MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 5, 2001, between KeyBank National Association, a national
banking association ("KeyBank"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller") and Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB Mortgage
Securities"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "Purchaser").
RECITALS
KeyBank desires to sell, assign, transfer, set over and otherwise convey to
CSFB Mortgage Securities, without recourse, and CSFB Mortgage Securities desires
to purchase, subject to the terms and conditions set forth herein, the
multifamily and commercial mortgage loans (collectively, the "Schedule A-1
Loans") identified on the schedule annexed hereto as Exhibit A-1, as such
schedule may be amended from time to time pursuant to the terms hereof.
In addition, KeyBank previously sold the multifamily and commercial
mortgage loans (collectively, the "Schedule A-2 Loans;" and, collectively with
the Schedule A-1 Loans, the "Mortgage Loans") identified on the schedule annexed
hereto as Exhibit A-2 (together with Exhibit A-1, the "Mortgage Loan Schedule"),
to Column Financial, Inc. ("Column"). Column has entered into a separate
mortgage loan purchase agreement with CSFB Mortgage Securities, whereby Column
has agreed to sell the Schedule A-2 Loans, together with certain other
multifamily and commercial mortgage loans, to CSFB Mortgage Securities. In
connection with its sale of the Schedule A-2 Loans to Column, KeyBank agreed to
make certain representations and warranties with respect to the Schedule A-2
Loans to any person or entity that acquired those Mortgage Loans from Column, in
accordance with the terms and provisions of the mortgage loan purchase agreement
whereby Column acquired the Schedule A-2 Loans from KeyBank. In satisfaction of
its agreement with Column, KeyBank is making such representations and warranties
with respect to the Schedule A-2 Loans in this Agreement.
CSFB Mortgage Securities intends to create a trust (the "Trust"), the
primary assets of which will be a segregated pool of multifamily and commercial
mortgage loans that includes the Mortgage Loans. Beneficial ownership of the
assets of the Trust (such assets collectively, the "Trust Fund" will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Xxxxx'x
Investors Service, Inc. and Fitch, Inc. (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of March 1, 2001 (the "Pooling
and Servicing Agreement"), among CSFB Mortgage Securities, as depositor (in such
capacity, the "Depositor"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key
Commercial Mortgage, as master servicer (the "Master Servicer"), ORIX Real
Estate Capital Markets, LLC, as special servicer (the "Special Servicer"), and
Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee"), relating to the
issuance of the Depositor's Series 2001-CK1 Commercial Mortgage Pass-Through
Certificates (the "Certificates"). Capitalized terms used but not otherwise
defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
in Section 1 hereof). It is anticipated that CSFB Mortgage Securities will
transfer the Mortgage Loans to the Trust contemporaneously with its purchase of
the Mortgage Loans hereunder.
CSFB Mortgage Securities intends to sell the Registered Certificates to
Credit Suisse First Boston Corporation ("CSFBC"), McDonald Investments Inc.
("McDonald"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated ("Xxxxxxx
Xxxxx") and Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI"), pursuant to the Underwriting
Agreement, dated as of the date hereof (the "Underwriting Agreement), among CSFB
Mortgage Securities, CSFBC, XxXxxxxx, Xxxxxxx Xxxxx and SSBI; and CSFB Mortgage
Securities intends to sell the remaining Certificates (the "Non-Registered
Certificates") to CSFBC, pursuant to the Certificate Purchase Agreement, dated
as of the date hereof (the "Certificate Purchase Agreement"), between CSFB
Mortgage Securities and CSFBC. The Registered Certificates are more fully
described in the prospectus dated March 5, 2001 (the "Basic Prospectus"), and
the supplement to the Basic Prospectus dated March 5, 2001 (the "Prospectus
Supplement"; and, together with the Basic Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time hereafter. The Non-Registered
Certificates are more fully described in the confidential offering circular
dated March 5, 2001 (the "Confidential Offering Circular"), as it may be amended
or supplemented at any time hereafter.
KeyBank will indemnify CSFB Mortgage Securities, CSFBC, XxXxxxxx, Xxxxxxx
Xxxxx, SSBI and certain related parties with respect to the disclosure regarding
the Mortgage Loans contained in the Prospectus, the Confidential Offering
Circular and certain other disclosure documents and offering materials relating
to the Certificates, pursuant to the Indemnification Agreement, dated the date
hereof (the "Indemnification Agreement"), among KeyBank, CSFB Mortgage
Securities, CSFBC, XxXxxxxx, Xxxxxxx Xxxxx and SSBI.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Schedule A-1 Loans. The purchase and sale of
the Schedule A-1 Loans shall take place on March 16, 2001 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). As of
the close of business on the respective Due Dates for the Schedule A-1 Loans in
March 2001 (individually and collectively, the "Cut-off Date"), the Schedule A-1
Loans will have an aggregate principal balance, after application of all
payments of principal due on the Schedule A-1 Loans on or before the Cut-off
Date, whether or not received, of $____________, subject to a variance of plus
or minus 5%. The purchase price for the Schedule A-1 Loans shall be ___% of such
aggregate principal balance, together with accrued interest on the Mortgage
Loans at their respective Net Mortgage Rates from and including March 1, 2001 to
but not including the Closing Date, and the Purchaser shall pay such purchase
price to the Seller on the Closing Date by wire transfer in immediately
available funds or by such other method as shall be mutually acceptable to the
parties hereto.
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SECTION 2. Conveyance of the Schedule A-1 Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Schedule A-1 Loans, including all interest and principal received on or with
respect to the Schedule A-1 Loans after the Cut-off Date (other than scheduled
payments of interest and principal due on or before the Cut-off Date), together
with all of the right, title and interest of the Seller in and to the proceeds
of any related title, hazard or other insurance policies and any escrow, reserve
or other comparable accounts related to the Schedule A-1 Loans.
(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Schedule A-1 Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date (other than scheduled payments of principal and interest due on the
Schedule A-1 Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver or cause to be delivered to the Purchaser or its
designee the Mortgage File and any Additional Collateral (other than reserve
funds and escrow payments) with respect to each Schedule A-1 Loan. In addition,
with respect to each Schedule A-1 Loan as to which any Additional Collateral is
in the form of a Letter of Credit as of the Closing Date, the Seller shall cause
to be prepared, executed and delivered to the issuer of each such Letter of
Credit such notices, assignments and acknowledgments as are necessary to cause
the recognition, under such Letter of Credit, of the Purchaser or its designee
as the beneficiary thereof and drawing party thereunder. Unless the Purchaser
notifies the Seller in writing to the contrary, the designated recipient of the
items described in the second preceding sentence, and the designated beneficiary
under each Letter of Credit referred to in the preceding sentence, shall be the
Trustee.
If the Seller cannot deliver on the Closing Date any original or certified
recorded document or original policy of title insurance which is to be delivered
as part of the related Mortgage File for any Schedule A-1 Loan, solely because
the Seller is delayed in making such delivery by reason of the fact that such
original or certified recorded document has not been returned by the appropriate
recording office or such original policy of title insurance has not yet been
issued, then the Seller shall notify the Purchaser in writing of such delay and,
pursuant to the terms and conditions of the Pooling and Servicing Agreement (if
such Schedule A-1 Loan is still subject thereto), shall deliver such documents
to the Purchaser or its designee, promptly upon the Seller's receipt thereof.
In addition, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
on or before the Closing Date, the following items (except to the extent any of
the following items are to be retained by a subservicer that will continue to
act on behalf of the Purchaser or its designee): (i) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Schedule A-1 Loans and, to the extent they are not
required to be a part of a Mortgage File for any Schedule A-1 Loan in accordance
with the definition thereof, originals or copies of all
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documents, certificates and opinions in the possession or under the control of
the Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of the Schedule A-1 Loans; and (ii) all
unapplied reserve funds and escrow payments in the possession or under the
control of the Seller that relate to the Schedule A-1 Loans. Unless the
Purchaser notifies the Seller in writing to the contrary, the designated
recipient of the items described in clauses (i) and (ii) of the preceding
sentence shall be the Master Servicer.
If the Seller is unable to deliver any Letter of Credit constituting
Additional Collateral for any Schedule A-1 Loan, then the Seller may, in lieu
thereof, deliver on behalf of the related Borrower, to be used for the same
purposes as such missing Letter of Credit, either: (i) a substitute letter of
credit substantially comparable to, but in all cases in the same amount and with
the same draw conditions and renewal rights as, that Letter of Credit and issued
by an obligor that meets any criteria in the related Mortgage Loan documents
applicable to the issuer of that Letter of Credit; or (ii) a cash reserve in an
amount equal to the amount of that Letter of Credit. For purposes of the
delivery requirements of this Section 2(c), any such substitute letter of credit
shall be deemed to be Additional Collateral of the type covered by the first
paragraph of this Section 2(c) and any such cash reserve shall be deemed to be
reserve funds of the type covered by the third paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c), the
Seller shall receive copies, or otherwise be the beneficiary, of all
certifications relating to the Schedule A-1 Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement. To the extent that those certifications and/or the related
exception reports reflect Document Defects with respect to the Schedule A-1
Loans, those certifications and/or the related exception reports shall
constitute notice to the Seller for purposes of Section 5 upon receipt thereof
by the Seller.
(d) The Seller shall be responsible for all reasonable out-of-pocket costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer with respect to the Schedule A-1 Loans that are
required to be recorded or filed, as the case may be, under the Pooling and
Servicing Agreement; provided that the Seller shall not be responsible for
actually recording or filing any such assignments or other instruments of
transfer or for costs and expenses that the related Borrowers have agreed to
pay. If the Seller receives written notice that any such assignment or other
instrument of transfer is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
The Seller shall provide the Purchaser or its designee with a power of attorney
to enable it or them to record any loan documents with respect to the Schedule
A-1 Loans that the Purchaser has been unable to record. Unless the Purchaser
notifies the Seller in writing to the contrary, the designated recipients of the
power of attorney referred to in the preceding sentence shall be the Trustee,
the Master Servicer and the Special Servicer.
On or before the Closing Date (and in connection with any substitution of
Mortgage Loans by the Seller pursuant to Section 5 hereof), the Seller shall
deposit with the Purchaser or its designee a cash amount (the "Recording/Filing
Reserve Funds") in the amount set forth in the Recording Side Letter, which cash
amount is to be applied toward the recording and filing of assignments and other
instruments of transfer with respect to such Mortgage Loans,
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as contemplated herein and in the Pooling and Servicing Agreement. If the total
Recording/Filing Reserve Funds delivered by the Seller to the Purchaser or its
designee with respect to any Schedule A-1 Loan delivered hereunder on the
Closing Date (or with respect to any Replacement Mortgage Loan delivered
hereunder in connection with any substitution of Mortgage Loans pursuant to
Section 5 hereof), as contemplated herein and in the Pooling and Servicing
Agreement, is insufficient to reimburse the Purchaser or its designee for all
costs and expenses reasonably incurred by or on behalf of the Purchaser in
connection with such recording and filing, the Purchaser or its designee shall
notify the Seller in writing and the Seller shall promptly remit to the
Purchaser the amount of any such shortfall. The Purchaser may retain any excess
Reserve/Filing Reserve Funds with respect to any particular Schedule A-1 Loan
delivered hereunder on the Closing Date and any Replacement Mortgage Loans
delivered hereunder in connection with any substitution of Mortgage Loans
pursuant to Section 5 hereof.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Schedule A-1
Loans to the Purchaser, as provided herein, as a sale of the Schedule A-1 Loans
to the Purchaser in exchange for the consideration specified in Section 1
hereof. In connection with the foregoing, the Seller shall cause all of its
records to reflect such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Schedule A-1 Loans to the Purchaser,
as provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of any of the Mortgage Loans. Except for actions that are
the express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Schedule A-1 Loans by the Seller to the
Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
SECTION 3. Examination of Schedule A-1 Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Schedule A-1 Loans,
that may be undertaken by or on behalf of the Purchaser. The fact that the
Purchaser has conducted or has failed to conduct any partial or complete
examination of any of the Mortgage Files for, and/or any of such other documents
and records relating to, any of the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section 4
(except as set forth in Section 5).
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SECTION 4. Representations, Warranties and Covenants of the Seller and the
Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser, each of the representations and warranties set forth in
Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller, each of the representations and warranties set forth in
Exhibit B-2.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, with respect to each Mortgage Loan, each of
the representations and warranties set forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than the
initial Purchaser, CSFBC, XxXxxxxx, Xxxxxxx Xxxxx and SSBI) who may be entitled
to any commission or compensation in connection with the sale to the Purchaser
of the Schedule A-1 Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof), by the Seller
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit C to this Agreement. From and after the date of
substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a "Mortgage Loan" hereunder for all purposes (and, if it replaced a
Schedule A-1 Loan, shall be deemed to constitute a "Schedule A-1 Loan" hereunder
for all purposes)
(e) It is understood and agreed that the representations and warranties set
forth in this Section 4 shall survive delivery of the respective Mortgage Files
for the Schedule A-1 Loans to the Purchaser or its designee and shall inure to
the benefit of the Purchaser for so long as any of the Mortgage Loans remains
outstanding, notwithstanding any restrictive or qualified endorsement or
assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Purchaser or its designee shall provide the Seller with written
notice of a Material Breach with respect to any Mortgage Loan or a Material
Document Defect with respect to any Schedule A-1 Loan. Within 90 days of the
earlier of discovery or receipt of written notice by the Seller that there has
been a Material Breach in respect of any Mortgage Loan or a Material Document
Defect in respect of any Schedule A-1 Loan (such 90-day period, the "Initial
Resolution Period"), the Seller shall (i) cure such Material Breach or Material
Document Defect, as the case may be, in all material respects or (ii) repurchase
the Mortgage Loan affected by such Material Breach (such Mortgage Loan, a
"Defective Mortgage Loan") or the Schedule A-1 Loan affected by such Material
Document Defect (such Schedule A-1 Loan, also a "Defective Mortgage Loan"), as
the case may be, at the related Purchase Price, with payment to be made in
accordance with the reasonable directions of the Purchaser; provided that
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if (i) any such Material Breach or Material Document Defect, as the case may be,
does not relate to whether the Defective Mortgage Loan was, as of the Closing
Date (or, in the case of a Replacement Mortgage Loan, as of the related date of
substitution), a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code (a "Qualified Mortgage"), (ii) such Material Breach or Material
Document Defect, as the case may be, is capable of being cured but not within
the applicable Initial Resolution Period, (iii) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(iv) the Seller shall have delivered to the Purchaser a certification executed
on behalf of the Seller by an officer thereof setting forth that such Material
Breach or Material Document Defect, as the case may be, is not capable of being
cured within the applicable Initial Resolution Period, specifying what actions
the Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed the
applicable Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan;
and provided, further, that, if the Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a Material Breach or Material Document
Defect arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), and
if the Defective Mortgage Loan is still subject to the Pooling and Servicing
Agreement, the Seller may, at its option, subject to the terms, conditions and
limitations set forth in the Pooling and Servicing Agreement, in lieu of
repurchasing such Defective Mortgage Loan (but, in any event, no later than such
repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Material
Breach or Material Document Defect, but if the Seller discovers a Material
Breach with respect to any Mortgage Loan or a Material Document Defect with
respect to any Schedule A-1 Loan, it will notify the Purchaser.
"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to any
Mortgage Loan, 90 days;
(ii) for purposes of remediating a Material Document Defect with
respect to any Schedule A-1 Loan that is and remains a Performing
Mortgage Loan throughout the applicable Initial Resolution
Period, the period commencing at the end of the applicable
Initial Resolution Period and ending on, and including, the
earlier of (A) the 90th day following the end of such Initial
Resolution Period and (B) the 45th day following the Seller's
receipt of written notice from the Purchaser or its designee of
the
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occurrence of any Servicing Transfer Event with respect to such
Schedule A-1 Loan subsequent to the end of such Initial
Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Schedule A-1 Loan that is a Performing Mortgage
Loan as of the commencement of the applicable Initial Resolution
Period, but as to which a Servicing Transfer Event occurs during
such Initial Resolution Period, the period commencing at the end
of the applicable Initial Resolution Period and ending on, and
including, the 90th day following the earlier of (A) the end of
such Initial Resolution Period and (B) the Seller's receipt of
written notice from the Purchaser or its designee of the
occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Schedule A-1 Loan that is a Specially Serviced
Mortgage Loan as of the commencement of the applicable Initial
Resolution Period, zero (-0-) days, provided that, if the Seller
did not receive written notice from the Purchaser or its designee
of the relevant Servicing Transfer Event as of the commencement
of the applicable Initial Resolution Period, then such Servicing
Transfer Event will be deemed to have occurred during such
Initial Resolution Period and clause (iii) of this definition
will be deemed to apply;
provided that, except as otherwise set forth in the following proviso, there
shall be no Resolution Extension Period with respect to a Material Document
Defect involving a Specially Designated Mortgage Loan Document; and provided,
further, that if a Material Document Defect exists with respect to any Mortgage
Loan, and if the Seller escrows with the Purchaser, prior to the end of the
Initial Resolution Period and any Resolution Extension Period otherwise
applicable to the remediation of such Material Document Defect without regard to
this proviso, cash in the amount of the then Purchase Price for such Mortgage
Loan and subsequently delivers to the Purchaser, on a monthly basis, such
additional cash as may be necessary to maintain a total escrow equal to the
Purchase Price for such Mortgage Loan as such price may increase over time (the
total amount of cash delivered to the Purchaser with respect to any Mortgage
Loan as contemplated by this proviso, the "Purchase Price Security Deposit"),
then the Resolution Extension Period applicable to the remediation of such
Material Document Defect shall be extended until the earliest of (i) the second
anniversary of the Closing Date, (ii) the date on which such Mortgage Loan is no
longer outstanding and part of the Trust Fund and (iii) if such Mortgage Loan
becomes a Specially Serviced Mortgage Loan under the Pooling and Servicing
Agreement, the date, if any, on which the Special Servicer determines in its
reasonable, good faith judgment that such Material Document Defect will
materially interfere with or delay the realization against the related Mortgaged
Property or materially increase the cost thereof.
The Purchaser or its designee shall establish, and maintain any Purchase
Price Security Deposit delivered to it with respect to any Mortgage Loan in, one
or more accounts (individually and collectively, the "Purchase Price Security
Deposit Account") and shall be entitled to make withdrawals from such account(s)
for the following purposes: (i) to cover any costs and expenses resulting from
the applicable Material Document Defect; (ii) upon any
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discounted payoff or other liquidation of such Mortgage Loan, to cover any
Realized Loss related thereto; and (iii) if the Seller so directs, or if the
balance on deposit in the Purchase Price Security Deposit Account declines, and
for 45 days remains, below the Purchase Price for such Mortgage Loan, or if such
Material Document is not remedied on or before the second anniversary of the
Closing Date, or if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan under the Pooling and Servicing Agreement and the Special Servicer
determines in its reasonable, good faith judgment that such Material Document
Defect will materially interfere with or delay the realization against the
related Mortgaged Property or materially increase the cost thereof, to apply the
Purchase Price Security Deposit to a full or partial, as applicable, payment of
the Purchase Price for such Mortgage Loan (with the Seller to pay any remaining
balance of such Purchase Price). The Seller may obtain a release of the Purchase
Price Security Deposit for any Mortgage Loan (net of any amounts payable
therefrom as contemplated by the prior sentence) upon such Mortgage Loan's being
paid in full or otherwise satisfied, liquidated or removed from the Trust Fund
or upon the subject Material Document Defect's being remedied in all material
respects and all associated fees and expenses required to be paid by the Seller
hereunder being paid in full. The Seller may direct the Purchaser to invest or
cause the investment of the funds deposited in any Purchase Price Security
Deposit Account in one or more Permitted Investments that bear interest or are
sold at a discount and that mature, unless payable on demand, no later than the
Business Day prior to the next Master Servicer Remittance Date. The Purchaser
shall act upon the written instructions of the Seller with respect to the
investment of funds in any Purchase Price Security Deposit Account in such
Permitted Investments, provided that in the absence of appropriate written
instructions from the Seller, the Purchaser shall have no obligation to invest
or direct the investment of funds in such Purchase Price Security Deposit
Account. All income and gain realized from the investment of funds deposited in
any Purchase Price Security Deposit Account shall be for the benefit of the
Seller and shall be withdrawn by the Purchaser or its designee and remitted to
the Seller on each Master Servicer Remittance Date (net of any losses incurred
and any deposits required to be made by the Seller as contemplated by the second
proviso to the prior paragraph), and the Seller shall remit to the Purchaser
from the Seller's own funds for deposit into such Purchase Price Security
Deposit Account the amount of any realized losses (net of realized gains) in
respect of such Permitted Investments immediately upon realization of such net
losses and receipt of written notice thereof from the Purchaser. Neither the
Purchaser nor any of its designees shall have any responsibility or liability
with respect to the investment directions of the Seller, the investment of funds
in any Purchase Price Security Deposit Account in Permitted Investments or any
losses resulting therefrom.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase or
substitution, the Purchaser or its designee shall use its best efforts, subject
to the terms of the related Mortgage Loans, to prepare and, to the extent
necessary and appropriate, have executed by the related Borrower and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased or replaced, on the one hand, and the remaining Mortgage Loans
therein, on the other hand, such that those two groups of Mortgage Loans are
each secured only by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly corresponding thereto; provided that no such termination
shall be effected unless and until (i) if the affected Cross-Collateralized
Group is then subject to
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the Pooling and Servicing Agreement, the Seller shall have obtained the consent
of the Controlling Class Representative, and (ii) the Purchaser has received
from the Seller (A) an Opinion of Counsel to the effect that such termination
will not cause an Adverse REMIC Event to occur with respect to any REMIC Pool or
an Adverse Grantor Trust Event with respect to either Grantor Trust Pool and (B)
written confirmation from each Rating Agency that such termination will not
cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates; and provided, further, that the Seller may, at its option,
purchase the entire subject Cross-Collateralized Group in lieu of terminating
the cross-collateralization. All costs and expenses incurred by the Purchaser or
its designee pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased or replaced. If the
cross-collateralization of any Cross-Collateralized Group cannot be terminated
as contemplated by this paragraph for any reason (including, but not limited to,
the Seller's failure to satisfy any of the conditions set forth in the first
proviso to the second preceding sentence), then, for purposes of determining
whether any Breach is a Material Breach or any Document Defect is a Material
Document Defect, and for purposes of the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent cure of the relevant Material Breach or Material Document Defect,
the Defective Mortgage Loan will be required to be repurchased as contemplated
hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the Cut-off Date (or, in
the case of a Replacement Mortgage Loan, after the date on which it is added to
the Trust Fund) and on or prior to the related date of repurchase or
replacement, shall belong to the Purchaser and its successors and assigns.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or replacement, shall belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set forth in
this Section 5(a) to cure a Material Breach or a Material Document Defect or
repurchase or replace the related Defective Mortgage Loan(s), constitute the
sole remedies available to the Purchaser with respect to a Breach in respect of
any Mortgage Loan or Document Defect in respect of any Schedule A-1 Loan.
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(b) It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that the Purchaser (which
shall include the Trustee) shall have executed and delivered such instruments of
transfer or assignment then presented to it by the Seller, in each case without
recourse, as shall be necessary to vest in the Seller the legal and beneficial
ownership of such Defective Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto), to
the extent that such ownership interest was transferred to the Purchaser
hereunder.
(c) If the Purchaser has identified on or before July 16, 2002 one or more
conditions that will become Recording/Title Policy Omissions with respect to any
Mortgage Loan on September 16, 2002 if not earlier corrected, the Purchaser or
any of its designees shall, on or about July 16, 2002 (or, if such day is not a
Business Day, the first Business Day thereafter), provide written notification
of the conditions that will become Recording/Title Policy Omissions to the
Seller. On the later of September 16, 2002 and 60 days following delivery of the
notice contemplated by the prior sentence, the Purchaser may, in its sole
discretion, require the Seller to (and, at the direction of the Purchaser or its
designee, the Seller shall) establish a Recording/Title Policy Reserve or
deliver a Recording/Title Policy Credit with respect to each Mortgage Loan that
then has a Recording/Title Policy Omission. In furtherance of the preceding
sentence, the Purchaser or its designee shall establish one or more accounts
(individually and collectively, the "Special Reserve Account"), each of which
shall be an Eligible Account, and the Purchaser or its designee shall deposit
any Recording/Title Policy Reserve into the Special Reserve Account within one
Business Day of receipt. The Seller may direct the Purchaser to invest or cause
the investment of the funds deposited in the Special Reserve Account in one or
more Permitted Investments that bear interest or are sold at a discount and that
mature, unless payable on demand, no later than the Business Day prior to the
next Master Servicer Remittance Date. The Purchaser shall act upon the written
instructions of the Seller with respect to the investment of funds in the
Special Reserve Account in such Permitted Investments, provided that in the
absence of appropriate written instructions from the Seller, the Purchaser shall
have no obligation to invest or direct the investment of funds in such Special
Reserve Account. All income and gain realized from the investment of funds
deposited in such Special Reserve Account shall be for the benefit of the Seller
and shall be withdrawn by the Purchaser or its designee and remitted to the
Seller on each Master Servicer Remittance Date (net of any losses incurred), and
the Seller shall remit to the Purchaser from the Seller's own funds for deposit
into such Special Reserve Account the amount of any realized losses (net of
realized gains) in respect of such Permitted Investments immediately upon
realization of such net losses and receipt of written notice thereof from the
Purchaser; provided that the Seller shall not be required to make any such
deposit for any realized loss which is incurred solely as a result of the
insolvency of the federal or state depository institution or trust company that
holds such Special Reserve Account. Neither the Purchaser nor any of its
designees shall have any responsibility or liability with respect to the
investment directions of the Seller, the investment of funds in the Special
Reserve Account in Permitted Investments or any losses resulting therefrom. A
Recording/Title Policy Credit shall (i) entitle the Purchaser or its designee to
draw upon the Recording/Title Policy Credit on behalf of the Purchaser upon
presentation of only a sight draft or other written demand for payment, (ii)
permit multiple draws by the Purchaser or its designee, and (iii) be issued by
such issuer and containing such other terms as the Purchaser or its designee may
reasonably require to make such Recording/Title Policy Credit reasonably
equivalent security to a Recording/Title Policy Reserve in the same amount. Once
a Recording/Title Policy Reserve or
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Recording/Title Policy Credit is established with respect to any Mortgage Loan,
the Purchaser or its designee shall, from time to time, withdraw funds from the
related Special Reserve Account or draw upon the related Recording/Title Policy
Credit, as the case may be, and apply the proceeds thereof to pay the losses or
expenses directly incurred by the Purchaser or its designee as a result of a
Recording/Title Policy Omission. The Recording/Title Policy Reserve or
Recording/Title Policy Credit or any unused balance thereof with respect to each
Mortgage Loan will be released to the Seller by the Purchaser upon the earlier
of the Seller's cure of all Recording/Title Policy Omissions with respect to
such Mortgage Loan (provided that the Purchaser has been reimbursed with respect
to all losses and expenses relating to Recording/Title Policy Omissions with
respect to such Mortgage Loan) or such Mortgage Loan no longer being a part of
the Trust Fund under the Pooling and Servicing Agreement. The rights to require
and apply the proceeds of a Recording/Title Policy Reserve or Recording/Title
Policy Credit with respect to a Mortgage Loan under this Section 5(c) are in
addition to the rights afforded with respect to a Defective Mortgage Loan under
Section 5(a), and the exercise of rights with respect to a Mortgage Loan under
this Section 5(c) shall not preclude or otherwise limit the exercise of rights
afforded with respect to a Defective Mortgage Loan under Section 5(a) or
constitute a waiver thereof.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley & Austin, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct
in all material respects as of the Closing Date;
(ii) all documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
reasonably acceptable to the Purchaser and, in the case of the
Pooling and Servicing Agreement (insofar as such Agreement
affects to obligations of the Seller hereunder), to the Seller,
shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to
be delivered thereto pursuant to Section 2 of this Agreement;
(iv) the result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans
performed by or on behalf of the Purchaser pursuant to Section 3
hereof shall be satisfactory to the Purchaser in its reasonable
determination;
(v) all other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with in all material respects, and the Seller shall have
the ability to comply with all
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terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) the Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(vii) neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of the
following:
(i) this Agreement, duly executed by the Purchaser and the Seller;
(ii) each of the Pooling and Servicing Agreement and the Indemnification
Agreement, duly executed by the respective parties thereto;
(iii) an Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date,
and upon which CSFB Mortgage Securities, CSFBC, XxXxxxxx, Xxxxxxx
Xxxxx, SSBI and the Rating Agencies (collectively, for purposes of
this Section 7, the "Interested Parties") may rely, attaching thereto
as exhibits (A) the resolutions of the board of directors of the
Seller authorizing the Seller's entering into the transactions
contemplated by this Agreement, and (B) the organizational documents
of the Seller;
(iv) a certificate of good standing with respect to the Seller issued by
the Comptroller of the Currency not earlier than 20 days prior to the
Closing Date, and upon which the Interested Parties may rely;
(v) a Certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested
Parties may rely;
(vi) a written opinion of in-house counsel for the Seller, dated the
Closing Date and addressed to the Interested Parties and the Trustee,
which opinion shall be substantially in the form of Exhibit D-3A
hereto (with such additions, deletions or modifications as may be
required by either Rating Agency);
(vii) a written opinion of Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx LLP,
special counsel for the Seller, dated the Closing Date and addressed
to the Interested Parties and the Trustee, which opinion shall be
substantially in
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the form of Exhibit D-3B hereto (with such additions, deletions or
modifications as may be required by either Rating Agency);
(viii) a written opinion of Xxxxxxxxxx, Xxxxxxx & Xxxxx, P.C., special
counsel for the Seller, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3C hereto (with such additions,
deletions or modifications as may be required by either Rating
Agency);
(ix) a letter from Xxxxxxxxxx, Xxxxxxx & Xxxxx, P.C., special counsel for
the Seller, which letter shall be substantially in the form of Exhibit
D-3D hereto;
(x) one or more comfort letters from Xxxxxx Xxxxxxxx LLP, certified public
accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and addressed to, and
in form and substance acceptable to, CSFB Mortgage Securities, CSFBC,
XxXxxxxx, Xxxxxxx Xxxxx, SSBI and their respective counsel, stating in
effect that, using the assumptions and methodology used by CSFB
Mortgage Securities, all of which shall be described in such letters,
they have recalculated such numbers and percentages relating to the
Mortgage Loans set forth in any preliminary Prospectus Supplement and
the Prospectus Supplement, compared the results of their calculations
to the corresponding items in any preliminary Prospectus Supplement
and the Prospectus Supplement, respectively, and found each such
number and percentage set forth in any preliminary Prospectus
Supplement and the Prospectus Supplement, respectively, to be in
agreement with the results of such calculations; and
(xi) such further certificates, opinions and documents as the Purchaser may
reasonably request or any Rating Agency may require.
SECTION 8. Costs. Whether or not this Agreement is terminated, the costs
and expenses incurred in connection with the transactions herein contemplated
shall be allocated pursuant to the terms of the Term Sheet for Joint Conduit
Securitizations between Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
Prudential Securities Incorporated, Prudential Mortgage Capital Company, LLC,
Column and KeyBank, as supplemented and modified by the Term Sheet for the Joint
Securitizations among Column, CSFBC and KeyBank for Calendar Year 2001 (the
"Term Sheet").
SECTION 9. Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered to or mailed, by registered mail, postage prepaid, by overnight mail
or courier service, or transmitted by facsimile and confirmed by similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 00 Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile number (000) 000-0000, Attention:
Xxxxx Xxxxx, or such other address as may be designated by the Purchaser to the
Seller in writing, or, if to the Seller, addressed to the Seller at 000 Xxxx
Xxxxxx,
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Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, facsimile number (000) 000-0000,
Attention: X. X. Xxxxx (with a copy to 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
facsimile number (000) 000-0000, Attention: Xxxxxx X. Xxxxx), or such other
address as may be designated by the Seller to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Schedule A-1 Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Schedule A-1 Loans by the Seller to secure a debt or other obligation of the
Seller. However, in the event that, notwithstanding the intent of the parties,
the Schedule A-1 Loans are held to continue to be property of the Seller, then:
(a) this Agreement shall be deemed to be a security agreement under applicable
law; (b) the transfer of the Schedule A-1 Loans provided for herein shall be
deemed to be a grant by the Seller to the Purchaser of a first priority security
interest in all of the Seller's right, title and interest in and to the Schedule
A-1 Loans and all amounts payable to the holder(s) of the Schedule A-1 Loans in
accordance with the terms thereof (other than scheduled payments of interest and
principal due on or before the Cut-off Date) and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (c) the assignment by CSFB Mortgage Securities to the Trustee of
its interests in the Schedule A-1 Loans as contemplated by Section 16 hereof
shall be deemed to be an assignment of any security interest created hereunder;
(d) the possession by the Purchaser of the related Mortgage Notes and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-305 of the
Ohio Uniform Commercial Code, the New York Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction; and (e)
notifications to, and acknowledgments, receipts or confirmations from, persons
or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. The Seller and the Purchaser shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Schedule A-1 Loans, such security interest would be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement.
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SECTION 12. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Schedule A-1 Loans by the Seller to
the Purchaser, notwithstanding any restrictive or qualified endorsement or
assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, the Seller and the
Purchaser each hereby irrevocably (i) submits to the jurisdiction of any New
York State and federal courts sitting in New York City with respect to matters
arising out of or relating to this Agreement; (ii) agrees that all claims with
respect to such action or proceeding may be heard and determined in such New
York State or federal courts; (iii) waives, to the fullest possible extent, the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates. To the extent of
any such assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any
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Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, is expressly authorized to assign its
rights and obligations under this Agreement, in whole or in part, to the
transferee of such Mortgage Loan. To the extent of any such assignment, such
transferee shall be the Purchaser hereunder (but solely with respect to such
Mortgage Loan that was transferred to it). Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser, and their respective successors and permitted assigns.
SECTION 17. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 19. Entire Agreement. Except as otherwise expressly contemplated
hereby, this Agreement constitutes the entire agreement and understanding of the
parties with respect to the matters addressed herein, and this Agreement
supersedes any prior agreements and/or understandings, written or oral, with
respect to such matters.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:
--------------------------------------
Name:
Title:
-00-
XXXXXXX X-0
MORTGAGE LOAN SCHEDULE - PART 1
See attached list of Mortgage Loans.
A-1
# Property Name Address City
------------------------------------------------------------------------------------------------------------------------------------
1 Connector Park 790 Chelmsford Street, 00 Xxxxxxx Xxxxxx and 00 Xxxxxxxxx Xxx Xxxxxx
0 Xxxxxxx Xxxx Medical Office Building (2A) 0000 Xxxx Xxxxx Xxxxx Xxxxxxx
3 College Park Commons (2A) 00000 Xxxxxxxxxx Xxxxxxx Detroit
4 Strathmore Park Apartments 000 Xxxxxxxxxx Xxxx Xxxxxxxxx
5 Redondo Torrance Mini Storage 0000 Xxxxxxxxx Xxxxxx Redondo Beach
6 Siemens Facility Highway 52 Lafayette
7 Park Creek Manor Apartments 0000 Xxxxxx Xxxxx Xxxxx Xxxxxx
8 Embassy and Diplomat Towers 15700-15800 Providence Drive Southfield
9 The Crossroads at Middlebury-East 850 - 930 Straits Turnpike Middlebury
10 Westpark Industrial 0000 00xx Xxxxxx Xxxxxxxxx Xxxxxx
11 Bartell Warehouse & Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxx
12 Heatherwood Apartments 0000 Xxxxx 00xx Xxxxxx Xxxxxxx
13 Xxxxxx'x Corners Apartments 6602 Xxxxxxxx Road Corpus Christi
14 The Maple Leaf Square Shopping Center 0000-0000 Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx
15 Golden Stream Quality Foods 11899 Exit Five Parkway Fishers
16 North Mountain Apartments 00000 Xxxxx 0xx Xxxxxx Xxxxxxx
17 Evergreen Park Manor Apartments 0000-0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxx Center
18 Van Nuys Mini Storage 0000 Xxx Xxxx Xxxxxxxxx Xxx Xxxxxxx
19 Premier Self Storage 0000 Xxxxxx Xxxxxx Modesto
00 Xxx Xxxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxx Xxxxxxx
21 Blackstone 000-000 Xxxxxxxxxx Xxxxxx Xxxxx Xxxxx
00 Xxxxxx Xxxxx Xxxxxxxxxx X & II 000 Xxxxx Xxxxx Xxxxx Xxxx and 1408 Avenue H Houston
23 Xxxxxxx Xxxxx Apartments 0000 Xxxxxxx Xxxxx Xxxxx Xxxxxx Xxxxx
24 Ridgemoor Square Building 11440 Ventura Boulevard Studio City
25 Birmingham Drug & Video Max 33855 & 00000 Xxxxxxxx Xxxxxx Birmingham
26 Xxxxxxxxx Mobile Home Park 0000 Xxxx Xxxxxxxxxx Xxxxxx Indianapolis
27 00000 Xxxxxxxx Xxxxxx 00000 Xxxxxxxx Xxxxxx Maple Heights
28 Florida Retail Center 0000 Xxxxx Xxxxxxx Xxxxxx Tampa
29 Vanowen Self Storage 00000 Xxxxxxx Xxxxxx Van Nuys
30 Aspin Storage 0000 Xxxxx Xxxxxx Xxxxxxx
31 000 Xxxxxx Xxxxxx (2C) 000 Xxxxxx Xxxxxx Xxxxxxxx
32 000-000 Xxxx Xxxxxx (2C) 000-000 Xxxx Xxxxxx Xxxxxxxx
33 CVS/Pharmacy 0000 Xxxxx Xxxx Xxxxxxxxx
34 41st Street Office Building 4004 Colby Avenue Everett
35 CSK Auto Store - Anchorage 0000 Xxxxxx Xxxx Anchorage
00 Xxxx Xxxxxx Apartments 000-000 Xxxx Xxxxxx Xxxx Xxxxx
37 Westside Mobile Home Park 0000 Xxxxxx X Xxxx Xxxxxxx
38 CSK Auto - Albuquerque 0000 Xxxxx Xxxxxxx 000 Xxxxxxxxx Xxxxxxxxxxx
00 Xxxxxx Xxxx Apartments 0000-0000 Xxxxxx Xxxx Xxxxx Xxx
40 Lawn Avenue Apartments 2214-2216 Lawn Avenue Xxxxxxx
41 000-000 Xxxxx Xxxxxx (2D) 000-000 Xxxxx Xxxxxx Xxxxxxxx
42 00-00 Xxxxxx Xxxxxx (2D) 00-00 Xxxxxx Xxxxxx Xxxxxxxx
00 0000-0000 Telegraph Road 0000-0000 Xxxxxxxxx Xxxx Downey
Orig
Rem. Term to
Zip Mortgage Fee Simple/ Original Cut-off Orig Amort. Maturity
# County State Code Loan Seller Leasehold Balance Balance (9) Amort. Term (10)
-----------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxxxx XX 00000 KeyBank Fee 20,000,000 19,965,923 360 358 120
2 Wayne MI 48235 KeyBank Fee 14,128,000 12,950,714 360 353 132
3 Wayne MI 48235 KeyBank Fee 6,850,000 6,824,415 360 353 132
4 Xxxxxxx XX 00000 KeyBank Fee 14,500,000 14,457,556 360 356 120
5 Xxx Xxxxxxx XX 00000 KeyBank Fee 10,200,000 10,134,975 300 294 120
6 Tippecanoe IN 47904 KeyBank Fee 10,050,000 10,017,776 360 355 132
7 Xxxxxx XX 00000 KeyBank Fee 7,900,000 7,878,052 360 356 120
8 Xxxxxxx XX 00000 KeyBank Fee 7,600,000 7,531,168 300 291 120
9 Xxx Xxxxx XX 00000 KeyBank Fee 6,300,000 6,280,443 300 297 120
10 Xxxx XX 00000 KeyBank Fee 6,000,000 5,980,760 300 297 120
11 Xxxx XX 00000 KeyBank Fee 4,600,000 4,585,563 360 355 120
12 Maricopa AZ 85021 KeyBank Fee 4,250,000 4,236,172 360 355 120
13 Nueces TX 78413 KeyBank Fee 4,000,000 3,979,407 300 295 120
14 Xxxxxxxx XX 00000 KeyBank Fee 4,000,000 3,977,481 360 350 120
15 Xxxxxxxx XX 00000 KeyBank Fee 3,975,000 3,967,186 360 357 120
16 Maricopa AZ 85020 KeyBank Fee 3,750,000 3,737,799 360 355 120
17 Hennepin MN 55430 KeyBank Fee 3,008,000 2,998,244 300 297 120
18 Xxx Xxxxxxx XX 00000 KeyBank Fee 3,000,000 2,980,875 300 294 120
19 Xxxxxxxxxx XX 00000 KeyBank Fee 2,900,000 2,892,856 300 298 120
20 Xxxx XX 00000 KeyBank Fee 2,055,000 2,045,067 300 295 120
21 Dade FL 33139 KeyBank Fee 1,800,000 1,796,036 300 298 120
22 Xxxxxx XX 00000 KeyBank Fee 1,700,000 1,690,055 300 294 120
23 Xxxxxxx XX 00000 KeyBank Fee 1,340,000 1,331,982 300 294 120
24 Xxx Xxxxxxx XX 00000 KeyBank Fee 1,320,000 1,316,476 360 355 120
25 Xxxxxxx XX 00000 KeyBank Fee 1,285,000 1,268,440 300 284 120
26 Marion IN 46219 KeyBank Fee 1,194,000 1,188,430 300 295 120
27 Xxxxxxxx XX 00000 KeyBank Fee 1,175,000 1,170,251 300 296 144
28 Xxxxxxxxxxxx XX 00000 KeyBank Fee 1,068,000 1,063,537 300 295 120
29 Xxx Xxxxxxx XX 00000 KeyBank Fee 900,000 897,972 300 298 120
30 Shasta CA 96003 KeyBank Fee 897,000 893,474 300 296 120
31 Xxxxxxxx XX 00000 KeyBank Fee 637,000 632,296 300 291 120
32 Xxxxxxxx XX 00000 KeyBank Fee 232,000 230,426 300 292 120
33 Xxxxxxxx XX 00000 KeyBank Fee 882,000 850,762 180 167 120
34 Xxxxxxxxx XX 00000 KeyBank Fee 640,000 637,186 300 295 120
35 N/A AK 99508 KeyBank Fee 607,600 605,922 300 297 120
36 Xxx Xxxxxxx XX 00000 KeyBank Fee 550,000 545,923 300 291 120
37 Xxx IA 52627 KeyBank Fee 525,000 522,700 300 295 120
38 Xxxxxxxxxx XX 00000 KeyBank Fee 500,000 498,619 300 297 120
39 Xxxxxxx XX 00000 KeyBank Fee 500,000 497,996 300 296 120
40 Xxxxxxxx XX 00000 KeyBank Fee 376,000 374,893 360 355 120
41 Xxxxxxxx XX 00000 KeyBank Fee 210,000 208,084 300 288 120
42 Xxxxxxxx XX 00000 KeyBank Fee 165,000 163,495 300 288 120
43 Xxx Xxxxxxx XX 00000 KeyBank Fee 337,500 334,553 300 289 120
---------------------------------------------------------
Total/Weighted Average: $1,001,148,279 $ 997,140,788 348 343 115
=========================================================
Rem. Interest Servicing
Term to Calculation First Lockout and
Maturity Interest (30/360 / Monthly Payment Defeasance Expiration Trustee
# (10) Rate Actual/360) Payment (11) Date ARD (12) (14) Date Fees
------------------------------------------------------------------------------------------------------------------------------------
1 118 7.4700% Actual/360 139,432 02/01/2001 No 12/01/2002 0.0529%
2 125 8.4400% Actual/360 99,213 09/01/2000 Yes 05/01/2011 0.0529%
3 125 8.6100% Actual/360 53,206 09/01/2000 Yes 05/01/2011 0.0529%
4 116 7.6100% Actual/360 102,481 12/01/2000 Yes 07/01/2010 0.0529%
5 114 7.8200% Actual/360 77,513 10/01/2000 Yes 05/01/2010 0.0529%
6 127 8.2900% 30/360 75,785 11/01/2000 Yes 09/01/2010 0.0529%
7 116 7.8700% Actual/360 57,253 12/01/2000 Yes 08/01/2010 0.0529%
8 111 7.9800% Actual/360 58,557 07/01/2000 Yes 03/01/2010 0.0529%
9 117 8.1300% Actual/360 49,168 01/01/2001 Yes 09/01/2010 0.1029%
10 117 7.9300% Actual/360 46,031 01/01/2001 Yes 09/01/2010 0.0529%
11 115 8.0400% Actual/360 33,882 11/01/2000 10/01/2010 Yes 06/01/2010 0.1029%
12 115 7.8800% Actual/360 30,830 11/01/2000 No 09/01/2003 0.0529%
13 115 7.9400% Actual/360 30,714 11/01/2000 Yes 06/01/2010 0.0529%
14 110 8.2400% Actual/360 30,023 06/01/2000 05/01/2010 Yes 01/01/2010 0.0529%
15 117 8.1500% 30/360 29,584 01/01/2001 12/01/2010 Yes 08/01/2010 0.0529%
16 115 7.8800% Actual/360 27,203 11/01/2000 No 09/01/2003 0.0529%
17 117 7.8600% Actual/360 22,938 01/01/2001 Yes 09/01/2010 0.1029%
18 114 7.8200% Actual/360 22,798 10/01/2000 Yes 05/01/2010 0.0529%
19 118 7.5900% Actual/360 21,601 02/01/2001 Yes 10/01/2010 0.0529%
20 115 8.3000% Actual/360 16,271 11/01/2000 Yes 07/01/2010 0.0529%
21 118 8.4200% Actual/360 14,397 02/01/2001 No 01/01/2006 0.0529%
22 114 8.3200% Actual/360 13,483 10/01/2000 No 09/01/2005 0.0529%
23 114 8.1900% Actual/360 10,512 10/01/2000 No N/A 0.0529%
24 115 8.7400% Actual/360 10,375 11/01/2000 Yes 07/01/2010 0.1029%
25 104 9.2400% Actual/360 10,996 12/01/1999 No 11/01/2004 0.0529%
26 115 8.5000% Actual/360 9,614 11/01/2000 No 10/01/2005 0.0529%
27 140 8.3000% Actual/360 9,304 12/01/2000 No N/A 0.0529%
28 115 9.1100% Actual/360 9,043 11/01/2000 No 10/01/2005 0.0529%
29 118 8.2500% Actual/360 7,096 02/01/2001 No 01/01/2006 0.0529%
30 116 8.4700% Actual/360 7,205 12/01/2000 No 11/01/2005 0.0529%
31 111 9.0700% Actual/360 5,376 07/01/2000 No 06/01/2005 0.0529%
32 112 8.8100% Actual/360 1,917 08/01/2000 No 07/01/2005 0.0529%
33 107 8.8400% Actual/360 8,862 03/01/2000 01/31/2010 Yes 10/01/2009 0.0529%
34 115 8.8300% Actual/360 5,297 11/01/2000 No 10/01/2005 0.0529%
35 117 8.8400% Actual/360 5,033 01/01/2001 No 12/01/2005 0.0529%
36 111 9.0500% Actual/360 4,634 07/01/2000 No 06/01/2005 0.0529%
37 115 8.8500% Actual/360 4,352 11/01/2000 No 10/01/2005 0.0529%
38 117 8.8400% Actual/360 4,141 01/01/2001 No 12/01/2005 0.0529%
39 116 8.3500% Actual/360 3,976 12/01/2000 No 11/01/2005 0.0529%
40 115 8.3200% Actual/360 2,843 11/01/2000 No 10/01/2005 0.0529%
41 108 9.3700% Actual/360 1,816 04/01/2000 No 03/01/2005 0.0529%
42 108 9.3700% Actual/360 1,427 04/01/2000 No 03/01/2005 0.0529%
43 109 9.2300% Actual/360 2,886 05/01/2000 No 04/01/2005 0.0529%
Total/
Weighted ------------------ -------------
Average: 110 8.1672% $7,551,218.12
================== =============
(1) The Crystal Pavilion/Xxxxx Building Loan is one of four existing pari passu
notes. The total original principal amount of all four notes is
$119,120,085.86. The U/W DSCR and LTV ratios presented are based on the
entire outstanding indebtedness of the Crystal Pavilion/Xxxxx Building four
existing pari passu notes.
(2A) The Underlying Mortgage Loans secured by College Park Medical Office
Building and College Park Commons are cross-collateralized and
cross-defaulted, respectively.
(2B) The Underlying Mortgage Loans secured by Xxxxxxx Xxxxxxxxxx Xxxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxx and Dorchester Crossing are
cross-collateralized and cross-defaulted, respectively.
(2C) The Underlying Mortgage Loans secured by 000 Xxxxxx Xxxxxx and 000-000 Xxxx
Xxxxxx are cross-defaulted.
(2D) The Underlying Mortgage Loans secured by 000-000 Xxxxx Xxxxxx and 00-00
Xxxxxx Xxxxxx are cross-defaulted.
(3) The Underlying Mortgage Loan secured by Lowe's San Xxxxx follows the
following amortization schedule:
Payments 1-36 are based on an Interest-Only Period
Payments 37-60 are based on a 360-month amortization of principal
Payments 61-120 are based on a 300-month amortization of principal
(4) Does not include the hotel properties.
(5) In the case of cross-collateralized and/or cross-defaulted Underlying
Mortgage Loans, the combined LTV is presented for each and every related
Underlying Mortgage Loan.
(6) At maturity with respect to Balloon Loans or at the anticipated repayement
date in the case of ARD Loans. There can be no assurance that the value of
any particular Mortgaged Property will not have declined from the original
appraisal value.
(7) Underwritten NCF reflects the Net Cash Flow after U/W Replacement Reserves,
U/W LC's and TI's and U/W FF&E.
(8) U/W DSCR is based on the amount of the monthly payments presented. In the
case of cross-collateralized and/or cross-defaulted Underlying Mortgage
Loans, the combined U/W DSCR is presented for each and every related
Underlying Mortgage Loan.
(9) Assumes a Cut-off Date of March 11, 2001.
(10) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(11) In the case of Mortgage Loans with Interest Only Periods, the monthly
payment presented herein reflects the amount due during the respective
amortization terms.
(12) Anticipated Repayment Date.
(13) Prepayment Provision as of Origination:
L (x) = Lockout or Defeasance for x years
YM A% (x) = Greater of Yield Maintenance Premium and A% Prepayment for x
years
O (x) = Prepayable at par for x years
(14) Yes means that defeasance is permitted notwithstanding the Lockout Period.
Exhibit A-2
Mortgage Loan Schedule--part 2
[See attached list of Mortgage Loans]
A-2
# Property Name Address City
-----------------------------------------------------------------------------------------------------------------------------------
1 Wieden & Xxxxxxx Building 0000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
0 Xxxxx Xxxx Xxxxx 000 Xxxxxx Xxxxx Xxx Xxxxxx
3 Forbes Business Center II & Metro Business Center V 4351-4485 Xxxxxx Drive & 0000 Xxxxxx Xxxxxxxxx Xxxxxx
4 Trendwest Office Building 9805 Willows Road Redmond
5 8251 & 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx 0000 & 0000 Xxxxxxxx Xxxxxx Clayton
0 Xxxxxxxxx Xxxxx X-XX 00000, 14175, 14201 and 00000 Xxxxxxxxxx Xxxxxx Chantilly
0 Xxxxxxxx Xxxxxx Xxxxx 2002-2072 West Avenue J Lancaster
8 Xxxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
9 Lakewood City Center Shopping Center 00000-00 Xxxxxxx Xxxxxx Lakewood
10 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx Xxx Xxxxxxxx
00 Xxxxxxxxxx Xxxx Xxxxxxxx Xxxx Research and Technology Drives Chesapeake
12 Redmond Self Storage 00000 - Xxxxxxxxx 00xx Xxxxxx Xxxxxxx
00 AT&T Cable Center 0000 Xxxxx Xxxxx Xxxxxx Denver
14 S&A Brookline 000 Xxxxxxx Xxxxxx Xxxxxxxxx
15 Tractor Supply Company 000 Xxxx Xxxx Xxxxxxxxx Xxxxxxxxx
16 Charlotte Arms Apartments 0000 Xxxxx Xxxxxx Xxxxxx Monroe
17 Xxxxxxx & Bay Shopping Center 000 Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx
18 CVS Drug Store 00 Xxxx Xxxx Xxxxxx Xxxxxxxxxx
00 Xxxxxxxxxx Xxxxxxx 0000 Xxxxx Xxxx Xxxx Xxxxxxxxx
Total/Weighted Average:
Orig
Rem. Term to
Zip Mortgage Fee Simple/ Original Cut-off Orig Amort. Maturity
# County State Code Loan Seller Leasehold Balance Balance (9) Amort. Term (10)
-----------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxxxx XX 00000 Column Fee 20,000,000 19,861,229 204 201 120
2 Xxxxxxxxx XX 00000 Column Fee 12,100,000 12,054,813 360 354 120
3 Xxxxxx Xxxxxx'x XX 00000 Column Fee 12,000,000 11,975,443 360 357 144
4 Xxxx XX 00000 Column Fee 11,700,000 11,677,706 360 357 120
5 Xxxxx Xxxxx XX 00000 Column Fee/Leasehold 10,470,000 10,449,885 360 357 144
6 Xxxxxxx XX 00000 Column Fee 9,600,000 9,580,828 360 357 120
7 Xxx Xxxxxxx XX 00000 Column Fee 7,960,000 7,944,038 360 357 120
8 Xxxxxxxxxxxx XX 00000 Column Fee 5,522,000 5,504,843 336 332 120
9 Xxxxxxxx XX 00000 Column Fee 4,800,000 4,787,679 360 356 120
10 Xxxxxxxxxxx XX 00000 Column Fee 4,585,000 4,570,997 300 297 132
11 Washington Xxxxxxx XX 00000 Column Fee 4,500,000 4,486,381 360 355 120
12 Xxxx XX 00000 Column Fee 3,476,000 3,458,839 300 295 120
13 Xxxxxx XX 00000 Column Fee 3,100,000 3,090,746 360 355 120
14 Xxxxxxx XX 00000 Column Fee 2,900,000 2,894,406 360 357 84
15 Xxxxxxxx XX 00000 Column Fee 2,630,000 2,625,693 360 358 120
16 Xxxxxx XX 00000 Column Fee 2,255,000 2,251,096 360 358 120
17 Xxxxx XX 00000 Column Fee 2,000,000 1,990,119 240 237 120
18 Xxxxxxxxx XX 00000 Column Fee 1,850,000 1,840,618 240 237 120
19 Tippecanoe IN 47909 Column Fee 1,325,000 1,322,972 360 358 120
122,368,333
--------------------------------------------------------
Total/Weighted Average: $1,001,148,279 $997,140,788 348 343 115
========================================================
Rem. Interest Servicing
Term to Calculation First Lockout and
Maturity Interest (30/360 / Monthly Payment Defeasance Expiration Trustee
# (10) Rate Actual/360) Payment (11) Date ARD (12) (14) Date Fees
------------------------------------------------------------------------------------------------------------------------------------
1 117 8.0700% Actual/360 180,487 01/01/2001 Yes 08/01/2010 0.0529%
2 114 8.1500% Actual/360 90,054 10/01/2000 Yes 06/01/2010 0.0529%
3 141 7.9400% Actual/360 87,550 01/01/2001 Yes 06/01/2012 0.1029%
4 117 8.2900% Actual/360 88,227 01/01/2001 Yes 09/01/2010 0.0529%
5 141 8.2500% Actual/360 78,658 01/01/2001 Yes 09/01/2012 0.0729%
6 117 8.0600% Actual/360 70,843 01/01/2001 Yes 09/01/2010 0.1029%
7 117 8.0400% Actual/360 58,630 01/01/2001 12/01/2010 Yes 08/01/2010 0.0529%
8 116 8.2100% Actual/360 42,032 12/01/2000 11/01/2010 Yes 07/01/2010 0.0529%
9 116 8.2600% Actual/360 36,095 12/01/2000 Yes 07/01/2010 0.0529%
10 129 8.2300% Actual/360 36,089 01/01/2001 12/01/2011 Yes 08/01/2011 0.0529%
11 115 8.2000% Actual/360 33,649 11/01/2000 Yes 07/01/2010 0.0529%
12 115 8.1800% Actual/360 27,244 11/01/2000 10/01/2010 Yes 06/01/2010 0.0529%
13 115 8.2600% Actual/360 23,311 11/01/2000 10/01/2010 Yes 06/01/2010 0.0529%
14 81 8.2300% Actual/360 21,746 01/01/2001 12/01/2007 Yes 08/01/2007 0.0529%
15 118 7.7200% Actual/360 18,787 02/01/2001 01/01/2011 Yes 09/01/2010 0.0529%
16 118 7.3700% Actual/360 15,567 02/01/2001 Yes 10/01/2010 0.0529%
17 117 8.2900% Actual/360 17,092 01/01/2001 Yes 09/01/2010 0.1029%
18 117 8.0800% Actual/360 15,566 01/01/2001 Yes 08/01/2010 0.0529%
19 118 8.1500% Actual/360 9,861 02/01/2001 No N/A 0.0529%
--------------- -------------
Total/Weighted Average: 110 8.1672% 7,551,218.12
=============== =============
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine
signature) and delivery of any and all documents contemplated by this
Agreement, including, without limitation, endorsements of Mortgage Notes,
and the performance and compliance by the Seller with the terms of this
Agreement will not: (i) violate the Seller's organizational documents; or
(ii) constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of, any
indenture, agreement or other instrument to which the Seller is a party or
by which it is bound or which is applicable to it or any of its assets,
which default or breach, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller has full power and authority to enter into and fully
perform under this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Schedule A-1 Loans (and, in the
event that the related transaction is deemed to constitute a loan secured
by all or part of the Schedule A-1 Loans, to pledge the Schedule A-1 Loans)
in accordance with, and under the conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation
of the Seller, enforceable against the Seller in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Seller's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best
of the Seller's knowledge, threatened against the Seller which, if
determined adversely to the Seller, would prohibit the Seller from entering
into this Agreement or, in the Seller's good faith and reasonable judgment,
would be likely to affect materially and adversely either the ability of
the Seller to perform its obligations hereunder or the financial condition
of the Seller.
B-1-1
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(i) The transfer of the Schedule A-1 Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(j) The Schedule A-1 Loans do not constitute all or substantially all
of the assets of the Seller.
(k) The consideration to be received by the Seller upon the sale of
the Schedule A-1 Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Schedule A-1 Loans.
(l) The Seller is not transferring the Schedule A-1 Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
(m) The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Schedule A-1 Loans
to the Purchaser, as contemplated herein.
(n) After giving effect to its transfer of the Schedule A-1 Loans to
the Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Seller, and the
Seller will not be left with unreasonably small assets or capital with
which to engage in and conduct its business.
(o) The Seller does not intend to, and does not believe that it will,
incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(p) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(q) The principal place of business and chief executive office of the
Seller is located in the State of Ohio.
B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing
Date:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(r) The execution and delivery by the Purchaser of this Agreement, and
the performance and compliance by the Purchaser with the terms of this
Agreement will not: (i) violate the Purchaser's organizational documents;
or (ii) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any indenture, agreement or other instrument to which the Purchaser is
a party or by which it is bound or which is applicable to it or any of its
assets, which default or breach, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(s) The Purchaser has full power and authority to enter into and fully
perform under this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(t) Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (ii) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(u) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms hereof will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(v) There are no actions, suits or proceedings pending or, to the best
of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, would be likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations hereunder or
the financial condition of the Purchaser.
(w) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court of governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
B-2
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" SHALL
MEAN, EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF
KNOWLEDGE OF THE SELLER REGARDING THE MATTERS REFERRED TO, IN EACH CASE (I)
AFTER HAVING CONDUCTED SUCH INQUIRY INTO SUCH MATTERS AS REQUIRED BY THE
SELLER'S UNDERWRITING STANDARDS AT THE TIME OF THE ORIGINATION OF THE PARTICULAR
MORTGAGE LOAN AND (II) SUBSEQUENT TO SUCH ORIGINATION UTILIZING THE SERVICING
AND MONITORING PRACTICES CUSTOMARILY UTILIZED BY PRUDENT COMMERCIAL MORTGAGE
LOAN SERVICERS WITH RESPECT TO WHOLE LOANS, AND THE PHRASE "SELLER'S ACTUAL
KNOWLEDGE" SHALL MEAN, EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW, THE
ACTUAL STATE OF THE SELLER`S KNOWLEDGE WITHOUT ANY EXPRESS OR IMPLIED OBLIGATION
TO MAKE INQUIRY. ALL INFORMATION CONTAINED IN DOCUMENTS WHICH ARE PART OF A
MORTGAGE FILE SHALL BE DEEMED TO BE WITHIN SELLER'S KNOWLEDGE AND SELLER'S
ACTUAL KNOWLEDGE.
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is true, complete (in accordance
with the requirements of this Agreement and the Pooling and Servicing Agreement)
and correct in all material respects as of the date of this Agreement and as of
the respective Due Dates for the Mortgage Loans in March 2001.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Mortgage Loans to the Purchaser, the Seller had good title to, and was the sole
owner of, each Mortgage Loan. The Seller has full right, power and authority to
sell, transfer and assign each Mortgage Loan to, or at the direction of, the
Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances.
Subject to the completion of the names and addresses of the assignees and
endorsees and any missing recording information in all instruments of transfer
or assignment and endorsements and the completion of all recording and filing
contemplated hereby and by the Pooling and Servicing Agreement, the Seller will
have validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance. The sale of the Mortgage Loans
to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly endorsed to the
Purchaser or its designee and each such endorsement is genuine.
3. Payment Record. No scheduled payment of principal and interest due under
any Mortgage Loan on the Due Date in February 2001 and on any Due Date in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
February 2001 was 30 days or more delinquent, without giving effect to any
applicable grace period.
4. Lien; Valid Assignment. Except as set forth on Schedule C-4, the
Mortgage related to and delivered in connection with each Mortgage Loan
constitutes a valid and, subject to the exceptions set forth in Paragraph 13
below, enforceable first priority lien upon the related Mortgaged Property,
prior to all other liens and encumbrances, except for (a) the lien for current
real estate taxes, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and/or are referred to in the
related lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or
C-1
title policy commitment meeting the requirements described below in Paragraph
8), none of which materially interferes with the security intended to be
provided by such Mortgage, the current principal use of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service such Mortgage Loan, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or title policy commitment
meeting the requirements described below in Paragraph 8), none of which
materially interferes with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan, (d) other matters to which like properties are
commonly subject, none of which materially interferes with the security intended
to be provided by such Mortgage, the current principal use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service the related Mortgage Loan, (e) the rights
of tenants (as tenants only) under leases (including subleases) pertaining to
the related Mortgaged Property which do not materially interfere with the
security intended to be provided by such Mortgage, (f) condominium declarations
of record and identified in the lender's title insurance policy (or, if not yet
issued, identified in a pro forma title policy or title policy commitment
meeting the requirements described in Paragraph 8 below) and (g) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group (the foregoing items (a) through (g) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such Mortgage executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name and address of the assignee and any related recording information which
is not yet available to the Seller) to validly and effectively convey the
assignor's interest therein and constitutes a legal, valid, binding and, subject
to the exceptions set forth in Paragraph 13 below, enforceable assignment of
such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Mortgage File contains an assignment
of leases and rents ("Assignment of Leases"), either as a separate instrument or
incorporated into the related Mortgage, which establishes and creates a valid,
subsisting and, subject to the exceptions set forth in Paragraph 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Borrower
described therein; and each assignor thereunder has the full right to assign the
same. The related assignment of any Assignment of Leases not included in a
Mortgage, executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) to validly and
effectively convey the assignor's interest therein and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of each Mortgage
Loan, except by a written instrument which has been delivered to the Purchaser
or its designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) neither the related Mortgaged Property
nor any material portion thereof has been released from the lien of such
Mortgage and (c) the related Borrower has not been released from its obligations
under such Mortgage, in whole or in material part. Except as described on
Schedule C-6 hereto, no alterations, waivers, modifications or assumptions of
any kind have been given, made or consented to by or on behalf of the Seller
since December 1, 2000. The Seller has not taken any affirmative action that
would cause the representations and warranties of the related Borrower under the
Mortgage Loan not to be true and correct in any material respect.
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7. Condition of Property; Condemnation. In the case of each Mortgage Loan,
except as set forth herein or in an engineering report prepared in connection
with the origination of such Mortgage Loan which has been delivered to the
Purchaser or its designee as part of the related Mortgage File, the related
Mortgaged Property is, to the Seller's knowledge, in good repair, free and clear
of any damage that would materially and adversely affect its value as security
for such Mortgage Loan (except in any such case where an escrow of funds or
insurance coverage exists sufficient to effect the necessary repairs and
maintenance). As of origination of such Mortgage Loan there was no proceeding
pending, and subsequent to such date, the Seller has not received actual notice
of, any proceeding pending for the condemnation of all or any material portion
of the Mortgaged Property securing any Mortgage Loan. As of the date of the
origination of each Mortgage Loan: (a) all of the material improvements on the
related Mortgaged Property lay wholly within the boundaries and, to the extent
in effect at the time of construction, building restriction lines of such
property, except for encroachments that are insured against by the lender's
title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. The lien of each Mortgage securing a Mortgage Loan is
insured by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (except that if such policy
is yet to be issued, such insurance may be evidenced by a "marked up" pro forma
policy or title commitment in either case marked as binding and countersigned by
the title company or its authorized agent, either on its face or by an
acknowledged closing instruction or escrow letter) in the original principal
amount of such Mortgage Loan after all advances of principal, insuring the
originator of the related Mortgage Loan, its successors and assigns (as the sole
insured) that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid, and Seller has
made no claims thereunder and, to Seller's actual knowledge, no prior holder of
the related Mortgage has made any claims thereunder and no claims have been paid
thereunder. Seller has not, and to the Seller's actual knowledge, no prior
holder of the related Mortgage has, done, by act or omission, anything that
would materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee (including endorsement and delivery of the related Mortgage Note to the
Purchaser and recording of the related Assignment of Mortgage in favor of
Purchaser in the applicable real estate records), such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. Such
Title Policy contains no exclusion for, or it affirmatively insures (unless, in
the case of clause (b) below, the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all requirements
under each Mortgage Loan as to completion of any on-site or off-site improvement
and as to disbursements of any funds escrowed for such purpose, which
requirements were to have been complied with on or before the
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Closing Date, have been complied with in all material aspects or any such funds
so escrowed have not been released.
10. Mortgage Provisions. The Mortgage Note, Mortgage and Assignment of
Leases for each Mortgage Loan, together with applicable state law, contains
customary and, subject to the exceptions set forth in Paragraph 13 below,
enforceable provisions for commercial mortgage loans such as to render the
rights and remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan is a
deed of trust, then (a) a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may be
substituted in accordance with the Mortgage and applicable law, and (b) no fees
or expenses are payable to such trustee by the Seller, the Depositor or any
transferee thereof except in connection with a trustee's sale after default by
the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12(Ab/LBP) (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint) and Schedule C-12(TS) (as to which a transaction screen meeting the
requirements of the American Society for Testing and Materials ("Transaction
Screen") was performed), (a) an environmental site assessment meeting the
requirements of the American Society for Testing and Materials and covering all
environmental hazards typically assessed for similar properties including use,
type and tenants of the Mortgaged Property ("Environmental Report"), or an
update of such an assessment, was performed by a licensed (to the extent
required by applicable state law) environmental consulting firm with respect to
each Mortgaged Property securing a Mortgage Loan in connection with the
origination of such Mortgage Loan and thereafter updated such that, except as
set forth on Schedule C-12(a), such Environmental Report is dated no earlier
than twelve months prior to the Closing Date, (b) a copy of each such
Environmental Report has been delivered to the Purchaser, and (c) either: (i) no
such Environmental Report provides that as of the date of the report there is a
material violation of any applicable environmental laws with respect to any
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same have not
been subsequently remediated in all material respects, then, except as described
on Schedule C-12(c), one or more of the following are true--(A) a party not
related to the related Borrower with financial resources reasonably estimated to
be adequate to cure the subject violation in all material respects was
identified as a responsible party for such condition or circumstance and such
condition or circumstance does not materially impair the value of the Mortgaged
Property, (B) the related Borrower was required to provide additional security
reasonably estimated to be adequate to cure the subject violation in all
material respects and/or to obtain an operations and maintenance plan, (C) the
related Borrower, or other responsible party, provided a "no further action"
letter or other evidence reasonably acceptable to a reasonably prudent
commercial mortgage lender that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not requiring
any action, in respect of such condition or circumstance, (D) such conditions or
circumstances were investigated further and based upon such additional
investigation, an environmental consultant recommended no further investigation
or remediation, (E) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is not greater than 5% of the outstanding
principal balance of the related Mortgage Loan, (F) there exists an escrow of
funds reasonably estimated to be sufficient for purposes of effecting
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such remediation, (G) the related Mortgaged Property is identified on Schedule
C-12(G) and insured under a policy of insurance subject to reasonable per
occurrence and aggregate limits and a reasonable deductible, against certain
losses arising from such circumstances and conditions or (H) a party with
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation. To the Seller's actual knowledge, there are no
significant or material circumstances or conditions with respect to any
Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Borrower questionnaire delivered to Seller at the issue of
any related environmental insurance policy, if applicable, that render such
Mortgaged Property in material violation of any applicable environmental laws.
The Mortgage for each Mortgage Loan encumbering the Mortgaged Property requires
the related Borrower to comply with all applicable federal, state and local
environmental laws and regulations. The Seller has not taken any affirmative
action which would cause the Mortgaged Property not to be in compliance with all
federal, state and local laws pertaining to environmental hazards. Each Borrower
represents and warrants in the related Mortgage Loan documents generally to the
effect that except as set forth in certain specified environmental reports and
to the best of its knowledge it has not used, caused or permitted to exist and
will not use, cause or permit to exist on the related Mortgaged Property any
hazardous materials in any manner which violates federal, state or local laws,
ordinances, regulations, orders, directives, or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. The related Borrower (or an
affiliate thereof) has agreed to indemnify, defend and hold the Seller and its
successors and assigns harmless from and against, or otherwise be liable for,
any and all losses resulting from a breach of environmental representations,
warranties or covenants given by the Borrower in connection with such Mortgage
Loan, generally including any and all losses, liabilities, damages, injuries,
penalties, fines, expenses and claims of any kind or nature whatsoever
(including without limitation, attorneys' fees and expenses) paid, incurred or
suffered by or asserted against, any such party resulting from such breach. With
respect to the Mortgage Loan identified as Brea Union Plaza, Seller represents
and warrants that (W) no claims have been made under the Unocal Indemnity, (X)
Seller has the right to assign and is assigning to Purchaser, or by operation of
the document the Purchaser will be entitled to, all of Seller's rights under the
Unocal Indemnity, (Y) the Brea Union Plaza Mortgage Loan is the first "take-out"
loan as defined in the Unocal Indemnity, and (Z) no notice has been given by the
Seller or any prior holder of such Mortgage Loan under the Unocal Indemnity,
retaining any rights as an "Exempt Lender" thereunder and such rights are
assigned to or will otherwise run to the benefit of Purchaser.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower, or any guarantor of
non-recourse exceptions and environmental liability, with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by: (i) bankruptcy, insolvency, reorganization,
fraudulent transfer and conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and except that certain provisions in such loan documents may be
further limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations
will not render such loan documents invalid as a whole or substantially
interfere with the mortgagee's realization of the principal benefits and/or
security provided thereby. There is no right of rescission, offset, abatement,
diminution or valid defense or counterclaim available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be
C-5
provided thereby. Seller has no actual knowledge of any such rights, defenses or
counterclaims having been asserted.
14. Insurance. Except in certain cases, where tenants, having a net worth
of at least $50,000,000 or an investment grade credit rating and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils included
within the classification "All Risk of Physical Loss" insurance (or the
equivalent) policy in an amount at least equal to the lesser of the outstanding
principal balance of such Mortgage Loan and 100% of the replacement cost of the
improvements located on the related Mortgaged Property, and if applicable, the
related hazard insurance policy contains appropriate endorsements to avoid the
application of co-insurance and does not permit reduction in insurance proceeds
for depreciation. Except in the case of the Mortgaged Properties identified on
Schedule C-14 hereto, each Mortgaged Property securing a Mortgage Loan is the
subject of a business interruption or rent loss insurance policy providing
coverage for at least twelve (12) months (or a specified dollar amount which is
reasonably estimated to cover no less than twelve (12) months of rental income).
If any portion of the improvements on a Mortgaged Property securing any Mortgage
Loan was, at the time of the origination of such Mortgage Loan, in an area
identified in the Federal Register by the Flood Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area") and flood insurance
was available, a flood insurance policy meeting the requirements of the then
current guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement basis, (2) the
outstanding principal balance of such Mortgage Loan, and (3) the maximum amount
of insurance available under the applicable National Flood Insurance
Administration Program. All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without ten (10) days' prior
written notice to the mortgagee; and no such notice has been received, including
any notice of nonpayment of premiums, that has not been cured and, to the
Seller's actual knowledge, all such insurance is in full force and effect. Each
Mortgaged Property and all improvements thereon are also covered by
comprehensive general liability insurance in such amounts as are generally
required by reasonably prudent commercial lenders for similar properties and
seismic insurance to the extent any Mortgaged Property has a PML of greater than
twenty percent (20%) calculated using methodology acceptable to a reasonably
prudent commercial mortgage lender with respect to similar properties in same
area or earthquake zone. Any Mortgaged Property constituting a materially
non-conforming use under applicable zoning laws and ordinances constitutes a
legal non-conforming use which, in the event of casualty or destruction, may be
restored or repaired to materially the same extent of the use or structure at
the time of such casualty or such Mortgaged Property is covered by law and
ordinance insurance in an amount customarily required by reasonably prudent
commercial mortgage lenders. Additionally, for any Mortgage Loan having a
Cut-off Date Principal Balance equal to or greater than $20,000,000, the insurer
for all of the required coverages set forth herein has a claims paying ability
rating from Standard & Poor's, Xxxxx'x or Fitch of not less than A-minus (or the
equivalent), or from A.M. Best of not less than "A:V" (or the equivalent). With
respect to each Mortgage Loan, the related Mortgage requires that the related
Borrower or a tenant of such Borrower maintain insurance as described above or
permits the Mortgagee to require insurance as described above. Except under
circumstances that would be reasonably acceptable to a prudent commercial
mortgage lender or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, the Mortgage for each
Mortgage Loan provides that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of the
C-6
related Mortgaged Property or to the payment of amounts due under such Mortgage
Loan; provided that the related Mortgage may entitle the related Borrower to any
portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Borrower holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in Paragraph 18
below). To Seller's actual knowledge, all insurance policies described above are
with an insurance carrier qualified to write insurance in the relevant
jurisdiction.
15. Taxes and Assessments. As of the origination of the Mortgage Loan or
February 2000, whichever is later, there were no, and as of the Closing Date,
the Seller has no knowledge of any, delinquent property taxes or assessments or
other outstanding charges affecting any Mortgaged Property securing a Mortgage
Loan that are not otherwise covered by an escrow of funds sufficient to pay such
charge. For purposes of this representation and warranty, real property taxes
and assessments shall not be considered delinquent until the date on which
interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. No Mortgaged Property is the subject of, and no
Borrower under a Mortgage Loan is a debtor in, any state or federal bankruptcy,
insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a letter
from governmental authorities, a legal opinion, a zoning consultant's report, an
endorsement to the related Title Policy, or a representation of the related
Borrower at the time of origination of the subject Mortgage Loan, or based on
such other due diligence considered reasonable by prudent commercial mortgage
lenders in the lending area where the subject Mortgaged Property is located, the
improvements located on or forming part of, and the existing use of, each
Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect the value of the related
Mortgaged Property as determined by the appraisal performed in connection with
the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the interest
of a Borrower as a lessee under a ground lease (together with any and all
written amendments and modifications thereof and any and all estoppels from or
other agreements with the ground lessor, a "Ground Lease"), but not by the
related fee interest in such property (the "Fee Interest"), then; except as
otherwise set for on Schedule C-18:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage and does not restrict the use of
the related Mortgaged Property by such lessee, its successors or assigns in
a manner that would materially adversely affect the security provided by
the related Mortgage; and there has been no material change in the terms of
such Ground Lease since its recordation, with the exception of material
changes reflected in written instruments which are a part of the related
Mortgage File;
(b) Based on the related Title Policy (or if the related Title Policy
is not yet issued, based on the pro forma title policy or commitment
described in Paragraph 8 above), the related lessee's leasehold interest in
the portion of the related Mortgaged Property covered by such Ground Lease
is not subject to any liens or encumbrances superior to, or of equal
priority with, the related Mortgage, other than Permitted Encumbrances and
such Ground Lease, provides that it shall remain superior to any mortgage
or other lien upon the related Fee Interest;
C-7
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained); provided that such Ground Lease has not
been terminated and all defaults, if any, on the part of the related lessee
have been cured;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any material
default has occurred under such Ground Lease and the lessor under such
Ground Lease has been sent notice of the lien evidenced by the Mortgage in
accordance with the terms of the Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered to such
mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(g) Such Ground Lease has an original term (or an original term plus
options exercisable by the holder of the related Mortgage) which extends
not less than ten (10) years beyond the end of the amortization term of
such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the
related Borrower unless the mortgagee under such Mortgage Loan fails to
cure a default of the lessee under such Ground Lease following notice
thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any casualty insurance proceeds, other than de minimis
amounts for minor casualties, with respect to the leasehold interest will
be applied either: (i) to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee appointed by it
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon. Under the terms of the Ground
Lease and the related Mortgage, taken together, any condemnation proceeds
or awards in respect of a total or substantially total taking will be
applied first to the payment of the outstanding principal and interest on
the Mortgage Loan (except as otherwise provided by applicable law) and
subject to any rights to require the improvements to be rebuilt.;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the Mortgaged Property is located
at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted to disturb the
possession, interest or quiet enjoyment of the lessee in the relevant
portion of the Mortgaged Property subject to
C-8
such Ground Lease for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage;
(l) Such Ground Lease provides that it may not be amended or modified
without the prior consent of the mortgagee under such Mortgage Loan and
that any such action without such consent is not binding on such mortgagee,
its successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury regulation section
1.860G-2(a) and the related Mortgaged Property, if acquired in connection with
the default or imminent default of such Mortgage Loan, would constitute
"foreclosure property" within the meaning of Section 860G(a)(8).
20. Advancement of Funds. The Seller has not advanced funds or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property (other than amounts paid by the tenant
as specifically provided under related lease), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, has a shared appreciation feature,
provides for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property, or, provides for
interest-only payments without principal amortization or for the negative
amortization of interest, except that, in the case of an ARD Loan, such Mortgage
Loan provides that, during the period commencing on or about the related
Anticipated Repayment Date and continuing until such Mortgage Loan is paid in
full, (a) additional interest shall accrue and may be compounded monthly and
shall be payable only after the outstanding principal of such Mortgage Loan is
paid in full, and (b) a portion of the cash flow generated by such Mortgaged
Property will be applied each month to pay down the principal balance thereof in
addition to the principal portion of the related Monthly Payment. Neither Seller
nor any affiliate thereof has any obligation to make any capital contribution to
the Borrower under the Mortgage Loan or otherwise.
22. Legal Proceedings. To Seller's knowledge, as of origination of the
Mortgage Loan, there were no, and to the Seller's actual knowledge, as of the
Closing Date, there are no pending actions, suits, litigation or other
proceedings by or before any court or governmental authority against or
affecting the Borrower (or guarantor to the extent the Seller in accordance with
Seller's underwriting standards would consider the guarantor material to the
underwriting of such Mortgage Loan) under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Borrower or Mortgaged
Property, would materially and adversely affect the value of the Mortgaged
Property as security for such Mortgage Loan, the Borrower's ability to pay
principal, interest or any other amounts due under such Mortgage Loan or of any
such guarantor to meet its obligations.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule C-23,
none of the Mortgage Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder thereof or
the satisfaction of debt service coverage or similar criteria specified therein.
To Seller's knowledge, as of origination of the Mortgage Loan, and to the
Seller's actual knowledge, as of the Closing Date, except as otherwise set forth
on Schedule C-23, and except for cases involving other
C-9
Mortgage Loans, none of the Mortgaged Properties securing the Mortgage Loans is
encumbered by any mortgage liens junior to or of equal priority with the liens
of the related Mortgage.
24. No Mechanics' Liens. To Seller's knowledge, as of the origination of
the Mortgage Loan, and, to the Seller's actual knowledge, as of the Closing
Date: (i) each Mortgaged Property securing a Mortgage Loan (exclusive of any
related personal property) is free and clear of any and all mechanics' and
materialmen's liens that are prior or equal to the lien of the related Mortgage
and that are not bonded or escrowed for or covered by title insurance, and (ii)
no rights are outstanding that under law could give rise to any such lien that
would be prior or equal to the lien of the related Mortgage and that is not
bonded or escrowed for or covered by title insurance.
25. Compliance with Usury Laws. Each Mortgage Loan complied with, or was
exempt from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the extent required by applicable law, and
except as identified on Schedule C-26, each Mortgage Loan requires the related
Borrower to be qualified to do business, and requires the related Borrower and
the related Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive covenants and zoning
and building laws, in each case to the extent required by law or to the extent
that the failure to be so qualified or in compliance would have a material and
adverse effect upon the enforceability of the Mortgage Loan or upon the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the Seller's
knowledge, as of the date of origination of each Mortgage Loan and based on any
of: (i) a letter from governmental authorities, (ii) a legal opinion, (iii) an
endorsement to the related Title Policy, (iv) a representation of the related
borrower at the time of origination of such Mortgage Loan, (v) a zoning report
from a zoning consultant, or (vi) other due diligence that the originator of the
Mortgage Loan customarily performs in the origination of comparable mortgage
loans, the related Borrower was in possession of all material licenses, permits
and franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized with
any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. Except as set forth on Schedule C-28,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon: (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of U.S. Treasury securities in connection with a
defeasance of the related Mortgage Loan; provided that the Mortgage Loans that
are Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of material portions of the related Mortgaged Property or the release
of one or more related Mortgaged Properties upon: (i) the satisfaction of
certain legal and underwriting requirements or (ii) the payment of a release
price and prepayment consideration in connection therewith.
29. Defeasance. With respect to any Mortgage Loan that contains a provision
for any defeasance of mortgage collateral (a "Defeasance Loan"), the related
Mortgage Note or Mortgage provides that the defeasance option is not exercisable
prior to a date that is at least two (2) years following the Closing Date and is
otherwise in compliance with applicable statutes, rules and regulations
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governing REMICs; requires prior written notice to the holder of the Mortgage
Loan of the exercise of the defeasance option and payment by Borrower of all
related reasonable fees, costs and expenses as set forth below; requires, or
permits the lender to require, the Mortgage Loan (or the portion thereof being
defeased) to be assumed by a single-purpose entity; and requires counsel to
provide a legal opinion that the Trustee has a perfected security interest in
such collateral prior to any other claim or interest. In addition, each Mortgage
loan that is a Defeasance Loan permits defeasance only with substitute
collateral constituting "government securities" within the meaning of Treas.
Reg. Section 1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled
payments under the Mortgage Note (or the portion thereof being defeased) when
due, and in the case of ARD Loans, assuming the Anticipated Repayment Date is
the Maturity Date. To Seller's actual knowledge, defeasance under the Mortgage
Loan is only for the purpose of facilitating the disposition of a Mortgaged
Property and not as part of an arrangement to collateralize a REMIC offering
with obligations that are not real estate mortgages. With respect to each
Defeasance Loan, except as set forth on Schedule C-29, the related Mortgage or
other related loan document provides that the related Borrower shall (a) pay all
Rating Agency fees associated with defeasance (if rating confirmation is a
specific condition precedent thereto) and all other reasonable expenses
associated with defeasance, including, but not limited to, accountant's fees and
opinions of counsel, or (b) provide all opinions required under the related loan
documents, including, if applicable, a REMIC opinion and a perfection opinion
and any applicable rating agency letters confirming no downgrade or
qualification of ratings on any classes in the transaction. Additionally, for
any Mortgage Loan having a Cut-off Date Principal Balance equal to or greater
than $19,900,000, the Mortgage Loan or the related documents require
confirmation from the Rating Agency that exercise of the defeasance option will
not cause a downgrade or withdrawal of the rating assigned to any securities
backed by the Mortgage Loan and require the Borrower to pay any Rating Agency
fees and expenses.
30. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
31. Inspection. Other than the KeyBank Small Balance Loans, identified as
such on the Mortgage Loan Schedule, and except as set forth on Schedule C-31,
the Seller, or an affiliate, inspected, or caused the inspection of, the related
Mortgaged Property within twelve (12) months of the Closing Date.
32. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Seller in this Exhibit C.
33. Due-on-Sale. The Mortgage contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without the prior written consent of the holder of the
Mortgage, either the related Mortgage Property, or any direct equity interest in
the related Borrower, is pledged, transferred or sold, other than by reason of
family and estate planning transfers, transfers of less than a controlling
interest in the Borrower, transfers of shares in public companies, issuance of
non-controlling new equity interests, transfers to an affiliate meeting the
requirements of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Borrower, transfers among affiliated Borrowers with respect
to cross-collateralized Mortgaged Loans or multi-property Mortgage Loans,
transfers among co-Borrowers or transfers of a similar nature to the foregoing
meeting the requirements of the Mortgage Loan. The Mortgage requires the
Borrower to pay all reasonable fees and expenses associated with securing the
consent or approval of the holder of
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the Mortgage for all actions requiring such consent or approval under the
Mortgage including the cost of counsel opinions relating to REMIC or other
securitization and tax issues.
34. Single Purpose Entity. Each Mortgage Loan with an original principal
balance over $10,000,000 requires the Borrower to be at least for so long as the
Mortgage Loan is outstanding, and to Seller's actual knowledge each Borrower is,
a Single-Purpose Entity. For this purpose, "Single-Purpose Entity" means a
person, other than an individual, which is formed or organized solely for the
purpose of owning and operating the related Mortgaged Property or Properties;
does not engage in any business unrelated to such Mortgaged Property or
Properties and the financing thereof; and whose organizational documents
provide, or which entity represented and covenanted in the related Mortgage Loan
documents, substantially to the effect that such Borrower (i) does not and will
not have any material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (ii) does not and
will not have any indebtedness other than as permitted by the related Mortgage
or other related Mortgage Loan Documents; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books, records
and accounts of any other person; and (iv) holds itself out as being a legal
entity, separate and apart from any other person. In addition with respect to
all Mortgage Loans with a Cut-off Date Principal Balance of $20,000,000 or more,
the Borrower's organizational documents provide substantially to the effect that
the Borrower shall: conduct business in its own name; not guarantee or assume
the debts or obligations of any other person; not commingle its assets or funds
with those of any other person; prepare separate tax returns and financial
statements, or if part of a consolidated group, be shown as a separate member of
such group; transact business with affiliates on an arm's length basis; hold
itself out as being a legal entity, separate and apart from any other person and
such organizational documents provide substantially to the effect that: any
dissolution and winding up or insolvency filing for such entity is prohibited or
requires the consent of an independent director or member or the unanimous
consent of all partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements without the
approval of the mortgagee or rating agencies; the Borrower shall have an outside
independent director or member. The Mortgage File for each such Mortgage Loan
having a Cut-off Date Principal Balance of $20,000,000 or more contains a
counsel's opinion regarding non-consolidation of the Borrower in any insolvency
proceeding involving any other party. To Seller's actual knowledge, each
Borrower has fully complied with the requirements of the related Mortgage Loan
and Mortgage and the Borrower's organizational documents regarding
Single-Purpose-Entity status. The organization documents of any Borrower on a
Mortgage Loan having a Cut-off Date Principal Balance of $20,000,000 or more
which is a single member limited liability company provide that the Borrower
shall not dissolve or liquidate upon the bankruptcy, dissolution, liquidation or
death of the sole member. Any such single member limited liability company
Borrower is organized in jurisdictions that provide for such continued existence
and the Mortgage Loan File contains an opinion of such Borrower's counsel
confirming such continued existence and that the applicable law provides that
creditors of the single member may only attach the assets of the member
including the membership interests in the Borrower but not the assets of the
Borrower.
35. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
36. Tax Parcels. Each Mortgaged Property constitutes one or more complete
separate tax lots containing no other property, is subject to an endorsement
under the related Title Policy insuring same or an application for the creation
of separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made and approved by
the applicable governing authority and such separate tax lots shall be effective
for the next tax year.
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37. ARD Loans. Except as described on Schedule C-37, each Mortgage Loan
which is an ARD Loan commenced amortizing on its initial scheduled Due Date, and
provides that: (i) its Mortgage Rate will increase by at least two (2)
percentage points in connection with the passage of its Anticipated Repayment
Date; (ii) its Anticipated Repayment Date is not less than seven (7) years
following the origination of such Mortgage Loan; (iii) no later than the related
Anticipated Repayment Date, the related Borrower is required (if it has not
previously done so) to enter into a "lockbox agreement" whereby all revenue from
the related Mortgaged Property shall be deposited directly into a designated
account controlled by the Master Servicer; and (iv) any net cash flow from the
related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the scheduled principal and interest payment payable therefrom,
be net of budgeted and discretionary (servicer approved) capital expenditures.
38. Security Interests. The security agreements, financing statements or
other instruments, if any, related to the Mortgage Loan establish and create,
and a UCC financing statement has been filed and/or recorded in all places
required by applicable law for the perfection of (to the extent that the filing
of such a UCC financing statement can perfect such a security interest), a valid
security interest in the personal property granted under such Mortgage (and any
related security agreement), which in all cases includes elevators and all
Borrower-owned furniture, fixtures and equipment material to the Mortgaged
Property, and if such Mortgaged Property is a hotel operated by the related
Borrower, then such personal property constitutes such portion of the material
personal property required to operate the Borrower's business as the Seller
considered appropriate in light of its underwriting standards; any security
agreement, chattel mortgage or equivalent document related to and delivered in
connection with the Mortgage Loan establishes and creates a valid and
enforceable lien and security interest on the property described therein
(subject to the exceptions set forth in Paragraph 13 above), which lien/security
interest shall, in the case of (i) elevators at all Mortgaged Properties having
the same and (ii) all Borrower-owned furniture, fixtures and equipment at
Borrower operated hotel properties, be a first priority lien/ security interest
except for certain personal property subject to purchase money security
interests and personal property leases. In the case of each Mortgage Loan
secured by a hotel, the related loan documents contain such provisions as are
necessary and UCC Financing Statements have been filed as necessary, in each
case, to perfect a valid first priority security interest in the related
revenues with respect to such Mortgaged Property. An assignment of each UCC
financing statement relating to the Mortgage Loan has been executed by Seller in
blank which the Purchaser or Trustee, as applicable, or designee is authorized
to complete and to file in the filing office in which such financing statement
was filed. Each Mortgage Loan and the related Mortgage (along with any security
agreement and UCC financing statement), together with applicable state law,
contain customary and enforceable provisions such as to render the rights and
remedies of the holders thereof adequate for the practical realization against
the personal property described above, and the principal benefits of the
security intended to be provided thereby.
39. Disclosure to Environmental Insurer. If the Mortgaged Property securing
any Mortgage Loan is covered by a secured creditor impaired property policy,
then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
C-13
in each case to the extent required by such policy or to the extent the
failure to make any such disclosure or deliver any such report would
materially and adversely affect the Purchaser's ability to recover under
such policy.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to each Mortgage Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
41. Operating Statements. Except as set forth on Schedule C-41, each
Mortgage requires the Borrower, in some cases only at the request of the holder
of the Mortgage, to provide the owner or holder of the Mortgage with at least
quarterly and annual operating statements, rent rolls (if there is more than one
tenant) and related information and annual financial statements, which annual
financial statements for all Mortgage Loans with an original principal balance
greater than $20 million shall be audited by an independent certified public
accountant upon the request of the holder of the Mortgage Loan.
42. Servicing Rights. Except as set forth on Schedule C-42 or as otherwise
contemplated in this Agreement, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
43. Recourse. Each Mortgage Loan is non-recourse, except that, except as
described on Schedule C-43 or for Mortgage Loans with a Cut-off Date Principal
Balance of less than $5,000,000, the Borrower and either a principal of the
Borrower or other individual guarantor, with assets other than any interest in
the Borrower, is liable in the event of: (i) fraud or material
misrepresentation, (ii) misapplication or misappropriation of rents, insurance
payments, condemnation awards or tenant security deposits or (iii) violation of
applicable environmental laws or breaches of environmental covenants; provided
that, with respect to clause (iii) in this paragraph, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement. No waiver of liability for such non-recourse exceptions has been
granted to the Borrower or any such guarantor or principal by the Seller or
anyone acting on behalf of the Seller.
44. Assignment of Collateral. There is no material collateral securing any
Mortgage Loan that has not been assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related Borrower
in the Mortgaged Property securing each Mortgage Loan includes a fee simple
and/or leasehold estate or interest in real property and the improvements
thereon.
46. Servicing. The servicing and collection practices used with respect to
each Mortgage Loan in all material respects have met customary standards
utilized by prudent commercial mortgage loan servicers with respect to whole
loans.
47. Originator's Authorization To Do Business. To the extent required under
applicable law to assure the enforceability of a Mortgage Loan, as of the
Mortgage Loan's funding date and at all times when it held such Mortgage Loan,
the originator of each Mortgage Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is located.
48. No Fraud In Origination. In the origination of the Mortgage Loan,
neither the originator nor any employee or agent of Seller or the originator,
participated in any fraud or intentional material misrepresentation with respect
to the Borrower, the Mortgaged Property or any guarantor. To
C-14
Seller's actual knowledge, no Borrower is guilty of defrauding or making an
intentional material misrepresentation to the Seller or originator with respect
to the origination of the Mortgage Loan, the Borrower or the Mortgaged Property.
49. Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property, which appraisal is signed by an appraiser, who, to Seller's
actual knowledge, had no interest, direct or indirect, in the Borrower, the
Mortgaged Property or in any loan made on the security of the Mortgaged
Property, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan; to the Seller's knowledge, the appraisal and appraiser
both satisfy the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, all as in effect on the date the Mortgage Loan was originated.
50. Jurisdiction of Organization. Each Borrower under a Mortgage Loan was
organized under the laws of the United States or the laws of a jurisdiction
located within the United States, its territories and possessions.
51. Borrower Concentration. No single Borrower or group of affiliated
Borrowers is/are the obligor(s) under any one or more Mortgage Loans with a
Cut-off Date Principal Balance equal to or greater than 5% of $997,140,788.
52. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
which are required for the administration and servicing of such Mortgage Loan
are conveyed hereunder to the Purchaser.
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SCHEDULE C-4
Schedule A-2 Loans:
With respect to Loan Xx. 00000/0000 Xxxxxx Xxxxxx Xxxxxxxx, the Mortgaged
Property is encumbered by a subordinate mortgage lien securing subordinate debt
in the approximate principal amount of $10 million. The subordinate lender
executed a Subordination Agreement in favor of Seller, as well as a Collateral
Assignment and Pledge of Mortgage pursuant to which the subordinate mortgage is
collaterally assigned and pledged to Seller.
C-16
SCHEDULE C-6
Schedule A-1 Loans:
Loan Nos. 9506/College Park Commons and 10197/College Park Medical Office
Building were each modified in December, 2000, in connection with a change in
the Borrower's ownership structure.
Schedule A-2 Loans:
With respect to Loan No. 10663/Maryland Avenue Office Buildings, in January
2001, there was a modification of the terms of an escrow agreement relating to
the leasing of a specified portion of the respective Mortgaged Property
C-17
SCHEDULE C-12(TS)
Schedule A-1 Loans:
Loan No. 10327 Birmingham Drug Store
Loan No. 10402 0000-0000 Xxxxxxxxx Xxxx
Loan No. 10564 00-00 Xxxxxx Xxxxxx
Xxxx Xx. 00000 000-000 Xxxxx Xxxxxx
Xxxx Xx. 00000 000 Xxxxxx Xxxxxx
Loan No. 00000 Xxxx Xxxxxx Xxxxxxxxxx
Xxxx Xx. 00000 000-000 Xxxx Xxxxxx
Xxxx Xx. 00000 Westside Mobile Home Park
Loan No. 00000 00xx Xxxxxx Building
Loan No. 00000 Xxxx Xxxxxx Xxxxxxxxxx
Xxxx Xx. 00000 Vanowen Self Storage
Loan No. 12332 CKS Auto Store - Anchorage
Loan No. 12335 CKS Auto Store - Albuquerque
Loan No. 12346 Aspin RV & Mini Storage
Loan No. 12348 Crooks Road Apartments
C-18
SCHEDULE C-12(a)
None
C-19
SCHEDULE C-12(c)
Schedule A-1 Loans:
In the case of the following Mortgage Loans, the Seller did not require the
establishment of an operation and maintenance plan despite the identification of
issues involving asbestos-containing materials and/or lead based paint in the
applicable Environmental Report orTransaction Screen.
00000 Xxxxxxxxx Xxxx: ACM confirmed O&M Plan recommended
1230 000 Xxxxxx Xxxxxx: ACM suspected No ACM O&M Plan recommended
00000 Xxxx Xxx. Xxxx: ACM suspect O&M Plan recommended
11623 West Side Mobile: ACM suspected ACM O&M Plan recommended
LBP confirmed LBP O&M Plan recommended
00000 00xx Xx. Xxxx: ACM suspected No ACM O&M Plan recommended
00000 Xxxx Xxx. Apts: ACM suspected No ACM O&M Plan recommended
12328 Vanowen Storage: ACM suspected O&M plan recommended
12346 Aspin Mini Storage: ACM suspected No ACM O&M Plan recommended
00000 Xxxxxx Xx Xxxx: ACM suspected No ACM O&M Plan recommended
With respect to Loan No. 11924/Xxxxxxxxx MHP, the applicable Phase I
Environmental Report provided the following information: (A) Two leaking
underground storage tank sites ("LUSTs") are located 0.09 miles to the
West/Northwest of the Mortgaged Property; (B) the offsite LUSTs have soil and
groundwater contamination with a "medium" priority listing; (C) the LUSTs have
the potential to impact the Mortgaged Property due to their proximity to the
Mortgaged Property but the Mortgaged Property should not be investigated as a
source of this contamination because there are no historic or current activities
identified at the Mortgaged Property that could lead to the relevant type of
contamination. In addition, the Environmental Report notes that there does not
appear to be an immediate health risk to the occupants of the Mortgaged Property
because it is serviced by public water and sewer systems. Based on this
information, the Phase I Environmental Report concluded that "no further action
or investigation appears to be warranted at this time."
With respect to Loan No. 11252/The Crossroads at Middlebury-East, the
applicable Phase I Environmental Report provided the following information: (A)
A release of petroleum was identified on an adjacent Mobil gas station facility;
(B) the Mobil station appears to be independently owned and operated; (C)
information available from the applicable regulatory agency indicates that
further investigation and ongoing monitoring and sampling have been recommended
with respect to the gas station; (D) excavation activities appear to have been
conducted but it appears the investigation case remains open; and (E) the gas
station facility is located in a cross-gradient direction and it is reported
that the contamination source has been removed. The Environmental Report
concludes that the risk presented by a potential impact is limited to
groundwater that is not utilized on the Mortgaged Property. The Phase I
Environmental Report did not recommend a Phase II investigation and no such
investigation was conducted.
Schedule A-2 Loans
With respect to Loan No. 11398/AT&T Building, the applicable Environmental
Report identified a recognized environmental condition "REC" on the Mortgaged
Property and in five areas within a one-mile radius of the Mortgaged Property,
which relates to the potential for fill dirt from a
C-20
former radium refinery owned by Xxxxxxxx Chemical Co. The five areas are part of
the "Denver Radium" Superfund Site, which is listed on the National Priorities
List. The applicable Environmental Report states that sampling conducted on the
Mortgaged Property identified low levels of radium-226 and radium-228 at
concentrations above background levels but below regulatory levels. The
Environmental Report states further that there are known impacts to the
groundwater in the vicinity of the Mortgaged Property but the extent of any
impact from the groundwater for the five identified areas has not been fully
characterized. The Environmental Report states that Xxxxxxxx has been identified
as the source of the groundwater contamination in the area of the Mortgaged
Property and that the owners of the Mortgaged Property are not likely to be
identified as a responsible party due to the already known off-site generation
and release by Xxxxxxxx.
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SCHEDULE C-12(G)
Schedule A-1 Loans:
Loan Xx. 00000 Xxx Xxxxxx Xxxxxx
Xxxx Xx. 00000 Connector Park
Schedule A-2 Loans:
Loan No. 11641 CVS Drug Store
Loan No. 12104 Antelope Valley
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SCHEDULE X-00
Xxxx
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
Loan No. 10663 Maryland Avenue Office Buildings
The Mortgaged Property consists of (i) Borrower's fee interest in two
office buildings with certain underground parking facilities, and (ii)
Borrower's interest as a lessee under a Ground Lease with respect to a surface
parking lot. The fee interest in the Leasehold Parcel is owned by multiple
parties, but only one of the multiple fee owners/ground lessors executed an
estoppel certificate in favor of Seller in connection with the closing of such
Mortgage Loan. The following disclosures relate to the correspondingly numbered
subparagraphs of Section 18 of Schedule C.
(a) Because all the fee owners/ground lessors did not execute estoppel
certificates, Seller is unable to confirm that there has been no material change
in the terms of the Ground Lease since its recordation, with the exception of
material changes reflected in written instruments which are a part of the
related Mortgage File.
(b) The Ground Lease does not expressly provide that it shall remain
superior to any mortgage or other lien upon the related Fee Interest.
(c) Rather than requiring that notice of any default by lessee be given to
the lessee and the mortgagee under the Mortgage Loan, the Ground Lease provides
that in the event ground lessor exercises its option to declare the ground lease
forfeited due to the failure of the lessee thereunder to comply with any
covenants or agreements of the Ground Lease, ground lessor must provide notice
to the lessee and a 60 day cure period. Pursuant to the terms of the Ground
Lease, the related Borrower has notified the ground lessor to also send any such
notices to Seller. The related Mortgage Note provides that Seller shall have
full recourse against the related Borrower for losses resulting from a
termination of the Ground Lease.
(f) The Ground Lease does not specifically address the ability of the
mortgagee under the Mortgage Loan to cure any defaults under the Ground Lease.
Such cure is neither prohibited nor specifically permitted.
(g) The base term of the Ground Lease expires on the last day of April,
2007, prior to the end of the amortization term of the Mortgage Loan. The lessee
under the Ground Lease has irrevocable options to renew the Ground Lease for
five successive ten year terms and shall be deemed to have exercised said
options of renewal unless it gives written notice to the ground lessor at least
12 months prior to the expiration of the then current term of the Ground Lease
that lessee will not exercise said option. The related Mortgage Note provides
that Seller shall have recourse against the related Borrower for losses suffered
as a result of Borrower's failure to exercise such renewal option. Borrower's
failure to exercise such renewal option is also an event of default under the
related Mortgage.
(h) The Ground Lease does not require the Ground Lessor to enter into a new
lease with the mortgagee upon termination of the Ground Lease as a result of
rejection of such Ground Lease in a bankruptcy proceeding.
(i) The Ground Lease does not require that casualty insurance proceeds will
be applied to either (i) repair or restoration of the property, with the
mortgagee or a trustee having the right
C-24
to hold and disburse the proceeds, or (ii) the payment of the outstanding
principal balance of the Mortgage Loan. The Ground Lease does not provide that
condemnation awards are to be applied first to the payment of the outstanding
principal and interest on the related Mortgaged Loan.
(k) The Ground Lease does not provide that the Ground Lessor is not
permitted to disturb the possession or quiet enjoyment of the lessee for any
reason or in any manner which would materially adversely affect the security
provided by the related Mortgage.
(l) The Ground Lease does not prohibit the amendment or modification of
such Ground Lease without the prior consent of mortgagee.
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
With respect to Loan No. 11487/Heatherwood Apartments and Loan No.
11488/North Mountain Apartment, each related Mortgage provides that the
mortgagee will not unreasonably withhold its consent to the encumbrance of the
respective Mortgaged Property with a subordinate lien after the end of the third
note year, provided conditions are satisfied, including debt service coverage
and similar criteria specified therein.
Schedule A-2 Loans:
With respect to Loan Xx. 00000/0000 Xxxxxx Xxxxxx Xxxxxxxx, the Mortgaged
Property is encumbered by a subordinate mortgage lien securing subordinate debt
in the approximate principal amount of $10 million. The subordinate lender
executed a Subordination Agreement in favor of Seller, as well a Collateral
Assignment and Pledge of Mortgage pursuant to which the subordinate mortgage is
collaterally assigned and pledged to Seller.
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
The KeyBank Small Balance Loans do not specifically require the related
Borrower to be qualified to do business.
Schedule A-2 Loans:
Loan No. 11885/Metro Park South does not specifically require the related
Borrower to be qualified to do business.
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
Each of the following Mortgage Loans provides that a specified portion of
the related Mortgaged Property shall be released from the lien of the related
Mortgage upon satisfaction of certain legal and underwriting requirements, but
no payment of a release price is required:
Loan No. 9506 College Park Commons
Loan No. 10197 College Park Medical Office Building
Loan No. 12424 Connector Park
Schedule A-2 Loans:
With respect to Loan Xx. 00000/0000 Xxxxxx Xxxxxx Xxxxxxxx, seven floors of
the building which comprises the Mortgaged Property shall be released from the
lien of the related Mortgage upon the filing of a condominium regime acceptable
to lender, defeasance of 125% of the value of the released portion of the
Mortgaged Property and satisfaction of several other conditions specified in the
Mortgage.
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
With respect to Loan No. 11885/Metro Park South, the Note does not require
that the Mortgage Loan be assumed by a single-purpose entity.
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
With respect to Loan No. 10386/CVS-Loizos, the related Mortgaged Property
was last inspected August 17, 1999. With respect to Loan No. 11705/Xxxxxx'x
Corners Apartments, the related Mortgaged Property was last inspected March 14,
2000.
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
Loan Nos. 10140/Redondo Beach Self Storage and 10142/Van Nuys Self Storage
each provides that ownership interest in Borrower or undivided ownership
interest in the related Mortgaged Property may be transferred to limited
liability companies organized by Borrower for the single purpose of holding the
undivided ownership interests of such Borrower upon satisfaction of certain
conditions, including the condition that following the completion of such
transfer, either of the two key principal guarantors continues to exercise
control over the related Mortgaged Property (i.e. determines management policies
in connection with the use and operation thereof).
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
Loan No. 00000 Xxxxx Xxxx Xxxxxx -- rate adjusts to greater of (i) initial
rate plus 2% or (ii) extended treasury rate plus 2%.
Loan No. 10386 CVS Loizos -- rate adjusts to greater of (i) initial rate
plus 2% or (ii) extended treasury rate plus 2%.
Loan No. 10830 Xxxxxxx Drug Headquarters -- rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Schedule A-2 Loans:
Loan No. 11398 AT&T Building -- Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12015 Xxxxxxx Self Storage -- Interest rate adjusts to greater of
(i) initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12104 Antelope Valley -- Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) extended treasury rate plus 2%.
Loan No. 12341 Tractor Supply Office Bldg. -- rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12342 S&A Brookline -- Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) extended treasury rate plus 2%.
Loan No. 12350 000 Xxxx Xxxxxx -- Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) extended treasury rate plus 2%.
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
The KeyBank Small Balance Loans require the Borrower to provide, upon
lender's request, the following financial reports on a quarterly basis: a
balance sheet, a statement of income and expenses of the related Mortgaged
Property, a statement of changes in financial position, a rent schedule for the
related Mortgaged Property and, if the related Borrower occupies the related
Mortgaged Property, a copy of the related Borrower's financial statement. The
related Borrower also must deliver to lender updated versions of such financial
reports at any other time upon lender's request, but there is no specific
requirement regarding annual operating statements, rent rolls or financial
statements.
The following Mortgage Loans require delivery of an annual balance sheet of
the related Borrower, but do not require the delivery of an annual financial
statement:
Loan Xx. 0000 Xxxxxxx Xxxx Xxxxxxx
Xxxx Xx. 00000 Redondo Torrance Mini Storage
Loan No. 10142 Van Nuys Mini Storage
Loan No. 10197 College Park Medical Office Building
Loan No. 10510 Ridgemoor Square Building
Loan No. 10568 New London Square
Loan No. 10579 Embassy and Diplomat Towers
Loan No. 10692 Siemens Facility
Loan Xx. 00000 Xxxxxxx Xxxxxxxxx & Xxxxxx
Xxxx Xx. 00000 The Crossroads at Middlebury-East
Loan No. 11283 Xxxxxxx Xxxxx Apartments
Loan No. 11427 00000 Xxxxxxxx Xxxxxx
Loan No. 11487 Heatherwood Apartments
Loan Xx. 00000 Xxxxx Xxxxxxxx Xxxxxxxxxx
Xxxx Xx. 00000 Premier Self Storage
Xxxx Xx. 00000 Xxxx Xxxxx Xxxxx Apartments
Loan No. 11771 Evergreen Park Manor Apartments
Loan No. 11774 Westpark Industrial
Loan No. 11890 Golden Stream Quality Foods
With respect to Loan No. 10830/Bartell Warehouse & Office, there is no
requirement that quarterly operating statements be delivered.
With respect to Loan No. 12424/Connector Park, which had an original
principal balance of $20 million, the annual financial statement is only
required to be audited by an independent certified public accountant after the
occurrence of an event of default.
Schedule A-2 Loans:
The following Mortgage Loans require the delivery of an annual balance
sheet of the related Borrower, but do not require delivery of an annual
financial statement:
X-00
Xxxx Xx. 00000 Xxxxxx Center II & Metro Business Xxxxxx-Xxxx 0
Xxxx Xx. 00000 THF - Maryland Avenue Office Buildings
Loan No. 00000 Xxxxxxxxx Xxxxx I-IV
Loan No. 10574 Xxxxxxx
Loan Xx. 00000 Xxxxxxxxxx Xxxx Xxxxxxxx Xxxx
Loan No. 11398 AT&T Building
Loan No. 12035 Charlotte Arms Apartments
Loan Xx. 00000 Xxxxxxx & Xxx Xxxxxxxx Xxxxxx
Loan No. 11871 Southridge Apartments
With respect to Loan No. 11578/Wieden & Xxxxxxx Building, which had an
original principal balance of $20 million, there is no requirement that the
annual financial statement be audited, but, after the occurrence of an event of
default, such annual financial statement must be reviewed by an independent
certified public accountant.
X-00
XXXXXXXX X-00
Xxxxxxxx X-0 Loans:
With respect to each of the following Mortgage Loans, a third party is
entitled to receive a correspondent servicing fee:
Loan Xx. 00000 Xxxxxxxxx Xxxxxx Xxxxxxxx
Xxxx Xx. 00000 Bartell Warehouse & Office
Loan Xx. 00000 Xxxxxxxxxx xx Xxxxxxxxxx - Xxxx
Loan No. 11771 Evergreen Park Manor Apartments
Schedule A-2 Loans:
Loan No. 00000 XXX-Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
Xxxx Xx. 00000 Xxxxxxx & Bay Shopping Center
Loan No. 00000 Xxxxxxxxx Xxxxx
Loan Xx. 00000 Xxxxxx Xxxxxx
C-35
SCHEDULE C-43
Schedule A-1 Loans:
With the exception of Loan No. 12007/Lawn Avenue Apartments, the related
Mortgage Loan documents for all of the KeyBank Small Balance Loans provide for
full recourse against the related Borrower.
With respect to Loan No. 12424/Connector Park, no principal of Borrower or
other individual guarantor is liable (through an indemnification or otherwise)
with respect to losses related to violations of applicable environmental laws or
breaches of environmental covenants; only the Borrower is liable for such losses
through an indemnification.
Schedule A-2 Loans:
In Loan No. 11781/Chantilly Plaza no principal of Borrower or other
individual guarantor is liable for the specified "carve-outs"; only the related
Borrower is liable upon the occurrence of such events.
In each of the following loans, the principal of Borrower that is liable
for the specified "carve-outs" is an entity rather than an individual:
Loan Xx. 00000 Xxxxxx Xxxxxx
Loan Xx. 00000 Xxxxxxxxx Xxxxxx Xxxxxxxx
Xxxx Xx. 00000 Tractor Supply Office Building
C-36
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY
OR AN ASSISTANT SECRETARY OF THE SELLER
CERTIFICATE OF [ASSISTANT] SECRETARY OF KEYBANK NATIONAL ASSOCIATION
I, __________________, hereby certify that I am a duly appointed Secretary
of KeyBank National Association, a national banking association ("KeyBank"), and
further certify as follows:
1. Attached hereto as Attachment A are true, correct and complete copies of
the [specify organizational documents] of KeyBank, which are in full force and
effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of KeyBank authorizing and approving KeyBank's execution, delivery and
performance of (a) the Mortgage Loan Purchase Agreement, dated as of __________,
2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse First
Boston Mortgage Securities Corp., as purchaser and KeyBank, as seller, and (b)
the corresponding Indemnification Agreement referred to in the Mortgage Loan
Purchase Agreement (the "Indemnification Agreement"). Such resolutions are in
full force and effect on the date hereof and do not conflict with any other
resolutions of the board of directors of KeyBank in effect on the date hereof.
3. Attached hereto as Attachment C is a certificate of good standing with
respect to KeyBank issued by the Comptroller of the Currency within 20 days of
the date hereof and no event (including, without limitation, any act or omission
on the part of KeyBank) has occurred since the date thereof that has affected
the good standing of KeyBank under the laws of the United States of America.
4. Each person who, as an officer or representative of KeyBank, signed the
Mortgage Loan Purchase Agreement, the Indemnification Agreement or any other
document or certificate delivered by or on behalf of KeyBank prior hereto or on
the date hereof in connection with the transactions contemplated in the Mortgage
Loan Purchase Agreement and/or the Indemnification Agreement, was, at the
respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of each such person appearing on any such
documents is his or her genuine signature.
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
__________, 2001.
By:__________________________________
Name:
Title: [Assistant] Secretary
X-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF KEYBANK NATIONAL ASSOCIATION
In connection with the execution and delivery by KeyBank National
Association ("KeyBank") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement (the
"Agreement"), dated as of __________, 2001, between Credit Suisse First Boston
Mortgage Securities Corp., as purchaser, and KeyBank, as seller, and the
corresponding Indemnification Agreement referred to in the Mortgage Loan
Purchase Agreement (the "Indemnification Agreement"; and, together with the
Mortgage Loan Purchase Agreement, the "Agreements") the undersigned hereby
certifies that (i) the representations and warranties of KeyBank in the
Agreements are true and correct in all material respects at and as of the date
hereof (or, in the case of any particular representation and warranty set forth
in Exhibit C to the Mortgage Loan Purchase Agreement, as of such other date
specifically set forth in such representation and warranty) with the same effect
as if made on the date hereof (or, in the case of any particular representation
and warranty set forth in Exhibit C to the Mortgage Loan Purchase Agreement, on
such other date specifically set forth in such representation and warranty), and
(ii) KeyBank has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part required under the Agreements to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified this __ day of __________ 2001.
KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
Title:
D-2
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL TO
THE SELLER, PURSUANT TO SECTION 7(vi)
March 16, 2001
Xxxxx'x Investors Service, Inc. Fitch, Inc.
00 Xxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxx.
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
McDonald Investments Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxxxx Xxxxxx, 00xx Xxx. 00 Xxxxxxxx, 00xx Xxx.
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Credit Suisse First Boston Credit Suisse First Boston
Corporation Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Incorporated 000 Xxxxxxxxx Xxxxxx, 00xx Xxx.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxx. Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Series 2001-CK1
--------------------------------------------------------------------
Ladies and Gentlemen:
As Senior Vice President and Associate General Counsel of KeyBank National
Association, a national banking association (the "Bank"), I have acted as
counsel to the Bank and to its affiliate KeyCorp Real Estate Capital Markets,
Inc. (the "Corporation"), in connection with the negotiation, execution and
delivery by the Bank and the Corporation of the agreements listed below.
In that regard, I or attorneys working under my direction have examined and
relied upon originals or copies, certified or otherwise identified to my
satisfaction as being true copies of all such records of the Bank and the
Corporation, all such agreements, certificates and other documents as I have
deemed necessary as a basis for the opinions set forth herein, including the
following:
1. The Mortgage Loan Purchase Agreement between the Bank and Credit Suisse
First Boston Mortgage Securities Corp. ("CSFBMSC");
2. The Pooling and Servicing Agreement among the Corporation, as Master
Servicer, CSFBMSC, ORIX Real Estate Capital Markets, LLC, as Special Servicer,
and Xxxxx Fargo Bank Minnesota, N.A., as Trustee; and
D-3A
3. The Indemnification Agreement among the Bank, CSFBMSC, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc., McDonald
Investments Inc. and Credit Suisse First Boston Corporation.
The agreements listed in items 1 through 3 above are collectively
referenced herein as the "Agreements."
In such examination, I or such attorneys working under my direction have
assumed the genuineness of all signatures other than those signatures for the
Bank and the Corporation, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as certified or
photostatic copies. I or such attorneys have investigated such questions of law
for the purpose of rendering these opinions as I have deemed necessary.
Based on the foregoing, and subject to the limitations and qualifications
set forth below, I am of the opinion that:
(a) the Bank has been duly organized and is validly existing as a national
banking association in good standing under the laws of the United States of
America, with corporate power and authority to own its properties and to conduct
its business as now conducted by it and to enter into and perform its
obligations under the Agreements it is a party to;
(b) the Corporation has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Ohio;
(c) the Corporation has the corporate power and authority to own its
properties and to conduct its business as now conducted by it and to enter into
and perform its obligations under the Agreements it is a party to;
(d) the Agreements to which it is a party have been duly and validly
authorized, executed and delivered by each of the Bank and the Corporation;
(e) neither the execution and delivery by the Bank of the Agreements it is
a party to, nor the consummation by the Bank of the transactions contemplated by
such Agreements, nor the performance by the Bank of its obligations thereunder
will result in a material breach or violation of, or constitute a material
default under (i) the Articles of Association or by-laws, as amended, of the
Bank, (ii) the terms of applicable current provisions of statutory law or
regulation, (iii) any existing obligation of the Bank under any indenture,
agreement, or instrument actually known to me, after reasonable investigation,
which breach, violation or default would reasonably be expected to have a
material adverse effect on the condition of the Bank, financial or otherwise, or
adversely affect the transactions contemplated by, or the Bank's performance of
its obligations under, the Agreements to which the Bank is a party, or (iv) the
terms of any order, writ, judgement or decree actually known to me after
reasonable investigation, issued by a court of competent jurisdiction and
specifically directed to the Bank or its property;
(f) neither the execution and delivery by the Corporation of the Agreements
it is a party to, nor the consummation by the Corporation of the transactions
contemplated by such Agreements, nor the performance by the Corporation of its
obligations thereunder will result in a material breach or violation of, or
constitute a material default under (i) the Articles of Incorporation or
by-laws, as amended, of the Corporation, (ii) the terms of applicable current
provisions of statutory law
D-3A
or regulation, (iii) any existing obligation of the Corporation under any
indenture, agreement, or instrument actually known to me, after reasonable
investigation, which breach, violation or default would reasonably be expected
to have a material adverse effect on the condition of the Corporation, financial
or otherwise, or adversely affect the transactions contemplated by, or the
Corporation's performance of its obligations under, the Agreements to which the
Corporation is a party, or (iv) the terms of any order, writ, judgement or
decree actually known to me after reasonable investigation, issued by a court of
competent jurisdiction and specifically directed to the Corporation or its
property;
(g) no consent, approval or authorization of, or filing with, any
governmental agency or body is required of either the Bank or the Corporation in
connection with its execution, delivery and performance of the Agreements to
which it is a party, except such consents, approvals or authorizations as have
been obtained or such filings as have been made; and
(h) to my actual knowledge, after reasonable investigation, there are no
actions, proceedings or investigations pending or threatened against the Bank or
the Corporation before any court, administrative agency, or tribunal (i)
asserting the invalidity of any of the Agreements, (ii) seeking to prevent the
consummation of any of the transactions contemplated by any of the Agreements,
or (iii) that could reasonably be expected to materially and adversely affect
the enforceability of any of the Agreements against the Bank or the Corporation,
as the case may be, or the ability of the Bank or the Corporation, as the case
may be, to perform its obligations thereunder.
For purposes of this opinion letter, I have assumed that (i) the Agreements
have been duly executed and delivered by all parties thereto (other than the
Bank and/or the Corporation, as the case may be) and are valid and binding upon
and enforceable against such parties (other than the Bank and/or the
Corporation, as the case may be), subject to applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and (ii) there has been no mutual mistake of fact or misunderstanding, fraud,
duress, or undue influence.
The opinions expressed above are limited to Federal law and the laws of the
State of Ohio.
This opinion is rendered solely to the addressees hereof, for their use in
connection with the transactions contemplated herein and may not be relied upon
for any other purpose or by any other person.
Very truly yours,
Xxxxxx X. Xxxxx
Senior Vice President and
Associate General Counsel
D-3A
EXHIBIT D-3B
FORM OF OPINION OF PHILLIPS, LYTLE, XXXXXXXXX, XXXXXX & XXXXX LLP,
PURSUANT TO SECTION 7(vii)
March 16, 2001
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage
Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Debt Capital Markets
Commercial Real Estate Debt.
4 World Financial Center 26th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Re: Pooling and Servicing Agreement among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor ("Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as Master Servicer, ORIX Real Estate
Capital Markets, LLC, as Special Servicer and Xxxxx Fargo Bank
Minnesota, N.A., as Trustee dated as of Xxxxx 0, 0000 ("XXX") and
Mortgage Loan Purchase Agreement between KeyBank National Association,
as Seller and Depositor, as Purchaser dated Xxxxx 0, 0000 ("XXXX" and
together with the PSA, the "Agreements")
----------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special local counsel to KeyCorp Real Estate Capital
Markets, Inc. ("Company"), as Master Servicer in connection with the execution
and delivery of the PSA, and to KeyBank National Association ("KeyBank"), as
Seller in connection with the execution and delivery of the MLPA.
D-3B
Credit Suisse First Boston Corporation
March 16, 2001
Page 1
In connection with rendering our opinion, we have reviewed the PSA and the
MLPA and have made such investigations of law as we have deemed necessary or
appropriate to enable us to render this opinion. As to facts material to our
opinion we have, when relevant facts were not independently established, relied
upon the representations of the Company and KeyBank in the Agreements.
In rendering the opinions expressed herein, we have assumed (i) the
genuineness of all signatures by each party; (ii) the authenticity of all
documents submitted to us as originals; (iii) the conformity to original
documents of all documents submitted to us as conformed or photostatic copies;
(iv) the conformity in all material respects of the final executed forms of the
Agreements with the versions submitted to us in draft form on March 12, 2001 and
March 13 respectively; (v) the due formation and valid existence of the parties
to the Agreements; and (vi) the due authorization, execution and delivery of the
Agreements by the parties thereto, and their power and authority (including the
obtaining of all necessary permits, licenses and approvals) to execute and
perform each of the Agreements.
Based upon the foregoing assumptions and subject to the qualifications
hereinafter set forth, it is our opinion that, as of the date hereof:
1. The PSA constitutes the legal, valid and binding contract and
agreement of the Company and is enforceable in accordance with its terms.
2. The MLPA constitutes the legal, valid and binding contract and
agreement of KeyBank and is enforceable in accordance with its terms.
Our opinions concerning the enforceability of the Agreements are subject to
the qualification that:
(a) enforceability may be limited by or subject to (i) state and/or
federal bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies; (ii) an implied duty of good
faith; and (iii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable in whole
or in part, although the inclusion of such provisions does not render any
of the Agreements invalid as a whole, and the Agreements contain legally
adequate provisions for enforcing the other obligations of the parties
thereunder and for the practical realization of the principal rights and
benefits purported to be afforded thereby, subject to the economic
consequences of any judicial, administrative, or other procedural delay in
connection with such enforcement and realization.
D-3B
Credit Suisse First Boston Corporation
March 16, 2001
Page 2
In connection with servicing by the Company of mortgages on residential
property located in New York State, we point out that Section 6-k of the New
York Banking Law imposes certain obligations on mortgagees with respect to
casualty insurance escrow accounts, and Section 254 of the New York Real
Property Law imposes certain restrictions on the right of the mortgagee to
retain casualty insurance proceeds.
We express no opinion as to the applicability to, or effect on, the
transactions contemplated by either of the Agreements of any federal or state
securities law.
We are qualified to practice law in the State of New York and we do not
purport to be experts on, or to express any opinion herein concerning, any
matter governed by the laws of any jurisdiction other than the laws of the State
of New York and the federal law of the United States. This letter is furnished
to you solely for your benefit in connection with the transactions contemplated
by the Agreements. This opinion is not to be publicly filed, used, circulated,
quoted or otherwise relied upon by any other person or entity or, for any other
purpose, without our prior written consent.
Very truly yours,
D-3B
Credit Suisse First Boston Corporation
March 16, 2001
Page 1
EXHIBIT D-3C
FORM OF OPINION OF XXXXXXXXXX, XXXXXXX & XXXXX, P.C.,
PURSUANT TO SECTION 7(viii)
March 16, 2001
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Xxxxx'x Investors Service, Inc.
Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Fitch, Inc.
Xxxxxx & Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx Inc. McDonald Investment Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass Through Certificates, Series 2001-CK1
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association, a
national banking association ("KEY"), in connection with the following
transactions (collectively, the "TRANSACTIONS"):
(i) the sale by Key, and the purchase by Credit Suisse First Boston
Mortgage Securities Corp. (the "DEPOSITOR") (such Transaction, the
"SALE"), of certain multifamily and commercial mortgage loans (the
"MORTGAGE LOANS"), pursuant to that certain Mortgage Loan Purchase
Agreement, dated as of March 5, 2001 (the "LOAN PURCHASE AGREEMENT"),
between Key as seller and the Depositor as purchaser;
D-3C
Credit Suisse First Boston Corporation
March 16, 2001
Page 2
(ii) the creation of a common law trust (the "TRUST") and the issuance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1 (the
"CERTIFICATES"), pursuant to that certain Pooling and Servicing
Agreement, dated as of March 1, 2001 (the "POOLING AND SERVICING
AGREEMENT"), among the Depositor as depositor, KeyCorp Real Estate
Capital Markets, Inc. as master servicer, ORIX Real Estate Capital
Markets, LLC as special servicer, and Xxxxx Fargo Bank Minnesota, N.A.
as trustee (the "TRUSTEE"); and
(iii) the transfer of the Mortgage Loans by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement in exchange for the
issuance of the Certificates at the direction of the Depositor.
The Loan Purchase Agreement and the Pooling and Servicing Agreement are
collectively referred to herein as the "AGREEMENTS". Capitalized terms not
defined in this letter have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the Loan Purchase
Agreement.
Under the terms of the Loan Purchase Agreement, Key will sell to the
Depositor, without recourse (except to the extent specified therein), all right,
title and interest of Key in and to the Mortgage Loans and the proceeds thereof.
Pursuant to the Pooling and Servicing Agreement, the Depositor will transfer the
Mortgage Loans to the Trustee, and the Trust will issue the Certificates
representing interests in the Trust. The following twenty-one classes of
Certificates representing beneficial interests in the Trust Fund will be issued
pursuant to the Pooling and Servicing Agreement: The Class A-1, Class A-2, Class
A-3, Class B, Class C, and Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class A-X, Class A-CP, Class A-Y,
Class R, and Class V Certificates.
You have requested our opinion whether, in the event that the Federal
Deposit Insurance Corporation (the "FDIC") were appointed as conservator or
receiver for Key pursuant to Section 11(c) of the Federal Deposit Insurance Act
(the "FDIA"), the transfer of the Mortgage Loans by Key to the Depositor
pursuant to the Loan Purchase Agreement would be enforceable against Key
notwithstanding the appointment of the FDIC as conservator or receiver of Key.
ASSUMPTIONS OF FACT
In connection with this opinion, we have reviewed the Agreements and a
certificate, dated the date hereof, of an officer of Key, which certifies, to
the best of such person's knowledge, inter alia, as to certain of the matters in
the immediately succeeding paragraph as of the date hereof. This opinion is
based solely upon our review of the Agreements and such other documents, and
such other investigations of law and fact, as we have deemed necessary or
advisable in connection with this opinion. Our opinion is limited to the
specific issues of federal law addressed and is further limited in all respects,
except as otherwise stated, to the facts assumed. We express no opinion as to
any other matter.
In rendering the opinions set forth herein, we have relied upon, and
assumed, without independent investigation or inquiry, the following to be true
at all relevant times:
D-3C
Credit Suisse First Boston Corporation
March 16, 2001
Page 3
(a) All representations and warranties set out in the Agreements, and all
statements in Key Certificate and the certificates relating to the Agreements or
furnished in connection with the Transactions, are true and correct.
(b) All signatures are genuine, all natural persons have the legal capacity
to execute and deliver the documents signed by them, all documents submitted to
us as originals are authentic and all documents submitted to us as certified or
photostatic copies conform in all respects to the original documents.
(c) Each of the Agreements has been duly authorized, executed and delivered
by, and constitutes the legal, valid and binding obligation of all parties
thereto, except to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (2) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(d) The execution, delivery and performance of the Agreements by the
parties thereto do not violate any applicable law. All notices to, filings with,
and approvals of, all applicable governmental or regulatory authorities required
for the execution and delivery by Key, the Depositor, and the Trustee of the
Agreements and the performance by Key, the Depositor, and the Trustee thereof
shall have been obtained or made, and are in full force and effect.
(e) Each of Key and the Depositor has taken all actions required under
applicable law to effectuate the Sale of the Mortgage Loans.
(f) There are no agreements or courses of prior dealing between any of the
parties that would alter the relationships set forth in the Agreements.
(g) The Depositor, Key, and the Trustee will at all times and in all
respects that are material to the opinions expressed in this letter comply with
all material provisions of the Agreements, as applicable.
(h) Key is a national banking association, the deposits of which are
insured by the FDIC pursuant to the provisions of the FDIA.
(i) As of the date of this opinion, Key has not violated any law or
regulation and is not in an unsafe or unsound condition that would constitute a
basis for the appointment of a conservator or receiver pursuant to the FDIA.
(j) Key received adequate consideration for the transfer to the Depositor
of the Mortgage Loans pursuant to the Loan Purchase Agreement.
(k) Each of Key, the Depositor, nor the Trustee did not and will not (i)
execute either of the Agreements or any other agreement to which it is a party
in connection with the Transactions or (ii) otherwise effectuate or consummate
any transfer of the Mortgage Loans pursuant to the Agreements or any other
agreement, in each case:
1. in contemplation of Key's or the Depositor's insolvency;
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Credit Suisse First Boston Corporation
March 16, 2001
Page 4
2. with a view to preferring one creditor of Key or the Depositor over
another or to preventing the application of Key's or the Depositor's assets in
the manner required by applicable law or regulations;
3. after Key or the Depositor committed an act of insolvency; or
4. with any intent to hinder, delay, or defraud Key or the Depositor or any
of their respective creditors.
(l) The execution, delivery and performance of each of the Agreements and
the Transactions constitute bona fide and arm's length transactions and were and
are undertaken in the ordinary course of business.
(m) The Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class
A-X, Class A-CP, and Class A-Y Certificates are, as of the date hereof, each
rated in one of the four highest categories assigned to long-term debt or in an
equivalent short-term category by Fitch and Xxxxx'x, which are nationally
recognized statistical rating organizations.
(n) It is the stated intention of Key and the Depositor, as set forth in
Section 11 of the Loan Purchase Agreement, to treat the transfer of the Mortgage
Loans by Key to the Depositor pursuant to the Loan Purchase Agreement as a sale,
and not a secured borrowing, including for accounting purposes.
(o) All of the requirements of generally accepted accounting principles for
treating the transfer of the Mortgage Loans as a sale have been satisfied (other
than the "legal isolation" condition).
(p) Key is and shall remain a separate and distinct entity from the
Depositor, the Trustee and the Trust. Key does not control, is not controlled
by, and is not under common control with, the Depositor or the Trustee.
(q) The Depositor is a Delaware corporation and is primarily engaged in
acquiring and holding or transferring to another special purpose entity,
financial assets, and in activities related or incidental thereto, in connection
with the issuance of beneficial interests, which in this case are in the form of
the Certificates.
OPINION EXPRESSED
Based on the reasoning and subject to the assumptions,
qualifications and limitations set forth in this letter, it is our opinion that
in a properly presented and decided case, a court would hold that the FDIC, if
appointed as receiver or conservator of Key pursuant to Section 11(c) of the
FDIA:
1. Could not, in the exercise of its authority under 12 U.S.C.ss.1821(e),
reclaim, recover, or recharacterize as property of Key or the receivership the
Mortgage Loans that have been transferred by Key to the Depositor pursuant to
the Loan Purchase Agreement; and
2. Could not seek to avoid the Loan Purchase Agreement under 12
U.S.C.ss.1823(e).
C-3C
Credit Suisse First Boston Corporation
March 16, 2001
Page 5
We wish to point out that we are giving no opinion (i) as to whether the
transfer of the Mortgage Loans by Key to the Depositor and, in turn, by the
Depositor to the Trust is a true sale or absolute conveyance, (ii) as to the
perfection or priority of any ownership interest or security interest in the
Mortgage Loans, (iii) concerning any law other than the federal laws of the
United States of America, or (iv) concerning any matter not expressly addressed
in this letter.
DISCUSSION
In an insolvency proceeding for Key, the United States Bankruptcy Code (the
"BANKRUPTCY CODE") would not apply.(1) Therefore, neither the provisions of the
Bankruptcy Code that impact the right of a secured creditor to liquidate
collateral nor the provisions of Section 547 of the Bankruptcy Code concerning
"preferential" transfers would apply in the event of the insolvency of Key. The
FDIC is authorized under Sections 11(c)(1) and (2) of the FDIA to accept
appointment as conservator, and is required to be appointed as receiver, for a
federal savings bank such as Key.
Our opinions above rely on the FDIC's rule regarding the treatment by the
FDIC, as receiver or conservator of an insured depository institution, of
financial assets transferred by the institution in connection with a
securitization or participation.(2) As of the date of this opinion, the Rule has
not been modified or repealed, and we are not aware of any reported judicial
decision that questions the validity of the Rule.
For the Transactions to be covered by the Rule, the Transactions must
involve the (1) transfer of financial assets (2) in connection with a
securitization or participation.(3) The first element is satisfied because each
of the Mortgage Loans "conveys to one entity a contractual right to receive
cash,(4) and therefore qualifies as a "financial asset."
The second element requires a determination of whether the transfer of the
Mortgage Loans pursuant to the Loan Purchase Agreement is "in connection with a
securitization or participation.(5) In our analysis we are relying on the Rule's
treatment of transfers in connection with a securitization. For the Transactions
to constitute a securitization that is covered by the Rule, the Transactions
must involve the issuance by a special purpose entity of beneficial interests
the most senior class of which is rated in one of the four highest rating
categories by one or more nationally recognized statistical rating organizations
or which are sold in transactions not involving any public offering or in
transactions exempt from registration pursuant to Regulation S under the
Securities Act.(6)
In this case, the Trust will issue beneficial interests in the form of the
Certificates. To fall within the scope of the Rule, the Trust must be a "special
purpose entity," as defined by the Rule. Under the Rule the term "special
purpose entity" means the following:
--------------------
(1) 11 X.X.Xxx.xx. 109(b)(2) and (d).
(2) See Treatment by the FDIC as Conservator or Receiver of Financial Assets
Transferred by an Insured Depository Institution in Connection With a
Securitization or Participation, 65 Fed. Reg. 49,189 (2000) (the "Rule")
(codified at 12 X.X.X.xx. 360.6).
(3) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(a)(4)(i)).
(4) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360(a)(4)(i)).
(5) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360(a)(4)(i)).
(6) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(a)(4)(i)).
D-3C
Credit Suisse First Boston Corporation
March 16, 2001
Page 6
a trust, corporation, or other entity demonstrably distinct from the
insured depository institution that is primarily engaged in acquiring and
holding (or transferring to another special purpose entity) financial
assets, and in activities related or incidental thereto, in connection with
the issuance by such special purpose entity (or by another special purpose
entity that acquires financial assets directly or indirectly from such
special purpose entity) of beneficial interests. 7
The Trust will be primarily engaged in acquiring and holding financial
assets and in activities related or incidental thereto, in connection with the
issuance of the Certificates. The Trust is a trust established under the laws of
New York. The permitted activities of the Trust are specifically set forth in,
and are strictly limited by, the Pooling and Servicing Agreement. Key does not
control, is not controlled by, nor is it under common control with, the Trustee
or the Trust; rather, the limited decision-making authority permitted under the
Pooling and Servicing Agreement is vested in the Trustee and the
Certificateholders, as set forth in the Pooling and Servicing Agreement.
Moreover, the documents evidencing the principal assets of the Trust, the
Mortgage Notes and related Mortgage Files, will be assigned to and physically
delivered into the possession of the Trustee, or a custodian appointed by the
Trustee (which custodian may not, as set forth in the Pooling and Servicing
Agreement, be Key). Although the Rule does not provide any guidance regarding
the circumstances under which a special purpose entity is "demonstrably
distinct" from a depository institution, we believe that the facts set forth
above demonstrate that the Trust is an entity distinct from Key. Therefore, the
Trust appears to satisfy the definition of a "special purpose entity" under the
Rule.
The other requirement for the Transactions to be covered by the Rule is met
because the most senior class of securities issued in the Transactions are rated
in one of the four highest categories assigned to long-term debt or in an
equivalent short-term category by Fitch and Xxxxx'x, which are nationally
recognized statistical rating organizations.8 Although the Rule does not define
the phrase "nationally recognized statistical rating organizations," this phrase
is used by the FDIC, other bank regulatory agencies and the Securities and
Exchange Commission in several regulations, is defined by the Securities and
Exchange Commission in several regulations and is defined by the Securities and
Exchange Commission at 17 C.F.R. ss. 240.150c3-1(c)(2)(vi)(F) as including Fitch
and Moody's, the two agencies rating the most senior classes of securities in
the Transactions. Although the Rule does not expressly adopt that definition, we
believe that a court would hold that Fitch and Xxxxx'x are nationally recognized
statistical rating organizations, either on the basis of the Securities and
Exchange Commission's rule or otherwise.
OTHER QUALIFICATIONS
The foregoing opinion is subject to the following qualifications:
1. If Key were to become a debtor under the FDIA and asserted that the
beneficial interest in and legal title to the Mortgage Loans were part of Key's
estate, we express no opinion as to how long the Trust would be denied
possession of the Mortgage Loans in Key's possession before the validity of such
an assertion could be finally decided. We also express no opinion as to whether,
if the
-----------
(7) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(a)(5)).
(8) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(a)(4)(i)).
D-3C
Credit Suisse First Boston Corporation
March 16, 2001
Page 7
FDIC were to assert that the beneficial interest in and legal title to the
Mortgage Loans were part of Key's receivership estate, a court would permit Key
to use collections of the Mortgage Loans in Key's possession without the consent
of the Trustee either before deciding the issue or pending appeal after a
decision adverse to the Trust.
2. We express no opinion as to the availability or effect of a preliminary
injunction, temporary restraining order or other such temporary relief affording
delay pending a determination on the merits; by such reservation, however, we do
not imply that we have undertaken any analysis to determine whether any such
equitable relief would ultimately be available to prevent enforcement of the
transaction.
3. We express no opinion with respect to the power of the FDIC, as receiver
or conservator, to disaffirm or repudiate any agreement (including, but not
limited to, the Loan Purchase Agreement) to the extent it imposes continuing
obligations or duties upon Key in receivership or conservatorship.
4. We express no opinion herein as to whether any transfer or obligation is
avoidable as a preference or fraudulent transfer.
5. The opinions are subject to the effect of general principles of equity,
including (without limitation) concepts of materiality, reasonableness, good
faith and fair dealing, and other similar doctrines affecting the enforceability
of agreements generally (regardless of whether considered in a proceeding in
equity or at law).
6. We express no opinion as to compliance or the effect of noncompliance by
the Trustee with any state or federal laws or regulations applicable to it in
connection with the transactions described in the Pooling and Servicing
Agreement.
7. We express no opinion with respect to the enforceability of any Mortgage
Loan or the existence of any claims, rights, defenses, counterclaims or
objections in favor of the mortgagor thereon that can be asserted against or are
effective against Key, the Depositor, the Trustee or the Certificateholders. We
note that unless the mortgagor with respect to a Mortgage Loan has received
notice of the assignment thereof (such notice not being contemplated by the Loan
Purchase Agreement), bona fide payments made by such mortgagor to Key or a
second assignee of such Mortgage Loan shall discharge such mortgagor's
obligations to the extent of such payment, and such payment will only be
recoverable from Key or, in certain cases, from such second assignee, as the
case may be.
8. We have assumed that there are no agreements (other than the Agreements)
prohibiting, restricting or conditioning the assignment of any portion of the
Mortgage Notes.
9. We express no opinion as to the ability of the FDIC, as conservator or
receiver, to transfer the Loan Purchase Agreement without any approval or
consent of the parties, pursuant to 12 U.S.C.ss.1821(d)(2)(G).
The foregoing analysis and its conclusions are premised upon, and limited
to, the law and the structure of the proposed transaction in effect as of the
date of this letter. We do not assume responsibility for updating this opinion
letter as of any date subsequent to the date of this opinion letter, and assume
no responsibility for advising you of (i) the discovery subsequent to the date
of this opinion
D-3C
Credit Suisse First Boston Corporation
March 16, 2001
Page 8
letter of factual information not previously known to us pertaining to the
events occurring prior to the date of this opinion letter or (ii) the amendment
or repeal of the Rule by the FDIC after the date of this opinion letter.
Furthermore, we note that a court's decision regarding matters upon which we
opine herein is based on the court's own analysis and interpretation of the
factual evidence before the court, and applicable legal principles.
This opinion is solely for the benefit of the addressees and should not
relied on by any other person. It is rendered solely in connection with the
Transactions. It may not be quoted, in whole or in part, or otherwise referred
to or used by you for any purpose, nor may copies hereof be delivered to any
other person (except to parties involved in the Transactions and their counsel
as part of the closing set related to the Transactions) without our prior
written consent.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
D-3C
Credit Suisse First Boston Corporation
March 16, 2001
Page 1
EXHIBIT D-3D
FORM OF LETTER OF XXXXXXXXXX, XXXXXXX & XXXXX, P.C.,
PURSUANT TO SECTION 7(ix)
March 16, 2001
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Xxxxx'x Investors Service, Inc.
Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Fitch, Inc.
Xxxxxx & Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx Inc. McDonald Investment Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass Through Certificates, Series 2001-CK1
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association
("KeyBank") and KeyBank Real Estate Capital Markets, Inc. ("KRECM"), in
connection with the Pooling and Servicing Agreement ("POOLING AND SERVICING
AGREEMENT") dated as of March 1, 2001, among Credit Suisse First Boston Mortgage
Securities Corp. as Depositor (the "DEPOSITOR"), KRECM as Master Servicer, ORIX
Real Estate Capital Markets, LLC as Special Servicer, and Xxxxx Fargo Bank
Minnesota, N.A. as Trustee, and in connection with the Mortgage Loan Purchase
Agreement ("LOAN PURCHASE AGREEMENT") dated as of March 5, 2001, among KeyBank
as Seller and the Depositor as Purchaser.
This letter is delivered to you at the request of KeyBank pursuant to the
Loan Purchase Agreement, the Underwriting Agreement ("UNDERWRITING AGREEMENT")
dated March 5, 2001, among the Depositor, Credit Suisse First Boston Corporation
("CSFB"), Xxxxxxx Lynch, Pierce, Xxxxxx &
D-3D
Credit Suisse First Boston Corporation
March 16, 2001
Page 2
Xxxxx, Inc., Xxxxxxx Xxxxx Xxxxxx Inc., and McDonald Investments Inc. as
Underwriters (in such capacity, collectively, the "UNDERWRITERS") and pursuant
to the Certificate Purchase Agreement ("CERTIFICATE PURCHASE AGREEMENT") dated
March 5, 2001, between the Depositor and CSFB.
The Certificates to be issued by the Depositor pursuant to the Pooling and
Servicing Agreement are divided into classes. The Certificates of Classes X-0,
X-0, X-0, X, X and D (collectively, the "PUBLICLY OFFERED CERTIFICATES") will be
sold to the Underwriters pursuant to the Underwriting Agreement and offered for
sale to the public pursuant to a prospectus dated March 5, 2001 ("BASE
PROSPECTUS"), as supplemented by a prospectus supplement dated March 5, 2001
("PROSPECTUS SUPPLEMENT" and along with the Base Prospectus, the "Prospectus").
The Certificates of Classes E, F, G, H, J, K, L, M, N, O, A-X, A-CP, A-Y, R and
V (the "PRIVATELY OFFERED CERTIFICATES" and along with the Publicly Offered
Certificates, the "CERTIFICATES") will be sold to CSFB pursuant to the
Certificate Purchase Agreement. CSFB will offer the Privately Offered
Certificates pursuant to a confidential offering circular dated March 5, 2001
(the "CONFIDENTIAL OFFERING CIRCULAR"). Capitalized terms not otherwise defined
herein are defined as set forth in the Underwriting Agreement or the Pooling and
Servicing Agreement, as applicable.
The purpose of our professional engagement was to advise with respect to
legal matters and not to determine or verify facts. Many of the determinations
involved in the preparation of the Prospectus Supplement and the Confidential
Offering Circular were factual. We have not independently verified, do not make
any representation as to, and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus
Supplement or the Confidential Offering Circular.
In connection with the delivery of this letter, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of the
Prospectus, the Confidential Offering Circular, the Loan Purchase Agreement, the
Pooling and Servicing Agreement, and other such documents and records as we have
deemed relevant or necessary as the basis for the views expressed in this
letter. We have obtained such certificates from and made such inquiries of
officers and other representatives of KeyBank and KRECM as we have deemed
relevant or necessary as the basis of the views expressed in this letter. We
have relied upon and assumed the accuracy of, such other documents and records,
such certificates and the statements made in response to such inquiries, with
respect to the factual matters upon which the views expressed in this letter are
based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the Loan
Purchase Agreement and the Pooling and Servicing Agreement and underlying the
assumptions set forth below or that are otherwise factually relevant to the
opinions expressed in this letter, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures (except for the signatures of officers
of KRECM and KeyBank) and the authenticity of all documents submitted to us as
originals, (iv) the conformity to the originals of all documents submitted to us
as certified conformed or photostatic copies, (v) the due authorization by all
necessary action, and the due execution and delivery, of each of the Loan
Purchase Agreement and the Pooling and Servicing Agreement by the parties
thereto and the constitution of each of the Loan Purchase Agreement and the
Pooling and Servicing Agreement as the legal, valid and binding obligations of
each party thereto, enforceable against such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, and
D-3D
Credit Suisse First Boston Corporation
March 16, 2001
Page 3
similar laws relating to or affecting the enforceability of creditors' rights
generally, the effect of general equitable principals (in equity or at law), and
the availability of equitable remedies, (vi) the compliance with the relevant
provisions of each of the Loan Purchase Agreement and the Pooling and Servicing
Agreement by the parties thereto, (vii) the conformity, to the requirements of
each of the Loan Purchase Agreement and the Pooling and Servicing Agreement, of
the Mortgage Loan Documents delivered to the Depositor by KeyBank, (viii) the
absence of any agreement that supplements or otherwise modifies the agreements
expressed in each of the Loan Purchase Agreement and the Pooling and Servicing
Agreement, and (ix) the conformity of the text of each document filed with the
Securities Exchange Commission through the XXXXX system to the printed documents
reviewed by us. In rendering this letter, we do not express any view concerning
the laws of any jurisdiction other than the federal laws of the United States of
America.
In the course of acting as special counsel to KeyBank and KRECM we have
responded to inquiries from time to time by KeyBank's closing coordinators,
reviewed title insurance commitments and surveys and prepared most of the loan
documents for a majority of the Mortgage Loans (as defined in the Loan Purchase
Agreement) originated by KeyBank. In connection with the preparation of the
Prospectus Supplement and the Confidential Offering Circular, we met in
conferences and participated in telephone conversations with officers and
employees of KeyBank and KRECM and counsel, officers and other representatives
of the Depositor, the Underwriters, CSFB and the other Mortgage Loan Seller,
during which conferences and telephone conversations the contents of the
Prospectus Supplement and the Confidential Offering Circular were discussed. We
have not independently undertaken any procedures that were intended or likely to
elicit information concerning the accuracy, completeness or fairness of the
statements made in the Prospectus Supplement or the Confidential Offering
Circular. On the basis of the foregoing and subject to the limitations set forth
herein, nothing has come to our attention to cause us to believe that either the
Prospectus Supplement or the Confidential Offering Circular, as of their
respective dates or as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that we have not been requested to and we do not make any
comment in this paragraph with respect to (i) financial statements, schedules or
other accounting, financial, or statistical data or other information of that
nature contained in or omitted from the Prospectus Supplement or the
Confidential Offering Circular, or (ii) information contained in the computer
diskette or the CD-ROM accompanying the Prospectus Supplement which we assume,
but have not verified, does not vary from and is not different in any way from
the information contained in the Prospectus Supplement). In that connection, we
advise you that we have, as to materiality, relied to the extent we deemed
appropriate on the judgment of officers and other representatives of KeyBank,
KRECM and their affiliates. In addition, in that connection we call to your
attention that, with your knowledge and consent, we have not (except as
described above) examined or otherwise reviewed any of the Mortgage Files in
connection with the transactions contemplated by the Pooling and Servicing
Agreement and the Loan Purchase Agreement (collectively, the "TRANSACTIONS"),
any particular documents contained in such files or any other documents with
respect to the Mortgage Loans.
Whenever a statement herein is qualified by the phrase "come to our
attention," it is intended to indicate that, during the course of our
representation of KeyBank or KRECM, no information that would give us current
actual knowledge of the inaccuracy of such statement has come to the attention
of those attorneys currently in this firm who have been actively involved in
representing KRECM or KeyBank in connection with the Transactions or in
connection with the origination of any of
D-3D
Credit Suisse First Boston Corporation
March 16, 2001
Page 4
the Mortgage Loans being sold as part of the Transactions. However, we have
not undertaken any independent investigation to determine the accuracy of any
such statement, and any limited inquiry undertaken by us during the preparation
of this letter should not be regarded as such an investigation; no inference as
to our knowledge of any matters bearing on the accuracy of any such statement
should be drawn from the fact of our representation of KRECM or KeyBank.
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to the parties involved in the
Transactions and their respective counsel as part of the closing set related to
the Transactions) without our prior written approval. We disclaim any obligation
to update this letter for events occurring or coming to our attention after the
date hereof, notwithstanding that such changes may affect the views or beliefs
expressed in this letter.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C
D-3D