EXHIBIT 4.3
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EXECUTION COPY
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 17, 2002
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TABLE OF CONTENTS
Page
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Section 1. Transactions on or Prior to the Closing Date..........................................1
Section 2. Closing Date Actions..................................................................1
Section 3. Conveyance of Mortgage Loans..........................................................2
Section 4. Depositor's Conditions to Closing.....................................................6
Section 5. Seller's Conditions to Closing........................................................7
Section 6. Representations and Warranties of Seller..............................................8
Section 7. Obligations of Seller................................................................10
Section 8. Crossed Mortgage Loans...............................................................13
Section 9. Rating Agency Fees; Costs and Expenses Associated with a Defeasance..................14
Section 10. Representations and Warranties of Depositor..........................................14
Section 11. Survival of Certain Representations, Warranties and Covenants........................15
Section 12. Transaction Expenses.................................................................15
Section 13. Recording Costs......................................................................15
Section 14. Notices..............................................................................15
Section 15. Examination of Mortgage Files........................................................15
Section 16. Successors...........................................................................15
Section 17. Governing Law........................................................................16
Section 18. Severability.........................................................................16
Section 19. Further Assurances...................................................................16
Section 20. Counterparts.........................................................................16
Section 21. Treatment as Security Agreement......................................................16
Section 22. Recordation of Agreement.............................................................18
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for KeyBank Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage Loans
Exhibit B Form of Lost Mortgage Note Affidavit
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MORTGAGE LOAN PURCHASE AGREEMENT
This
Mortgage Loan Purchase Agreement (this "AGREEMENT"), dated as of
October 17, 2002, is made by and between KEYBANK NATIONAL ASSOCIATION, a
national banking association ("SELLER"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("DEPOSITOR").
RECITALS
I Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as SCHEDULE I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "MORTGAGE LOAN SCHEDULE")
annexed hereto as SCHEDULE II (each such mortgage loan, a "MORTGAGE LOAN" and,
collectively, the "MORTGAGE LOANS"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "TRUST FUND") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. TRANSACTIONS ON OR PRIOR TO THE CLOSING DATE. On or
prior to the Closing Date, Seller shall have delivered the Mortgage Files with
respect to each Mortgage Loan to Xxxxx Fargo Bank Minnesota, N.A. as trustee
(the "TRUSTEE"), against receipt by Seller of a trust receipt, pursuant to an
arrangement between Seller and the Trustee; PROVIDED, HOWEVER, that ITEM (p) in
the definition of Mortgage File (defined below) shall be delivered to the Master
Servicer for inclusion in the Servicer File (defined below) with a copy
delivered to the Trustee for inclusion in the Mortgage File.
Section 2. CLOSING DATE ACTIONS. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "CLOSING") shall take place at the offices
of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other location as agreed upon between the parties hereto. On the Closing
Date, the following actions shall take place in sequential order on the terms
set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the Mortgage
Loan Purchase Price (as defined herein) payable in accordance with
instructions previously provided to Depositor by Seller. The Mortgage Loan
Purchase Price shall be paid by Depositor to Seller by wire transfer in
immediately available funds to an account designated by Seller on or prior
to the Closing Date (or, by such other method as shall be mutually
acceptable to Depositor and Seller). The
"MORTGAGE LOAN PURCHASE PRICE" paid by Depositor shall be equal to
$213,751,734.25 (which amount includes, without limitation, accrued
interest).
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement, Depositor shall sell all of its right, title and interest in and
to the Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters shall purchase from Depositor, the Publicly Offered
Certificates pursuant to the Underwriting Agreement, and Depositor shall
sell to the Initial Purchaser, and the Initial Purchaser shall purchase
from Depositor, the Private Certificates pursuant to the Certificate
Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered
Certificates for sale to the public pursuant to the Prospectus and the
Prospectus Supplement and the Initial Purchaser will privately place
certain classes of the Private Certificates pursuant to the Offering
Circular.
Section 3. CONVEYANCE OF MORTGAGE LOANS. On the Closing Date,
Seller shall sell, convey, assign and transfer, without recourse except as
provided herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule; and (ii)
all property of Seller described in SECTION 21(b) this Agreement, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or yield maintenance charges received on or with
respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal or yield maintenance charges that were due on
or prior to the Cut-off Date. The Mortgage File for each Mortgage Loan shall
consist of the following documents:
(a) the original Note (or with respect to those Mortgage Loans
listed in SCHEDULE IV hereto, a "lost note affidavit" substantially in the form
of EXHIBIT B hereto and a true and complete copy of the Note), bearing, or
accompanied by, all prior and intervening endorsements or assignments showing a
complete chain of endorsement or assignment from the Mortgage Loan Originator
either in blank or to the Seller, and further endorsed by the Seller, on its
face or by allonge attached thereto, without recourse, to the order of the
Trustee in the following form: "Pay to the order of Xxxxx Fargo Bank Minnesota,
N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CKS4, without recourse, representation or warranty, express or implied;"
(b) a duplicate original Mortgage or a counterpart thereof or,
if such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to the Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(c) an original assignment of Mortgage, in recordable form, from
the Seller (or the Mortgage Loan Originator), either in blank or to "Xxxxx Fargo
Bank Minnesota, N.A., as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-CKS4;"
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(d) an original, counterpart or copy of any related Assignment
of Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof from
the Mortgage Loan Originator of the Loan to the Seller, in each case in the form
submitted for recording or, if recorded, with evidence of recording thereon;
(e) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in recordable form,
from the Seller (or the Mortgage Loan Originator), either in blank or to "Xxxxx
Fargo Bank Minnesota, N.A., as trustee for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-CKS4;"
(f) an original or true and complete copy of any related
Security Agreement (if such item is a document separate from the Mortgage), and
the originals or copies of any intervening assignments thereof from the Mortgage
Loan Originator to the Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from the Seller (or the
Mortgage Loan Originator), either in blank or to "Xxxxx Fargo Bank Minnesota,
N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CKS4," which assignment may be included as part of an omnibus assignment
covering other documents relating to the Mortgage Loan (PROVIDED that such
omnibus assignment is effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution agreements,
together with any evidence of recording thereon or in the form submitted for
recording, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy
thereof (together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has not yet been
issued, a binding written commitment (which may be a pro forma or specimen title
insurance policy which has been accepted or approved in writing by the related
title insurance company) or interim binder that is marked as binding and
countersigned by the title company, insuring the priority of the Mortgage as a
first lien on the related Mortgaged Property, relating to such Mortgage Loan;
(j) the original or a counterpart of any guaranty of the
obligations of the Borrower under the Mortgage Loan;
(k) certified or other copies of all UCC Financing Statements
and continuation statements which show the filing or recording thereof or copies
thereof in the form submitted for filing or recording sufficient to perfect (and
maintain the perfection of) the security interest held by the Mortgage Loan
Originator (and each assignee prior to the Trustee) in and to the personality of
the Borrower at the Mortgaged Property, and original UCC Financing Statement
assignments in a form suitable for filing or recording, sufficient to transfer
such security interest to the Trustee;
(l) the original or copy of the power of attorney (with evidence
of recording thereon) granted by the Borrower if the Mortgage, Note or other
document or instrument referred to above was not signed by the Borrower;
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(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor agreement relating to such other
debt, if any, including any mezzanine loan documents or preferred equity
documents;
(n) if any related Lock-Box Agreement or Cash Collateral
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a copy of
the UCC Financing Statements, if any, submitted for filing with respect to the
Seller's security interest in the Cash Collateral Accounts and Lock-Box Accounts
and all funds contained therein (and UCC Financing Statement assignments in a
form suitable for filing or recording, sufficient to transfer such security
interest to the Trustee on behalf of the Certificateholders);
(o) an original or counterpart of the Loan Agreement (if
separate from the Mortgage);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loans, and amendments thereto which entitles the Trust to draw thereon;
(q) any related environmental insurance policies and any
environmental guaranty or indemnity agreements or copies thereof; and
(r) the original ground lease, if any, and any amendments,
modifications or extensions thereto, and any ground lease estoppel, or a copy of
any of the foregoing.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the documents
and/or instruments required to be delivered pursuant to CLAUSES (b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (l) and (n)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with evidence
of recording or filing thereon on the Closing Date, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, the Seller: (i) shall
deliver, or cause to be delivered, to the Trustee a duplicate original or true
copy of such document certified by the applicable public recording or filing
office, the applicable title insurance company or the Seller to be a true and
complete duplicate original or copy of the original thereof submitted for
recording or filing and shall deliver, or cause to be delivered, to the Trustee
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate public recording or filing office to be a
true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, within 120 days of the
Closing Date, which period may be extended up to two times, in each case for an
additional period of 45 days (PROVIDED that the Seller, as certified in writing
to the Trustee prior to each such 45-day extension, is in good faith attempting
to obtain from the appropriate county recorder's office such original or
photocopy). Compliance with this paragraph will satisfy the Seller's delivery
requirements under this SECTION 3 with respect to the subject document(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the documents
and/or instruments required to be delivered pursuant to CLAUSES (b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be recorded or filed
other than in accordance with the transfer contemplated by this Agreement), (l)
and (n) (other than assignments of UCC Financing Statements to be recorded or
filed in accordance with the transfer contemplated by this
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Agreement) above with evidence of recording or filing thereon, for any other
reason, including without limitation, that such non-delivered document has been
lost, the delivery requirements of this Agreement shall be deemed to have been
satisfied and such non-delivered document shall be deemed to have been included
in the related Mortgage File if a photocopy of such non-delivered document (with
evidence of recording or filing thereon and certified by the appropriate
recording or filing office to be a true and complete copy of the original
thereof as filed or recorded) is delivered to the Trustee on or before the
Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver any UCC Financing Statement assignment with the filing information of
the UCC Financing Statement with respect to any Mortgage Loan, solely because
such UCC Financing Statement has not been returned by the public filing office
where such UCC Financing Statement has been delivered for filing, the Seller
shall so notify the Trustee and shall not be in breach of its obligations with
respect to such delivery, PROVIDED that the Seller promptly forwards such UCC
Financing Statement to the Trustee upon its return, together with the related
original UCC Financing Statement assignment in a form appropriate for filing.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, engage a third party contractor to prepare or complete in proper form
for filing or recording any and all assignments of Mortgage, assignments of
Assignments of Leases and assignments of UCC Financing Statements to the Trustee
to be delivered pursuant to CLAUSES (c), (e), (k) and (n) above (collectively,
the "ASSIGNMENTS"), to submit the Assignments for filing and recording, as the
case may be, in the applicable public filing and recording offices and to
deliver those assignments to the Trustee or its designee as those assignments
(or certified copies thereof) are received from the applicable filing and
recording offices with evidence of such filing or recording indicated thereon;
PROVIDED, HOWEVER, that in the event the Seller engages a third party contractor
as contemplated in the immediately preceding sentence, the rights, duties and
obligations of the Seller pursuant to this Agreement remain binding on such
Seller.
Within ten (10) Business Days after the Closing Date, the Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
Master Servicer under the Pooling and Servicing Agreement on behalf of the
Trustee in trust for the benefit of the Certificateholders. Each such Servicer
File shall contain all documents and records in the Seller's possession relating
to such applicable Mortgage Loans (including reserve and escrow agreements,
financial statements and any other information provided by the respective
Borrower from time to time, but excluding documents prepared by the Seller or
any of its Affiliates solely for internal communication) that are not required
to be a part of a Mortgage File in accordance with the definition thereof,
together with copies of all instruments and documents which are required to be a
part of the related Mortgage File in accordance with the definition thereof.
For purposes of this SECTION 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File", if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
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The Seller shall, promptly after the Closing Date, but in all events
within three Business Days after the Closing Date, cause all funds on deposit in
escrow accounts maintained with respect to the Mortgage Loans in the name of the
Seller or any other name, to be transferred to the Master Servicer (or a
Sub-Servicer at the direction of the Master Servicer) for deposit into Servicing
Accounts.
The Trustee, as assignee or transferee of Depositor, shall be entitled
to all scheduled principal payments due after the Cut-off Date, all other
payments of principal due and collected after the Cut-off Date, and all payments
of interest on the Mortgage Loans, minus that portion of any such payment which
is allocable to the period on or prior to the Cut-off Date. All scheduled
payments of principal due on or before the Cut-off Date and collected after the
Cut-off Date, together with the accompanying interest payments, shall belong to
Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor pursuant
hereto, the ownership of each Mortgage Note, the Mortgage and the contents of
the related Mortgage File shall be vested in Depositor and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of Seller as seller of the Mortgage Loans
hereunder, exclusive in each case of documents prepared by Seller or any of its
affiliates solely for internal uses, shall immediately vest in Depositor. All
Monthly Payments, Principal Prepayments and other amounts received by Seller and
not otherwise belonging to Seller pursuant to this Agreement shall be sent by
Seller within three (3) Business Days after Seller's receipt thereof to the
Master Servicer via wire transfer for deposit by the Master Servicer into the
Collection Account.
Seller shall, under generally accepted accounting principles ("GAAP"),
report its transfer of the Mortgage Loans to the Depositor, as provided herein,
as a sale of the Mortgage Loans to the Depositor in exchange for the
consideration specified in SECTION 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Regardless of its treatment
of the transfer of the Mortgage Loans to the Depositor under GAAP, Seller shall
at all times following the Closing Date cause all of its records and financial
statements and any relevant consolidated financial statements of any direct or
indirect parent to clearly reflect that the Mortgage Loans have been transferred
to the Depositor and are no longer available to satisfy claims of Seller's
creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of the Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. DEPOSITOR'S CONDITIONS TO CLOSING. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of the Seller required to be
performed by it on or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with in all material
respects; all of the representations and warranties of Seller under this
Agreement shall be true and correct in all material respects as of the Closing
Date; and no event shall have occurred with respect to the Seller or any of the
Mortgage Loans and related Mortgage Files which, with notice or
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the passage of time, would constitute a material default under this
Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or the
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Depositor and the Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the proviso to the first
sentence of SECTION 1 of this Agreement, which shall have been delivered to
and held by the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of the Seller confirming its representations
and warranties set forth in SECTION 6 as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing Date, covering various corporate matters and such other matters as
shall be reasonably required by the Depositor;
(v) such other certificates of Seller's officers or others and
such other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters
with respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by the Depositor in order for the Depositor to perform
any of it obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to any sale of Mortgage Loans by the
Depositor as contemplated herein.
(c) The Seller shall have performed or complied with all other
terms and conditions of this Agreement which it is required to perform or comply
with at or before the Closing and shall have the ability to perform or comply
with all duties, obligations, provisions and terms which it is required to
perform or comply with after the Closing.
(d) The Seller shall have delivered to the Trustee, on or before
the Closing Date, five limited powers of attorney in favor of the Trustee and
Special Servicer empowering the Trustee and, in the event of the failure or
incapacity of the Trustee, the Special Servicer, to record, at the expense of
the Seller, any Mortgage Loan Documents required to be recorded and any
intervening assignments with evidence of recording thereon that are required to
be included in the Mortgage Files. The Seller shall reasonably cooperate with
the Trustee and the Special Servicer in connection with any additional powers of
attorney or revisions thereto that are requested by such parties.
Section 5. SELLER'S CONDITIONS TO CLOSING. The obligations of
Seller under this Agreement shall be subject to the satisfaction, on the Closing
Date, of the following conditions:
(a) Each of the obligations of Depositor required to be
performed by it on or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with in all material
respects; and all of the representations and warranties of Depositor under this
Agreement shall be true and correct in all material respects as of the Closing
Date; and no event shall
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have occurred with respect to Depositor which, with notice or the passage of
time, would constitute a material default under this Agreement, and Seller shall
have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date of
Depositor; and
(B) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) The Depositor shall have performed or complied with all
other terms and conditions of this Agreement which it is required to perform or
comply with at or before the Closing and shall have the ability to perform or
comply with all duties, obligations, provisions and terms which it is required
to perform or comply with after Closing.
Section 6. REPRESENTATIONS AND WARRANTIES OF SELLER.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States. Seller has conducted and is conducting its business so as to comply
in all material respects with all applicable statutes and regulations of
regulatory bodies or agencies having jurisdiction over it, except where the
failure so to comply would not have a materially adverse effect on the
performance by Seller of this Agreement, and there is no charge,
investigation, action, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to materially
and adversely affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to
hold, transfer and convey the Mortgage Loans owned by it and to execute and
deliver this Agreement (and all agreements and documents executed and
delivered by Seller in connection herewith) and to perform all transactions
of Seller contemplated by this Agreement (and all agreements and documents
executed and delivered by Seller in connection herewith). Seller has duly
authorized the execution, delivery and performance of this Agreement (and
all agreements and documents executed and delivered by Seller in connection
herewith), and has duly executed and delivered this Agreement (and all
agreements and documents executed and delivered by Seller in connection
herewith). This Agreement (and each agreement and document executed and
delivered by Seller in connection herewith), assuming due authorization,
execution and delivery thereof by each other party thereto, constitutes the
legal, valid and binding obligation of Seller enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
fraudulent transfer, insolvency, reorganization, receivership, moratorium
or other laws relating to or affecting the rights of creditors generally,
by general principles of equity
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(regardless of whether such enforcement is considered in a proceeding in
equity or at law) and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result in
a breach of any of the terms, conditions or provisions of Seller's
organizational documents; (B) conflict with, result in a breach of, or
constitute a default or result in an acceleration under, any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document executed
and delivered by Seller in connection herewith); (C) conflict with or
result in a breach of any legal restriction if compliance therewith is
necessary (1) to ensure the enforceability of this Agreement or (2) for
Seller to perform its duties and obligations under this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith); (D) result in the violation of any law, rule, regulation, order,
judgment or decree to which Seller or its property is subject if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller in
connection herewith); or (E) result in the creation or imposition of any
lien, charge or encumbrance that would have a material adverse effect upon
Seller's ability to perform its duties and obligations under this Agreement
(or any agreement or document executed and delivered by Seller in
connection herewith), or materially impair the ability of the Depositor to
realize on the Mortgage Loans owned by Seller.
(iv) Seller is solvent and the sale of Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations of
Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of the
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to, any court or governmental agency
or body having jurisdiction or regulatory authority over Seller is required
for (A) Seller's execution, delivery and performance of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller in
connection herewith) or, to the extent so required, such consent, approval,
authorization, order, registration, filing or notice has been obtained,
made or given (as applicable), except that Seller may not be duly qualified
to transact business as a foreign corporation or licensed in one or more
states if such qualification or licensing is not necessary to ensure the
enforceability of this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
9
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans owned by it constitutes at least fair consideration and
reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits proceedings pending or to
Seller's knowledge threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform its
duties and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under
this Agreement (and each agreement or document executed and delivered by
Seller in connection herewith) is in the ordinary course of business of
Seller and Seller's transfer, assignment and conveyance of the Mortgage
Loans pursuant to this Agreement are not subject to the bulk transfer or
similar statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled,
by reason of any act or omission of Seller, to any commission or
compensation in connection with the sale of the Mortgage Loans to the
Depositor hereunder except for (A) the reimbursement of expenses as
described herein or otherwise in connection with the transactions described
in SECTION 2 hereof and (B) the commissions or compensation owed to the
Underwriters or the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and adversely
affect the ability of Seller to perform its obligations under this
Agreement.
(xii) The representations and warranties contained in EXHIBIT A,
subject to the exceptions to such representations and warranties set forth
on SCHEDULE V hereto, are true and correct in all material respects as of
the date hereof with respect to the Mortgage Loans identified on SCHEDULE
II.
(b) The Seller hereby agrees that it shall be deemed to make, as
of the date of substitution, to and for the benefit of the holder of the
Mortgage Loan to be replaced, with respect to any replacement mortgage loan (a
"REPLACEMENT MORTGAGE LOAN") that is substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach, pursuant to SECTION 7 of this Agreement,
each of the representations and warranties set forth in EXHIBIT A (references
therein to "Closing Date" being deemed to be references to the "date of
substitution" and references therein to "Cut-off Date" being deemed to be
references to the "most recent due date for the subject Replacement Mortgage
Loan on or before the date of substitution"). From and after the date of
substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a "Mortgage Loan" hereunder for all purposes.
Section 7. OBLIGATIONS OF SELLER. Each of the representations and
warranties contained in or required to be made by Seller pursuant to SECTION 6
of this Agreement shall survive the
10
sale of the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Notes and
notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement. The representations and warranties contained in or required
to be made by Seller pursuant to SECTION 6 of this Agreement shall not be
impaired by any review or examination of the Mortgage Files or other documents
evidencing or relating to the Mortgage Loans or any failure on the part of
Depositor to review or examine such documents and shall inure to the benefit of
the initial transferee of the Mortgage Loans from Depositor including, without
limitation, the Trustee for the benefit of the Holders of the Certificates,
notwithstanding (1) any restrictive or qualified endorsement on any Note,
assignment of Mortgage or reassignment of Assignment of Leases or (2) any
termination of this Agreement prior to the Closing but shall not inure to the
benefit of any subsequent transferee thereafter.
If any Certificateholder, the Master Servicer, the Special Servicer or
the Trustee discovers or receives notice: of a breach of any of the
representations or warranties made by the Seller with respect to the Mortgage
Loans listed on SCHEDULE II hereto, as of the date hereof in SECTION 6(a)(xii)
or as of the Closing Date pursuant to SECTION 4(b)(iii), or with respect to any
Replacement Mortgage Loan, as of the date of substitution pursuant to SECTION
6(b) (in any such case, a "BREACH"); or that (A) any document required to be
included in the Mortgage File related to any Mortgage Loan is not in the
Trustee's possession within the time period required herein or (B) such document
has not been properly executed or is otherwise defective on its face (the
circumstances in the foregoing CLAUSES (A) and (B), in each case, a "Defect"
(including the "DEFECTS" described below) in the related Mortgage File), such
party shall give notice to the Master Servicer, the Special Servicer, the
Trustee and the Rating Agencies. If the Master Servicer or the Special Servicer
determines that such Breach or Defect materially and adversely affects the value
of any Mortgage Loan or the interests of the Certificateholders therein (any
such Breach or Defect, a "MATERIAL BREACH" and a "MATERIAL DEFECT",
respectively), it shall give prompt written notice of such Breach or Defect to
the Depositor, the Trustee, the Master Servicer, the Special Servicer and the
Seller and shall request that the Seller not later than the earlier of 90 days
from the receipt by the Seller of such notice or discovery by the Seller of such
Breach or Defect (subject to the second succeeding paragraph, the "INITIAL
RESOLUTION PERIOD"), (i) cure such Breach or Defect in all material respects;
(ii) repurchase the affected Mortgage Loan at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement); or (iii) substitute, in
accordance with the Pooling and Servicing Agreement, one or more Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)
for such affected Mortgage Loan (PROVIDED that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the Master Servicer for deposit into the Collection Account any Substitution
Shortfall Amount (as defined in the Pooling and Servicing Agreement) in
connection therewith; PROVIDED, HOWEVER, that if (i) such Material Breach or
Material Defect is capable of being cured but not within the Initial Resolution
Period, (ii) such Material Breach or Material Defect does not cause the related
Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the Code), (iii) the Seller has commenced and is diligently
proceeding with the cure of such Material Breach or Material Defect within the
Initial Resolution Period and (iv) the Seller has delivered to the Rating
Agencies, the Master Servicer and the Trustee an Officer's Certificate that
describes the reasons that the cure was not effected within the Initial
Resolution Period and the actions that it proposes to take to effect the cure
and that states that it anticipates the cure will be effected within the
additional 90-day period, then the Seller shall have an additional 90 days to
cure such material Defect or material Breach. With respect to any substitution
of one or more Qualified Substitute Mortgage Loans for a Mortgage Loan
hereunder, (A) no such substitution may be made in any calendar month after the
Determination Date for such month; (B) scheduled payments of principal and
interest due with respect to the Qualified Substitute Mortgage Loan(s) after the
related date of substitution shall be part of the Trust Fund; and (C) scheduled
payments of principal and interest due with respect to such
11
Qualified Substitute Mortgage Loan(s) on or prior to the related date of
substitution shall not be part of the Trust Fund, and the Seller shall be
entitled to receive such payments promptly following receipt by the Master
Servicer or Special Servicer, as applicable, under the Pooling and Servicing
Agreement.
Any of the following will cause a document in the Mortgage File to be
deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in and the value of a
Mortgage Loan: (a) the absence from the Mortgage File of the original signed
Note, unless the Mortgage File contains a signed lost note affidavit and
indemnity; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a certified copy of the
Mortgage as recorded or as sent for recordation, together with a certificate
stating that the original signed Mortgage was sent for recordation, or a copy of
the Mortgage and the related recording information; (c) the absence from the
Mortgage File of the item called for by CLAUSE (i) of the definition of Mortgage
File in SECTION 3; (d) the absence from the Mortgage File of any intervening
assignments required to create an effective assignment to the Trustee on behalf
of the Trust, unless there is included in the Mortgage File a certified copy of
the intervening assignment and a certificate stating that the original
intervening assignments were sent for recordation; or (e) the absence from the
Servicer File of any required original letter of credit (as required in the
proviso to SECTION 1 hereof), PROVIDED that such Defect may be cured by any
substitute letter of credit or cash reserve on behalf of the related Borrower;
or (f) the absence from the Mortgage File of the original or a copy of any
required ground lease.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed to materially and adversely affect the interest of
Certificateholders therein and the Initial Resolution Period for the affected
Mortgage Loan shall be 90 days following the earlier of the discovery of such
Defect or Breach by any party to the Pooling and Servicing Agreement (so long as
Seller received prompt notice thereof pursuant to this SECTION 7) or Seller's
discovery of such Defect or Breach (which period shall not be subject to
extension).
If the Seller does not, as required by this SECTION 7, correct or cure
a Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this SECTION 7),
or if such Breach or Defect is not capable of being so corrected or cured with
such period, then the Seller shall purchase or substitute for the affected
Mortgage Loan as provided in this SECTION 7. If (i) any Mortgage Loan is
required to be repurchased or substituted for as provided above, (ii) such
Mortgage Loan is a Crossed Mortgage Loan that is a part of a Mortgage Group (as
defined below) and (iii) the applicable Breach or Defect does not constitute a
Breach or Defect, as the case may be, as to any other Crossed Mortgage Loan in
such Mortgage Group (without regard to this paragraph), then the applicable
Breach or Defect, as the case may be, will be deemed to constitute a Breach or
Defect, as the case may be, as to any other Crossed Mortgage Loan in the
Mortgage Group for purposes of the above provisions, and the Seller will be
required to repurchase or substitute for such other Crossed Mortgage Loan(s) in
the related Mortgage Group in accordance with the provisions of this SECTION 7
unless the Crossed Mortgage Loan Repurchase Criteria would be satisfied if
Seller were to repurchase or substitute for only the affected Crossed Mortgage
Loans as to which a Material Breach or Material Defect had occurred without
regard to this paragraph, and in the case of either such repurchase or
substitution, all of the other requirements set forth in the Pooling and
Servicing Agreement applicable to a repurchase or substitution, as the case may
be, would be so satisfied. In the event that the Crossed Mortgage Loan
Repurchase Criteria would be so satisfied, the Mortgage Loan Seller may elect
either to repurchase or substitute for only the affected Crossed Mortgage Loan
as to which the Material Defect or Material Breach exists or to repurchase or
substitute for the aggregated Crossed Mortgage Loans. The
12
determination of the Special Servicer as to whether the Crossed Mortgage Loan
Repurchase Criteria have been satisfied shall be conclusive and binding in the
absence of manifest error. In the event that one or more of such other Crossed
Mortgage Loans satisfy the Crossed Loan Repurchase Criteria, the Seller may
elect either to repurchase or substitute for only the affected Crossed Mortgage
Loan as to which the related Breach or Defect exists or to repurchase or
substitute for all of the Crossed Mortgage Loans in the related Mortgage Group.
The Seller shall be responsible for the cost of (and, if so directed by the
Special Servicer, obtaining) any Appraisal required for the Special Servicer to
determine if the Crossed Loan Repurchase Criteria have been satisfied, so long
as the scope and cost of such Appraisal has been approved by the Seller (such
approval not to be unreasonably withheld). For purposes of this paragraph, a
"MORTGAGE GROUP" is any group of Mortgage Loans identified as a Mortgage Group
on SCHEDULE III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, the Seller will not
be obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan Documents and the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
Documents and (i) the Seller provides an opinion of counsel to the effect that
such partial release would not cause an Adverse REMIC Event (as defined in the
Pooling and Servicing Agreement) to occur, (ii) such Seller pays (or causes to
be paid) the applicable release price required under the Mortgage Loan Documents
and, to the extent not reimbursable out of the release price pursuant to the
related Mortgage Loan Documents, any additional amounts necessary to cover all
reasonable out-of-pocket expenses reasonably incurred by the Master Servicer,
the Special Servicer, the Trustee or the Trust Fund in connection therewith,
including any unreimbursed advances and interest thereon made with respect to
the Mortgaged Property that is being released, and (iii) such cure by release of
such Mortgaged Property is effected within the time periods specified for cure
of a Material Breach or Material Defect in this SECTION 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to the Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by the Depositor or the Trustee, as the case may be, and the
Depositor or the Trustee, as the case may be, upon receipt of such funds (and,
in the case of a substitution, the Mortgage File(s) for the related Qualified
Substitute Mortgage Loans), shall promptly release the related Mortgage File and
Servicer File or cause them to be released, to Seller and shall execute and
deliver such instruments of transfer or assignment as shall be necessary to vest
in the Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any insurance
policy with respect thereto) and the related Mortgage Loan Documents.
It is understood and agreed that the obligations of the Seller set
forth in this SECTION 7 to cure, substitute for or repurchase a Mortgage Loan
listed on SCHEDULE II hereto constitute the sole remedies available to the
Depositor and its successors and assigns against Seller respecting any Breach or
Defect affecting such Mortgage Loan.
Section 8. CROSSED MORTGAGE LOANS. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that the Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, the
Seller and the Depositor (on behalf of its successors and assigns) agree to
modify upon such repurchase or substitution, the related Mortgage Loan Documents
in a manner such that such
13
affected Crossed Mortgage Loan repurchased or substituted by the Seller, on the
one hand, and any related Crossed Mortgage Loans still held by the Trustee, on
the other, would no longer be cross-defaulted or cross-collateralized with one
another; PROVIDED, that the Seller shall have furnished to the Trustee, at its
expense, with an opinion of counsel that such modification shall not cause an
Adverse REMIC Event; PROVIDED, FURTHER, that if such opinion cannot be
furnished, the Seller and the Depositor hereby agree that such repurchase or
substitution of only the affected Crossed Mortgage Loans, notwithstanding
anything to the contrary herein, shall not be permitted. Any reserve or other
cash collateral or letters of credit securing the affected Crossed Mortgage
Loans shall be allocated between such Mortgage Loans in accordance with the
Mortgage Loan Documents. All other terms of the Mortgage Loans shall remain in
full force and effect, without any modification thereof.
Section 9. RATING AGENCY FEES; COSTS AND EXPENSES ASSOCIATED WITH
A DEFEASANCE. The Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date.
The Seller shall pay all reasonable costs and expenses associated with a
defeasance of a Mortgage Loan to the extent such costs and expenses have not
been paid by the related Borrower and such Borrower is not required to pay them
under the terms of the related Mortgage Loan Documents in effect on or before
the Closing Date.
Section 10. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement
and the performance of Depositor's obligations hereunder are within the
corporate power of Depositor and have been duly authorized by Depositor and
neither the execution and delivery by Depositor of this Agreement nor the
compliance by Depositor with the provisions hereof, nor the consummation by
Depositor of the transactions contemplated by this Agreement, will (i) conflict
with or result in a breach of, or constitute a default under, the certificate of
incorporation or by-laws of Depositor or, after giving effect to the consents or
taking of the actions contemplated by CLAUSE (ii) of this PARAGRAPH (b), any of
the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on Depositor or its properties, or any of the provisions of any
material indenture or mortgage or any other material contract or other
instrument to which Depositor is a party or by which it is bound or result in
the creation or imposition of any lien, charge or encumbrance upon any of its
properties pursuant to the terms of any such indenture, mortgage, contract or
other instrument or (ii) require the consent of, notice to or any filing with
any person, entity or governmental body, which has not been obtained or made by
Depositor, except where, in any of the instances contemplated by CLAUSE (i)
above or this CLAUSE (ii), the failure to do so will not have a material and
adverse effect on the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in
14
accordance with its terms, subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally and to general principles of equity
and the discretion of the court (regardless of whether enforcement of such
remedies is considered in a proceeding in equity or at law) and, as to rights of
indemnification hereunder, subject to limitations of public policy under
applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit
or proceeding by or before any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Depositor, threatened against
Depositor the outcome of which could be reasonably expected to materially and
adversely affect the consummation of any transactions contemplated by this
Agreement.
Section 11. SURVIVAL OF CERTAIN REPRESENTATIONS, WARRANTIES AND
COVENANTS. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under SECTIONS 7 and 9 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. TRANSACTION EXPENSES. Whether or not this Agreement is
terminated, both the Purchaser and the Seller agree to pay the transaction
expenses incurred in connection with the transactions herein contemplated as set
forth in the Closing Statement.
Section 13. RECORDING COSTS. Seller agrees to reimburse the Trustee
or its designee all recording and filing fees incurred by the Trustee or its
designee in connection with the recording or filing of the Mortgage Loan
Documents listed in SECTION 3 of this Agreement. In the event Seller elects to
engage a third party contractor to prepare, complete, file and record
Assignments with respect to Mortgage Loans as provided in SECTION 3, Seller
shall contract directly with such contractor and shall be responsible for such
contractor's compensation and reimbursement of recording and filing fees and
other reimbursable expenses pursuant to their agreement.
Section 14. NOTICES. All communications hereunder will be in
writing and effective only upon receipt, and, (a) if sent to Depositor, will be
mailed, delivered or telecopied and confirmed to it at 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, Telecopy
No._________, and (b) if sent to the Seller will be mailed, delivered or
telecopied and confirmed to it at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx,
Xxxxxxxx 00000, Attention: X.X. Xxxxx (with a copy to 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxx), Telecopy No._________, or in
the case of either such party, to it at such other address or telecopy number as
such party may hereafter furnish to the other party by like notice.
Section 15. EXAMINATION OF MORTGAGE FILES. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 16. SUCCESSORS. This Agreement shall inure to the benefit
of and shall be binding upon Seller and Depositor and their respective
successors, permitted assigns and legal representatives, and nothing expressed
in this Agreement is intended or shall be construed to give any
15
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person; it
being understood that (a) the indemnities of Seller contained in that certain
Mortgage Loan Seller Indemnification Agreement dated October 17, 2002 among
Seller, Depositor, Credit Suisse First Boston Corporation (on behalf of itself
and the other Underwriters) and the Initial Purchaser, subject to all
limitations therein contained, shall also be for the benefit of the officers and
directors of Depositor, the Underwriters and the Initial Purchaser and any
person or persons who control Depositor, the Underwriters and the Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section 20
of the 1934 Act, and (b) the rights of Depositor pursuant to this Agreement,
subject to all limitations herein contained, including those set forth in
SECTION 7 of this Agreement, may be assigned to the Trustee, for benefit of the
Certificateholders, as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to such
rights of Depositor hereunder, PROVIDED that the Trustee shall have no right to
further assign such rights to any other Person. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor
because of such ownership.
Section 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE SELLER AND THE DEPOSITOR EACH HEREBY IRREVOCABLY (I) SUBMITS
TO THE JURISDICTION OF ANY
NEW YORK STATE AND FEDERAL COURTS SITTING IN
NEW YORK
CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH
NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
Section 18. SEVERABILITY. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. FURTHER ASSURANCES. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other parties
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. COUNTERPARTS. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. TREATMENT AS SECURITY AGREEMENT. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the
16
intent of the parties, the Mortgage Loans are held to be property of Seller or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement
within the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(b) the conveyance provided for in this Agreement shall hereby
grant from Seller to Depositor a security interest in and to all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and other insurance policies, identified
on the Mortgage Loan Schedule or that constitute Replacement Mortgage
Loans, and all distributions with respect thereto payable after the Cut-off
Date;
(ii) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral described
in CLAUSES (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law.
The Seller at the direction of the Depositor or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the proceeds thereof, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction and may execute and file such UCC Financing
Statements as may be necessary or appropriate to accomplish the foregoing.
17
Section 22. RECORDATION OF AGREEMENT. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an opinion of
counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
18
IN WITNESS WHEREOF, the parties hereto have caused this
Mortgage Loan
Purchase Agreement to be duly executed and delivered as the date first above
written.
KEYBANK NATIONAL ASSOCIATION,
as Seller
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Official
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the
Mortgage Loan Purchase Agreement (the "AGREEMENT"), dated
as of October 17, 2002, between KeyBank National Association (the "SELLER")
and Credit Suisse First Boston Mortgage Securities Corp. (the "DEPOSITOR").
Capitalized terms used herein without definition have the meanings given them
in or by reference in the Agreement or, if not defined in the Agreement, in
the Pooling and Servicing Agreement.
"AFFILIATE" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"BORROWER" means the borrower under a Mortgage Loan.
"CERTIFICATE PURCHASE AGREEMENT" means the Certificate Purchase
Agreement, dated October 17, 2002, between Depositor and the Initial Purchaser.
"CERTIFICATES" means the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2002-CKS4, issued in multiple classes.
"CLOSING DATE" means October 29, 2002.
"CLOSING STATEMENT" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CROSSED MORTGAGE LOAN" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"CUT-OFF DATE" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in October 2002.
"ENVIRONMENTAL REPORT" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"EXCEPTION REPORT" means exceptions with respect to the
representations and warranties made by the Seller as to the Mortgage Loans in
SECTION 6(a)(xii) and under the written certificate described in SECTION
4(b)(iii) of the Agreement, which exceptions are set forth in SCHEDULE V
attached hereto and made a part hereof.
"INITIAL PURCHASER" means Credit Suisse First Boston Corporation.
"LOAN AGREEMENT" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
I-1
"MORTGAGE FILE" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to SECTION 3 (subject to the proviso in SECTION 1 of the
Agreement).
"MORTGAGE LOAN DOCUMENTS" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"MORTGAGE LOAN ORIGINATOR" means any institution which originated a
Mortgage Loan for a related Borrower.
"MORTGAGE LOAN PURCHASE PRICE" means the amount described in SECTION 2
of the Agreement.
"OFFERING CIRCULAR" means the confidential offering circular dated
October 22, 2002, describing certain classes of the Private Certificates.
"POOLING AND SERVICING AGREEMENT" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of October
11, 2002, among the Master Servicer, the Special Servicer, the Depositor and the
Trustee, including, without limitation, the exhibits and schedules annexed
thereto.
"PRIMARY COLLATERAL" means with respect to any Crossed Mortgage Loan,
that portion of the Mortgaged Property designated as directly securing such
Crossed Mortgage Loan and excluding any Mortgaged Property as to which the
related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Crossed Mortgage Loan.
"PRIVATE CERTIFICATES" means the Certificates that are not Publicly
Offered Certificates.
"PROSPECTUS" means the Prospectus, dated October 22, 2002.
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement, dated October
22, 2002, relating to the Publicly Offered Certificates.
"PUBLICLY OFFERED CERTIFICATES" means the Class A-1, Class A-2, Class
B, Class C, Class D and Class E Certificates.
"SERVICER FILE" means, collectively, all documents, records and copies
pertaining to a Mortgage Loan which are required to be included in the related
Servicer File pursuant to SECTION 3 thereof (subject to the proviso in SECTION
1).
"UNDERWRITERS" means Credit Suisse First Boston Corporation, McDonald
Investments Inc., Xxxxxx Brothers, Inc. and Xxxxxxx Xxxxx Xxxxxx Inc.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated
October 22, 2002, between Depositor and the Underwriters.
I-2
SCHEDULE II
MORTGAGE LOAN SCHEDULE
II-1
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 0000-XXX0
XXXXXXX COLLATERAL
Zip
# Crossed Property Name Address City State Code
---------------------------------------------------------------------------------------------------------------------------
3 SummitWoods Crossing Interstate 000 xxx Xxxxxxx 00 Xxx'x Xxxxxx XX 00000
00 Xxx Xxxxxxx xx Xxxxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000
00 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx X-000 and Xxxxxxxx-Xxxxx Xxxx Xxxxx Xxxx XX 00000
00 Xxxxx Xxxx Xxxxxxxx 000 Xxxxxxx 00 Xxxxx Xxxxx Xxxx XX 00000
00 Xxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 00xx Xxxxxx and Allisonville Road Indianapolis IN 46250
00 Xxxxxxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000
00 Xxxx Xxx - Xxxx Xxxxxxxx, XX 00 Xxxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000
40 Allenmore Medical Plaza 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000
00 Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx 000-000 Xxxxxx Xxxxxxx Xxxxxxx XX 00000
00 Xxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxx Xxxxxxxx XX 00000
50 Basswood Manor Apartments 0000 Xxx Xxxxxx Xxxxxxxxxx XX 00000
61 Best Buy - Sandy, UT 11353 Xxxxx Xxxxx Xxxxxx Xxxxx XX 00000
69 Metrocrest Village Apartments 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
00 Xxxxxx Xxxxxx Apartments 000 Xxxxx Xx. Xxxxxxxxx Xxxx Xxxxxx XX 00000
76 Arbor Park Office Center 0000-0000 Xxxxx Xxxx Xxxxxxxxxx XX 00000
00 Xxxxxxx Xxxxx Xxxxxxxxx 0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000
00 Xxxxxxx Xxxx Apartments 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
00 Xxxxxxxxx - Xxxxxxx Xxxx 0000 Xxxxxxx Xxxx Xxxxxxxx XX 00000
96 Walgreens - Memphis 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000
000 Xxxxxxxxx - Xxxxx Xxxxx Xxxx 0000 Xxxxx Xxxxx Xxxx Xxxxxxxx XX 00000
000 Xxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000
000 Xxxxxxx Xxxxx Apartments 000 Xxxxxxxx Xxxx Xxxxx Xxxxxxx XX 00000
000 Xxx Xxx Xxxxxx Xxxxxxx 0000 Xxxxx Xxx Xxx Xxxxx Xxxxxxx XX 00000
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 0000-XXX0
XXXXXXX COLLATERAL
Mortgage Units/Square Mortgage Original Cut-off Fee/
# Crossed Property Name Originator Feet Loan Seller Balance Balance Leasehold
-----------------------------------------------------------------------------------------------------------------------------------
3 SummitWoods Crossing KeyBank 409,607 KeyBank $48,000,000 $48,000,000 Fee
00 Xxx Xxxxxxx xx Xxxxxxxx Xxxxxxxxx XxxXxxx 252 KeyBank $23,000,000 $23,000,000 Fee
00 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx XxxXxxx 246,682 KeyBank $19,200,000 $19,183,011 Fee
00 Xxxxx Xxxx Xxxxxxxx XxxXxxx 187,787 KeyBank $17,700,000 $17,673,415 Fee
00 Xxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx XxxXxxx 131,992 KeyBank $16,880,000 $16,880,000 Fee
00 Xxxxxxxxxxx Xxxxxxxx Xxxxxx XxxXxxx 198,790 KeyBank $8,600,000 $8,592,725 Fee
38 Best Buy - West Paterson, NJ KeyBank 45,000 KeyBank $8,500,000 $8,500,000 Fee
40 Allenmore Medical Plaza KeyBank 49,866 KeyBank $7,725,000 $7,725,000 Fee
00 Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx XxxXxxx 199,811 KeyBank $7,500,000 $7,500,000 Fee
00 Xxxxxxx Xxxxxxxxxx XxxXxxx 000 XxxXxxx $6,500,000 $6,488,895 Fee
00 Xxxxxxxx Xxxxx Xxxxxxxxxx XxxXxxx 212 KeyBank $6,380,000 $6,374,119 Fee
61 Best Buy - Sandy, UT KeyBank 30,000 KeyBank $4,925,000 $4,921,396 Fee
00 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx XxxXxxx 143 KeyBank $4,640,000 $4,633,706 Fee
00 Xxxxxx Xxxxxx Xxxxxxxxxx XxxXxxx 160 KeyBank $4,300,000 $4,294,168 Fee
00 Xxxxx Xxxx Xxxxxx Xxxxxx XxxXxxx 48,913 KeyBank $4,100,000 $4,100,000 Fee
00 Xxxxxxx Xxxxx Xxxxxxxxx XxxXxxx 99 KeyBank $4,050,000 $4,046,513 Fee
00 Xxxxxxx Xxxx Xxxxxxxxxx XxxXxxx 215 KeyBank $3,950,000 $3,890,423 Fee
00 Xxxxxxxxx - Xxxxxxx Xxxx KeyBank 15,120 KeyBank $3,575,000 $3,569,971 Fee
96 Walgreens - Memphis KeyBank 14,490 KeyBank $3,325,000 $3,322,137 Fee
000 Xxxxxxxxx - Xxxxx Xxxxx Xxxx XxxXxxx 14,490 KeyBank $3,245,000 $3,240,435 Fee
000 Xxxxxxxxx Xxxxxxxxxx XxxXxxx 124 KeyBank $3,120,000 $3,114,791 Fee
000 Xxxxxxx Xxxxx Xxxxxxxxxx XxxXxxx 100 KeyBank $2,400,000 $2,396,745 Fee
000 Xxx Xxx Xxxxxx Xxxxxxx KeyBank 146 KeyBank $2,310,000 $2,304,284 Fee
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 0000-XXX0
XXXXXXX COLLATERAL
Initial
Interest Orig Rem. Orig Rem. Net
Only Amort. Amort. Term to Term to Mortgage Mortgage
# Crossed Property Name Term Term Term Maturity Maturity Rate Rate
---------------------------------------------------------------------------------------------------------------------------------
3 SummitWoods Crossing 12 348 348 120 118 6.810% 6.758%
00 Xxx Xxxxxxx xx Xxxxxxxx Xxxxxxxxx 12 360 360 120 120 6.000% 5.948%
00 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0 360 359 120 119 6.610% 6.558%
00 Xxxxx Xxxx Xxxxxxxx 0 360 358 120 118 6.850% 6.748%
00 Xxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0 360 360 120 120 6.625% 6.573%
00 Xxxxxxxxxxx Xxxxxxxx Xxxxxx 0 360 359 120 119 6.840% 6.738%
00 Xxxx Xxx - Xxxx Xxxxxxxx, XX 0 360 360 120 120 6.750% 6.698%
00 Xxxxxxxxx Xxxxxxx Xxxxx 0 360 360 120 120 6.550% 6.498%
00 Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx 0 330 330 120 120 6.440% 6.338%
48 Mayfair Apartments 0 360 358 120 118 6.300% 6.198%
50 Basswood Manor Apartments 0 360 359 120 119 6.400% 6.348%
61 Best Buy - Sandy, UT 0 360 359 144 143 7.570% 7.518%
69 Metrocrest Village Apartments 0 300 299 120 119 6.400% 6.348%
00 Xxxxxx Xxxxxx Xxxxxxxxxx 0 300 299 120 119 6.400% 6.348%
76 Arbor Park Office Center 0 300 300 120 120 6.625% 6.573%
78 Manitou Xxxxx Townhomes 0 360 359 120 119 6.750% 6.698%
81 Andover Park Apartments 0 360 334 120 94 8.320% 8.218%
00 Xxxxxxxxx - Xxxxxxx Xxxx 0 360 358 120 118 7.120% 7.068%
96 Walgreens - Memphis 0 360 359 120 119 6.750% 6.698%
000 Xxxxxxxxx - Xxxxx Xxxxx Xxxx 0 360 358 120 118 7.120% 7.068%
000 Xxxxxxxxx Xxxxxxxxxx 0 360 358 120 118 6.400% 6.348%
000 Xxxxxxx Xxxxx Apartments 0 300 299 120 119 6.400% 6.348%
000 Xxx Xxx Xxxxxx Xxxxxxx 0 300 298 120 118 6.550% 6.498%
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 0000-XXX0
XXXXXXX COLLATERAL
Calculation First
Grace (30/360 / Monthly Payment Maturity
# Crossed Property Name Days Actual/360) Payment Date Date ARD Defeasance
----------------------------------------------------------------------------------------------------------------------------------
3 SummitWoods Crossing 7 Actual/360 $316,579 9/1/02 8/1/12 N/A Yes
11 The Village at Xxxxxxxx Crossings 5 Actual/360 $137,897 11/1/02 10/1/12 N/A N/A
14 Union Landing Shopping Center 5 Actual/360 $122,749 10/1/02 9/1/12 N/A Yes
16 Cedar Hill Crossing 5 Actual/360 $115,981 9/1/02 8/1/12 N/A Yes
17 Clearwater Springs Shopping Center 5 Actual/360 $108,084 11/1/02 10/1/12 N/A Yes
37 Willowbrook Business Center 5 Actual/360 $56,295 10/1/02 9/1/12 N/A N/A
38 Best Buy - West Paterson, NJ 5 Actual/360 $55,131 11/1/02 10/1/32 10/1/12 Yes
40 Allenmore Medical Plaza 5 Actual/360 $49,082 11/1/02 10/1/32 10/1/12 Yes
41 Greens Crossing Business Center 5 Actual/360 $48,551 11/1/02 10/1/12 N/A N/A
48 Mayfair Apartments 5 Actual/360 $40,233 9/1/02 8/1/12 N/A Yes
50 Basswood Manor Apartments 5 Actual/360 $39,907 10/1/02 9/1/12 N/A Yes
61 Best Buy - Sandy, UT 5 Actual/360 $34,673 10/1/02 9/1/32 9/1/14 Yes
69 Metrocrest Village Apartments 5 Actual/360 $31,040 10/1/02 9/1/12 N/A Yes
00 Xxxxxx Xxxxxx Xxxxxxxxxx 0 Actual/360 $28,766 10/1/02 9/1/12 N/A Yes
76 Arbor Park Office Center 5 Actual/360 $28,005 11/1/02 10/1/12 N/A Yes
78 Manitou Xxxxx Townhomes 5 Actual/360 $26,268 10/1/02 9/1/12 N/A Yes
81 Andover Park Apartments 10 Actual/360 $29,870 9/1/00 8/1/10 X/X X/X
00 Xxxxxxxxx - Xxxxxxx Xxxx 5 Actual/360 $24,073 9/1/02 8/1/32 8/1/12 Yes
96 Walgreens - Memphis 5 Actual/360 $21,566 10/1/02 9/1/32 9/1/12 Yes
000 Xxxxxxxxx - Xxxxx Xxxxx Xxxx 5 Actual/360 $21,851 9/1/02 8/1/32 8/1/12 Yes
110 Meadowood Apartments 5 Actual/360 $19,516 9/1/02 8/1/12 N/A Yes
000 Xxxxxxx Xxxxx Apartments 5 Actual/360 $16,055 10/1/02 9/1/12 N/A Yes
000 Xxx Xxx Xxxxxx Xxxxxxx 5 Actual/360 $15,670 9/1/02 8/1/12 N/A Yes
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 0000-XXX0
XXXXXXX COLLATERAL
Servicing Contractual
and Engineering Recurring
Defeasance Trustee Earthquake Reserve at Replacement
# Crossed Property Name Provision Fees Insurance Origination Reserve/FF&E
-----------------------------------------------------------------------------------------------------------------------------------
3 SummitWoods Crossing Lock/26_Def/90_0%/4 0.0518% N/A $0 $0
00 Xxx Xxxxxxx xx Xxxxxxxx Xxxxxxxxx X/X 0.0518% N/A $0 $0
00 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx Lock/25_Def/92_0%/3 0.0518% No $0 $0
16 Cedar Hill Crossing Lock/26_Def/90_0%/4 0.1018% N/A $0 $28,164
00 Xxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Lock/24_Def/93_0%/3 0.0518% N/A $0 $19,800
00 Xxxxxxxxxxx Xxxxxxxx Xxxxxx X/X 0.1018% N/A $0 $24,849
38 Best Buy - West Paterson, NJ Lock/24_Def/92_0%/4 0.0518% N/A $0 $0
40 Allenmore Medical Plaza Lock/24_Def/93_0%/3 0.0518% N/A $0 $9,972
00 Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx X/X 0.1018% N/A $28,125 $25,080
48 Mayfair Apartments Lock/26_Def/93_0%/1 0.1018% N/A $0 $132,000
50 Basswood Manor Apartments Lock/25_Def/92_0%/3 0.0675% N/A $0 $63,600
61 Best Buy - Sandy, UT Lock/25_Def/115_0%/4 0.0518% N/A $0 $0
69 Metrocrest Village Apartments Lock/25_Def/92_0%/3 0.0518% N/A $0 $0
00 Xxxxxx Xxxxxx Apartments Lock/25_Def/92_0%/3 0.0518% N/A $5,500 $0
76 Arbor Park Office Center Lock/24_Def/93_0%/3 0.0518% N/A $0 $0
78 Manitou Xxxxx Townhomes Lock/25_Def/92_0%/3 0.0518% N/A $0 $24,756
00 Xxxxxxx Xxxx Xxxxxxxxxx X/X 0.1018% N/A $0 $53,750
00 Xxxxxxxxx - Xxxxxxx Xxxx Lock/26_Def/90_0%/4 0.0518% N/A $0 $2,268
96 Walgreens - Memphis Lock/25_Def/91_0%/4 0.0518% N/A $5,000 $0
000 Xxxxxxxxx - Xxxxx Xxxxx Xxxx Lock/26_Def/90_0%/4 0.0518% N/A $0 $2,172
000 Xxxxxxxxx Xxxxxxxxxx Xxxx/00_Xxx/00_0%/0 0.0518% N/A $0 $34,834
000 Xxxxxxx Xxxxx Apartments Lock/25_Def/92_0%/3 0.0518% N/A $0 $0
000 Xxx Xxx Xxxxxx Xxxxxxx Lock/26_Def/90_0%/4 0.0518% N/A $0 $0
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 0000-XXX0
XXXXXXX COLLATERAL
LC & TI Contractual Tax &
Reserve at Recurring Insurance Environmental
# Crossed Property Name Origination LC&TI Escrows Insurance
-------------------------------------------------------------------------------------------------------------
3 SummitWoods Crossing $0 $0 None No
11 The Village at Xxxxxxxx Crossings $0 $0 Both No
14 Union Landing Shopping Center $0 $0 None No
16 Cedar Hill Crossing $96,131 $0 Tax No
17 Clearwater Springs Shopping Center $5,500 $5,500 Tax No
37 Willowbrook Business Center $500,000 $0 Both No
38 Best Buy - West Paterson, NJ $0 $0 None No
40 Allenmore Medical Plaza $3,333 $3,333 Both No
41 Greens Crossing Business Center $4,667 $4,667 Both No
48 Mayfair Apartments $0 $0 Tax No
50 Basswood Manor Apartments $0 $0 Both No
61 Best Buy - Sandy, UT $0 $0 None No
69 Metrocrest Village Apartments $0 $0 Both No
00 Xxxxxx Xxxxxx Apartments $0 $0 Both No
76 Arbor Park Office Center $0 $0 Tax No
78 Manitou Xxxxx Townhomes $0 $0 Xxxx Xx
00 Xxxxxxx Xxxx Apartments $0 $0 Tax No
00 Xxxxxxxxx - Xxxxxxx Xxxx $0 $0 None Yes
96 Walgreens - Memphis $0 $0 None Xx
000 Xxxxxxxxx - Xxxxx Xxxxx Xxxx $0 $0 None No
110 Meadowood Apartments $0 $0 Both No
000 Xxxxxxx Xxxxx Apartments $0 $0 Both No
000 Xxx Xxx Xxxxxx Xxxxxxx $0 $0 Both No
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 0000-XXX0
XXXXXXX COLLATERAL
Letter
Letter of of Credit
# Crossed Property Name Credit Description
---------------------------------------------------------------------------------------------------------------
3 SummitWoods Crossing $0 N/A
11 The Village at Xxxxxxxx Crossings $0 N/A
14 Union Landing Shopping Center $0 N/A
16 Cedar Hill Crossing $0 N/A
17 Clearwater Springs Shopping Center $0 N/A
37 Willowbrook Business Center $0 N/A
38 Best Buy - West Paterson, NJ $0 N/A
40 Allenmore Medical Plaza $0 N/A
41 Greens Crossing Business Center $320,410 Release upon: 1) Opexa Pharmaceuticals,
Inc. in occupancy; 2) Opexa paying rent;
3) Opexa completes all improvements
4) Opexa estoppel certificate
48 Mayfair Apartments $0 N/A
50 Basswood Manor Apartments $0 N/A
61 Best Buy - Sandy, UT $0 N/A
69 Metrocrest Village Apartments $0 N/A
00 Xxxxxx Xxxxxx Apartments $0 N/A
76 Arbor Park Office Center $0 N/A
78 Manitou Xxxxx Townhomes $0 N/A
81 Andover Park Apartments $0 N/A
00 Xxxxxxxxx - Xxxxxxx Xxxx $0 N/A
96 Walgreens - Memphis $0 N/A
000 Xxxxxxxxx - Xxxxx Xxxxx Xxxx $0 N/A
110 Meadowood Apartments $0 N/A
000 Xxxxxxx Xxxxx Apartments $0 N/A
000 Xxx Xxx Xxxxxx Xxxxxxx $0 N/A
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
NONE
III-1
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
NONE
IV-1
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties contained in
EXHIBIT A corresponding to the roman numerals listed below:
Representation xiii
With respect to Loan No. 10017601/ Mayfair Apartments, the related borrower is a
general partnership. The record owners of the Mortgaged Property are the related
borrower's general partners rather than the related borrower. The related
Mortgage was executed by the related borrower and also by each of its general
partners in their capacity as record owners of the Mortgaged Property.
With respect to Loan Nos. 10017262/Basswood Manor Apartments,
10017264/Metrocrest Village Apartments, 10017481/Spruce Square Apartments and
10016632/Village at Xxxxxxxx Crossing, the related Mortgage Loan is the "A/Loan"
of an A/B structured loan transaction and the corresponding B/Loan is not
included in the sale by Seller to the Depositor. The related Mortgage secures
both the Mortgage Loan and the B/Loan.
With respect to Loan No. 10015843/SummitWoods Crossing, the related Mortgaged
Property is subject to a redevelopment plan ("Redevelopment Plan") and Tax
Increment Financing Contract ("TIF") between the City of Xxx'x Summit Missouri
("City") and the developer of the Mortgaged Property. The developer is a member
of one of the co-borrowers for the Mortgage Loan. The TIF requires that the
City's prior approval be obtained with respect to transfers of the related
Mortgaged Property but, in connection with the closing of the Mortgage Loan, an
Agreement ("Agreement") was executed by the related co-borrowers, developer, the
City, and Seller which provides that (i) the City's approval is not required in
connection with a transfer of the property to Seller, its successors and
assigns, or nominees through foreclosure or a deed in lieu of foreclosure, (ii)
upon a default under the TIF or Redevelopment Plan, Seller, its successors and
assigns, shall be provided notice and opportunity to cure; and (iii) the City's
approval is not required in connection with a transfer of the related Mortgaged
Property to any purchaser ("Purchaser") following a foreclosure provided the
Purchaser satisfies certain criteria, such as the net worth of the principals of
the Purchaser, retail management experience of the principals of the Purchaser,
and agreement by the Purchaser to comply with the obligations and restrictions
under the TIF.
Representation xv
With respect to Loan No. 10017166/Best Buy - Paterson, the related borrower has
advised the Seller that the New Jersey Department of Transportation is
attempting to obtain title to a small portion of the related Mortgaged Property
and an easement over a small portion of the Mortgaged Property for a public
roadway improvement. The related Mortgage provides that the lender shall waive
its right to proceeds from any sale in lieu of condemnation related to the
foregoing so long as (i) access to the Mortgaged Property is not materially,
adversely affected; (ii) the current use and operation of the Mortgaged Property
is not materially, adversely affected; (iii) the value of the Mortgaged Property
is not materially, adversely affected; and (iv) the ability of the Mortgaged
Property to generate income sufficient to
V-1
service the Mortgage Loan is not materially, adversely affected, all as
determined by the lender in its discretion.
Representation xxiii
With respect to Loan No. 10016833/Union Landing, the requirement that business
interruption insurance be obtained was waived because the related borrower has
leased all parcels to tenants and the related borrower has no present ownership
interest in any of the improvements constructed on the related Mortgaged
Property.
With respect to Loan Nos. 10016641/Walgreens - Buena Vista and
10016709/Walgreens - Wynnton and 10017487/Walgreens - Memphis, the tenant of the
property, Walgreen's Co., is permitted to self-insure for property insurance.
With respect to Loan No. 10017487/Walgreens - Memphis, 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.
With respect to the following Mortgage Loan, the insurer that issued the fire
and extended perils insurance policy did not meet the requirements of the
Pooling and Servicing Agreement regarding an S&P rating, but did meet the
Seller's requirements regarding an AMBest rating:
Mortgage loan Carrier Carrier rating
------------- ------- --------------
10017089/Best Buy Sandy, UT Industrial Risk Commonwealth: AMBest A-
Insurers; Commonwealth IRI: IRI is an unincorporated
joint underwriting association
whose member underwriting
companies are Employers
Reinsurance Corporation (S&P
A++), Westport Insurance
Corporation (S&P A++) and
First Specialty Insurance
Corporation (S&P BBB)
10017166/Best Buy, Xxxxxxxxx NJ Industrial Risk Commonwealth: AMBest A-
Insurers; Commonwealth IRI: IRI is an unincorporated
joint underwriting association
whose member underwriting
companies are Employers
Reinsurance Corporation (S&P
A++), Westport Insurance
Corporation (S&P A++) and
First Specialty Insurance
Corporation (S&P BBB)
10012812/Manitou Xxxxx Home-Owners Insurance AMBest A++
Apartments Company
V-2
10016095 Allenmore Medical USF&G: Commonwealth USF&G: AMBest A
Plaza Insurance Company Commonwealth: AMBest A-
10016625 Cedar Hill Crossing Factory Mutual Insurance AMBest A
Company
10017069 Old Oak Trails Employers Mutual AMBest A-
Casualty Company
Representation xxxiii
With respect to Loan Nos. 10017262/Basswood Manor Apartments,
10017264/Metrocrest Village Apartments, 10017481/Spruce Square Apartments and
10016632/Village at Xxxxxxxx Crossing, the related Mortgage Loan is the "A/Loan"
of an A/B structured loan transaction. Each related Mortgage also secures the
corresponding B/Note (which is not included in the sale by Seller to the
Depositor) and the related Mortgage Loan Documents are cross-defaulted with the
corresponding B/Note.
Representation xxxvi
With respect to Loan Nos. 10017262/Basswood Manor Apartments,
10017264/Metrocrest Village Apartments, 10017481/Spruce Square Apartments
and 10016632/Village at Xxxxxxxx Crossing, the related Mortgage secures
both the related Mortgage Loan and a corresponding B/Note that is not being
sold by Seller to the Depositor.
Representation xxxvii
The Mortgage Loan Documents for Loan Nos. 10017601/Mayfair Apartments (which had
an original principal balance of $6.5 million) and 10017143/Arbor Park Office
Building (which had an original principal balance of $4.1 million) do not
require the related borrower be a single-purpose entity.
With respect to Loan Nos. 10017262/Basswood Manor Apartments, and
10016632/Village at Xxxxxxxx Crossing, the related Mortgage secures both the
related Mortgage Loan and a corresponding B/Note that is not being sold by
Seller to the Depositor.
Representation xxxviii
Loan Nos. 10017601/Mayfair and 10017143/Arbor Park Office Building do not
prohibit the related borrower from incurring unsecured debt.
With respect to Loan Nos. 10017262/Basswood Manor Apartments,
10017264/Metrocrest Village Apartments, 10017481/Spruce Square Apartments and
10016632/Village at Xxxxxxxx Crossing, the related Mortgage secures both the
related Mortgage Loan and a corresponding B/Note that is not being sold by
Seller to the Depositor.
Representation xl
V-3
With respect to Loan No. 10017069/Old Oak Trails, the related Mortgaged Property
is not a separate tax parcel, but the related borrower is required to cause the
related Mortgaged Property to become a separate tax parcel with in 180 days
after the closing of the related Mortgaged Loan (to be extended to 360 days if
the related borrower is diligently pursuing obtaining separate tax lot status).
Seller is escrowing for taxes for all properties in the tax parcel.
Representation xlviii
Loan Xx. 00000000/Xxxxxxxxx Xxxxxxx Xxxxx permits the release of a small portion
of the related Mortgaged Property that includes some of the surface parking lot,
upon satisfaction of specified conditions, including no change in parking ratio.
Representation lv
Loan No. 10017601/Mayfair Apartments does not provide that the related borrower
shall be liable to Seller for losses incurred by Seller due to any willful act
of material waste.
Loan No. 10010676/Andover Park Apartments does not provide that the related
borrower shall not be liable to Seller for losses incurred by Seller due to
misapplication or misappropriation of rents.
Representation lvi
With respect to Loan Nos. 10016099/Arbor Park Office Building,
10016709/Walgreen's - Wynnton, 10016641/Walgreens - Buena Vista and
10017487/Walgreen's Memphis, the Mortgage Rate increases by the greater of (i)
the initial rate plus 2% or (ii) the treasury rate plus 2%.
V-4
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
(i) Immediately prior to the sale, transfer and assignment to
the Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to, and
was the sole owner of, the related Mortgage Loan;
(ii) RESERVED.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(v) As of origination, to Seller's knowledge, based on the
related borrower's representations and covenants in the related Mortgage Loan
Documents, the borrower, lessee and/or operator was in possession of all
licenses, permits, and authorizations then required for use of the Mortgaged
Property which were valid and in full force and effect as of the origination
date;
(vi) Each related Note, Mortgage, assignment of leases (if any)
and other agreement executed by or for the benefit of the related borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of the related borrower, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and there is no valid offset, defense, counterclaim, or right of
rescission available to the related borrower with respect to such Note,
Mortgage, assignment of leases and other agreements, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(vii) Each related assignment of leases creates a valid first
priority collateral assignment of, or a valid first priority lien or security
interest in, certain rights under the related lease or leases, subject only to a
license granted to the related borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease or leases, including
the right to operate the related leased property, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); no person other than the related borrower
owns any interest in any payments due under such lease or leases that is
superior to or of equal priority with the lender's interest therein;
(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the assignment of leases, if any, or
assignment of any other agreement executed
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by or for the benefit of the related borrower, any guarantor or their successors
or assigns in connection with such Mortgage Loan from the Seller to the
Depositor constitutes the legal, valid and binding assignment from the Seller to
the Depositor, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and (B) each related Mortgaged Property has
not been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(x) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and such
Mortgaged Property is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related Mortgage, except those
which are insured against by a lender's title insurance policy (as described
below). A UCC Financing Statement has been filed and/or recorded (or sent for
filing or recording) in all places necessary to perfect a valid security
interest in the personal property necessary to operate the Mortgaged Property;
any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid
and enforceable lien on property described therein, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforcement of creditors' rights or by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material
representations and warranties made by the related borrower in the related
Mortgage Loan Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien
on the fee and/or leasehold interest of the related borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller and its successors and assigns as
to such lien, subject only to (A) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with the current use of
the Mortgaged Property or the security intended to be provided by such Mortgage
or with the borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property and (C) the exceptions (general and
specific) and exclusions set forth in such policy, none of which, individually
or in the aggregate, materially interferes with the current general use of the
Mortgaged Property or materially interferes with the security intended to be
provided by such Mortgage or with the
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related borrower's ability to pay its obligations when they become due or the
value of the Mortgaged Property (items (A), (B) and (C) collectively, "PERMITTED
ENCUMBRANCES"); the premium for such policy was paid in full; such policy (or if
it is yet to be issued, the coverage to be afforded thereby) is issued by a
title insurance company licensed to issue policies in the state in which the
related Mortgaged Property is located (unless such state is Iowa) and is
assignable (with the related Mortgage Loan) to the Depositor and the Trustee
without the consent of or any notification to the insurer, and is in full force
and effect upon the consummation of the transactions contemplated by this
Agreement; no claims have been made under such policy and the Seller has not
undertaken any action or omitted to take any action, and has no knowledge of any
such act or omission, which would impair or diminish the coverage of such
policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related mortgage file;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by the Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted) or reserves have been established
to cover the costs to remediate such damage and, as of the closing date for each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, there is no
proceeding pending for the total or partial condemnation of such Mortgaged
Property that would have a material adverse effect on the use or value of the
Mortgaged Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any
other contingent interest feature or a negative amortization feature other than
the ARD Loans which may have negative amortization from and after the
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and contains no equity
participation by Seller;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan and the origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in accordance with
A-3
customary commercial mortgage lending standards, and no other person has been
granted or conveyed the right to service the Mortgage Loans or receive any
consideration in connection therewith, except as provided in the Pooling and
Servicing Agreement or any permitted subservicing agreements;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith and all such escrows and deposits are being
conveyed by the Seller to the Depositor and identified as such with appropriate
detail;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all premiums on such insurance policies required to be paid as of
the date hereof have been paid; such insurance policies require prior notice to
the insured of termination or cancellation, and no such notice has been received
by the Seller; such insurance names the lender under the Mortgage Loan and its
successors and assigns as a named or additional insured; each related Mortgage
Loan obligates the related borrower to maintain all such insurance and, at such
borrower's failure to do so, authorizes the lender to maintain such insurance at
the borrower's cost and expense and to seek reimbursement therefor from such
borrower;
(xxiv) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (A) non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan or (B) event (other than
payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does constitute
a default, breach, violation or event of acceleration, which default, breach,
violation or event of acceleration, in the case of either (A) or (B), materially
and adversely affects the use or value of the Mortgage Loan or the related
Mortgaged Property; PROVIDED, HOWEVER, that this representation and warranty
does not address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by any
other representation or warranty made by the Seller in any of PARAGRAPHS (xiii),
(xxi), (xxv), (xxvii), (xxix) and (xxxi) of this Exhibit A;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
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(xxvi) (A) Each related Mortgage contains provisions so as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the borrower which would
interfere with such right to foreclose, except, in the case of either (A) or
(B), as the enforcement of the Mortgage may be limited by bankruptcy,
insolvency, reorganization, moratorium, redemption or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). To the Seller's knowledge, no borrower is a debtor in a state or federal
bankruptcy or insolvency proceeding;
(xxvii) At origination, each borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related borrower or an affiliate thereof agreed
to indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys' fees
and costs) paid, incurred or suffered by, or asserted against, any such party
resulting from a breach of the foregoing representations, warranties or
covenants given by the borrower in connection with such Mortgage Loan. A Phase I
environmental report and with respect to certain Mortgage Loans, a Phase II
environmental report, was conducted by a reputable environmental consulting firm
in connection with such Mortgage Loan, which report did not indicate any
material non-compliance with applicable environmental laws or material existence
of hazardous materials or, if any material non-compliance or material existence
of hazardous materials was indicated in any such report, then at least one of
the following statements is true: (A) funds reasonably estimated to be
sufficient to cover the cost to cure any material non-compliance with applicable
environmental laws or material existence of hazardous materials have been
escrowed by the related borrower and held by the related mortgagee; (B) an
operations or maintenance plan has been required to be obtained by the related
borrower; (C) the environmental condition identified in the related
environmental report was remediated or abated in all material respects prior to
the date hereof; (D) a no further action or closure letter was obtained from the
applicable governmental regulatory authority (or the environmental issue
affecting the related Mortgaged Property was otherwise listed by such
governmental authority as "closed"); (E) such conditions or circumstances
identified in the Phase I environmental report were investigated further and
based upon such additional investigation, an environmental consultant
recommended no further investigation or remediation; (F) a party with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related borrower to cover
the costs of any required investigation, testing, monitoring or remediation; (G)
the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related mortgage file. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's secured creditor impairment environmental insurance policy
was obtained with respect to each such Mortgage
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Loan and is a part of the related mortgage file. Each of such environmental
insurance policies is in full force and effect, the premiums for such policies
have been paid in full and the Trustee is named as an insured under each of such
policies. To the best of the Seller's knowledge, in reliance on such
environmental reports and except as set forth in such environmental reports,
each Mortgaged Property is in material compliance with all applicable federal,
state and local environmental laws, and to the best of the Seller's knowledge,
no notice of violation of such laws has been issued by any governmental agency
or authority, except, in all cases, as indicated in such environmental reports
or other documents previously provided to the Rating Agencies; and the Seller
has not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining to
environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders), each Mortgage Loan with a Stated Principal Balance of over
$20,000,000 also contains the provisions for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if, without the consent of
the holder of the Mortgage, (and the Mortgage requires the mortgagor to pay all
fees and expenses associated with obtaining such consent) a majority interest in
the related Borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are
within the boundaries of the related Mortgaged Property, except for
encroachments onto adjoining parcels for which the Seller has obtained title
insurance against losses arising therefrom or that do not materially and
adversely affect the use or value of such Mortgaged Property. No improvements on
adjoining parcels encroach onto the related Mortgaged Property except for
encroachments that do not materially and adversely affect the value of such
Mortgaged Property, the security provided by the Mortgage or the related
borrower's operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is
set forth in the mortgage loan schedule attached as an exhibit to this Agreement
is complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-Off
Date);
(xxxi) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate, and
the related Mortgage does not also encumber the related lessor's fee interest in
such Mortgaged Property, based upon the terms of the ground lease and any
estoppel received from the ground lessor, the Seller represents and warrants
that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest of the
lessee to be encumbered by the related Mortgage and does not restrict the
use of the related Mortgaged Property by such lessee, its successors or
assigns in a manner that would adversely affect the security provided by
the related Mortgage. To the Seller's best knowledge, there has been no
material change in the terms
A-6
of the ground lease since its recordation, except by any written
instruments which are included in the related mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written consent
of the lender and that any such action without such consent is not binding
on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the lender) that extends not
less than 20 years beyond the stated maturity of the related Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the Mortgage,
subject to Permitted Encumbrances and liens that encumber the ground
lessor's fee interest;
(E) The ground lease is assignable to the lender under the
ground lease and its assigns without the consent of the lessor thereunder;
(F) As of the Closing Date, the ground lease is in full force
and effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any
existing condition which, but for the passage of time or giving of notice,
would result in a default under the terms of the ground lease;
(G) The ground lease or an ancillary agreement between the
lessor and the lessee, which is part of the Mortgage File, requires the
lessor to give notice of any default by the lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights of the
lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee in
the relevant portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect the security
provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having the
right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding
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principal balance of the Mortgage Loan, together with any accrued interest,
except that in the case of condemnation awards, the ground lessor may be
entitled to a portion of such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in respect
of a total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except as
provided by applicable law or in cases where a different allocation would
not be viewed as commercially unreasonable by any institutional investor,
taking into account the relative duration of the ground lease and the
related Mortgage and the ratio of the market value of the related Mortgaged
Property to the outstanding principal balance of such Mortgage Loan). Until
the principal balance and accrued interest are paid in full, neither the
lessee nor the lessor under the ground lease will have an option to
terminate or modify the ground lease without the prior written consent of
the lender as a result of any casualty or partial condemnation, except to
provide for an abatement of the rent; and
(L) PROVIDED that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new lease
upon termination of the ground lease for any reason, including rejection of
the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the Seller would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related mortgage file that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) With respect to Mortgage Loans that are cross-collateralized
or cross-defaulted, all other loans that are cross-collateralized or
cross-defaulted with such Mortgage Loans are being transferred to the Depositor;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair market
value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default
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or default with respect thereto was not reasonably foreseeable, the date of the
last such modification) or (2) at the date hereof; PROVIDED that the fair market
value of the real property must first be reduced by (X) the amount of any lien
on the real property interest that is senior to the Mortgage Loan and (Y) a
proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (1) and (2)
shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, this Exhibit A or in the Exception Report to
this Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection with each
Mortgage Loan having an original principal balance in excess of $4,000,000
require that the related borrower be a single-purpose entity (for this purpose,
"SINGLE-PURPOSE ENTITY" shall mean an entity, other than an individual, having
organizational documents which provide substantially to the effect that it is
formed or organized solely for the purpose of owning and operating one or more
Mortgaged Properties, is prohibited from engaging in any business unrelated to
such property and the related Mortgage Loan, does not have any assets other than
those related to its interest in the related Mortgaged Property or its
financing, or any indebtedness other than as permitted under the related
Mortgage Loan);
(xxxviii) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the prior
written consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified therein and, except in connection with trade debt and
equipment financings in the ordinary course of borrower's business, from
carrying any additional indebtedness, except, in each case, liens contested in
accordance with the terms of the Mortgage Loans or, with respect to each
Mortgage Loan having an original principal balance of less than $4,000,000, any
unsecured debt;
(xxxix) Each borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of
the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency or the Secretary of Housing and Urban Development as having
special flood hazards categorized as Zone "A" or Zone "V" and flood insurance is
available, the terms of the Mortgage Loan require the borrower to maintain flood
insurance, or at such borrower's failure to do so, authorizes the Lender to
maintain such insurance at the cost and expense of the borrower;
(xlii) To the knowledge of the Seller, with respect to each
Mortgage which is a deed of trust, a trustee, duly qualified under applicable
law to serve as such, currently so serves and is named
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in the deed of trust or has been substituted in accordance with applicable law
or may be substituted in accordance with applicable law by the related
mortgagee, and except in connection with a trustee's sale after a default by the
related borrower, no fees are payable to such trustee;
(xliii) RESERVED.
(xliv) Except as disclosed in the Exception Report to this
Agreement, to the knowledge of the Seller as of the date hereof, there was no
pending action, suit or proceeding, arbitration or governmental investigation
against any borrower or Mortgaged Property, an adverse outcome of which would
materially and adversely affect such borrower's ability to perform under the
related Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the
related borrower [(other than mezzanine debt and the acquisition of preferred
equity interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement)], and no funds have, to the Seller's knowledge, been
received from any person other than, or on behalf of, the related borrower, for,
or on account of, payments due on the Mortgage Loan;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in which
each related Mortgaged Property is located, or the failure to be so authorized
did not materially and adversely affect the enforceability of such Mortgage
Loan;
(xlvii) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlviii) Except as disclosed in the Exception Report to this
Agreement or the Prospectus Supplement with respect to the Crossed Mortgage
Loans and Multiple Property Loans, no Mortgage Loan requires the lender to
release any portion of the Mortgaged Property from the lien of the related
Mortgage except upon (A) payment in full or defeasance of the related Mortgage
Loan, (B) the satisfaction of certain legal and underwriting requirements that
would be customary for prudent commercial mortgage lenders, (C) releases of
unimproved out-parcels or (D) releases of portions of the Mortgaged Property
which will not have a material adverse effect on the use or value of the
collateral for the related Mortgage Loan;
(xlix) Except as provided in PARAGRAPHS (xxxi)(J) and (K) above,
any insurance proceeds in respect of a casualty loss or taking will be applied
either to (A) the repair or restoration of all or part of the related Mortgaged
Property, with, in the case of all casualty losses or takings in excess of a
specified amount or percentage that a prudent commercial lender would deem
satisfactory and acceptable, the lender (or a trustee appointed by it) having
the right to hold and disburse such proceeds as the repair or restoration
progresses (except in any case where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender) or (B) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon;
(l) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property and each Form UCC-2 or UCC-3 assignment, if any, of such financing
statement to the Seller was, and each Form UCC-3 assignment, if any, of such
financing statement in blank which the Trustee or its designee is authorized to
complete (but for the insertion of the name of the assignee and any related
filing information which is not yet
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available to the Seller) is, in suitable form for filing in the filing office in
which such financing statement was filed;
(li) To the Seller's knowledge, (A) each commercial lease
covering more than 10% (20% in the case of any Mortgage Loan having an original
principal balance less than $2,500,000) of the net leaseable area of the related
Mortgaged Property is in full force and effect and (B) there exists no default
under any such commercial lease either by the lessee thereunder or by the
related borrower that could give rise to the termination of such lease;
(lii) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the improvements
located on or forming part of each Mortgaged Property comply with applicable
zoning laws and ordinances, or constitute a legal non-conforming use or
structure or, if any such improvement does not so comply, such non-compliance
does not materially and adversely affect the value of the related Mortgaged
Property. With respect to any Mortgage Loan with a Stated Principal Balance as
of the Closing Date of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent the Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(liii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) the borrower is required to provide an opinion of counsel
that the Trustee has a perfected security interest in such collateral prior to
any other claim or interest, (F) the borrower is required to pay all Rating
Agency fees associated with defeasance (if rating confirmation is a specific
condition precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and opinions of
counsel, (G) with respect to any Significant Loan (as defined in the Pooling and
Servicing Agreement), the borrower is required to provide an opinion of counsel
that such defeasance will not cause any REMIC created under the Pooling and
Servicing Agreement to fail to qualify as a REMIC for federal or applicable
state tax purposes and (H) with respect to any Significant Loan (as defined in
the Pooling and Servicing Agreement), the borrower must obtain Rating Agency
confirmation from each Rating Agency that the defeasance would not result in
such Rating Agency's withdrawal, downgrade or qualification of the then current
rating of any class of Certificate rated by such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the Seller for any
losses incurred by the Seller due to (A) the misapplication or misappropriation
of rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related
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Mortgage Loan Documents, and (D) fraud by the related Borrower; PROVIDED that,
with respect to clause (C) of this sentence, an indemnification against losses
related to such violations or environmental insurance shall satisfy such
requirement;
(lvi) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date and provides that: (A) its Mortgage
Rate will increase by no more than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan is an
asset of the Trust Fund; (B) its Anticipated Repayment Date is not less than
seven years following the origination of such Mortgage Loan; (C) no later than
the related Anticipated Repayment Date, if it has not previously done so, the
related borrower is required to enter into a "lockbox agreement" whereby all
revenue from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer; and (D) any cash flow from
the related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvii) Except as disclosed in the Prospectus Supplement, no
Mortgage Loan, and no group of Mortgage Loans made to the same borrower and to
borrowers that are affiliates, accounted for more than 5.0% of the aggregate of
the Stated Principal Balances of all of the Mortgage Loans, all the mortgage
loans sold to the Depositor by KeyBank National Association ("KEYBANK") pursuant
to that certain
Mortgage Loan Purchase Agreement dated as of October 17, 2002
between the Depositor and KeyBank and all the mortgage loans sold to the
Depositor by Salomon Brothers Realty Corp. ("SBRC") pursuant to that certain
Mortgage Loan Purchase Agreement dated as of October 17, 2002 between the
Depositor and SBRC, as of the Cut-Off Date; and
(lviii) The Seller has delivered to the Trustee or a custodian
appointed thereby, with respect to each Mortgage Loan, in accordance with
SECTION 3 of this Agreement, a complete Mortgage File.
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EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF
NEW YORK )
) ss.:
COUNTY OF
NEW YORK )
_________________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of KeyBank National
Association ("KeyBank");
2. that Column is the owner and holder of a mortgage loan in the
original principal amount of $__________________ secured by a mortgage (the
"MORTGAGE") on the premises known as ___________________________ located in
_________________ ;
3. (a) that KeyBank, after having conducted a diligent investigation
of its records and files, has been unable to locate the following original note
and believes that said original note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a note in the original sum of $____________ made by
____________ , to KeyBank National Association, under date of
______________ (the "NOTE");
4. that the Note is now owned and held by KeyBank;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except KeyBank; and
7. upon assignment of the Note by KeyBank to Credit Suisse First
Boston Mortgage Securities Corp. (the "DEPOSITOR") and subsequent assignment
by the Depositor to the trustee for the benefit of the holders of the Credit
Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2002-CKS4 (the "TRUSTEE") (which assignment
may, at the discretion of the Depositor, be made directly by Column to the
Trustee) Column covenants and agrees (a) promptly to deliver to the Trustee
the original Note if it is subsequently found, and (b) to indemnify and hold
harmless the Trustee and its successors and assigns from and against any and
all costs, expenses and monetary losses arising as a result of KeyBank's
failure to deliver said original Note to the Trustee.
KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
Sworn to before me
this ________ day of October, 2002
