name and address of
the assignee and any related recording information which is not yet available to
the Seller or the Additional Party), sufficient to validly and effectively
convey the assignor's interest therein and constitutes a legal, valid, binding
and, subject to the exceptions set forth in Paragraph 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee or in
blank, as applicable.
5. Assignment of Leases. The Mortgage File contains an assignment of
leases and rents (an "Assignment of Leases"), either as a separate instrument or
incorporated into the related Mortgage, which establishes and creates a valid,
subsisting and, subject to the exceptions set forth in Paragraph 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Borrower
described therein, except that a license may have been granted to the related
Borrower to exercise certain rights and perform certain obligations of the
lessor under the relevant lease or leases, including, without limitation, the
right to operate the related leased property; and each assignor thereunder has
the full right to assign the same. The related assignment of any Assignment of
Leases not included in a Mortgage, as contemplated by clause (v) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement, executed
and delivered in favor of the Trustee, or in blank, is in recordable form (but
for insertion of the name and address of the assignee and any related recording
information which is not yet available to the Seller or the Additional Party) to
validly and effectively convey the assignor's interest therein and constitutes a
legal, valid, binding and, subject to the exceptions set forth in Paragraph 13
below, enforceable assignment of such Assignment of Leases from the relevant
assignor to the Trustee or in blank, as applicable.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part. Except as
otherwise set forth on Schedule C-6 hereto, no alterations, waivers,
modifications or assumptions of any kind have been given, made or consented to
by or on behalf of the Additional Party with respect to any Mortgage Loan since
February 20, 2003. The Additional Party has not taken any affirmative action
that would cause the representations and warranties of the related Borrower
under the Mortgage Loan not to be true and correct in any material respect.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared in connection with
the origination of such Mortgage Loan, the related Mortgaged Property is, to the
Additional Party's knowledge, in good repair, free and clear of any damage that
would materially and adversely affect its value as security for such Mortgage
Loan (except in any such case where an escrow of funds or insurance coverage
exists sufficient to effect the necessary repairs and maintenance); provided
that, if no engineer or architect physically visited the related Mortgaged
Property in connection with preparing and delivering such engineering report,
then the representation and warranty made in this sentence shall not be
qualified by "to the Additional Party's knowledge". Except as
C-3
otherwise set forth on Schedule C-7 hereto, as of origination of such Mortgage
Loan there was no proceeding pending, and subsequent to such date, the
Additional Party has not received actual notice of, any proceeding pending for
the condemnation of all or any material portion of the Mortgaged Property
securing any Mortgage Loan. If any of the engineering reports referred to above
in this Paragraph 7 revealed any material damage or material deferred
maintenance, then one of the following is true: (a) the repairs and/or
maintenance necessary to correct such condition have been completed in all
material respects; (b) an escrow of funds is required or a letter of credit was
obtained in an amount reasonably estimated to be sufficient to complete the
repairs and/or maintenance necessary to correct such condition; or (c) the
reasonable estimate of the cost to complete the repairs and/or maintenance
necessary to correct such condition represented no more than the lesser of (a)
2% of the value of the related Mortgaged Property as reflected in an appraisal
conducted in connection with the origination of the subject Mortgage Loan and
(b) $50,000. As of the date of the origination of each Mortgage Loan: (a) all of
the material improvements on the related Mortgaged Property lay wholly within
the boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and (b) no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the lender's
title insurance policy referred to in Paragraph 8 below.
8. Title Insurance. The lien of each Mortgage securing a Mortgage Loan
is insured by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (except that if such policy
is yet to be issued, such insurance may be evidenced by a "marked up" pro forma
policy or title commitment in either case marked as binding and countersigned by
the title company or its authorized agent, either on its face or by an
acknowledged closing instruction or escrow letter) in the original principal
amount of such Mortgage Loan after all advances of principal, insuring the
originator of the related Mortgage Loan, its successors and assigns (as the sole
insured) that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances and such other
matters as are described on Schedule C-8 hereto. Such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) is in full force and
effect, all premiums thereon have been paid, the Additional Party has made no
claims thereunder and, to the Additional Party's actual knowledge, no prior
holder of the related Mortgage has made any claims thereunder and no claims have
been paid thereunder. The Additional Party has not, and to the Additional
Party's actual knowledge, no prior holder of the related Mortgage has, done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee (including endorsement and delivery of the related
Mortgage Note to the Purchaser and recording of the related Assignment of
Mortgage in favor of the Purchaser in the applicable real estate records), such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Trustee without the consent of or
notice to the insurer. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), the following:
(a) access to a public road; and (b) that the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally
C-4
described in the related Mortgage. Such Title Policy affirmatively insures
against loss resulting from the forced removal of improvements at the related
Mortgaged Property encroaching on an easement.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. If the related Mortgage
Loan Documents include any requirements regarding (a) the completion of any
on-site or off-site improvements and (b) the disbursement of any funds escrowed
for such purpose, and if those requirements were to have been complied with on
or before the Closing Date, then such requirements have been complied with in
all material respects or such funds so escrowed have not been released except to
the extent specifically provided by the related Mortgage Loan Documents.
10. Mortgage Provisions. The Mortgage Note, Mortgage and Assignment of
Leases for each Mortgage Loan, together with applicable state law, contains
customary and, subject to the exceptions set forth in Paragraph 13 below,
enforceable provisions for commercial mortgage loans such as to render the
rights and remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Additional
Party, the Purchaser or any transferee thereof except for such fees and expenses
(all of which are the obligation of the related Borrower under the related
Mortgage Loan Documents) as would be payable in connection with a trustee's sale
after default by the related Borrower or in connection with any full or partial
release of the related Mortgaged Property or related security for such Mortgage
Loan.
12. Environmental Conditions. With respect to each Mortgage Loan, (a)
an environmental site assessment meeting the requirements of the American
Society for Testing and Materials and covering all environmental hazards
typically assessed for similar properties including use, type and tenants of the
Mortgaged Property, or an update of such an assessment, was performed by a
licensed (to the extent required by applicable state law) environmental
consulting firm with respect to each Mortgaged Property securing a Mortgage Loan
in connection with the origination of such Mortgage Loan or thereafter, (b) the
report (the "Environmental Report") relating to such environmental site
assessment or update thereof is dated no earlier than twelve months prior to the
Closing Date, (c) a copy of each such Environmental Report has been delivered to
the Purchaser or its designee, and (d) either: (i) no such Environmental Report
provides that as of the date of the report there is a material violation of any
applicable environmental laws with respect to any circumstances or conditions
relating to the related Mortgaged Property; or (ii) if any such Environmental
Report does reveal any such circumstances or conditions with respect to the
related Mortgaged Property and the same have
C-5
not been subsequently remediated in all material respects, then, except as
described on Schedule C-12(MV) hereto, one or more of the following are
true--(A) one or more parties not related to or including the related Borrower
and collectively having financial resources reasonably estimated to be adequate
to cure the subject violation in all material respects, were identified as the
responsible party or parties for such condition or circumstance and such
condition or circumstance does not materially impair the value of the Mortgaged
Property, (B) the related Borrower was required to provide additional security
reasonably estimated to be adequate to cure the subject violation in all
material respects and/or to obtain an operations and maintenance plan, (C) the
related Borrower, or other responsible party, provided a "no further action"
letter or other evidence reasonably acceptable to a reasonably prudent
commercial mortgage lender that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not requiring
any action, in respect of such condition or circumstance, (D) such conditions or
circumstances were investigated further and based upon such additional
investigation, an environmental consultant recommended no further investigation
or remediation, (E) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is not greater than the lesser of (1) 2% of
the outstanding principal balance of the related Mortgage Loan and (2) $50,000,
(F) there exists an escrow of funds reasonably estimated to be sufficient for
purposes of effecting such remediation, (G) the related Mortgaged Property is
identified on Schedule C-12(EI) hereto and insured under a policy of insurance
subject to reasonable per occurrence and aggregate limits and a reasonable
deductible, against certain losses arising from such circumstances and
conditions or (H) a party with financial resources reasonably estimated to be
adequate to cure the subject violation in all material respects provided a
guaranty or indemnity to the related Borrower to cover the costs of any required
investigation, testing, monitoring or remediation. To the Additional Party's
actual knowledge, there are no significant or material circumstances or
conditions with respect to any Mortgaged Property not revealed in any such
Environmental Report, where obtained, or in any Borrower questionnaire delivered
to the Additional Party in connection with the issue of any related
environmental insurance policy, if applicable, that render such Mortgaged
Property in material violation of any applicable environmental laws. The
Mortgage Loan Documents for each Mortgage Loan require the related Borrower to
comply in all material respects with all applicable federal, state and local
environmental laws and regulations. The Additional Party has not taken any
affirmative action which would cause the Mortgaged Property securing any
Mortgage Loan not to be in compliance with all federal, state and local laws
pertaining to environmental hazards. Each Borrower represents and warrants in
the related Mortgage Loan Documents generally to the effect that, except as set
forth in certain specified environmental reports and to the Borrower's
knowledge, it has not used, caused or permitted to exist and will not use, cause
or permit to exist on the related Mortgaged Property any hazardous materials in
any manner which violates federal, state or local laws, ordinances, regulations,
orders, directives, or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of
hazardous materials. Unless the related Mortgaged Property is identified on
Schedule C-12(EI) hereto, the related Borrower (or an affiliate thereof) has
agreed to indemnify, defend and hold the Additional Party and its successors and
assigns harmless from and against, or otherwise be liable for, any and all
losses resulting from a breach of environmental representations, warranties or
covenants given by the Borrower in connection with such Mortgage Loan, generally
including any and all losses, liabilities, damages, injuries, penalties, fines,
expenses and claims of any kind or nature
C-6
whatsoever (including without limitation, attorneys' fees and expenses) paid,
incurred or suffered by or asserted against, any such party resulting from such
breach.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower, or any guarantor of
non-recourse exceptions and environmental liability, with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent transfer and conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and except that certain provisions in such loan documents may be
further limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations
will not render such loan documents invalid as a whole or substantially
interfere with the mortgagee's realization of the principal benefits and/or
security provided thereby. There is no right of rescission, offset, abatement,
diminution or valid defense or counterclaim available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby. The
Additional Party has no actual knowledge of any such rights, defenses or
counterclaims having been asserted.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance policy included within the classification "All Risk of
Physical Loss" insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the insurable replacement cost of the improvements located on the
related Mortgaged Property, and if applicable, the related hazard insurance
policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. Except in the case of the Mortgaged Properties identified on
Schedule C-14 hereto, each Mortgaged Property securing a Mortgage Loan is the
subject of a business interruption or rent loss insurance policy providing
coverage for at least twelve (12) months (or a specified dollar amount which is
reasonably estimated to cover no less than twelve (12) months of rental income).
If, based solely on a flood zone certification or a survey of the related
Mortgaged Property, any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such Mortgage
Loan, in an area identified in the Federal Register by the Flood Emergency
Management Agency as a special flood hazard area (Zone A or Zone V) (an "SFH
Area") and flood insurance was available, then a flood insurance policy meeting
the requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. All such hazard and flood insurance
policies
C-7
contain a standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not terminable (nor
may the amount of coverage provided thereunder be reduced) without ten (10)
days' prior written notice to the mortgagee; and no such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured and, to the Additional Party's actual knowledge, all such insurance is in
full force and effect. Each Mortgaged Property and all improvements thereon are
also covered by comprehensive general liability insurance in such amounts as are
generally required by reasonably prudent commercial lenders for similar
properties and seismic insurance to the extent any Mortgaged Property has a
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in same area or earthquake zone. If the Mortgaged Property for any Mortgage Loan
is located in Florida or within 25 miles of the coast in Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina, then such
Mortgaged Property is insured by windstorm insurance in an amount at least equal
to the lesser of (i) the outstanding principal balance of such Mortgage Loan and
(ii) 100% of the insurable replacement cost of the improvements located on the
related Mortgaged Property. If any Mortgaged Property is, to the Additional
Party's knowledge, a materially non-conforming use or structure under applicable
zoning laws and ordinances, then, in the event of a material casualty or
destruction, one or more of the following is true: (i) such Mortgaged Property
may be restored or repaired to materially the same extent of the use or
structure at the time of such casualty; (ii) such Mortgaged Property is covered
by law and ordinance insurance in an amount customarily required by reasonably
prudent commercial mortgage lenders; or (iii) the amount of hazard insurance
currently in place and required by the related Mortgage Loan Documents would
generate proceeds sufficient to pay off the subject Mortgage Loan. Additionally,
for any Mortgage Loan having a Cut-off Date Principal Balance equal to or
greater than $20,000,000, the insurer for all of the required coverages set
forth herein has a claims paying ability rating from Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., Xxxxx'x or Fitch of not
less than A-minus (or the equivalent), or from A.M. Best of not less than "A:V"
(or the equivalent). With respect to each Mortgage Loan, the related Mortgage
Loan Documents require that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permit the Mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage Loan Documents for each Mortgage Loan
provide that proceeds paid under any such casualty insurance policy will (or, at
the lender's option, will) be applied either to the repair or restoration of the
related Mortgaged Property or to the payment of amounts due under such Mortgage
Loan; provided that the related Mortgage Loan Documents may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). To the Additional Party's actual knowledge, all insurance
policies described above are with an insurance carrier qualified to write
insurance in the relevant jurisdiction.
15. Taxes and Assessments. As of the date of origination of the
subject Mortgage Loan or the Cut-off Date, whichever is later, there were no
(and, to the Additional
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Party's actual knowledge, as of the Closing Date, there are no) delinquent
property taxes or assessments or other outstanding charges affecting any
Mortgaged Property securing a Mortgage Loan that are not otherwise covered by an
escrow of funds sufficient to pay such charge. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered delinquent until the date on which interest and/or penalties would be
payable thereon.
16. Borrower Bankruptcy. No Mortgaged Property securing a Mortgage
Loan is the subject of, and no Borrower under a Mortgage Loan is a debtor in,
any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Additional Party's knowledge, based
upon a letter from governmental authorities, a legal opinion, a zoning
consultant's report, an endorsement to the related Title Policy, or a
representation of the related Borrower at the time of origination of the subject
Mortgage Loan, or based on such other due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the subject
Mortgaged Property is located, the improvements located on or forming part of,
and the existing use of, each Mortgaged Property securing a Mortgage Loan are in
material compliance with applicable zoning laws and ordinances or constitute a
legal non-conforming use or structure (or, if any such improvement does not so
comply and does not constitute a legal non-conforming use or structure, such
non-compliance and failure does not materially and adversely affect the value of
the related Mortgaged Property as determined by the appraisal performed in
connection with the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease (together with any and
all written amendments and modifications thereof and any and all estoppels from
or other agreements with the ground lessor, a "Ground Lease"), but not by the
related fee interest in the subject real property (the "Fee Interest"), then:
(a) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage and does not restrict the use of the related
Mortgaged Property by such lessee, its successors or assigns in a manner that
would materially adversely affect the security provided by the related Mortgage;
and there has been no material change in the terms of such Ground Lease since
its recordation, with the exception of material changes reflected in written
instruments which are a part of the related Mortgage File;
(b) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that
it shall remain superior to any mortgage or other lien upon the related Fee
Interest;
(c) the Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it has
been obtained); provided that such
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Ground Lease has not been terminated and all defaults, if any, on the part of
the related lessee have been cured;
(d) such Ground Lease is in full force and effect, the Additional
Party has not received, as of the Closing Date, actual notice that such Ground
Lease is not in full force and effect or that any material default has occurred
under such Ground Lease, and the lessor under such Ground Lease has been sent
notice of the lien evidenced by the Mortgage in accordance with the terms of the
Ground Lease;
(e) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and such
Ground Lease further provides that no notice of termination given under such
Ground Lease is effective against the mortgagee under such Mortgage Loan unless
a copy has been delivered to such mortgagee in the manner described in such
Ground Lease;
(f) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(g) except as described on Schedule C-18 hereto, such Ground Lease has
an original term (or an original term plus options exercisable by the holder of
the related Mortgage) which extends not less than twenty (20) years beyond the
end of the amortization term of such Mortgage Loan;
(h) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the related
Borrower unless the mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice thereof from the lessor;
(i) under the terms of such Ground Lease and the related Mortgage Loan
Documents, taken together, any casualty insurance proceeds, other than de
minimis amounts for minor casualties, with respect to the leasehold interest
will be applied either (i) to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee appointed by it
having the right to hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially unreasonable
by a prudent commercial mortgage lender), or (ii) to the payment of the
outstanding principal balance of the Mortgage Loan together with any accrued
interest thereon; and under the terms of such Ground Lease and the related
Mortgage Loan Documents, taken together, any condemnation proceeds or awards in
respect of a total or substantially total taking will be applied first to the
payment of the outstanding principal and interest on the Mortgage Loan (except
as otherwise provided by applicable law) and subject to any rights to require
the improvements to be rebuilt;
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(j) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property is
located at the time of the origination of such Mortgage Loan;
(k) the lessor under such Ground Lease is not permitted to disturb the
possession, interest or quiet enjoyment of the lessee in the relevant portion of
the Mortgaged Property subject to such Ground Lease for any reason, or in any
manner, which would materially adversely affect the security provided by the
related Mortgage; and
(l) such Ground Lease provides that it may not be amended or modified
without the prior consent of the mortgagee under such Mortgage Loan and that any
such action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a), and the related Mortgaged Property, if acquired in
connection with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section 860G(a)(8).
20. Advancement of Funds. The Additional Party has not advanced funds,
or induced, solicited or knowingly received any advance of funds from a party
other than the owner of the related Mortgaged Property (or a tenant at or the
property manager of the related Mortgaged Property), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, has a shared appreciation feature,
provides for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property, or provides for
interest-only payments without principal amortization for more than six months
or for the negative amortization of interest, except that, in the case of an ARD
Loan, such Mortgage Loan provides that, during the period commencing on or about
the related Anticipated Repayment Date and continuing until such Mortgage Loan
is paid in full, (a) additional interest shall accrue, may be compounded monthly
and shall be payable only after the outstanding principal of such Mortgage Loan
is paid in full, and (b) a portion of the cash flow generated by such Mortgaged
Property will be applied each month to pay down the principal balance thereof in
addition to the principal portion of the related Monthly Payment. Neither the
Seller nor any affiliate thereof has any obligation to make any capital
contribution to the Borrower under the Mortgage Loan or otherwise.
22. Legal Proceedings. To the Additional Party's knowledge, as of
origination of the Mortgage Loan, except as set forth on Schedule C-22 hereto,
there were no, and to the Additional Party's actual knowledge, as of the Closing
Date, there are no pending
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actions, suits, litigation or other proceedings by or before any court or
governmental authority against or affecting the Borrower (or any guarantor to
the extent a reasonably prudent commercial or multifamily, as applicable,
mortgage lender would consider such guarantor material to the underwriting of
such Mortgage Loan) under any Mortgage Loan or the related Mortgaged Property
that, if determined adversely to such Borrower or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property as security
for such Mortgage Loan, the Borrower's ability to pay principal, interest or any
other amounts due under such Mortgage Loan or the ability of any such guarantor
to meet its obligations.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule
C-23 hereto, none of the Mortgage Loans permits the related Mortgaged Property
or any direct controlling equity interest in the related Borrower to be
encumbered by any mortgage lien or, in the case of a direct controlling equity
interest in the related Borrower, a lien to secure any other debt, without the
prior written consent of the holder of the subject Mortgage Loan or the
satisfaction of debt service coverage or similar criteria specified therein. To
the Additional Party's knowledge, as of origination of the subject Mortgage
Loan, and to the Additional Party's actual knowledge, as of the Closing Date,
except as otherwise set forth on Schedule C-23 hereto, and except for cases
involving other Mortgage Loans, no Mortgaged Property securing the subject
Mortgage Loan is encumbered by any other mortgage liens (other than Permitted
Encumbrances) and no direct controlling equity interest in the related Borrower
is encumbered by a lien to secure any other debt. The related Mortgage Loan
Documents require the Borrower under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
reasonable legal fees and expenses and any applicable Rating Agency fees, or
would permit the subject mortgagee to withhold such consent if such costs and
expenses are not paid by a party other than such mortgagee.
24. No Mechanics' Liens. To the Additional Party's knowledge, as of
the origination of the Mortgage Loan, and, to the Additional Party's actual
knowledge, as of the Closing Date: (i) each Mortgaged Property securing a
Mortgage Loan (exclusive of any related personal property) is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage and that are not bonded or escrowed for or covered
by title insurance, and (ii) no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage and that is not bonded or escrowed for or covered by title insurance.
25. Compliance with Usury Laws. Each Mortgage Loan complied with, or
was exempt from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the extent required by applicable law,
each Mortgage Loan requires the related Borrower to be qualified to do business,
and requires the related Borrower and the related Mortgaged Property to be in
material compliance with all regulations, licenses, permits, authorizations,
restrictive covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified or in
compliance would have a material and adverse effect upon the enforceability of
the Mortgage Loan or upon the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby. To the Additional Party's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
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governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Borrower at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage loans, the
related Borrower was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. Except as set forth on Schedule
C-28 hereto, no Mortgage Note or Mortgage requires the mortgagee to release all
or any material portion of the related Mortgaged Property from the lien of the
related Mortgage except upon: (i) payment in full of all amounts due under the
related Mortgage Loan or (ii) delivery of "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in connection with a defeasance
of the related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of material portions of the related Mortgaged Property or the release
of one or more related Mortgaged Properties upon: (i) the satisfaction of
certain legal and underwriting requirements, (ii) the payment of a release price
(in an amount that is at least equal to 125% of the allocated loan amount for
the released property or parcel) and prepayment consideration in connection
therewith or (iii) the delivery of substitute real estate collateral. No release
or partial release of any Mortgaged Property, or any portion thereof, expressly
permitted pursuant to the terms of any Mortgage Note or Mortgage will constitute
a significant modification of the related Mortgage Loan under Treas. Reg.
Section 1.860G-2(b)(2).
29. Defeasance. With respect to any Mortgage Loan that contains a
provision for any defeasance of mortgage collateral (a "Defeasance Loan"), the
related Mortgage Note or Mortgage provides that the defeasance option is not
exercisable prior to a date that is at least two (2) years following the Closing
Date and is otherwise in compliance with applicable statutes, rules and
regulations governing REMICs; requires prior written notice to the holder of the
Mortgage Loan of the exercise of the defeasance option and payment by the
Borrower of all related reasonable fees, costs and expenses as set forth below;
if the Borrower would continue to own assets in addition to the defeasance
collateral, requires, or permits the lender to require, the Mortgage Loan (or
the portion thereof being defeased) to be assumed by a single-purpose entity;
and requires counsel to provide a legal opinion that the Trustee has a perfected
security interest in such collateral prior to any other claim or interest. In
addition, each Mortgage Loan that is a Defeasance Loan permits defeasance only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount sufficient to make
all scheduled payments under the Mortgage Note (or the portion thereof being
defeased) when due, and in the case of ARD Loans, assuming the Anticipated
Repayment Date is the Maturity Date. To the Additional Party's actual knowledge,
defeasance under the Mortgage
C-13
Loan is only for the purpose of facilitating the disposition of a Mortgaged
Property and not as part of an arrangement to collateralize a REMIC offering
with obligations that are not real estate mortgages. With respect to each
Defeasance Loan, the related Mortgage Loan Documents provide that the related
Borrower shall (a) pay all Rating Agency fees associated with defeasance (if
rating confirmation is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not limited to,
accountant's fees and opinions of counsel, or (b) provide all opinions required
under the related loan documents, including, if applicable, a REMIC opinion and
a perfection opinion and any applicable rating agency letters confirming no
downgrade or qualification of ratings on any classes in the transaction.
Additionally, for any Mortgage Loan having a Cut-off Date Principal Balance
equal to or greater than $19,900,000, the Mortgage Loan or the related documents
require confirmation from the Rating Agency that exercise of the defeasance
option will not cause a downgrade or withdrawal of the rating assigned to any
securities backed by the Mortgage Loan and require the Borrower to pay any
Rating Agency fees and expenses.
30. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
31. Inspection. The Additional Party, an affiliate of the Additional
Party, or a correspondent in the conduit funding program of the Additional
Party, inspected, or caused the inspection of, each Mortgaged Property securing
a Mortgage Loan within twelve (12) months of the Closing Date.
32. No Material Default. To the Additional Party's knowledge, there
exists no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Additional Party in this Exhibit C.
33. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Borrower, is
transferred or sold, other than by reason of family and estate planning
transfers, transfers of less than a controlling interest in the Borrower,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Borrower, transfers among affiliated Borrowers with respect to
cross-collateralized Mortgaged Loans or multi-property Mortgage Loans, transfers
among co-Borrowers or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan, and other than as described on Schedule C-33
hereto. The related Mortgage Loan Documents require the Borrower under each
Mortgage Loan to pay all reasonable fees and expenses associated with securing
the consent or approval of the holder of the related Mortgage for all actions
requiring such consent or approval under the related Mortgage, including the
cost of counsel opinions
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relating to REMIC or other securitization and tax issues or require the payment
of a specified fee or fees, including a 1% assumption fee that would be applied
to pay such fees and expenses.
34. Single Purpose Entity. Except as otherwise described on Schedule
C-34 hereto, each Mortgage Loan with an original principal balance over
$5,000,000.00 requires the related Borrower to be, at least for so long as the
Mortgage Loan is outstanding, and to the Additional Party's actual knowledge,
the related Borrower is, a Single-Purpose Entity. For this purpose,
"Single-Purpose Entity" means a Person, other than an individual, which is
formed or organized solely for the purpose of owning and operating the related
Mortgaged Property or Properties; does not engage in any business unrelated to
such Mortgaged Property or Properties and the financing thereof; and whose
organizational documents provide, or which entity represented and covenanted in
the related Mortgage Loan Documents, substantially to the effect that such
Borrower (i) does not and will not have any material assets other than those
related to its interest in such Mortgaged Property or Properties or the
financing thereof; (ii) does not and will not have any indebtedness other than
as permitted by the related Mortgage or other related Mortgage Loan Documents;
(iii) maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other person; and
(iv) holds itself out as being a legal entity, separate and apart from any other
person. In addition, each Mortgage Loan with a Cut-off Date Principal Balance of
$20,000,000 or more, the related Borrower's organizational documents provide
substantially to the effect that the Borrower shall: conduct business in its own
name; not guarantee or assume the debts or obligations of any other person; not
commingle its assets or funds with those of any other person; prepare separate
tax returns and financial statements, or if part of a consolidated group, be
shown as a separate member of such group; transact business with affiliates on
an arm's length basis; hold itself out as being a legal entity, separate and
apart from any other person, and such organizational documents further provide
substantially to the effect that: any dissolution and winding up or insolvency
filing for such entity is prohibited or requires the consent of an independent
director or member or the unanimous consent of all partners or members, as
applicable; such documents may not be amended with respect to the Single-Purpose
Entity requirements without the approval of the mortgagee or rating agencies;
the Borrower shall have an outside independent director or member. The
Additional Party has obtained, with respect to each Mortgage Loan having a
Cut-off Date Principal Balance of $20,000,000 or more, in connection with its
origination or acquisition thereof, a counsel's opinion regarding
non-consolidation of the Borrower in any insolvency proceeding involving any
other party. To the Additional Party's actual knowledge, each Borrower has fully
complied with the requirements of the related Mortgage Note and Mortgage and the
Borrower's organizational documents regarding Single-Purpose-Entity status. The
organization documents of any Borrower on a Mortgage Loan having a Cut-off Date
Principal Balance of $20,000,000 or more that is a single member limited
liability company, provide that the Borrower shall not dissolve or liquidate
upon the bankruptcy, dissolution, liquidation or death of the sole member. Any
such single member limited liability company Borrower is organized in
jurisdictions that provide for such continued existence, and the Additional
Party has obtained, in connection with its origination or acquisition of the
subject Mortgage Loan, an opinion of such Borrower's counsel confirming such
continued existence and that the applicable law provides that creditors of the
single member may only attach the assets of the member including the membership
interests in the Borrower but not the assets of the Borrower.
C-15
35. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
36. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such separate tax lots shall
be effective for the next tax year.
37. ARD Loans. Each Mortgage Loan which is an ARD Loan commenced
amortizing on its initial scheduled Due Date, and provides that: (i) its
Mortgage Rate will increase by at least two (2) percentage points in connection
with the passage of its Anticipated Repayment Date; (ii) its Anticipated
Repayment Date is not less than seven (7) years following the origination of
such Mortgage Loan; (iii) no later than the related Anticipated Repayment Date,
the related Borrower is required (if it has not previously done so) to enter
into a "lockbox agreement" whereby all revenue from the related Mortgaged
Property shall be deposited directly into a designated account controlled by the
Master Servicer; and (iv) any net cash flow from the related Mortgaged Property
that is applied to amortize such Mortgage Loan following its Anticipated
Repayment Date shall, to the extent such net cash flow is in excess of the
scheduled principal and interest payment payable therefrom, be net of budgeted
and discretionary (servicer approved) capital expenditures.
38. Security Interests. The security agreements, financing statements
or other instruments, if any, related to the Mortgage Loan establish and create,
and a UCC financing statement has been filed and/or recorded in all places
required by applicable law for the perfection of (to the extent that the filing
of such a UCC financing statement can perfect such a security interest), a valid
security interest in the personal property granted under such Mortgage (and any
related security agreement), which in all cases includes elevators and all
Borrower-owned furniture, fixtures and equipment material to the operation and
use of the Mortgaged Property as presently operated, and if such Mortgaged
Property is a hotel operated by the related Borrower, then such personal
property constitutes such portion of the material personal property required to
operate the Borrower's business as the Additional Party considered appropriate
in light of its underwriting standards; any security agreement, chattel mortgage
or equivalent document related to and delivered in connection with the Mortgage
Loan establishes and creates a valid and enforceable lien and security interest
on the property described therein (subject to the exceptions set forth in
Paragraph 13 above), which lien/security interest shall, in the case of (i)
elevators at all Mortgaged Properties having the same and (ii) all
Borrower-owned furniture, fixtures and equipment at Borrower operated hotel
properties, be a first priority lien/security interest except for certain
personal property subject to purchase money security interests and personal
property leases. In the case of any Mortgage Loan secured by a hotel, the
related loan documents contain such provisions as are necessary and UCC
financing statements have been filed as necessary, in each case, to perfect a
valid first priority security interest in the related revenues with respect to
such Mortgaged Property. An assignment of each UCC financing statement relating
to the Mortgage Loan has been executed by the Additional Party in blank which
the Purchaser or its designee is authorized to complete and to file in the
filing office in which such financing statement was filed. Each Mortgage Loan
and the related Mortgage (along
C-16
with any security agreement and UCC financing statement), together with
applicable state law, contain customary and enforceable provisions such as to
render the rights and remedies of the holders thereof adequate for the practical
realization against the personal property described above, and the principal
benefits of the security intended to be provided thereby.
39. Disclosure to Environmental Insurer and Other Matters. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impaired property policy, then the Additional Party:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property that are or were
in the Additional Party's possession or are otherwise known to the
Additional Party; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports that are or were in the
Additional Party's possession related to such Mortgaged Property;
in each case to the extent required by such policy or to the extent the failure
to make any such disclosure or deliver any such report would materially and
adversely affect the Purchaser's ability to recover under such policy. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impaired property policy, then: (x) all premiums for such insurance have been
paid; (y) such insurance is in full force and effect; and (z) (i) an
environmental report, a property condition report or an engineering report was
prepared that included an assessment for lead based paint ("LBP") (in the case
of a multifamily property built prior to 1978), asbestos containing materials
("ACM") (in the case of any property built prior to 1985) and radon gas ("RG")
(in the case of a multifamily property) at such Mortgaged Property and (ii) if
such report disclosed the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting such Mortgaged Property, then,
(A) the related Borrower was required to remediate such condition or
circumstance prior to the closing of the subject Mortgage Loan, or (B) the
related Borrower was required to provide additional security reasonably
estimated to be adequate to cure such condition or circumstance, or (C) the
related Mortgage Loan Documents require the related Borrower to establish an
operations and maintenance plan with respect to such condition or circumstance
after the closing of such Mortgage Loan. If the Mortgage Loan is listed on
Schedule C-12(EI) hereto and the environmental insurance for such Mortgage Loan
is not a secured creditor policy but was required to be obtained by the
Borrower, then the holder of the Mortgage Loan is entitled to be an additional
insured under such policy, all premiums have been paid, such insurance is in
full force and effect and, to the Additional Party's knowledge, the Borrower has
made the disclosures and complied with the requirements of clauses (a) and (b)
of this Paragraph 39.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treas. Reg. Section 1.860G- 1(b)(2).
C-17
41. Operating Statements. Except for the Mortgage Loans with an
initial principal balance less than $3,000,000, which may only require annual
statements, and except as set forth on Schedule C-41 hereto, each Mortgage Loan
requires the Borrower, in some cases only at the request of the holder of the
related Mortgage, to provide the owner or holder of the related Mortgage with at
least quarterly and annual operating statements, rent rolls (if there is more
than one tenant) and related information and annual financial statements, which
annual financial statements with respect to each Mortgage Loan with an original
principal balance greater than $20 million shall be audited (or prepared and
certified) by an independent certified public accountant upon the request of the
holder of the related Mortgage.
42. Servicing Rights. Except as set forth on Schedule C-42 hereto or
as otherwise contemplated in this Agreement, the Other MLPA or the Pooling and
Servicing Agreement, no Person has been granted or conveyed the right to service
any Mortgage Loan or receive any consideration in connection therewith.
43. Recourse. Each Mortgage Loan is non-recourse; provided that,
except as described on Schedule C-43 hereto or for Mortgage Loans with a Cut-off
Date Principal Balance of less than $5,000,000, the Borrower and either a
principal of the Borrower or other individual guarantor, with assets other than
any interest in the Borrower, is liable in the event of (i) fraud or material
misrepresentation, (ii) misapplication or misappropriation of rents, insurance
payments, condemnation awards or tenant security deposits, (iii) violation of
applicable environmental laws or breaches of environmental covenants or (iv) the
filing of a voluntary bankruptcy or insolvency proceeding by the Borrower; and
provided, further, that, with respect to clause (iii) of the preceding proviso,
an indemnification against losses related to such violations or environmental
insurance shall satisfy such requirement. No waiver of liability for such
non-recourse exceptions has been granted to the Borrower or any such guarantor
or principal by the Additional Party or anyone acting on behalf of the
Additional Party.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that has not been assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
46. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
47. Originator's Authorization To Do Business. To the extent required
under applicable law, as of the Mortgage Loan's funding date and at all times
when it held such Mortgage Loan, the originator of each Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located, except where the failure to be so authorized does not
adversely affect the enforceability of such Mortgage Loan.
48. No Fraud In Origination. In the origination of the Mortgage Loan,
neither the originator nor any employee or agent of the Additional Party or the
originator, participated in
C-18
any fraud or intentional material misrepresentation with respect to the
Borrower, the Mortgaged Property or any guarantor. To the Additional Party's
actual knowledge, no Borrower is guilty of defrauding or making an intentional
material misrepresentation to the Additional Party or originator with respect to
the origination of the Mortgage Loan, the Borrower or the Mortgaged Property.
49. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Additional Party obtained an appraisal of the related
Mortgaged Property, which appraisal is signed by an appraiser, who, to the
Additional Party's actual knowledge, had no interest, direct or indirect, in the
Borrower, the Mortgaged Property or in any loan made on the security of the
Mortgaged Property, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan; to the Additional Party's knowledge, the
appraisal and appraiser both satisfy the requirements of the "Uniform Standards
of Professional Appraisal Practice" as adopted by the Appraisal Standards Board
of the Appraisal Foundation, all as in effect on the date the Mortgage Loan was
originated.
50. Jurisdiction of Organization. Each Borrower under a Mortgage Loan
was organized under the laws of the United States or the laws of a jurisdiction
located within the United States, its territories and possessions.
51. Borrower Concentration. No single Borrower or group of affiliated
Borrowers is/are the obligor(s) under any one or more Mortgage Loans with a
Cut-off Date Principal Balance of $50,000,000 or more.
52. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of the
Additional Party, its affiliated servicer or its agents (which shall include the
Master Servicer). All such escrow deposits which are required for the
administration and servicing of such Mortgage Loan are conveyed hereunder to the
Purchaser or its designee or have been conveyed under the Other MLPA to the
Master Servicer.
53. Access. The Mortgaged Property securing each Mortgage Loan is
located on or adjacent to a public road, or has access to an irrevocable
easement permitting ingress and egress.
54. Origination of the Mortgage Loans. All of the Mortgage Loans were
originated by the Additional Party.
C-19
EXCEPTIONS TO MLPA REPRESENTATIONS AND WARRANTIES
SCHEDULE C-4
Lien; Valid Assignment
EXHIBIT A-1 LOANS:
With respect to Loan No. 10017258/800 Jefferson Street, the related
Mortgage Loan is the first priority "A Loan" of an A/B structured loan
transaction. The corresponding subordinate "B Loan" is owned by CBA-Mezzanine
Capital Finance, LLC (or an Affiliate thereof) and is not included in the sale
by the Seller to the Purchaser. The related Mortgage secures both the Mortgage
Loan (with a first priority lien) and the corresponding "B Loan" (with a
subordinate lien thereto).
EXHIBIT A-2 LOANS:
With respect to Loan No. 10017742/Timberlake Apartments, the related
Mortgage Loan is the first priority "A Loan" of an A/B structured loan
transaction. The corresponding subordinate "B Loan" is owned by CBA-Mezzanine
Capital Finance, LLC (or an Affiliate thereof) and was not included in the sale
by the Seller to Column and will not be included in the sale by Column to the
Purchaser. The related Mortgage secures both the Mortgage Loan (with a first
priority lien) and the corresponding "B Loan" (with a subordinate lien thereto).
C-4
SCHEDULE C-6
Mortgage Status; Waivers and Modifications
EXHIBIT A-1 LOANS:
Loan No. 100172581/800 Jefferson - The intercreditor agreement between
the Seller and CBA-Mezzanine Capital Finance, LLC has been amended and restated
and a copy of the amended and restated agreement has been delivered to the
Purchaser in the related Mortgage File.
Loan No. 10018769/Xxxxxx Portfolio Loan B and Loan No. 10019386/596
Xxxxxx - modifications to mortgages and amendment and restatement of the
corresponding notes are pending to eliminate cross-default and
cross-collateralizations provisions with respect to a third loan which is
outside the Mortgage Pool.
Loan No. 10016988/Randloph Mall - On March 25, 2003, Seller approved
(i) a one year waiver (for the current policy period which expires December 31,
2003) permitting the maximum property insurance deductible to be increased from
$25,000.00 to $100,000.00 per occurrence (with a $1,000,000.00 aggregate), and
(ii) a waiver of the minimum rating requirements with respect to Royal Indemnity
Company (which carries a $350 million excess property insurance with respect to
the mortgaged property) from S&P "A" and Xxxxx'x "A2" to S&P "BBB+" and Xxxxx'x
"Baa2".
EXHIBIT A-2 LOANS:
The following amendments and modifications have been made since
December 28, 2002, and all of the related amended or modified documents have
been delivered by the Seller or Column to the Purchaser as part of the related
Mortgage File:
o Loan Xx. 00000000/Xxxxxxxx Xxxxxx Xxxxxxxx 0 - Note and deed of
trust modified to correct scrivener's error.
o Loan Xx. 00000000/Xxxxxxxx Xxxxxx Xxxxxxxx 0 - Note and deed of
trust modified to correct scrivener's error.
o Loan Xx. 00000000/Xxxxxxxx Xxxxxx Xxxxxxxx 0 - Note and deed of
trust modified to correct scrivener's error.
o Loan Xx. 00000000/000-000 Xxxxx Xxxxxxxxxx - Note modified to
correct scrivener's error (substituted first page of note to
correct first payment date from 1/1/02 to 1/1/03).
o Loan No. 10018244/Walgreens-Waterbury - Completion/Repair Escrow
Security Agreement was amended and restated to correct
scrivener's error.
C-6
o Loan No. 10017967/Bayview East and Xxxxxxx Xxxxx Apartments - A
page of the Replacement Reserve Escrow and Security Agreement was
substituted to correct scrivener's error.
o Loan No. 10017446/Indiana Business Center - Note amended to add
California statutory waiver re: prepayment.
o Loan Xx. 00000000/Xxxx Xxxx Xxxxxxx Xxxxx XX - Note amended to
add California statutory waiver re: prepayment.
o Loan No. 10017784/Premier Self Storage - Note amended to add
California statutory waiver re: prepayment.
o Loan No. 10017742/Timberlake Apartments -- The intercreditor
agreement between Column (as successor in interest to Seller) and
CBA-Mezzanine Capital Finance, LLC has been amended and restated
and a copy of the amended and restated agreement has been
delivered to the Purchaser in the related Mortgage File.
C-6
SCHEDULE C-7
Condition of Property; Condemnation
EXHIBIT A-2 LOANS:
With respect to Loan No. 10017678/Abbotts Village, which had an
original principal balance of $11,600,000, the related Borrower has advised the
Seller at the time of the loan closing that a governmental authority was
attempting to obtain title to portions of the related Mortgaged Property along
existing rights of way in connection with a proposed widening of the
intersection of said rights of way. The portion of the property at issue in this
proposed taking was not included in the appraised value used in underwriting the
Mortgage Loan. The related Mortgage provides that the related Borrower shall be
entitled to retain up to $750,000 of the proceeds from such taking (if
successful) provided that certain specified conditions are satisfied. The
proposed taking of the portion of the property at issue will not materially
impair the access to, or the value, income generating capacity, use or operation
of, the Mortgaged Property. The Seller has received a Petition for Condemnation
filed by Xxxxxx County, as Plaintiff/Condemnor, in the Superior Court of Xxxxxx
County, Georgia, on March 6, 2003, in connection with this proposed taking.
C-7
SCHEDULE C-8
Title Insurance
EXHIBIT A-1 LOANS:
With respect to Loan No. 10017258/800 Jefferson Street, the related
Mortgage Loan is the first priority "A Loan" of an A/B structured loan
transaction. The corresponding subordinate "B Loan" is owned by CBA-Mezzanine
Capital Finance, LLC (or an Affiliate thereof) and is not included in the sale
by the Seller to the Purchaser. The Title Policy is in the amount of the sum of
the principal balances of the Mortgage Loan and the corresponding subordinate "B
Loan".
EXHIBIT A-2 LOANS:
With respect to Loan No. 10017742/Timberlake Apartments, the related
Mortgage Loan is the first priority "A Loan" of an A/B structured loan
transaction. The corresponding subordinate "B Loan" is owned by CBA-Mezzanine
Capital Finance, LLC (or an Affiliate thereof) and was not included in the sale
by the Seller to Column and will not be included in the sale by Column to the
Purchaser. The Title Policy is in the amount of the sum of the principal
balances of the Mortgage Loan and the corresponding subordinate "B Loan".
C-8
SCHEDULE C-12(MV)
EXHIBIT A-1 LOANS:
With respect to Loan No. 10018769/Xxxxxx Portfolio B, the
Environmental Report for the Mortgaged Property known as 0-0 Xxxxxx Xxxxxx (one
of four Mortgaged Properties primarily securing such Mortgage Loan) identified
evidence that two underground storage tanks were installed at that Mortgaged
Property in the mid-1970's. Due to the presence of those underground storage
tanks, the Environmental Report recommended that a subsurface investigation be
conducted to determine whether the tanks were still present on the Mortgaged
Property, and to test the subsurface to verify that no contamination was
present. Subsequent to issuance of the Environmental Report, the related
Borrower provided the Seller documentation evidencing the prior removal of the
underground storage tanks. Accordingly, the Seller determined that there was no
material need for any further subsurface investigation at the Mortgaged
Property.
C-12(MV)
SCHEDULE C-12(EI)
EXHIBIT A-1 LOANS:
The following Mortgage Loans have a secured creditor insurance policy:
Loan No. 10013895/Xxxxxx Apartments
Loan No. 10018286/CVS-Indianapolis
Loan No. 10017521/Symmes Gate Station
C-12(EI)
SCHEDULE X-00
XXXXXXX X-0 LOANS:
With respect to Loan Nos. 10016827/Walgreens-Albany,
10017817/Walgreens-Olive Branch and 10018244/Walgreens-Waterbury, the
requirement that business interruption insurance be obtained was waived because
the related borrower's lease with its tenant, Walgreens Co., does not permit
abatement of rent following a casualty.
X-00
XXXXXXXX X-00
Xxxxxxxxx Xxxxxx Only
EXHIBIT A-2 LOANS:
With respect to Loan No. 10017686/CVS-Wilmington, the original term of
the Ground Lease plus additional option terms that are exercisable by the
mortgagee extend 17 years beyond the end of the amortization term of the
Mortgage Loan.
C-18
SCHEDULE C-22
Legal Proceedings
EXHIBIT A-2 LOANS:
With respect to Loan No. 10017678/Abbotts Village, which had an
original principal balance of $11,600,000, the related Borrower has advised the
Seller at the time of the loan closing that a governmental authority was
attempting to obtain title to portions of the related Mortgaged Property along
existing rights of way in connection with a proposed widening of the
intersection of said rights of way. The portion of the property at issue in this
proposed taking was not included in the appraised value used in underwriting the
Mortgage Loan. The related Mortgage provides that the related Borrower shall be
entitled to retain up to $750,000 of the proceeds from such taking (if
successful) provided that certain specified conditions are satisfied. The
proposed taking of the portion of the property at issue will not materially
impair the access to, or the value, income generating capacity, use or operation
of, the Mortgaged Property. The Seller has received a Petition for Condemnation
filed by Xxxxxx County, as Plaintiff/Condemnor, in the Superior County of Xxxxxx
County, Georgia, on March 6, 2003, in connection with this proposed taking.
C-22
SCHEDULE C-23
Other Mortgage Liens
EXHIBIT A-1 LOANS:
With respect to Loan No. 10017258/800 Jefferson Street, the related
Mortgage Loan is the "A Loan" of an A/B structured loan transaction. The
corresponding "B Loan" is owned by CBA-Mezzanine Capital Finance, LLC (or an
Affiliate thereof) and is not included in the sale by the Seller to the
Purchaser. The related Mortgage secures both the Mortgage Loan and the "B Loan".
With respect to Loan Xx. 00000000/Xxxx Xxxxxx Xxxxxxx Xxxxxx, members
of the Borrower may pledge their right to receive net cash distributions from
the borrowing entity pursuant to the terms of its operating agreement upon the
satisfaction of certain conditions, including execution of an intercreditor and
subordination agreement, the pledge is limited to net cash distributions and no
other property or membership interest is pledged, and satisfaction of rating
agency requirements.
With respect to Loan No. 10016215/2300 Imperial Building, members or
partners of the sole members (each, a "Member Entity") of certain of the
co-Borrowers are permitted to obtain financing secured solely by pledges of
their respective rights to receive net cash distributions from the respective
Member Entity or by portions of their membership interests in such respective
Member Entity upon satisfaction of certain conditions, including satisfaction of
rating agency requirements and evidence that enforcement of such pledge or
encumbrance will not result in any change in control of any co-Borrower or
respective Member Entity. Additionally, any member of any of the co-Borrowers
may pledge its membership interest in the respective borrowing entity upon the
mortgagee's prior written consent and the satisfaction of certain conditions,
including specified combined loan to value and debt service coverage ratios,
execution of an intercreditor and subordination agreement by an institutional
mezzanine lender, establishment of a lockbox arrangement and receipt of rating
agency confirmation.
With respect to Loan No. 10016968/Cambridge Crossing, a member of the
Borrower contributed capital to that borrowing entity in consideration for the
ability to (i) receive preferred distributions and (ii) upon the occurrence of
certain events, exercise certain rights and remedies with respect to the
managing member of that borrowing entity, the manager of the related mortgaged
property, and membership interests in the related Borrower. That member's
payment rights are subordinate to the payment of the Mortgage Loan pursuant to
an agreement among the member, the Borrower and the Seller.
EXHIBIT A-2 LOANS:
With respect to Loan No. 10017742/Timberlake Apartments, the related
Mortgage Loan is the "A Loan" of an A/B structured loan transaction. The
corresponding "B Loan" is owned by CBA-Mezzanine Capital Finance, LLC (or an
Affiliate thereof) and was not
C-23
included in the sale by the Seller to Column and will not be included in the
sale by Column to the Purchaser. The related Mortgage secures both the Mortgage
Loan and the "B Loan".
With respect to Loan No. 10017446/Indiana Business Center, future
subordinate debt is permitted with the mortgagee's consent upon satisfaction of
certain conditions, including satisfaction of specified loan-to-value and debt
service coverage ratios, execution of a subordination and intercreditor
agreement, rating agency confirmation and establishment of a lockbox account.
With respect to Loan Xx. 00000000/Xxxxxxx Xxxx Xxxx Giant Eagle
Center, future mezzanine financing is permitted only with the mortgagee's prior
written consent and only upon satisfaction of criteria specified in the related
Mortgage, including satisfaction of specified loan-to-value and debt service
coverage ratios, execution of a subordination and intercreditor agreements,
rating agency confirmation and establishment of a lockbox account.
C-23
SCHEDULE C-28
Releases of Mortgaged Properties
EXHIBIT A-1 LOANS:
With respect to Loan No. 10016215/2300 Imperial Building, the Borrower
may obtain a release of an unimproved portion of the Mortgaged Property and an
existing two story parking facility that is a part of the Mortgaged Property
without a partial defeasance or payment of a release price upon satisfaction of
certain conditions, including satisfactory separation of tax parcels, evidence
of zoning compliance, evidence of satisfaction of parking requirements under
related leases, creation of parking and access easements over the released
parcel, the furnishing of temporary parking during the period of any
construction of a new parking facility on the released parcel or renovation of
the existing parking facility and, if requested, delivery of evidence that no
adverse REMIC consequences will result from the release.
With respect to Loan No. 10018769/Xxxxxx Portfolio B which is secured
by multiple properties, the Borrower may obtain a release of up to two specified
properties if certain conditions are satisfied, including specified debt service
coverage and loan-to-value ratios and the partial prepayment or partial
defeasance of a specified percentage (based on 125% of the allocated loan
amount) of the then-outstanding principal balance of the Mortgage Loan.
With respect to Loan No. 10016988/Xxxxxxxx Mall, the Borrower has the
right to obtain the release of an unimproved parcel, identified in the related
loan agreement, without payment of any consideration or repayment of any
principal, upon compliance with requirements set forth in the loan agreement,
including splitting tax lots, compliance with zoning, establishment of
reciprocal easement agreements, delivery of a REMIC opinion, delivery of a
rating agency confirmation, if requested by the mortgagee, and reimbursement of
the mortgagee's reasonable costs and expenses.
C-28
SCHEDULE C-33
Due on Sale
EXHIBIT A-1 LOANS:
1. With respect to Loan No. 10016968/The Shops at Cambridge Crossings,
although CS Manager, LLC (the "Developer Member") owns 75% of the membership
interests of the related Borrower, Kimco Preferred Investor X, Inc. (the "Kimco
Member"), the owner of the other 25% of the membership interests, has certain
rights under the Operating Agreement of Borrower (the "Operating Agreement")
that arguably result in the Kimco Member having direct controlling equity
interests in Borrower notwithstanding its minority ownership interest. In
addition to other control rights, upon the occurrence of certain events, the
Operating Agreement permits the Kimco Member to (a) remove the Developer Member
as the manager of Borrower and substitute a Kimco Affiliate satisfying certain
criteria (a "Manager Substitution"), and (b) acquire the membership interests of
the Developer Member. Under the terms of a Consent and Agreement Regarding
Preferred Equity that is part of the Mortgage File, a Manager Substitution or a
transfer all or any portion of the membership interests of the Kimco Member (or
any membership interests of the Developer Member following the Kimco Member's
acquisition of such interests) may be made without the prior written consent of
the holder of the Mortgage to:
(i) any person or entity (including any affiliate of the Kimco Member
owned by Kimco Realty Corporation (the "REIT") if less than 49.9%
of membership interests of the Kimco Member are being transferred
so long as management authority over such interests is retained
by to the Kimco Member; or
(ii) to any person or entity (including any affiliate of the Kimco
Member owned by the REIT) so long as the REIT or any third-party
transferee is (1) regularly engaged in the business of owning and
operating commercial properties, and (2) has total assets in
excess of $500,000,000 and capitalization in excess of
$200,000,000 (collectively "Institutional Investor Criteria").
In connection with any transfer of majority interests, the Kimco
Member is required, upon the request of the holder of the Mortgage, to have
obtained rating agency confirmation.
2. With respect to Loan No. 10016998/Xxxxxxxx Mall, the mortgagee has
no consent rights with respect to transfers of interests in CBL & Associates
Properties, Inc or CBL & Associates Limited Partnership in the public or private
markets or merger or consolidation of either entity.
C-33
SCHEDULE C-34
Single Purpose Entity
EXHIBIT A-1 LOANS:
With respect to Loan No. 10017258/800 Jefferson Street, the related
Mortgage Loan is the first priority "A Loan" of an A/B structured loan
transaction. The corresponding subordinate "B Loan" is owned by CBA-Mezzanine
Capital Finance, LLC (or an Affiliate thereof) and is not included in the sale
by the Seller to the Purchaser. The related Mortgage secures both the Mortgage
Loan (with a first priority lien) and the corresponding "B Loan" (with a
subordinate lien thereto). The related Borrower is permitted to incur the
indebtedness evidenced by the corresponding subordinate "B Loan" as well as that
evidenced by the related first priority Mortgage Loan.
EXHIBIT A-2 LOANS:
With respect to Loan Nos. 10017446/Indiana Business Center, which had
an original principal balance of $5,550,000, and 10017576/Abbotts Village
Shopping Center, which had an original principal balance of $11,600,000, the
related Borrower was not required to be a Single-Purpose Entity.
With respect to Loan No. 10017742/Timberlake Apartments, the related
Mortgage Loan is the first priority "A Loan" of an A/B structured loan
transaction. The corresponding subordinate "B Loan" is owned by CBA-Mezzanine
Capital Finance, LLC (or an Affiliate thereof) and was not included in the sale
by the Seller to Column and will not be included in the sale by Column to the
Purchaser. The related Mortgage secures both the Mortgage Loan (with a first
priority lien) and the corresponding "B Loan" (with a subordinate lien thereto).
The related Borrower is permitted to incur the indebtedness evidenced by the
corresponding subordinate "B Loan" as well as that evidenced by the related
first priority Mortgage Loan.
C-34
SCHEDULE C-41
Operating Statements
EXHIBIT A-1 LOANS:
With the exception of Loan Xx. 0000000/Xxxxxxxxxx Xxxxxxxxx Xxxxxxx,
xxxx of the Exhibit A-1 Loans require the delivery of an annual financial
statement of the related Borrower, but do require the delivery of an annual
balance sheet of the related Borrower and an annual operating statement with
respect to the Mortgaged Property.
Loan No. 10016215/2300 Imperial Building does not require the annual
balance sheet to be audited (or prepared and certified) by an independent
certified public accountant upon request of the mortgagee.
With respect to Loan No. 100169884/Xxxxxxxx Mall, the related loan
agreement specifies quarterly and annual delivery of statements of profit and
loss, not operating statements.
EXHIBIT A-2 LOANS:
With the exception of Loan Xx. 00000000/Xxxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx, xxxx of the Exhibit A-2 Loans require the delivery of an annual
financial statement of the related Borrower, but do require the delivery of an
annual balance sheet of the related Borrower and an annual operating statement
with respect to the Mortgaged Property.
With respect to Loan No. 10017678/Abbotts Village Shopping Center, the
related Mortgage Loan Documents require the delivery of a rent roll annually,
but not quarterly.
C-41
SCHEDULE C-42
Servicing Rights
EXHIBIT A-1 LOANS:
With respect to each of the following Mortgage Loans, a third party is
entitled to a correspondent servicing fee:
Loan No. 10017129/Clovis Country Shopping Center
Loan No. 10018164/Sav-On Lancaster
Loan No. 10018352/Allsize Storage
Loan No. 10018769/Xxxxxx Portfolio B
Loan No. 10019386/596 Xxxxxx
EXHIBIT A-2 LOANS:
With respect to each of the following Mortgage Loans, a third party is
entitled to a correspondent servicing fee:
Loan No. 10017817/Walgreens - Olive Branch
Loan No. 10017494/Kuhlo
Loan No. 10017685/CVS-Raleigh
Loan No. 10017686/CVS-Wilmington
Loan No. 10017860/Park Oaks Village
C-42
SCHEDULE C-43
Recourse
EXHIBIT A-1 LOANS:
With respect to Loan No. 4162633/Sandalwood Apartments, the related
Mortgage Loan Documents provide that the Borrower and an individual guarantor
will be liable in the event of intentional misrepresentation rather than
material misrepresentation.
With respect to Loan No. 10016988/Xxxxxxxx Mall the Borrower is liable
for recourse carve-outs, but there is no guaranty of such obligations by another
entity. The Borrower is liable for losses arising from fraud and intentional (as
opposed to material) misrepresentation. The related loan agreement does not
include misapplication of tenant security deposits as a trigger for personal
liability of the Borrower.
EXHIBIT A-2 LOANS:
With respect to Loan No. 10017390/Best Buy El Paso ($4.4 million
original principal balance), the principals of Borrower liable for the specified
"carve-outs" include both an individual and an entity, but the guaranty by the
individual is only effective if the entity guarantor's net worth falls below $3
million.
With respect to Loan No. 10017678/Abbotts Village Shopping Center
($11.6 million original principal balance), no principal of Borrower or other
individual is liable for the specified "carve-outs".
C-43
Exhibit D-1A
Form of Certificate of the Secretary
or an Assistant Secretary of the Additional Party
KEYBANK NATIONAL ASSOCIATION
ASSISTANT SECRETARY'S CERTIFICATE
I, _______________, hereby certify that I am a duly appointed
Assistant Secretary of KeyBank National Association, a national banking
association (the "Bank"), and further certify as follows:
1. Attached hereto as Attachment A are true, correct and complete
copies of the Articles of Association and the By-Laws of the Bank, which are in
full force and effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of the Bank authorizing and approving the Bank's execution, delivery
and performance of (a) the Mortgage Loan Purchase Agreement, dated as of March
27, 2003 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse First
Boston Mortgage Securities Corp., as purchaser, Column Financial, Inc., as
seller, and the Bank, as additional party, and (b) the corresponding
Indemnification Agreement referred to in the Mortgage Loan Purchase Agreement
(the "Indemnification Agreement"). Such resolutions are in full force and effect
on the date hereof and do not conflict with any other resolutions of the board
of directors of the Bank in effect on the date hereof.
3. Attached hereto as Attachment C is a certificate of good standing
with respect to the Bank issued by the Comptroller of the Currency within 30
days of the date hereof and no event (including, without limitation, any act or
omission on the part of the Bank) has occurred since the date thereof that has
affected the good standing of the Bank under the laws of the United States of
America.
4. Each person who, as an officer or representative of the Bank,
signed the Mortgage Loan Purchase Agreement, the Indemnification Agreement or
any other document or certificate delivered by or on behalf of the Bank prior
hereto or on the date hereof in connection with the transactions contemplated in
the Mortgage Loan Purchase Agreement and/or the Indemnification Agreement, was,
at the respective times of such signing and delivery, and is as of the date
hereof, duly elected or appointed, qualified and acting as such officer or
representative, and the signature of each such person appearing on any such
documents is his or her genuine signature.
D-1A-1
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of April ___, 2003.
By:
-------------------------------
Name:
-----------------------------
Title: Assistant Secretary
D-1A-2
ATTACHMENT A
Articles of Association and By-Laws of the Bank
D-1A-3
ATTACHMENT B
Resolutions of the Bank
D-1A-4
ATTACHMENT C
OCC Certificate of Good Standing
D-1A-5
Exhibit D-1B
Form of Certificate of the Additional Party
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-CK2
CERTIFICATE OF KEYBANK NATIONAL ASSOCIATION
In connection with the execution and delivery by KeyBank National
Association ("KeyBank") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of March
27, 2003 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse First
Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, Column Financial,
Inc., as seller, and KeyBank, as additional party, and that certain
Indemnification Agreement dated as of March 27, 2003 (the "Indemnification
Agreement" and, together with the Mortgage Loan Purchase Agreement, the
"Agreements"), between KeyBank, CSFBMSC, Credit Suisse First Boston LLC and the
other Underwriters, the undersigned hereby certifies that (i) the
representations and warranties of KeyBank in the Agreements are true and correct
in all material respects at and as of the date hereof with the same effect as if
made on the date hereof, and (ii) KeyBank has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part
required under the Mortgage Loan Purchase Agreement to be performed or satisfied
at or prior to the date hereof. Capitalized terms used but not defined herein
shall have the respective meanings assigned to them in the Mortgage Loan
Purchase Agreement.
Certified this ___day of April, 2003.
KEYBANK NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
D-1B-1
Exhibit D-2A
Form of Opinion of In-house Counsel to the Additional Party,
Pursuant to Section 7(vii)
April 11, 2003
To the parties listed on
the attached Schedule I
Re: Credit Suisse First Boston Mortgage Securities Corp. Series
2003-CK2
Ladies and Gentlemen:
As Senior Vice President and Associate General Counsel of KeyBank National
Association, a national banking association (the "Bank"), I have acted as
counsel to the Bank and to its affiliate KeyCorp Real Estate Capital Markets,
Inc., dba KeyBank Real Estate Capital (the "Corporation"), in connection with
the negotiation, execution and delivery by the Bank and the Corporation of the
agreements listed below.
In that regard, I or attorneys working under my direction have examined and
relied upon originals or copies, certified or otherwise identified to my
satisfaction as being true copies of all such records of the Bank and the
Corporation, all such agreements, certificates and other documents as I have
deemed necessary as a basis for the opinions set forth herein, including the
following agreements executed in connection with the above referenced
securities:
1. The Mortgage Loan Purchase Agreement, dated as of March 27, 2003,
among the Bank, as Additional Party, Column Financial, Inc., as
Seller, and Credit Suisse First Boston Mortgage Securities Corp.
("CSFBMS"), as Purchaser;
2. The Pooling and Servicing Agreement, dated as of April 11, 2003, among
CSFBMS, as Depositor, the Corporation, as Master Servicer and as
Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A., as Trustee;
and
3. The Indemnification Agreement, dated as of March 27, 2003, among the
Bank, CSFBMS, Credit Suisse First Boston LLC and the other
underwriters referenced therein.
The agreements listed in items 1 through 3 above are collectively
referenced herein as the "Agreements."
D-2A-1
In such examination, I or such attorneys working under my direction have
assumed the genuineness of all signatures other than those signatures for the
Bank and the Corporation, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as certified or
photostatic copies. I or such attorneys have investigated such questions of law
for the purpose of rendering these opinions as I have deemed necessary.
Based on the foregoing, and subject to the limitations and qualifications
set forth below, I am of the opinion that:
(a) the Bank has been duly organized and is validly existing as a national
banking association in good standing under the laws of the United States of
America, with corporate power and authority to own its properties and to conduct
its business as now conducted by it and to enter into and perform its
obligations under the Agreements it is a party to;
(b) the Corporation has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Ohio;
(c) the Corporation has the corporate power and authority to own its
properties and to conduct its business as now conducted by it and to enter into
and perform its obligations under the Agreements it is a party to;
(d) the Agreements to which it is a party have been duly and validly
authorized, executed and delivered by each of the Bank and the Corporation;
(e) neither the execution and delivery by the Bank of the Agreements it is
a party to, nor the consummation by the Bank of the transactions contemplated by
such Agreements, nor the performance by the Bank of its obligations thereunder
will result in a material breach or violation of, or constitute a material
default under (i) the Articles of Association or by-laws, as amended, of the
Bank, (ii) the terms of applicable current provisions of statutory law or
regulation, (iii) any existing obligation of the Bank under any indenture,
agreement, or instrument actually known to me, after reasonable investigation,
which breach, violation or default would reasonably be expected to have a
material adverse effect on the condition of the Bank, financial or otherwise, or
adversely affect the transactions contemplated by, or the Bank's performance of
its obligations under, the Agreements to which the Bank is a party, or (iv) the
terms of any order, writ, judgment or decree actually known to me after
reasonable investigation, issued by a court of competent jurisdiction and
specifically directed to the Bank or its property;
(f) neither the execution and delivery by the Corporation of the Agreements
it is a party to, nor the consummation by the Corporation of the transactions
contemplated by such Agreements, nor the performance by the Corporation of its
obligations thereunder will result in a material breach or violation of, or
constitute a material default under (i) the Articles of Incorporation or
by-laws, as amended, of the Corporation, (ii) the terms of applicable current
provisions of statutory law or regulation, (iii) any existing obligation of the
Corporation under any indenture, agreement, or instrument actually known to me,
after reasonable investigation, which breach, violation or default would
reasonably be expected to have a material adverse
D-2A-2
effect on the condition of the Corporation, financial or otherwise, or adversely
affect the transactions contemplated by, or the Corporation's performance of its
obligations under, the Agreements to which the Corporation is a party, or (iv)
the terms of any order, writ, judgment or decree actually known to me after
reasonable investigation, issued by a court of competent jurisdiction and
specifically directed to the Corporation or its property;
(g) no consent, approval or authorization of, or filing with, any
governmental agency or body is required of either the Bank or the Corporation in
connection with its execution, delivery and performance of the Agreements to
which it is a party, except such consents, approvals or authorizations as have
been obtained or such filings as have been made; and
(h) to my actual knowledge, after reasonable investigation, there are no
actions, proceedings or investigations pending or threatened against the Bank or
the Corporation before any court, administrative agency, or tribunal (i)
asserting the invalidity of any of the Agreements, (ii) seeking to prevent the
consummation of any of the transactions contemplated by any of the Agreements,
or (iii) that could reasonably be expected to materially and adversely affect
the enforceability of any of the Agreements against the Bank or the Corporation,
as the case may be, or the ability of the Bank or the Corporation, as the case
may be, to perform its obligations thereunder.
For purposes of this opinion letter, I have assumed that (i) the Agreements
have been duly executed and delivered by all parties thereto (other than the
Bank and/or the Corporation, as the case may be) and are valid and binding upon
and enforceable against such parties (other than the Bank and/or the
Corporation, as the case may be), subject to applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and (ii) there has been no mutual mistake of fact or misunderstanding, fraud,
duress, or undue influence.
The opinions expressed above are limited to Federal law and the laws of the
State of Ohio.
This opinion is rendered solely to the addressees hereof, for their use in
connection with the transactions contemplated herein and may not be relied upon
for any other purpose or by any other person.
Very truly yours,
Xxxxxx X. Xxxxx
Senior Vice President and
Associate General Counsel
D-2A-3
Schedule I
List of Addressees
Credit Suisse First Boston
Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
D-2A-4
Exhibit D-2B
Form of Opinion of Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx LLP,
Pursuant to Section 7(viii)
April 11, 2003
Credit Suisse First Boston LLC Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Securities Fitch Inc.
Mortgage Corp. One State Street Plaza, 31st Floor
11 Madison Avenue, 5th Fl. Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, XX 00000
Xxxxxxx, Xxxxx & Co.
McDonald Investments Inc. 00 Xxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx Xxx Xxxx, XX 00000
Xxxxxxxxx, XX 00000
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Re: Mortgage Loan Purchase Agreement between Column Financial, Inc., as Seller,
Credit Suisse First Boston Securities Mortgage Corp., as Purchaser and
KeyBank National Association, as additional party dated as of March 27,
2003 ("MLPA")
and
Pooling and Servicing Agreement among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, KeyCorp Real Estate Capital Markets, Inc.
d/b/a KeyBank Real Estate Capital, as Master Servicer and Special Servicer,
and Xxxxx Fargo Bank Minnesota, N.A., as Trustee dated as of April 11,
2003, Series 2003-CK2 ("PSA" and collectively with the MLPA, the
"Agreements")
Ladies and Gentlemen:
We have acted as special local counsel to KeyBank National Association
("KeyBank"), as additional party in connection with the execution and delivery
of the MLPA.
We have also acted as special local counsel to KeyCorp Real Estate
Capital Markets, Inc. d/b/a KeyBank Real Estate Capital ("KRECM") in connection
with the execution and delivery of the PSA.
D-2B-1
In connection with rendering our opinion, we have reviewed the PSA and
the MLPA and have made such investigations of law as we have deemed necessary or
appropriate to enable us to render this opinion. As to facts material to our
opinion we have, when relevant facts were not independently established, relied
upon the representations of KeyBank and KRECM in the Agreements.
In rendering the opinions expressed herein, we have assumed (i) the
genuineness of all signatures by each party; (ii) the authenticity of all
documents submitted to us as originals; (iii) the conformity to original
documents of all documents submitted to us as conformed or photostatic copies;
(iv) the conformity in all material respects of the final executed form of the
PSA with the version submitted to us in draft form on April 10,2003 and the
final executed form of the MLPA with the version submitted to us in draft form
on April 10, 2003; (v) the due formation and valid existence of the parties to
the Agreements; and (vi) the due authorization, execution and delivery of the
Agreements by the parties thereto, and their power and authority (including the
obtaining of all necessary permits, licenses and approvals) to execute and
perform the Agreements.
Based upon the foregoing assumptions and subject to the qualifications
hereinafter set forth, it is our opinion that, as of the date hereof:
1. The MLPA constitutes the legal, valid and binding contract and
agreement of KeyBank and is enforceable in accordance with its terms.
2. The PSA constitutes the legal, valid and binding contract and
agreement of KRECM and is enforceable against KRECM in accordance with its
terms.
Our opinions concerning the enforceability of the Agreements are
subject to the qualification that:
(a) enforceability may be limited by or subject to (i) state
and/or federal bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws and rules of law affecting the enforcement generally
of creditors' rights and remedies; (ii) an implied duty of good faith; and (iii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable in
whole or in part, although the inclusion of such provisions does not render any
of the Agreements invalid as a whole, and the Agreements contain legally
adequate provisions for enforcing the other obligations of the parties
thereunder and for the practical realization of the principal rights and
benefits purported to be afforded thereby, subject to the economic consequences
of any judicial, administrative, or other procedural delay in connection with
such enforcement and realization.
In connection with servicing by KRECM of mortgages on residential
property located in New York State, we point out that Section 6-k of the New
York Banking Law imposes certain obligations on mortgagees with respect to
casualty insurance escrow accounts, and
D-2B-2
Section 254 of the New York Real Property Law imposes certain restrictions on
the right of the mortgagee to retain casualty insurance proceeds.
We express no opinion as to the applicability to, or effect on, the
transactions contemplated by either of the Agreements, of any federal or state
securities law, or the statutes, rules or regulations of any county,
municipality or political subdivision.
We are qualified to practice law in the State of New York and we do
not purport to be experts on, or to express any opinion herein concerning, any
matter governed by the laws of any jurisdiction other than the laws of the State
of New York, and, subject to the preceding paragraph, the federal law of the
United States. This letter is furnished to you solely for your benefit in
connection with the transactions contemplated by the Agreements. This opinion is
not to be publicly filed, used, circulated, quoted or otherwise relied upon by
any other person or entity or, for any other purpose, without our prior written
consent.
Very truly yours,
D-2B-3
Exhibit D-2C
Form of Letter of Xxxxxxxxxx Xxxxxxx & Xxxxx, P.C.,
Pursuant to Section 7(x)
April 11, 2003
Credit Suisse First Boston LLC Xxxxxxx, Sachs & Co.
00 Xxxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2003-CK2
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association ("Key") in
connection with certain multifamily and commercial mortgage loans originated by
Key and previously sold by Key to Column Financial, Inc. ("Column") and now
being sold by Column to Credit Suisse First Boston Mortgage Securities Corp.
(the "Depositor") pursuant to that certain Mortgage Loan Purchase Agreement
dated as of March 27, 2003 among Column as seller, the Depositor as purchaser,
and Key as an additional party (the "KeyBank Mortgage Loan Purchase Agreement"),
and that certain Mortgage Loan Purchase Agreement dated as of March 27, 2003
between Column as seller and the Depositor as purchaser (together with the
KeyBank Mortgage Loan Purchase Agreement, the "Mortgage Loan Purchase
Agreements"). Capitalized terms not otherwise defined herein are defined as set
forth in the KeyBank Mortgage Loan Purchase Agreement.
Further, in connection with the transactions contemplated by the Mortgage
Loan Purchase Agreements (collectively, the "Transactions") we have acted as
special counsel to Key in the preparation and review of certain sections of the
Prospectus Supplement dated March 27, 2003 (the "Prospectus Supplement") to the
Depositor's Prospectus dated March 27, 2003 (the "Base Prospectus," and together
with the Prospectus Supplement, the "Prospectus") titled "Summary of Prospectus
Supplement--Relevant Parties/Entities," "Summary of Prospectus
Supplement--Significant Dates and Periods," "Summary of Prospectus
Supplement--The Underlying Mortgage Loans," "Risk Factors--Risks Related to the
Underlying Mortgage Loans," "Description of the Underlying Mortgage Loans"
(collectively, the "Prospectus Supplement--Specified Sections"), and further in
connection with the preparation and review of the sections of the Confidential
Offering Circular dated March 27, 2003 (the "Confidential
D-2C-1
Offering Circular") titled "Summary--Relevant Parties," "Summary--Significant
Dates and Periods" and "Summary--The Mortgage Loans" (the "Confidential Offering
Circular--Specified Sections").
The purpose of our professional engagement was to advise with respect to
legal matters and not to determine or verify facts. Many of the determinations
involved in the preparation of the Prospectus and the Confidential Offering
Circular were factual. We have not independently verified, do not make any
representation as to, and do not assume any responsibility for the accuracy,
completeness or fairness of, the statements contained in the Prospectus or the
Confidential Offering Circular.
In connection with the delivery of this letter, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of the
Prospectus, the Confidential Offering Circular, and the KeyBank Mortgage Loan
Purchase Agreement, and other such documents and records as we have deemed
relevant or necessary as the basis for the views expressed in this letter,
solely with respect to the information contained therein relating to the
Mortgage Loans, all of which were originated by Key (the "Key Loans"). We have
obtained such certificates from and made such inquiries of officers and other
representatives of Key as we have deemed relevant or necessary as the basis of
the views expressed in this letter. We have relied upon and assumed the accuracy
of such other documents and records, such certificates and the statements made
in response to such inquiries with respect to the factual matters upon which the
views expressed in this letter are based.
We assume, for purposes of this letter, the conformity of the text of the
Prospectus filed with the Securities and Exchange Commission (the "Commission")
through the Commission's Electronic Data Gathering, Analysis and Retrieval
System to the printed copy of the Prospectus reviewed by us. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Mortgage Loan Purchase
Agreements and underlying the assumptions set forth below or that are otherwise
factually relevant to the opinions expressed in this letter, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures (except for
the signatures of officers of Key) and the authenticity of all documents
submitted to us as originals, (iv) the conformity to the originals of all
documents submitted to us as certified, conformed or photostatic copies, (v) the
due authorization by all necessary action, and the due execution and delivery,
of the Mortgage Loan Purchase Agreements by the parties thereto and the
constitution of the Mortgage Loan Purchase Agreements as the legal, valid and
binding obligations of each party thereto, enforceable against such party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation, and similar laws relating
to or affecting the enforceability of creditors' rights generally, the effect of
general equitable principals (in equity or at law), and the availability of
equitable remedies, (vi) the compliance with the relevant provisions of the
Mortgage Loan Purchase Agreements by the parties thereto, (vii) the conformity
to the requirements of the Mortgage Loan Purchase Agreements of the Mortgage
Loan Documents delivered to Column, the Depositor, or their designees by Key,
(viii) the absence of any agreement that supplements or otherwise modifies the
agreements expressed in the Mortgage Loan Purchase Agreements, and (ix) the
conformity of the text of each document filed with the Securities Exchange
Commission through the XXXXX system to the printed
D-2C-2
documents reviewed by us. In rendering this letter, we do not express any view
concerning the laws of any jurisdiction other than the federal laws of the
United States of America.
In the course of acting as special counsel to Key we have responded from
time to time to inquiries from Key's closing coordinators, reviewed
securitization questionnaires, title insurance commitments and surveys and
prepared most of the loan documents for most of the Key Loans. In connection
with the preparation of the Prospectus Supplement--Specified Sections and the
Confidential Offering Circular--Specified Sections, we met in conferences and
participated in telephone conversations with officers and employees of Key and
counsel, officers and other representatives of Column, the Depositor, Credit
Suisse First Boston LLC, Xxxxxxx, Sachs & Co. and McDonald Investments Inc.,
during which conferences and telephone conversations the contents of the
Prospectus Supplement--Specified Sections and the Confidential Offering
Circular--Specified Sections were discussed. We have not independently
undertaken any procedures that were intended or likely to elicit information
concerning the accuracy, completeness or fairness of the statements made in the
Prospectus or the Confidential Offering Circular.
On the basis of the foregoing and subject to the limitations set forth
herein, nothing has come to our attention to cause us to believe that either the
Prospectus Supplement--Specified Sections or the Confidential Offering
Circular--Specified Sections, as of their respective dates or as of the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that we have not been requested
to make, and we do not make, any comment in this paragraph with respect to (i)
financial statements, financial ratings, tables, schedules, exhibits, annexes or
other accounting, financial, numerical, statistical, or portfolio data or other
information of that nature contained in or omitted from the Prospectus
Supplement--Specified Sections or the Confidential Offering Circular--Specified
Sections, or (ii) information contained in the computer diskette or the CD-ROM
accompanying the Prospectus Supplement which we assume, but have not verified,
does not vary from, and is not different in any way from, the information
contained in the Prospectus Supplement). In that regard, we advise you that, as
to any facts material to the opinions expressed herein that we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of Key and its affiliates.
In addition, we call to your attention that, with your knowledge and consent, we
have not (except as described above) examined or otherwise reviewed any of the
Mortgage Files with respect to the Key Loans in connection with the
Transactions, any particular documents contained in such files (including the
related Mortgage Loan Documents) or any other documents with respect to the Key
Loans.
We note that investors in the certificates marketed and sold pursuant to
the Confidential Offering Circular (the "Private Certificates") typically
conduct due diligence on their own behalf, including review and analysis of the
Key Loans and related information to a greater degree than we have done in the
course of our representation of Key. Consequently, they have been and/or may be
provided information regarding the Key Loans that we have not reviewed, and had
we reviewed such information something may have come to our attention that would
D-2C-3
have lead us to believe that the Confidential Offering Circular at the date
thereof or at the date of this letter contained or contains an untrue statement
of material fact or that otherwise would have been material in connection with
evaluating an investment in the Private Certificates.
Whenever a statement herein is qualified by the phrase "come to our
attention," it is intended to indicate that, during the course of our
representation of Key, no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of those
attorneys currently in this firm who have been actively involved in representing
Key in connection with the Transactions or in connection with the origination of
any of the Key Loans being sold as part of the Transactions. However, we have
not undertaken any independent investigation to determine the accuracy of any
such statement, and any limited inquiry undertaken by us during the preparation
of this letter should not be regarded as such an investigation. No inference as
to our knowledge of any matters bearing on the accuracy of any such statement
should be drawn from the fact of our representation of Key.
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to the parties involved in the
Transactions and their respective counsel as part of the closing set related to
the Transactions) without our prior written approval. We disclaim any obligation
to update this letter for events occurring or coming to our attention after the
date of this letter, notwithstanding that such changes may affect the views or
beliefs expressed herein.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
D-2C-4
SEC LETTER
Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
April 25, 2003
Securities and Exchange Commission
Judiciary Plaza
000 Xxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CK2
Ladies and Gentlemen:
On behalf of Credit Suisse First Boston Mortgage Securities Corp. (the
"Company"), we enclose herewith for filing, pursuant to the Securities and
Exchange Act of 1934, as amended, the Company's Current Report on Form 8-K, for
the Pooling and Servicing Agreement, the First Mortgage Loan Purchase Agreement,
the Second Mortgage Loan Purchase Agreement and the Underwriting Agreement in
connection with the above-referenced transaction.
Very truly yours,
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
Enclosure
