MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective as of November 1, 2001, between Column Financial, Inc., a
Delaware corporation ("Column"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller"), and Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB Mortgage
Securities"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "Purchaser").
RECITALS
Column desires to sell, assign, transfer, set over and
otherwise convey to CSFB Mortgage Securities, without recourse, and CSFB
Mortgage Securities desires to purchase, subject to the terms and conditions set
forth herein, the multifamily and commercial mortgage loans (collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A, as
such schedule may be amended from time to time pursuant to the terms hereof.
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 Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and
Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing Agreement dated as of November 12, 2001 (the "Pooling and Servicing
Agreement"), among CSFB Mortgage Securities as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer and
special servicer of non-residential cooperative mortgage loans, National
Consumer Cooperative Bank, as master servicer and special servicer of
residential cooperative mortgage loans, and Xxxxx Fargo Bank Minnesota, N.A., as
trustee. Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement as
in full force and effect on the Closing Date (as defined in Section 1 hereof).
It is anticipated that CSFB Mortgage Securities will transfer the Mortgage Loans
to the Trust contemporaneously with its purchase of the Mortgage Loans
hereunder.
CSFB Mortgage Securities intends to sell certain classes of
the Certificates (collectively, the "Publicly Offered Certificates") to Credit
Suisse First Boston Corporation ("CSFB Corporation") and the other underwriters
named in the Underwriting Agreement (as defined below) (collectively in such
capacity, the "Underwriters"), pursuant to an underwriting agreement dated as of
November 1, 2001 (the "Underwriting Agreement), between CSFB Mortgage Securities
and CSFB Corporation as representative of the Underwriters, and CSFB Mortgage
Securities intends to sell certain classes of the remaining Certificates (the
"Privately Offered Certificates") to CSFB Corporation, pursuant to a certificate
purchase agreement dated as of the date hereof (the "Certificate Purchase
Agreement"), between CSFB Mortgage Securities and the CSFB Corporation. The
Publicly Offered are more fully described in a prospectus dated October 22, 2001
(the "Basic Prospectus"), and the supplement to the Basic Prospectus dated
November 1, 2001 (the "Prospectus Supplement" and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented at any
time hereafter. The Privately Offered Certificates are more fully described in a
confidential offering circular dated
November 1, 2001 (the "Confidential Offering Circular"), as it may be amended or
supplemented at any time hereafter.
Column will indemnify CSFB Mortgage Securities, CSFB
Corporation, the other Underwriters and certain related parties with respect to
the disclosure regarding the Mortgage Loans contained in the Prospectus, the
Confidential Offering Circular and certain other disclosure documents and
offering materials relating to the Certificates, pursuant to an indemnification
agreement dated as of November 1, 2001 (the "Indemnification Agreement"), among
Column, CSFB Mortgage Securities and CSFB Corporation, both as a representative
of the Underwriters and as initial purchaser of the Privately Offered
Certificates.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, and the Purchaser agrees to purchase from the Seller, subject to the
terms and conditions set forth herein, the Mortgage Loans. The purchase and sale
of the Mortgage Loans shall take place on November 13, 2001 or such other date
as shall be mutually acceptable to the parties hereto (the "Closing Date"). As
of the close of business on the respective Due Dates for the Mortgage Loans in
November 2001 (individually and collectively, the "Cut-off Date"), the Mortgage
Loans will have an aggregate principal balance, after application of all
payments of principal due on the Mortgage Loans on or before the Cut-off Date,
whether or not received, of $625,757,228, subject to a variance of plus or minus
5%. The consideration for the Mortgage Loans shall be cash in the amount of
108.4% of such aggregate principal balance of the Mortgage Loans, together with
accrued interest on the Mortgage Loans at their respective Net Mortgage Rates
from and including November 1, 2001 to but not including the Closing Date, which
cash amount the Purchaser shall pay to the Seller on the Closing Date by wire
transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
of the consideration referred to in Section 1 hereof, the Seller does hereby
sell, assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Mortgage Loans, including all interest and principal received on or with respect
to the Mortgage Loans after the Cut-off Date (other than scheduled payments of
interest and principal due on or before the Cut-off Date), together with all of
the right, title and interest of the Seller in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense, subject to Section 18, deliver to and deposit with, or cause to be
delivered to and deposited with, the Purchaser or
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its designee the Mortgage File and any Additional Collateral (other than reserve
funds and escrow payments) with respect to each Mortgage Loan. In addition, with
respect to each Mortgage Loan, as to which any Additional Collateral is in the
form of a Letter of Credit as of the Closing Date, the Seller shall cause to be
prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are required under such Letter
of Credit to assign, without recourse, to the Trustee the Seller's rights as the
beneficiary thereof and drawing party thereunder. 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 Mortgage 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 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 that any of the following items are to be retained by a subservicer that
will continue to act on behalf of the Purchaser or its designee): (i) originals
or copies of all financial statements, appraisals, environmental/engineering
reports, leases, rent rolls (or, in the case of any Mortgage Loans secured by
residential cooperative properties, maintenance schedules), third-party
underwriting reports, insurance policies, legal opinions, tenant estoppels and
any other documents that the Purchaser or its servicing agent reasonably deems
necessary to service the subject Mortgage Loan in the possession or under the
control of the Seller that relate to the Mortgage Loans and, to the extent they
are not required to be a part of a Mortgage File for any Mortgage Loan,
originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans (provided that the Seller shall not be required to deliver
documents or materials prepared by the Seller or its affiliates solely for
internal uses); and (ii) all unapplied reserve funds and escrow payments in the
possession or under the control of the Seller that relate to the Mortgage Loans.
The designated recipient of the items described in clauses (i) and (ii) of the
preceding sentence shall be the applicable Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to
deliver any Letter of Credit constituting Additional Collateral for any Mortgage
Loan then the Seller may, in lieu thereof, deliver on behalf of the related
Borrower, to be used for the same purposes as such missing Letter of Credit
either: (i) a substitute letter of credit substantially comparable to, but in
all cases in the same amount and with the same draw conditions and renewal
rights as, that Letter of Credit and issued by an obligor that meets any
criteria in the related Mortgage Loan Documents applicable to the issuer of that
Letter of Credit; or (ii) a cash reserve in an amount equal to the amount of
that Letter of Credit. For purposes of the delivery requirements of this Section
2(c), any such substitute letter of credit shall be deemed to be Additional
Collateral of the type covered by the first paragraph of this Section 2(c) and
any such cash reserve shall be deemed to be reserve funds of the type covered by
the third paragraph of this Section 2(c).
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In connection with the foregoing paragraphs of this Section
2(c), the Seller is a designated recipient, or shall otherwise be the
beneficiary, of all certifications relating to the Mortgage Loans made and/or
delivered by the Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the
Pooling and Servicing Agreement. To the extent that those certifications and/or
the related exception reports reflect Document Defects with respect to the
Mortgage 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 fees
and out-of-pocket costs and expenses associated with recording and/or filing any
and all assignments and other instruments of transfer with respect to the
Mortgage Loans that are required to be recorded or filed, as the case may be,
under the Pooling and Servicing Agreement; provided that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer. 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; provided that the cost of such preparation shall be borne by
the Purchaser if the loss or return is caused by the Purchaser's negligence. The
Seller shall provide the Purchaser or its designee with a power of attorney to
enable it or them to record any loan documents 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.
(e) Upon sale of Certificates representing at least 10% of the
total principal balance of all the Certificates to unaffiliated third parties,
the Seller shall, under generally accepted accounting principles ("GAAP"),
report its transfer of the Mortgage Loans to the Purchaser, as provided herein,
as a sale of the Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof. In connection with the foregoing,
upon sale of Certificates representing at least 10% of the total principal
balance of all the Certificates to unaffiliated third parties, the Seller shall
cause all of its financial and accounting records to reflect such transfer as a
sale (as opposed to a secured loan). Regardless of its treatment of the transfer
of the Mortgage Loans to the Purchaser under GAAP, the Seller shall at all times
following the Closing Date cause all of its records and financial statements and
any relevant consolidated financial statements of any direct or indirect parent
to clearly reflect that the Mortgage Loans have been transferred to the
Purchaser and are no longer available to satisfy claims of the Seller's
creditors.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time
to time, shall conform to the requirements set forth in the Pooling and
Servicing Agreement. The Seller shall, within 15 days of its discovery or
receipt of notice of any error on the Mortgage Loan Schedule, amend such
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Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the case
may be, an amended Mortgage Loan Schedule.
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence Review. The Seller shall reasonably cooperate with any examination of
the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section 4
(subject, however, to Section 5(d)).
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 CSFB Mortgage Securities only, that the
Seller has not dealt with any broker, investment banker, agent or other person
(other than the CSFB Mortgage Securities, CSFB Corporation and the other
Underwriters) who may be entitled to any commission or compensation in
connection with the sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make,
as of the date of substitution, to and for the benefit of the Purchaser, with
respect to any replacement mortgage loan (a "Replacement Mortgage Loan") that is
substituted for a Defective Mortgage Loan (as defined in Section 5(a) hereof),
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit C (references therein to "Closing Date" being
deemed to be references to the "date of substitution", references therein to
"Cut-off Date" being deemed to be references to the "most recent Due Date for
the subject Replacement Mortgage Loan on or before the date of substitution" and
references to "November 2001" and "October 2001" being deemed to be references
to the "month of substitution" and the "month preceding the month of
substitution", respectively). From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
(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 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.
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SECTION 5. Notice of Breach; Cure, Repurchase and
Substitution.
(a) The Purchaser or its designee shall provide the Seller
with written notice of any Material Breach or Material Document Defect with
respect to any Mortgage Loan. Within 90 days (or in the case of a Material
Document Defect that consists of the failure to deliver a Specially Designated
Mortgage Loan Document, 15 days) of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or Material
Document Defect with respect to any Mortgage Loan (such 90-day (or, if
applicable, 15-day) period, the "Initial Resolution Period"), the Seller shall,
subject to Section 5(b) and Section 5(c) below, (i) correct or cure such
Material Breach or Material Document Defect, as the case may be, in all material
respects or (ii) repurchase the Mortgage Loan affected by such Material Breach
or Material Document Defect, as the case may be (such Mortgage Loan, a
"Defective Mortgage Loan"), at the related Purchase Price, with payment to be
made in accordance with the reasonable directions of the Purchaser; provided
that if the Seller shall have delivered to the Purchaser a certification
executed on behalf of the Seller by an officer thereof stating (i) that such
Material Breach or Material Document Defect, as the case may be, does not relate
to whether the Defective Mortgage Loan is or, as of the Closing Date (or, in the
case of a Replacement Mortgage Loan, as of the related date of substitution),
was a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
(a "Qualified Mortgage"), (ii) that such Material Breach or Material Document
Defect, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period,
(iv) what actions the Seller is pursuing in connection with the cure thereof and
(v) that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be cured within an additional period not to
exceed the applicable Resolution Extension Period (as defined below), then the
Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such cure or, failing such, to repurchase the
Defective Mortgage Loan; and provided, further, that, if the Seller's obligation
to repurchase any Defective Mortgage Loan as a result of a Material Breach or
Material Document Defect arises within the three-month period commencing on the
Closing Date (or within the two-year period commencing on the Closing Date if
the Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury regulation section
1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, the Seller may, at its option, 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 or Material Document Defect with respect to a any
Mortgage 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;
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(ii) for purposes of remediating a Material Document Defect
with respect to any Mortgage 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 occurrence of any Servicing Transfer Event with
respect to such Mortgage Loan subsequent to the end of such Initial
Resolution Period;
(iii) for purposes of remediating a Material Document Defect
with respect to any Mortgage 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 servicing agent of the occurrence of such Servicing Transfer Event;
and
(iv) for purposes of remediating a Material Document Defect
with respect to any Mortgage 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 servicing agent of the
relevant Servicing Transfer Event as of the commencement of the
applicable Initial Resolution Period, then such Servicing Transfer
Event will be deemed to have occurred during such Initial Resolution
Period and clause (iii) of this definition will be deemed to apply;
provided that, except as otherwise set forth in the following two provisos,
there shall be no Resolution Extension Period in respect of a Material Document
Defect involving a Specially Designated Mortgage Loan Document; and provided,
further, that if a Material Document Defect exists with respect to any Mortgage
Loan, if such Mortgage Loan is then subject to the Pooling and Servicing
Agreement, and if the Seller escrows with the applicable Master Servicer, prior
to the end of the Initial Resolution Period and any Resolution Extension Period
otherwise applicable to the remediation of such Material Document Defect without
regard to this proviso, cash in the amount of the then Purchase Price for such
Mortgage Loan and subsequently delivers to the applicable Master Servicer, on a
monthly basis, such additional cash as may be necessary to maintain a total
escrow equal to the Purchase Price for such Mortgage Loan as such price may
increase over time (the total amount of cash delivered to the applicable Master
Servicer with respect to any Mortgage Loan as contemplated by this proviso or
the immediately following 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 applicable Special Servicer determines
in its reasonable, good faith judgment that such Material Document Defect will
materially interfere with or delay the realization against the related Mortgaged
Property or materially increase the cost thereof; and provided, further, that if
the Material Document Defect referred to in the preceding proviso consists of a
failure to deliver a Specially Designated Mortgage Loan Document, and if the
Seller delivers to the applicable Master Servicer a Purchase Price Security
Deposit equal to 25% of the outstanding principal balance of the subject
Mortgage Loan, then
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the Resolution Extension Period applicable to the remediation of such Material
Document Defect shall be extended to the 15th day following the end of the
applicable Initial Resolution Period.
The Purchaser or its 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 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 (except where a
Purchase Price Security Deposit equal to 25% of the outstanding principal
balance of the subject Mortgage Loan is permitted to be delivered in order to
obtain a 15-day Resolution Extension Period with respect to the failure to
deliver a Specially Designated Mortgage Loan Document), or if such Material
Document is not remedied on or before the second anniversary of the Closing
Date, or if such Mortgage Loan becomes a Specially Serviced Mortgage Loan under
the Pooling and Servicing Agreement and the applicable 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 being paid in full. The Seller may
direct the Purchaser or its designee to invest or cause the investment of the
funds deposited in any Purchase Price Security Deposit Account in one or more
Permitted Investments that bear interest or are sold at a discount and that
mature, unless payable on demand, no later than the Business Day prior to the
next Master Servicer Remittance Date. The Purchaser or its designee 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; 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 Purchase Price Security Deposit
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 any Purchase Price Security Deposit Account
in Permitted Investments or any losses resulting therefrom.
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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 such Mortgage Loans, to prepare and, to the
extent necessary and appropriate, have executed by the related Borrower and
record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans therein, on the other hand, such that those two groups of
Mortgage Loans are each secured only by the Mortgaged Properties identified in
the Mortgage Loan Schedule as directly corresponding thereto (as to each such
group, the "Primary Real Property Collateral"); provided that, if the affected
Cross-Collateralized Group is then subject to the Pooling and Servicing
Agreement, then no such termination shall be affected unless and until the
Trustee and the applicable Master Servicer shall have received from the Seller
(i) an Opinion of Counsel from independent counsel to the effect that such
termination will not cause an Adverse REMIC Event to occur with respect to any
REMIC Pool or an Adverse Grantor Trust Event with respect to either Grantor
Trust Pool and (ii) written confirmation from each Rating Agency that such
termination will not cause an Adverse Rating Event to occur with respect to any
Class of Rated Certificates; and provided, further, that the 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 and its servicing agents 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 of Mortgage Loans cannot be terminated as contemplated by the prior
paragraph for any reason (including, but not limited to, the Seller's failure to
satisfy any of the conditions set forth in the proviso to the first sentence of
the prior paragraph), if the Seller has not elected to purchase the entire
affected Cross-Collateralized Group, and if such Cross-Collateralized Group is
then subject to the Pooling and Servicing Agreement, then, to the extent that
the Seller is required to repurchase or replace any Mortgage Loan in that
Cross-Collateralized Group in the manner prescribed above while the Trust
continues to hold any other Mortgage Loan in that Cross-Collateralized Group,
the Trustee, on behalf of the Trust, and the Seller each hereby agrees to
forbear from enforcing any remedies against the other's Primary Real Property
Collateral but may exercise remedies against the Primary Real Property
Collateral securing the Mortgage Loans in that Cross-Collateralized Group held
by it; provided that the Trustee and the applicable Master Servicer shall have
received from the Seller an Opinion of Counsel from independent counsel to the
effect that (i) the exercise of remedies by the Seller, on the one hand, or the
Trust, on the other hand, with respect to the Primary Real Property Collateral
securing the respective Mortgage Loan(s) in such Cross-Collateralized Group held
by such party would not materially and adversely affect the rights of the other
such party to proceed against the Primary Real Property Collateral for the
respective Mortgage Loan(s) in such Cross-Collateralized Group held by such
other party and (ii) the foregoing arrangement would not result in an Adverse
REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event
with respect to any Grantor Trust Pool. Any reserve or other cash collateral or
letters of credit securing the subject Cross-Collateralized Group shall be
allocated between the Mortgage Loans therein held by the Seller, on the one
hand, and the Trust, on the other hand, in accordance with the related Mortgage
Loan documents, or otherwise on a pro rata basis based upon the outstanding
principal balances of their respective Mortgage Loans in such
Cross-Collateralized Group. All other terms of the Mortgage Loans in such
Cross-Collateralized Group shall remain in full force and effect, without any
modification thereof. The Borrowers under the respective Cross-Collateralized
Groups of Mortgage Loans are intended third-party beneficiaries of the provision
set forth in this
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paragraph. The provisions of this paragraph may not be modified with respect to
any Mortgage Loan in a Cross-Collateralized Group without the related Borrower's
consent.
If the cross-collateralization of any Cross-Collateralized
Group of Mortgage Loans cannot be terminated as contemplated by the second
preceding paragraph for any reason (including, but not limited to, the Seller's
failure to satisfy any of the conditions set forth in the proviso to the first
sentence of the second preceding paragraph) and the forbearance arrangement in
respect of such Cross-Collateralized Group cannot be effected as contemplated by
the preceding paragraph for any reason (including, but not limited to, the
Seller's failure to satisfy any of the conditions set forth in the proviso to
the first sentence of the prior paragraph) then the entire Cross-Collateralized
Group shall be repurchased or replaced if the subject Material Breach or
Material Document Defect, as the case may be, is not remedied in all material
respects by the end of the applicable Initial Resolution Period and any
applicable Resolution Extension Period.
Whenever one or more mortgage loans are substituted by the
Seller 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 (which designee, unless otherwise
stated, is the Trustee), (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by 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. 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.
(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.
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(c) If, on or after May 13, 2003, the Seller receives notice
of a Material Document Defect with respect to any Mortgage Loan, which Material
Document Defect constitutes a Recording Omission, and if such Mortgage Loan is
still subject to the Pooling and Servicing Agreement, then the Seller, with the
consent of the Controlling Class Representative, which consent may be granted or
withheld in its sole discretion, in lieu of repurchasing or replacing such
Mortgage Loan (as and to the extent contemplated by Section 5(a) above), but in
no event later than such repurchase would have to have been completed, establish
a Recording Omission Credit or a Recording Omission Reserve with the applicable
Master Servicer. 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 Omission Reserve into
the Special Reserve Account within one Business Day of receipt. The Seller may
direct the Purchaser or its designee to invest or cause the investment of the
funds deposited in the Special Reserve Account in one or more Permitted
Investments that bear interest or are sold at a discount and that mature, unless
payable on demand, no later than the Business Day prior to the next Master
Servicer Remittance Date. The Purchaser or its designee 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 Omission Credit shall (i) entitle the Purchaser or its designee to
draw upon the Recording Omission Credit on behalf of the Purchaser upon
presentation of only a sight draft or other written demand for payment, (ii)
permit multiple draws by the Purchaser or its 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 Omission Credit reasonably equivalent
security to a Recording Omission Reserve in the same amount. Once a Recording
Omission Reserve or Recording Omission Credit is established with respect to any
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 Omission Credit, as the case may be, and apply the proceeds thereof to
pay the losses or expenses directly incurred by the Purchaser or its designee as
a result of a Recording Omission. The Recording Omission Reserve or Recording
Omission Credit or any unused balance thereof with respect to any Mortgage Loan
will be released to the Seller by the Purchaser upon the earlier of the Seller's
cure of all Recording Omissions with respect to such Mortgage Loan (provided
that the Purchaser has been reimbursed with respect to all losses and expenses
relating to Recording Omissions with respect to such Mortgage Loan) and such
Mortgage Loan's no longer being a part of the Trust Fund under the Pooling and
Servicing Agreement.
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(d) It is understood and agreed that the obligations of the
Seller set forth in this Section 5 to cure a Material Breach or a Material
Document Defect, repurchase or replace the related Defective Mortgage Loan(s) or
establish a Recording Omission Credit or a Recording Omission Reserve with
respect to the related Defective Mortgage Loan(s), constitute the sole remedies
available to the Purchaser, the Certificateholders or the Trustee on behalf of
the Certificateholders with respect to a Breach or Document Defect in respect of
any Mortgage Loan.
(e) If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Purchaser or its
assignee or (iii) to replace such Mortgage Loan with a Qualifying Substitute
Mortgage Loan, each in accordance with the foregoing provisions of this Section
5, then (provided that (i) the Mortgage Loan is then subject to the Pooling and
Servicing Agreement, (ii) the applicable Initial Resolution Period and any
applicable Resolution Extension Period has expired and (iii) the Mortgage Loan
is then in default and is then a Specially Serviced Mortgage Loan) the
applicable Special Servicer may, subject to the Servicing Standard, modify,
work-out or foreclose, sell or otherwise liquidate (or permit the liquidation
of) the Mortgage Loan pursuant to the terms of the Pooling and Servicing
Agreement, while pursuing the repurchase claim, and such action shall not be a
defense to the repurchase claim or alter the applicable Purchase Price.
If any REO Property in respect of any Mortgage Loan is subject
to the Pooling and Servicing Agreement, then the Seller shall be notified
promptly and in writing by the applicable Special Servicer of any offer that it
receives to purchase such REO Property. Upon the receipt of such notice by the
Seller, the Seller shall then have the right to repurchase such REO Property
from the Trust at a purchase price equal to the amount of such offer. The Seller
shall have three (3) Business Days to purchase such REO Property from the date
that it was notified of such offer. The applicable Special Servicer shall be
obligated to provide the Seller with any appraisal or other third-party reports
relating to such REO Property within its possession to enable the related
Mortgage Loan Seller to evaluate such REO Property. Any sale of a Mortgage Loan,
or foreclosure upon such Mortgage Loan and sale of any related REO Property, to
a Person other than the Seller shall be (i) without recourse of any kind (either
expressed or implied) by such Person against the Seller and (ii) without
representation or warranty of any kind (either expressed or implied) by the
Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the subject Mortgage Loan or REO Property) shall not prejudice any claim of
the Trust against the Seller for repurchase of the subject Mortgage Loan or REO
Property. The provisions of this Section 5 regarding remedies against the Seller
for a Material Breach or Material Document Defect with respect to any Mortgage
Loan shall also apply to the related REO Property.
If the Seller fails to correct or cure the Material Document
Defect or Material Breach or purchase the subject REO Property, then the
provisions above regarding notice of offers related to such REO Property and the
Seller's right to purchase such REO Property shall apply. If a court of
competent jurisdiction issues a final order that the Seller is or was obligated
to repurchase the related Mortgage Loan or REO Property or the Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the termination of the Trust pursuant to the Pooling
and Servicing Agreement, the Seller will be obligated to pay to the Trust the
amount, if any, by which
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the applicable Purchase Price exceeds any Liquidation Proceeds received upon
such liquidation (including those arising from any sale to the Seller); provided
that the prevailing party in such action shall be entitled to recover all costs,
fees and expenses (including reasonable attorneys' fees) related thereto.
SECTION 6. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx &
Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(i) all of the representations and warranties of 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 terms and conditions and perform all duties
and obligations required to be complied with or performed after the
Closing Date;
(vi) the Seller shall have received the consideration for the
Mortgage Loans, as contemplated by Section 1;
(vii) the Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this Agreement; and
(viii) neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall
consist of the following:
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(i) this Agreement, duly executed by the Purchaser 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-1A hereto, executed by the Secretary or an assistant
secretary of the Seller, in his or her individual capacity, and dated
the Closing Date, and upon which CSFB Mortgage Securities, CSFB
Corporation, the other Underwriters and the Rating Agencies
(collectively, for purposes of this Section 7, the "Interested
Parties") may rely, attaching thereto as exhibits (A) the resolutions
of the board of directors of the Seller authorizing the Seller's
entering into the transactions contemplated by this Agreement, and (B)
the organizational documents of the Seller;
(iv) a certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of Delaware not earlier
than 30 days prior to the Closing Date, and upon which the Interested
Parties may rely;
(v) a Certificate of the Seller substantially in the form of
Exhibit D-1B 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
respective parties to the Pooling and Servicing Agreement, which
opinion shall be substantially in the form of Exhibit D-2A hereto (with
such additions, deletions or modifications as may be required by either
Rating Agency);
(vii) a written opinion of Sidley Xxxxxx Xxxxx & Xxxx, special
counsel for the Seller, dated the Closing Date and addressed to the
Interested Parties and the respective parties to the Pooling and
Servicing Agreement, which opinion shall be substantially in the form
of Exhibit D-2B hereto (with such additions, deletions or modifications
as may be required by either Rating Agency);
(viii) a written opinion of Sidley Xxxxxx Xxxxx & Xxxx,
special counsel for the Seller, dated the Closing Date and addressed to
the Interested Parties and the respective parties to the Pooling and
Servicing Agreement, which opinion shall be substantially in the form
of Exhibit D-2C hereto (with such additions, deletions or modifications
as may be required by either Rating Agency);
(ix) a letter from Sidley Xxxxxx Xxxxx & Xxxx, special counsel
for the Seller, dated the Closing Date and addressed to CSFB Mortgage
Securities, CSFB Corporation and the other Underwriters, which letter
shall be substantially in the form of Exhibit D-2D hereto;
(x) one or more comfort letters from Xxxxxx Xxxxxxxx LLP,
certified public accountants, dated the date of any preliminary
Prospectus Supplement and of the Prospectus Supplement, respectively,
and addressed to, and in form and substance acceptable to, CSFB
Mortgage Securities, CSFB Corporation, the other Underwriters and their
respective counsel, stating in effect that, using the assumptions and
methodology used by CSFB Mortgage Securities, all of which shall be
described in such letters, they have recalculated such numbers
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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 prior to the Closing Date or any
Rating Agency may require and in a form reasonably acceptable to the
Purchaser and the Seller.
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 the
Joint Conduit Securitizations between Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Prudential Securities Incorporated, Prudential Mortgage Capital
Company, LLC, Column Financial, Inc. and KeyBank National Association, as
supplemented and modified by the Term Sheet for the Joint Securitizations among
Column Financial, Inc., Credit Suisse First Boston Corporation and KeyBank
National Association for Calendar Year 2001 (the foregoing term sheets,
together, the "Term Sheets").
In addition, it is hereby acknowledged that CSFB Mortgage
Securities has acquired from the National Consumer Cooperative Bank ("NCB") and
NCB Capital Corporation ("NCBCC") other mortgage loans (the "NCB/NCBCC Loans")
for transfer to the Trust. The Seller agrees that the costs and expenses
associated with such transactions will be allocated as follows: (i) all
out-of-pocket and/or internally allocated costs and expenses incurred by NCB
and/or NCBCC in connection with such transactions, including, without
limitation, the fees and disbursements of counsel for NCB and/or NCBCC, together
with all other due diligence and accounting costs and expenses relating to the
NCB/NCBCC Loans, shall be borne by NCB, NCBCC and their affiliates; and (ii) all
other costs and expenses incurred in connection with such transactions shall be
allocated in accordance with the Term Sheets.
SECTION 9. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, by
overnight mail or courier service, or transmitted by facsimile and confirmed by
similar mailed writing, if to the Purchaser, addressed to the Purchaser at 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx,
or such other address as may be designated by the Purchaser to the Seller in
writing, or, if to the Seller, addressed to the Seller at 0000 Xxxxxxxxx Xxxx,
X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxx, or such
other address as may be designated by the Seller to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term
or provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
together constitute but one and the same instrument. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
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hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. Characterization. The parties hereto agree that it
is their express intent that the conveyance contemplated by this Agreement be,
and be treated for all purposes as, a sale by the Seller of all the Seller's
right, title and interest in and to the Mortgage Loans. The parties hereto
further agree that it is not their intention that such conveyance be a pledge of
the Mortgage Loans by the Seller to secure a debt or other obligation of the
Seller. However, in the event that, notwithstanding the intent of the parties,
the Mortgage Loans are held to continue to be property of the Seller, then: (a)
this Agreement shall be deemed to be a security agreement under applicable law;
(b) the transfer of the Mortgage Loans provided for herein shall be deemed to be
a grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by CSFB Mortgage Securities to the Trustee of its
interests in the Mortgage Loans as contemplated by Section 16 hereof shall be
deemed to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser of the related Mortgage Notes and such other items
of property as constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest under applicable law; and (e) notifications to,
and acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, bailees 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, including, without limitation, the filing of UCC financing statements,
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement.
SECTION 12. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller delivered pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser, notwithstanding any restrictive
or qualified endorsement or assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent
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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 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.
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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]
-18-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
COLUMN FINANCIAL, INC.
By:___________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By:___________________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CKN5
# Property Name Address
- ------------- -------
2 Xxxxx Xxxxx / Alliance GT-4 Portfolio
0X Xxxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxx Street
2B Cambridge Place Apartments 00000 Xxxxxxxxxx Xxxx
0X Xxxx Xxxxx Apartments 0000 Xxxxx Xxxxxxxx Xxxx
0X Xxxxxxxxx Apartments 00000 Xxxxxxxx Xxxxxx
0X Xx. Xxxxxxx Apartments 0000 Xx. Xxxxxxx Xxxx
0X Xxxxxxx Xxxxxx Apartments 0000 Xxxxxxxx Xxxxx
0X Xxxxxxxxx Xxxxxxxx Apartments 0000 Xxxxxxx Xxxxx
0X Xxxxxxx Xxxxx Apartments 000 Xxxxxxxx Xxxxx
0X Xxxxxxxxx Apartments 0000 Xxxxxx Xxxxxx Xxxx
0X Xxxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxxx Xxxx
3 Macomb Mall 00000 Xxxxxxx Xxxxxx
4 One Sugar Creek Place 00000 Xxxxxxxxx Xxxxxxx
10 Xxxxx Xxxxx / Alliance GT-3 Portfolio
10A Oasis Heights Apartments 0000 Xxxx Xxxxxxxxx Xxxxxx
00X Xxxx Xxxxx Xxxxxxxxxx 00000 Space Center Boulevard
00X Xxxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxxxxxx Xxxx
00X Northcrest Apartments 000 Xxxxxxx Xxxx
11 Alexandria Roselle Street Portfolio 11025-11075 Xxxxxxx Xxxxxx
00 Xxxxxxxxx Xxx Xxxxxxxxx-Xxxxxxx 0000 Xxxxx Xxx Xxxxxx
15 Courtyard by Marriott - Washington Convention Center 000 X Xxxxxx, XX
00 000-000 Xxxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxxx 000-000 Xxxxxxxxxx Xxxxxx
18 Xxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxxx Xxxxxx
19 Residence Inn Manhattan Beach 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
20 Capitol Centre 0000 X Xxxxxx
00 Xxxxxxx Xxxxxxx Portfolio
21A Windsor at Xxxxxxx Apartments 000 Xxxx Xxxxxxx
00X Xxxxxxx at Woodgate Apartments 0000 Xxxx 00xx Xxxxxx Xxxxx
00X Xxxxxxx at Eastborough Apartments 7030 East Xxxxxxx
22 Xxxxxxxx Executive Park 3000, 3010 & 0000 Xxxxxxxxxxx Xxxxxx
24 Rivergate Station 0000 Xxxxxxxx Xxxx
28 Xxxxxxxxxx Industrial Portfolio
00X Xxxxxxxx Xxxxxx I 0000 Xxxxx Xxxxxxxxxx Xxxxxx
00X Xxxxxxx Xxxxxxxxx Service Center 0000 Xxxx Xxxxxxx Xxxxxxxxx
28C Industrial Center II 0000-0000 Xxxxx Xxxxx Xxxx
28D Park East Service Center 0000-0000 Xxxxx Xxxxx Xxxx
00X Industrial Center III 0000-0000 Xxxxx Xxxxxxxxx Xxxxx
29 Residence Inn Dupont Circle 0000 X Xxxxxx, XX
00 XXX Portfolio
30A WNA Comet East, Inc. 0 Xxxxxx Xxxx
00X XXX Xxxxxx Plastics Facility 0000 Xxxxxx Xxxxx
00X XXX Comet West 0000-0000 Xxxxxxxxx Xxxxxx
00X XXX Office/Warehouse 0000 Xxxx Xxxxxxxx Xxxxx
32 Walnut Xxxx Apartments 0000 Xxxxxxxx Xxxxxxx
00 Xxxx Xxxx Plaza 000-000 Xxxx Xxxx Xxxxxx (X.X. Xxxxx 00)
35 The Copper Creek Apartments 00000 Xxxxxxxxxx Xxxx
36 Richardson Portfolio
00X Xxxxxxxx Xxxxxx II 0000-0000 Xxxxx Xxxxxxxxxx Xxxxxx
36B Spring Creek Business Center 0000 Xxxxx Xxxxx Xxxx
37 12820 & 00000 Xxxxxxxxxx Xxxxxxx Xxxxx 00000 & 00000 Xxxxxxxxxx Xxxxxxx South
38 Raytheon Office Complex 6221 & 0000 Xxxxx Xxxx Xxxxx Xxxxxxxxx
39 0000 Xxxxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxxxx Xxxxxxxxx
40 ARC North and South
40A Austin Regional Clinic North 0000 Xxxxxx Xxxxxx Xxxxxxxxx
00X Xxxxxx Regional Clinic South 0000 Xxxxx Xxxxx Xxxxxx
00 Xxxxxxxxxxx Xxxxxxxxxx 000 Xxxxx Xxxxxxx Avenue
42 North Park Terrace Apartments 0000 Xxxx Xxxx
00 0000 Xxx Xxxxxx 0000 Xxx Xxxxxx
00 Xxxxxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxx Xxxx
47 Xxxxxx Xxxx Apartments 0000 Xxxxxxx Xxxx Xxxx
48 Parkview Manor Apartments (1A) 0000 Xxxxxxx Xxxx
00 Xxxxxxxxxx Xxxxxxxxxx (0X) 00000 & 00000 Xxxxxxxxxx Xxxx
00 Xxx Xxxxx Xxxxxxxxxx (0X) 0000 Xxxxxxxx Xxxx
00 Xxxxxx Xxxxxxxxxx (0X) 00000 Tireman Road
00 Xxxxxxxxx Xxxxx 000 Xxxx Xxxxxxxxx Boulevard
55 Lake North Apartments 0000 Xxxx Xxxxxx Xxxx
56 Parkway Place 4205, 4215, 4225, 0000 Xxxxx Xxxx Xxxxxxx
00 Xxxxxxxxxx Xxxxx 0000 Xxxx Xxxxx Xxxxxxxx Xxxxxxx 00
00 Xxxxx Xxxxx Apartments 41,61 and 00-000 Xxxxx Xxxx
00 Xxxxxxx Xxxx Xxxxxxx Manufactured Housing Community 000 Xxxxxx Xxxx 000
00 Xxx Xxxxx at Humble Park Apartments 412 South Xxxxxx Avenue
65 Techniplex Business Center 16203-16223 Xxxx Xxx Xxxxxxxxx
00 Xxxxxxxxxx Xxxxx 000 XxXxxx Xxxxxx
00 XxXxxxxx Xxxxxxx Xxxxxxxxxx 00000 Xxxxx XxXxxxxx Avenue
72 Addison Park Place Office Building 4560 Belt Line Xxxx
00 0000 Xxxxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx
76 0000 Xxxxxx Xx Xxxxx 0000 Xxxxxx Xx Costa
79 Riatta Ranch Apartments 1111 Musken Road
82 Willowbrook Shopping Center 00000 Xxxxx Xxxxxxx 000
84 Village Shops at Colony Square Phase I 1100, 1116 & 0000 Xxxxxxx Xxxx
86 00000 Xxxxxxxxxx Xxxxxxx South 12900 Crossroads Parkway South
91 Los Gatos Office Building 15575 Los Gatos Boulevard
92 1595-1597 Second Avenue 0000-0000 Xxxxxx Xxxxxx
97 Fleetwood Village Apartments 000 Xxxxxxx Xxxxx
101 1660 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxx Xxxxxx
102 Xxxxxx Crossing Medical 0000 Xxxxxxxxx Xxxxxx
103 Jack's Alley 000 Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx Center 0000 XX 000xx Xxxxxx
114 Terrace Hills Apartments 0000 Xxxx Xxxxxxxxx Xxxxx
115 InSite Downers Grove 0000 00xx Xxxxxx
000 Xxxxxx Xxxx Xxxxxxxxxx Xxxxxx 0000 Xxxxxx Xxxx
121 Sulphur Plaza Shopping Center 0000-0000 Xxxxxx Xxxxxxx
124 Beacon Hill Apartments 0000-0000 Xxxx Xxxxxx
125 Bay Bluff Apartments 00000 Xxxxxxx Xxxx
131 Timberwood Apartments 0000 Xxxx 00xx Xxxxxx
132 InSite Palm Beach - Blockbuster Video 00000 Xxxxxx Xxxx
135 InSite Chicago/Xxxxxxxx 11101-11109 Xxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Shopping Center 00000 Xxxxxxx Xxxx Xxxxx
138 La Maison Apartments 0000 Xxxxxxxxx Xxxxx
000 Xxxxxxxx Apartments 0000 Xxxxxx Xxxxx
000 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxx Xxxxxx Xxxxxxx 34395 Xxxx Road
145 Xxxxxxx Apartments 000-000 Xxxxxx Xxxxxx & 000-000 Xxxxxx Xxxxxx
146 Insite Chicago - Blockbuster Video 00000-00000 Xxxxx Xxxxxxx Xxxxxx
147 InSite Saginaw (Blockbuster Building) 0000 Xxxxxxxx Xxxx
000 Xxxxxxxxx Business Center 0000-0000 Xxxxxx Xxxxx
150 1060 Crystal Lake Drive 0000 Xxxxxxx Xxxx Xxxxx
000 Xxxx Xxx Apartments 00 Xxxxxxxx Xxxxxx
000 Xxxxxxxx Professional Center 0000 Xxxxx Xxxx
000 Knell's Xxxxx Xxxxx 000 Xxxxxxxxxxx Xxxxxxxxx Xxxxx
154 0000 XX 00xx Xxxxxx 0000 XX 00xx Xxxxxx
159 Lulen Apartments 0000 Xxxxx Xxxx
160 1020 Crystal Lake Drive 0000 Xxxxxxx Xxxx Xxxxx
000 Xxxxxxxxxxx Apartments 000-000 Xxxxx Xxxxxxxxx
163 Northstream Manor Apartments 6800 Shavelson
164 0000-0000 Xxxxx Xxxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxx Xxxxxx
166 Tomshir Apartments 0-00X Xxxxxxxxx Xxxxx
169 Fair Oaks Apartments 0000 Xxxxxxx Xxxx
171 Sherwood Forest Shopping Center 00000 Xxxxx Xxxxxxx 000
Xxxxxxxx
Zip Mortgage Loan Fee/ Original
# City State Code Originator Seller Leasehold Balance
- ---- ----- ---- ---------- ------ --------- -------
2 Column Column $70,054,090
2A Xxx Xxxxx XX 00000 Column Column Fee
2B Xxxxxxx XX 00000 Column Column Fee
2C Xxxxxx XX 00000 Column Column Fee
2D Xxxxxxx XX 00000 Column Column Fee
2E Xxxxxxxx XX 00000 Column Column Fee
2F Xxxxxxxxx XX 00000 Column Column Fee
2G Memphis TN 38128 Column Column Fee
2H Xxxxxxxxxx XX 00000 Column Column Fee
2I Xxxxxxxx XX 00000 Column Column Fee
2J Xxxxx XX 00000 Column Column Fee
0 Xxxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $47,300,000
4 Xxxxx Xxxx XX 00000 Column Column Fee $46,000,000
10 Column Column $26,759,263
10A Xxx Xxxxx XX 00000 Column Column Fee
10B Houston TX 77062 Column Column Fee
10C Xxxxxxxx XX 00000 Column Column Fee
10D Xxxxxx Xxxxxx XX 00000 Column Column Fee
00 Xxx Xxxxx XX 00000 CSFBMC Column Fee $24,100,000
14 Xxxxxxx XX 00000 Column Column Fee $21,300,000
00 Xxxxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $21,000,000
16 Xxxxxx XX 00000 Column Column Fee $19,750,000
18 Xxx Xxxxxxxxx XX 00000 CSFBMC Column Fee $19,000,000
19 Xxxxxxxxx Xxxxx XX 00000 Column Column Fee $17,500,000
20 Xxxxxxxxxx XX 00000 CSFBMC Column Fee $17,000,000
21 Column Column $16,600,000
21A Xxxxxxx XX 00000 Column Column Fee
21B Xxxxxxx XX 00000 Column Column Fee
21C Xxxxxxx XX 00000 Column Column Fee
22 Purchase NY 10577 Column Column Fee $16,400,000
24 Xxxxxxxxx XX 00000 Column Column Fee $15,000,000
28 Column Column $13,650,000
28A Xxxxxxxxxx XX 00000 Column Column Fee
28B Richardson TX 75081 Column Column Fee
28C Xxxxxxxxxx XX 00000 Column Column Fee
28D Xxxxxxxxxx XX 00000 Column Column Fee
28E Richardson TX 75081 Column Column Fee
00 Xxxxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $12,600,000
30 Column Column $11,125,000
30A Xxxxxxxxxx XX 00000 Column Column Fee
30B Xxxxxxxx XX 00000 Column Column Fee
30C City of Industry XX 00000 Column Column Fee
30D Xxxxxxxxx XX 00000 Column Column Fee
32 Xxxxxxxx XX 00000 Column Column Fee $10,000,000
33 Xxxxxxxxxxx XX 00000 Column Column Fee $10,000,000
35 Xxxxxxx XX 00000 Column Column Fee $8,650,000
36 Column Column $8,575,000
36A Xxxxxxxxxx XX 00000 Column Column Fee
36B Richardson TX 75081 Column Column Fee
37 City of Industry CA 91746 Column Column Fee $7,800,000
38 Xxxxxx XX 00000 Union Capital Column Fee $7,300,000
39 Xxxxx Xxxxxx XX 00000 CSFBMC Column Fee $7,050,000
40 Column Column $6,950,000
40A Xxxxxx XX 00000 Column Column Fee
00X Xxxxxx XX 00000 Column Column Fee
41 Xxxxxxxxxxx XX 00000 Column Column Fee $6,500,000
42 Xxxxxx XX 00000 Column Column Fee $6,480,000
45 Xxxxxxxx XX 00000 Column Column Fee $5,275,000
46 Xxxxxxxxxxx XX 00000 Column Column Fee $5,250,000
47 Xxxxxxxxxxxx XX 00000 Union Capital Column Fee $5,250,000
48 Xxxxxxx XX 00000 Column Column Fee $1,570,000
49 Xxxxxxx XX 00000 Column Column Fee $1,365,000
50 Xxxxxxx XX 00000 Column Column Fee $1,305,000
51 Xxxxxxx XX 00000 Column Column Fee $760,000
54 Xxxxxx XX 00000 Column Column Fee $4,800,000
55 Xxxxxx XX 00000 Column Column Fee $4,600,000
56 Xxxxxxx Xxxxxxx XX 00000 Column Column Fee $4,575,000
59 Xxxxxx XX 00000 Column Column Fee $4,200,000
00 Xxxx Xxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $4,170,000
61 Xxxxxxxxx XX 00000 Union Capital Column Fee $4,150,000
00 Xxxxxx XX 00000 Xxxxxx Xxxxxx Fee $4,100,000
65 Xxxxxxx XX 00000 Column Column Fee $4,000,000
70 Xxxxxxxxx XX 00000 CSFBMC Column Fee $3,700,000
00 Xxx Xxxxxx XX 00000 Xxxxxx Xxxxxx Fee $3,600,000
72 Xxxxxxx XX 00000 Column Column Fee $3,450,000
00 Xxxxxxx Xxxxx XX 00000 Column Column Fee $3,325,000
76 Xxxxxx XX 00000 Column Column Fee $3,300,000
79 Abilene TX 79601 Column Column Fee $3,100,000
82 Xxxxxxx XX 00000 Column Column Fee $3,060,000
84 Xxxxxxxxxx XX 00000 Column Column Fee $3,000,000
86 City of Industry CA 90601 Column Column Fee $2,950,000
91 Xxx Xxxxx XX 00000 CSFBMC Column Fee $2,750,000
92 Xxx Xxxx XX 00000 Column Column Fee $2,750,000
97 Xxxxxxxxxx XX 00000 Column Column Fee $2,375,000
000 Xxx Xxxxx XX 00000 Xxxxxx Xxxxxx Fee $2,200,000
102 Xxxxxx XX 00000 Column Column Fee $2,200,000
103 Xxxxxxxxxxx XX 00000 Column Column Fee $2,200,000
000 Xxxxx XX 00000 Xxxxxx Xxxxxx Fee $2,050,000
114 Xxxxxx XX 00000 Column Column Fee $1,800,000
000 Xxxxxxx Xxxxx XX 00000 Column Column Fee $1,775,000
000 Xxxx Xxxxx XX 00000 Column Column Fee $1,650,000
000 Xxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $1,620,000
124 Xxxxxxxxxxxx XX 00000 Column Column Fee $1,600,000
000 Xxxxxx Xxxxxxx XX 00000 Column Column Fee $1,512,000
000 Xxxxxx XX 00000 Xxxxxx Xxxxxx Fee $1,270,000
132 Xxxx Xxxxx XX 00000 Column Column Fee $1,165,000
135 Xxxxxxx XX 00000 Column Column Fee $1,116,000
000 Xxxxx XX 00000 Xxxxxx Xxxxxx Fee $1,115,000
138 Xxxxxx XX 00000 Column Column Fee $1,100,000
000 Xxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $1,100,000
000 Xxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $1,080,000
000 Xxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $975,000
000 Xxxxxx XX 00000 Xxxxxx Xxxxxx Fee $960,000
146 Xxxxxxx XX 00000 Column Column Fee $951,000
147 Xxxxxxx XX 00000 Column Column Fee $915,000
149 Xxxxxxxx XX 00000 Column Column Fee $900,000
000 Xxxxxxx Xxxxx XX 00000 Xxxxxx Xxxxxx Fee $880,000
151 Xxxxxxxxx XX 00000 Column Column Fee $880,000
000 Xxx Xxxx XX 00000 XXXXXX Xxxxxx Fee $860,000
000 Xxxxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $855,000
000 Xxxxxxxxxx Xxxxx XX 00000 Xxxxxx Xxxxxx Fee $840,000
000 Xxxxxx XX 00000 Xxxxxx Xxxxxx Fee $740,000
000 Xxxxxxx Xxxxx XX 00000 Xxxxxx Xxxxxx Fee $720,000
000 Xxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $700,000
163 Xxxxxxx XX 00000 Column Column Fee $630,000
000 Xxxxx Xxx XX 00000 XXXXXX Xxxxxx Fee $627,000
000 Xxxx Xxxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $600,000
000 Xxxxxx XX 00000 Xxxxxx Xxxxxx Fee $500,000
000 Xxxxxxx XX 00000 Xxxxxx Xxxxxx Fee $500,000
Initial Orig Rem. Interest
Cut-off Interest Orig Rem. Term to Term to Calculation
Balance Only Amort. Amort. Maturity Maturity Interest (30/360/
# (2) Term Term Term (3) (3) Rate Actual/360)
- --- ---- ---- ---- --- --- ---- -----------
2 $69,586,157 0 360 347 120 107 8.5400% Actual/360
0X
0X
0X
0X
0X
0X
0X
0X
0X
0X
3 $47,194,776 0 360 356 120 116 7.7100% Actual/360
4 $45,897,971 0 360 356 120 116 7.7200% Actual/360
10 $26,730,996 0 351 349 109 107 8.5400% Actual/360
10A
10B
10C
10D
11 $24,047,022 0 360 356 120 116 7.7500% Actual/360
14 $21,231,352 0 300 296 120 116 8.4700% Actual/360
15 $20,927,014 0 300 296 120 116 8.1300% Actual/360
16 $19,691,000 0 360 355 120 115 7.6700% Actual/360
18 $19,000,000 0 IO IO 60 55 8.3000% Actual/360
19 $17,433,455 60 300 295 120 115 8.9600% Actual/360
20 $16,971,626 0 360 357 120 117 7.8100% Actual/360
21 $16,538,611 0 360 354 120 114 7.4800% Actual/360
21A
21B
21C
22 $16,341,165 0 360 354 120 114 7.5900% Actual/360
24 $14,950,289 0 360 354 120 114 7.8700% Actual/360
28 $13,610,537 0 360 355 120 115 7.7900% Actual/360
28A
28B
28C
28D
28E
29 $12,558,561 0 300 296 120 116 8.3800% Actual/360
30 $11,085,315 0 300 296 120 116 8.0100% Actual/360
30A
30B
30C
30D
32 $9,970,942 0 360 356 120 116 6.7500% Actual/360
33 $9,970,127 0 360 355 120 115 7.6700% Actual/360
35 $8,624,439 0 360 355 120 115 7.7100% Actual/360
36 $8,555,065 0 360 356 120 116 7.5600% Actual/360
36A
36B
37 $7,765,306 0 360 352 120 112 7.9300% Actual/360
38 $7,284,897 0 360 356 120 116 7.9500% Actual/360
39 $7,034,548 0 360 356 120 116 7.7600% Actual/360
40 $6,934,722 0 360 356 120 116 7.7500% Actual/360
40A
40B
41 $6,484,133 0 360 356 120 116 7.3900% Actual/360
42 $6,464,182 0 360 356 120 116 7.3900% Actual/360
45 $5,252,019 0 360 353 120 113 7.5800% Actual/360
46 $5,235,886 0 360 355 120 115 8.0500% Actual/360
47 $5,233,409 0 360 355 120 115 7.4600% Actual/360
48 $1,566,371 0 360 356 120 116 7.5800% Actual/360
49 $1,361,845 0 360 356 120 116 7.5800% Actual/360
50 $1,301,984 0 360 356 120 116 7.5800% Actual/360
51 $758,243 0 360 356 120 116 7.5800% Actual/360
54 $4,789,003 0 360 356 120 116 7.6100% Actual/360
55 $4,577,702 0 360 352 120 112 7.6200% Actual/360
56 $4,565,063 0 360 356 120 116 7.7900% Actual/360
59 $4,185,978 0 360 355 120 115 7.2500% Actual/360
60 $4,153,540 0 300 296 120 116 7.5300% Actual/360
61 $4,137,366 0 360 355 120 115 7.6000% Actual/360
63 $4,090,302 0 360 356 120 116 7.5000% Actual/360
65 $3,988,180 0 360 355 120 115 7.7100% Actual/360
70 $3,690,610 0 360 355 120 115 8.2500% Actual/360
71 $3,592,063 0 360 356 120 116 7.7400% Actual/360
72 $3,428,519 0 360 351 120 111 7.5000% Actual/360
74 $3,317,248 0 360 356 120 116 7.5500% Actual/360
76 $3,294,282 0 360 356 60 56 8.5000% Actual/360
79 $3,089,186 0 360 354 120 114 7.6900% Actual/360
82 $3,039,317 0 360 350 120 110 7.5200% Actual/360
84 $2,990,399 0 360 354 120 114 7.9900% Actual/360
86 $2,936,878 0 360 352 120 112 7.9300% Actual/360
91 $2,742,180 0 360 355 120 115 7.8500% Actual/360
92 $2,733,843 0 360 351 120 111 7.7500% Actual/360
97 $2,369,543 0 360 356 120 116 7.6000% Actual/360
101 $2,194,086 0 360 355 120 115 8.0500% Actual/360
102 $2,193,410 0 360 355 120 115 7.6600% Actual/360
103 $2,184,183 0 300 293 120 113 7.5700% Actual/360
105 $2,046,351 0 360 356 120 116 8.4200% Actual/360
114 $1,791,137 0 300 295 120 115 7.7200% Actual/360
115 $1,771,583 0 360 356 120 116 8.1800% Actual/360
118 $1,640,521 0 300 294 120 114 7.8000% Actual/360
121 $1,613,434 0 360 353 120 113 7.8500% Actual/360
124 $1,593,814 0 300 296 120 116 7.6300% Actual/360
125 $1,508,536 0 360 356 120 116 7.6100% Actual/360
131 $1,267,048 0 360 356 120 116 7.5600% Actual/360
132 $1,162,757 0 360 356 120 116 8.1800% Actual/360
135 $1,113,852 0 360 356 120 116 8.1800% Actual/360
136 $1,112,874 0 360 356 120 116 8.2100% Actual/360
138 $1,097,060 0 360 355 120 115 8.0700% Actual/360
139 $1,096,958 0 360 355 120 115 7.9500% Actual/360
140 $1,071,136 0 240 235 120 115 7.7600% Actual/360
144 $972,349 0 360 355 120 115 8.0100% Actual/360
145 $957,890 0 360 356 120 116 7.7500% Actual/360
146 $949,169 0 360 356 120 116 8.1800% Actual/360
147 $913,239 0 360 356 120 116 8.1800% Actual/360
149 $898,229 0 360 356 120 116 8.1100% Actual/360
150 $878,246 0 360 356 120 116 8.0700% Actual/360
151 $876,626 0 300 296 120 116 7.6700% Actual/360
152 $858,010 0 360 355 120 115 8.5600% Actual/360
153 $852,157 0 300 296 120 116 8.3300% Actual/360
154 $838,326 0 360 356 120 116 8.0700% Actual/360
159 $737,440 0 360 354 120 114 7.7200% Actual/360
160 $718,565 0 360 356 120 116 8.0700% Actual/360
162 $696,587 0 300 295 120 115 7.7700% Actual/360
163 $628,330 0 360 355 120 115 8.1000% Actual/360
164 $625,020 0 300 296 120 116 8.5600% Actual/360
166 $597,395 0 300 295 120 115 8.3400% Actual/360
169 $498,920 0 360 356 120 116 7.8100% Actual/360
171 $496,826 0 300 293 120 113 8.2000% Actual/360
Servicing
First and
Monthly Payment Defeasance Trustee
# Payment Date ARD (4) Defeasance Provision Fees
- ------- ---- ------- ---------- --------- ----
2 $540,643 11/1/2000 N/A Yes Lock/37_Def/77_0%/6 0.0525%
2A
2B
2C
2D
2E
2F
2G
2H
2I
2J
3 337,556 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0725%
4 328,597 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
10 207,681 10/1/2001 N/A Yes Lock/26_Def/77_0%/6 0.0525%
10A
10B
10C
10D
11 172,655 8/11/2001 7/11/2011 Yes Lock/28_Def/88_0%/4 0.0525%
14 171,083 8/11/2001 7/11/2011 Yes Lock/28_Def/85_0%/7 0.0525%
15 163,894 8/11/2001 7/11/2011 Yes Lock/28_Def/85_0%/7 0.0525%
16 140,401 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
18 133,242 7/11/2001 6/11/2006 Yes Lock/29_Def/28_0%/3 0.0525%
19 146,380 7/11/2001 6/11/2011 Yes Lock/29_Def/87_0%/4 0.0525%
20 122,496 9/11/2001 8/11/2011 Yes Lock/27_Def/88_0%/5 0.0525%
21 115,842 6/11/2001 N/A Yes Lock/30_Def/84_0%/6 0.0525%
21A
21B
21C
22 115,684 6/11/2001 5/11/2011 Yes Lock/30_Def/88_0%/2 0.0525%
24 $108,708 6/11/2001 5/11/2011 Yes Lock/30_Def/84_0%/6 0.0525%
28 98,168 7/11/2001 6/11/2011 Yes Lock/29_Def/85_0%/6 0.0525%
28A
28B
28C
28D
28E
29 100,442 8/11/2001 7/11/2011 Yes Lock/28_Def/85_0%/7 0.0525%
30 85,938 8/11/2001 7/11/2011 Yes Lock/28_Def/88_0%/4 0.0525%
30A
30B
30C
30D
32 64,860 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
33 71,089 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
35 61,731 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
36 60,310 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
36A
36B
37 56,853 4/11/2001 N/A Yes Lock/32_Def/82_0%/6 0.0525%
38 53,311 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
39 50,556 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
40 49,791 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
40A
40B
41 44,960 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
42 44,822 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
45 37,173 5/11/2001 N/A Yes Lock/31_Def/83_0%/6 0.0525%
46 38,706 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
47 36,565 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
48 11,064 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
49 9,619 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
50 9,196 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
51 5,356 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
54 33,925 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
55 32,543 4/11/2001 N/A Yes Lock/32_Def/82_0%/6 0.0525%
56 32,902 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
59 28,651 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
60 30,897 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
61 29,302 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
63 28,668 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
65 28,546 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
70 27,797 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
71 25,766 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.1225%
72 24,123 3/11/2001 N/A Yes Lock/33_Def/81_0%/6 0.0525%
74 23,363 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
76 25,374 8/11/2001 7/11/2006 Yes Lock/28_Def/26_0%/6 0.0525%
79 22,080 6/11/2001 N/A Yes Lock/30_Def/84_0%/6 0.0525%
82 21,438 2/11/2001 N/A Yes Lock/34_Def/80_0%/6 0.0525%
84 21,992 6/11/2001 N/A Yes Lock/30_Def/87_0%/3 0.0525%
86 21,502 4/11/2001 N/A Yes Lock/32_Def/82_0%/6 0.0525%
91 19,892 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0525%
92 19,701 3/11/2001 N/A Yes Lock/33_Def/81_0%/6 0.0525%
97 16,769 8/11/2001 N/A Yes Lock/28_Def/89_0%/3 0.0525%
101 16,220 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
102 15,624 7/11/2001 N/A Yes Lock/29_Def/88_0%/3 0.0725%
103 16,358 5/11/2001 N/A Yes Lock/31_Def/86_0%/3 0.0525%
105 15,647 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
114 13,560 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
115 13,248 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
118 12,517 6/11/2001 N/A Yes Lock/30_Def/84_0%/6 0.0525%
121 11,718 5/11/2001 N/A Yes Lock/31_Def/83_0%/6 0.0525%
124 11,959 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
125 10,686 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
131 8,932 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
132 8,695 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
135 8,329 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
136 8,345 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
138 8,125 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
139 8,033 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
140 8,873 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
144 7,161 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
145 6,878 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
146 7,098 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
147 6,829 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
149 6,673 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
150 6,500 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
151 6,601 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
152 6,649 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
153 6,787 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
154 6,205 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
159 5,286 6/11/2001 N/A Yes Lock/30_Def/84_0%/6 0.0525%
160 5,318 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
162 5,297 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
163 4,667 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
164 5,074 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
166 4,767 7/11/2001 N/A Yes Lock/29_Def/85_0%/6 0.0525%
169 3,603 8/11/2001 N/A Yes Lock/28_Def/86_0%/6 0.0525%
171 3,926 5/11/2001 N/A Yes Lock/31_Def/83_0%/6 0.0525%
X-0
XXXXXXX X-0
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
1. The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
2. The execution and delivery by the Seller of, and the performance by
the Seller under, this Agreement, the execution (including, without limitation,
by facsimile or machine signature) and delivery of any and all documents
contemplated by this Agreement, including, without limitation, endorsements of
Mortgage Notes, and the consummation by the Seller of the transactions herein
contemplated, will not: (a) violate the Seller's organizational documents; or
(b) constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
indenture, agreement or other instrument to which the Seller is a party or by
which it is bound or which is applicable to it or any of its assets, which
default or breach, in the Seller's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the Seller.
3. The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
5. 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 (a) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (b)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
6. The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance under and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
7. There are no actions, suits or proceedings pending or, to the best
of the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would
B-1-1
be likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
8. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
9. The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
10. The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
11. The Seller is not transferring the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud its present or future creditors.
12. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
13. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
14. The Seller does not intend to, and does not believe that it will,
incur debts or obligations beyond its ability to pay such debts and obligations
as they mature.
15. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
16. In connection with its transfer of the Mortgage Loans to the
Purchaser as contemplated herein, the Seller is receiving new value and
consideration constituting at least reasonably equivalent value and fair
consideration.
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:
1. The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Purchaser of, and the performance
by the Purchaser under, this Agreement, and the consummation by the Purchaser of
transactions herein contemplated, will not: (a) violate the Purchaser's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Purchaser is a party or by which it is bound or which is applicable to it or any
of its assets, which default or breach, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
3. The Purchaser has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
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 (a) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
5. The Purchaser is not in violation of, and its execution and delivery
of this Agreement and its performance under and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Purchaser's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
6. There are no actions, suits or proceedings pending or, to the best
of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, would be likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations hereunder or the financial condition
of the Purchaser.
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been
B-2-1
completed, and except for those filings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
B-2-2
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
For purposes of these representations and warranties, the
phrases "to the knowledge of the Seller" or "to the Seller's knowledge" shall
mean, except where otherwise expressly set forth below, the actual state of
knowledge of the Seller or any servicer acting on its behalf regarding the
matters referred to, in each case: (i) after the Seller's having conducted such
inquiry and due diligence into such matters as would be customarily performed by
prudent institutional commercial or multifamily, as applicable, mortgage
lenders, and in all events as required by the Seller's underwriting standards,
at the time of the Seller's origination or acquisition of the particular
Mortgage Loan; and (ii) subsequent to such origination, utilizing the servicing
and monitoring practices customarily utilized by prudent commercial mortgage
loan servicers with respect to securitizable commercial or multifamily, as
applicable, mortgage loans. Also for purposes of these representations and
warranties, the phrases "to the actual knowledge of the Seller" or "to the
Seller's actual knowledge" shall mean, except where otherwise expressly set
forth below, the actual state of knowledge of the Seller or any servicer acting
on its behalf without any express or implied obligation to make inquiry. All
information contained in documents which are part of or required to be part of a
Mortgage File shall be deemed to be within the knowledge and the actual
knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller or its agents or employees, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking such action by,
either of the Seller or any servicer acting on its behalf.
The Seller hereby represents and warrants with respect to the
Mortgage Loans that, as of the date hereinbelow specified or, if no such date is
specified, as of the Closing Date, and subject to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the respective Due Dates for the Mortgage Loans in November 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 (except for certain servicing rights described on Schedule C-42
hereto or otherwise contemplated by this Agreement or the Pooling and Servicing
Agreement). Subject to the completion of the names and addresses of the
assignees and endorsees and any missing recording information in all instruments
of transfer or assignment and endorsements and the completion of all recording
and filing contemplated hereby and by the Pooling and Servicing Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance (except for certain
servicing rights described on Schedule C-42 hereto or otherwise contemplated by
this Agreement or the Pooling and Servicing Agreement). The sale of the
C-1
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 October 2001 and on any
Due Date in the twelve-month period immediately preceding the Due Date for such
Mortgage Loan in October 2001 was 30 days or more delinquent, without giving
effect to any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the exceptions set forth in Paragraph 13 below, enforceable first priority
lien upon the related Mortgaged Property, prior to all other liens and
encumbrances, except for the following (collectively, the "Permitted
Encumbrances"): (a) the lien for current real estate taxes, water charges, sewer
rents and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and are referred to in the related lender's title insurance policy (or,
if not yet issued, referred to in a pro forma title policy or title policy
commitment meeting the requirements described in Paragraph 8 below); (c)
exceptions and exclusions specifically referred to in the related lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or title policy commitment meeting the requirements described in Paragraph 8
below); (d) other matters to which like properties are commonly subject; (e) the
rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property; (f) condominium declarations of
record and identified in the related lender's title insurance policy (or, if not
yet issued, identified in a pro forma title policy or title policy commitment
meeting the requirements described in Paragraph 8 below); and (g) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group. With respect to each Mortgage Loan, such Permitted Encumbrances do not,
individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property or the ability of the related Mortgaged Property
to generate income sufficient to service such Mortgage Loan. If the related
Mortgaged Property is a residential cooperative property, then the related
Mortgage is superior to any lien against the related Mortgaged Property securing
any and all other debts of and to the subject cooperative entity. The related
assignment of the Mortgage for each Mortgage Loan, 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. The Mortgage File contains an
assignment of leases and rents (an "Assignment of Leases"), either as a separate
instrument or incorporated into the related Mortgage, which establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable first priority lien on and security interest in,
subject to applicable law, the property, rights and interests of the related
Borrower described therein, except that a license may have been granted to the
related Borrower to exercise certain rights and perform certain obligations of
the lessor under the relevant lease or leases, including, without limitation,
the right to operate the related leased property; and each assignor thereunder
has the full right to assign the same. The related
C-2
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 [SPECIFY DATE AS OF WHICH MORTGAGE FILES WERE DELIVERED TO
B-PIECE BUYER]. 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.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth on Schedule C-7A or in an engineering report
prepared in connection with the origination of such Mortgage Loan, 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); provided that, if no engineer or architect physically visited the
related Mortgaged Property in connection with preparing and delivering such
engineering report, then the representation and warranty made in this sentence
shall not be qualified by "to the Seller's knowledge". 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. If any of the engineering reports referred to above in this
Paragraph 7 revealed any material damage or material deferred maintenance, then
one of the following is true: (a) the repairs and/or maintenance necessary to
correct such condition have been completed in all material respects; (b) an
escrow of funds is required or a letter of credit was obtained in an amount
reasonably estimated to be sufficient to complete the repairs and/or maintenance
necessary to correct such condition; or (c) the reasonable estimate of the cost
to complete the repairs and/or maintenance necessary to correct such condition
represented no more than 2% of the value of the related Mortgaged Property as
reflected in an appraisal conducted in connection with the origination of the
subject Mortgage Loan. As of the date of the origination of each Mortgage Loan,
except as set forth on Schedule C-7B: (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
C-3
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, the Seller has
made no claims thereunder and, to the Seller's actual knowledge, no prior holder
of the related Mortgage has made any claims thereunder and no claims have been
paid thereunder. The 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 the
Purchaser in the applicable real estate records), such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. Such
Title Policy contains no exclusion for, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available), (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. If the related
Mortgage Loan Documents include any requirements regarding (a) the completion of
any on-site or off-site improvements and (b) the disbursement of any funds
escrowed for such purpose, and if those requirements were to have been complied
with on or before the Closing Date, then such requirements have been complied
with in all material respects or such funds so escrowed have not been released
except to the extent specifically provided by the related Mortgage Loan
Documents.
10. Mortgage Provisions. The Mortgage Note, Mortgage and
Assignment of Leases for each Mortgage Loan, together with applicable state law,
contains customary and, subject to the exceptions set forth in Paragraph 13
below, enforceable provisions for commercial Mortgage Loans such as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
C-4
applicable law, and (b) no fees or expenses are payable to such trustee by the
Seller, the Depositor or any transferee thereof except for such fees and
expenses (all of which are the obligation of the related Borrower under the
related Mortgage Loan Documents) as would be payable in connection with a
trustee's sale after default by the related Borrower or in connection with any
full or partial release of the related Mortgaged Property or related security
for such Mortgage Loan.
12. Environmental Conditions. 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 (a "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, except with
respect to the Mortgaged Properties identified on Schedule C-12(NU), thereafter
updated such that, except as set forth on Schedule C-12(OLD), 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(MV), one or more of the following are
true--(A) one or more parties not related to or including the related Borrower
and collectively having financial resources reasonably estimated to be adequate
to cure the subject violation in all material respects, were identified as the
responsible party or parties for such condition or circumstance and such
condition or circumstance does not materially impair the value of the Mortgaged
Property, (B) the related Borrower was required to provide additional security
reasonably estimated to be adequate to cure the subject violation in all
material respects and/or to obtain an operations and maintenance plan, (C) the
related Borrower, or other responsible party, provided a "no further action"
letter or other evidence reasonably acceptable to a reasonably prudent
commercial mortgage lender that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not requiring
any action, in respect of such condition or circumstance, (D) such conditions or
circumstances were investigated further and based upon such additional
investigation, an environmental consultant recommended no further investigation
or remediation, (E) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is not greater than 2% of the outstanding
principal balance of the related Mortgage Loan, (F) there exists an escrow of
funds reasonably estimated to be sufficient for purposes of effecting such
remediation, (G) the related Mortgaged Property is identified on Schedule
C-12(EI) 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,
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where obtained, or in any Borrower questionnaire delivered to the Seller in
connection with the issue of any related environmental insurance policy, if
applicable, that render such Mortgaged Property in material violation of any
applicable environmental laws. The Mortgage Loan Documents for each Mortgage
Loan require the related Borrower to comply in all material respects with all
applicable federal, state and local environmental laws and regulations. The
Seller has not taken any affirmative action which would cause the Mortgaged
Property securing any Mortgage Loan not to be in compliance with all federal,
state and local laws pertaining to environmental hazards. Each Borrower
represents and warrants in the related Mortgage Loan documents generally to the
effect that, except as set forth in certain specified environmental reports and
to the Borrower's knowledge, it has not used, caused or permitted to exist and
will not use, cause or permit to exist on the related Mortgaged Property any
hazardous materials in any manner which violates federal, state or local laws,
ordinances, regulations, orders, directives, or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. Unless the related Mortgaged
Property is identified on Schedule C-12(EI), 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.
13. Loan Document Status. Each Mortgage Note, Mortgage, and
other agreement executed by or on behalf of the related Borrower, or any
guarantor of non-recourse exceptions and environmental liability, with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent transfer and conveyance or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions in such loan
documents may be further limited or rendered unenforceable by applicable law,
but (subject to the limitations set forth in the foregoing clauses (i) and (ii))
such limitations will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no right of rescission,
offset, abatement, diminution or valid defense or counterclaim available to the
related Borrower with respect to such Mortgage Note, Mortgage or other
agreements that would deny the mortgagee the principal benefits intended to be
provided thereby. The 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, and except as otherwise set forth
on Schedule C-14(a), all improvements upon each Mortgaged Property securing a
Mortgage Loan are insured under a fire and extended perils insurance policy
included within the classification "All Risk of Physical Loss" insurance (or the
equivalent) policy in an amount at least equal to the lesser of the outstanding
principal balance of such Mortgage Loan and 100% of the insurable replacement
cost of the improvements located on the related Mortgaged Property, and if
applicable, the related hazard insurance
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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(b) hereto, each Mortgaged Property securing a Mortgage Loan is the
subject of a business interruption or rent loss insurance policy providing
coverage for at least twelve (12) months (or a specified dollar amount which is
reasonably estimated to cover no less than twelve (12) months of rental income).
If, based solely on a flood zone certification or a survey of the related
Mortgaged Property, any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such Mortgage
Loan, in an area identified in the Federal Register by the Flood Emergency
Management Agency as a special flood hazard area (Zone A or Zone V) (an "SFH
Area") and flood insurance was available, then a flood insurance policy meeting
the requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. All such hazard and flood insurance
policies 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
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in same area or earthquake zone. If the Mortgaged Property for any Mortgage Loan
is located in Florida or within 25 miles of the coast in Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina, then such
Mortgaged Property is insured by windstorm insurance in an amount at least equal
to the lesser of (i) the outstanding principal balance of such Mortgage Loan and
(ii) 100% of the insurable replacement cost of the improvements located on the
related Mortgaged Property. If any Mortgaged Property is, to the Seller's
knowledge, a materially non-conforming use or structure under applicable zoning
laws and ordinances, then, in the event of a material casualty or destruction,
one or more of the following is true: (i) such Mortgaged Property may be
restored or repaired to materially the same extent of the use or structure at
the time of such casualty; (ii) such Mortgaged Property is covered by law and
ordinance insurance in an amount customarily required by reasonably prudent
commercial mortgage lenders; or (iii) the amount of hazard insurance currently
in place and required by the related Mortgage Loan Documents would generate
proceeds sufficient to pay off the subject Mortgage Loan. Additionally, for any
Mortgage Loan having a Cut-off Date Principal Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability rating from Standard & Poor's, Xxxxx'x or Fitch of not
less than A-minus (or the equivalent), or from A.M. Best of not less than "A:V"
(or the equivalent). With respect to each Mortgage Loan, the related Mortgage
Loan Documents require that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permit the Mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage Loan Documents for each Mortgage Loan
provide that proceeds paid
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under any such casualty insurance policy will (or, at the lender's option, will)
be applied either to the repair or restoration of the related Mortgaged Property
or to the payment of amounts due under such Mortgage Loan; provided that the
related Mortgage Loan Documents may entitle the related Borrower to any portion
of such proceeds remaining after the repair or restoration of the related
Mortgaged Property or payment of amounts due under the Mortgage Loan; and
provided, further, that, if the related Borrower holds a leasehold interest in
the related Mortgaged Property, the application of such proceeds will be subject
to the terms of the related Ground Lease (as defined in Paragraph 18 below). To
the 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 date of origination of
the subject Mortgage Loan or November 11, 2000, whichever is later, there were
no (and, to the Seller's actual knowledge, as of the Closing Date, there are no)
delinquent property taxes or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan that are not otherwise covered
by an escrow of funds sufficient to pay such charge. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered delinquent until the date on which interest and/or penalties would be
payable thereon.
16. Borrower Bankruptcy. No Mortgaged Property securing a
Mortgage Loan is the subject of, and no Borrower under a Mortgage Loan is a
debtor in, any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the 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, except as described on Schedule C-17, the
improvements located on or forming part of, and the existing use of, each
Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect the value of the related
Mortgaged Property as determined by the appraisal performed in connection with
the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by
the interest of a Borrower as a lessee under a ground lease (together with any
and all written amendments and modifications thereof and any and all estoppels
from or other agreements with the ground lessor, a "Ground Lease"), but not by
the related fee interest in the subject real property (the "Fee Interest"),
then:
(a) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage and does not restrict the
use of the related Mortgaged Property by such lessee, its successors or assigns
in a manner that would materially adversely affect the security provided by the
related Mortgage; and there has been no material change in the terms of such
Ground Lease since its recordation, with the exception of material changes
reflected in written instruments which are a part of the related Mortgage File;
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(b) The related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that
it shall remain superior to any mortgage or other lien upon the related Fee
Interest;
(c) The Borrower's interest in such Ground Lease is assignable
to, and is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is required,
it has been obtained); provided that such 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 twenty (20) years beyond the end of the amortization term
of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the related
Borrower unless the mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice thereof from the lessor;
(i) Except as described on Schedule C-18(i), under the terms
of such Ground Lease and the related Mortgage Loan Documents, taken together,
any casualty insurance proceeds, other than de minimis amounts for minor
casualties, with respect to the leasehold interest will be applied either: (i)
to the repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (ii) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest thereon. Under
the terms of such Ground Lease and the related Mortgage Loan Documents, taken
together, any condemnation proceeds or awards in respect of a total or
substantially total taking will be applied first to the payment of the
outstanding principal and interest on the Mortgage Loan (except as otherwise
provided by applicable law) and subject to any rights to require the
improvements to be rebuilt;
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(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted to
disturb the possession, interest or quiet enjoyment of the lessee in the
relevant portion of the Mortgaged Property subject to such Ground Lease for any
reason, or in any manner, which would materially adversely affect the security
provided by the related Mortgage; and
(l) Such Ground Lease provides that it may not be amended or
modified without the prior consent of the mortgagee under such Mortgage Loan and
that any such action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if acquired
in connection with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section 860G(a)(8).
20. Advancement of Funds. The 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 (or a tenant at or the
property manager of the related Mortgaged Property), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Borrower, has a shared appreciation
feature, provides for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property, or, except as
identified on Schedule C-21, provides for interest-only payments without
principal amortization for more than six months or for the negative amortization
of interest, except that, in the case of an ARD Loan, such Mortgage Loan
provides that, during the period commencing on or about the related Anticipated
Repayment Date and continuing until such Mortgage Loan is paid in full, (a)
additional interest shall accrue, may be compounded monthly and shall be payable
only after the outstanding principal of such Mortgage Loan is paid in full, and
(b) a portion of the cash flow generated by such Mortgaged Property will be
applied each month to pay down the principal balance thereof in addition to the
principal portion of the related Monthly Payment. Neither the Seller nor any
affiliate thereof has any obligation to make any capital contribution to the
Borrower under the Mortgage Loan or otherwise.
22. Legal Proceedings. To the 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 any guarantor to the extent a reasonably
prudent commercial or multifamily, as applicable, mortgage lender would consider
such guarantor material to the underwriting of such Mortgage Loan) under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Borrower or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan, the
Borrower's ability to pay principal,
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interest or any other amounts due under such Mortgage Loan or the ability of any
such guarantor to meet its obligations.
23. Other Mortgage Liens. Except as otherwise set forth on
Schedule C-23 and except for Mortgage Loans secured by residential cooperative
properties, none of the Mortgage Loans permits the related Mortgaged Property or
any direct controlling equity interest in the related Borrower to be encumbered
by any mortgage lien or, in the case of a direct controlling equity interest in
the related Borrower, a lien to secure any other debt, without the prior written
consent of the holder of the subject Mortgage Loan or the satisfaction of debt
service coverage or similar criteria specified therein. To the Seller's
knowledge, as of origination of the subject 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 Mortgage Loans, no Mortgaged
Property securing the subject Mortgage Loan is encumbered by any other mortgage
liens (other than Permitted Encumbrances) and no direct controlling equity
interest in the related Borrower is encumbered by a lien to secure any other
debt. Except in the case where the related Mortgaged Property is a residential
cooperative property, the related Mortgage Loan Documents require the Borrower
under each Mortgage Loan to pay all reasonable costs and expenses related to any
required consent to an encumbrance, including reasonable legal fees and expenses
and any applicable Rating Agency fees, or would permit the subject mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. To the 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.
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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-28A, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon: (i) payment in full of all amounts due under
the related Mortgage Loan or (ii) delivery of "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in connection with a defeasance
of the related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of material portions of the related Mortgaged Property or the release
of one or more related Mortgaged Properties upon: (i) the satisfaction of
certain legal and underwriting requirements, (ii) the payment of a release price
(in an amount that is, except as otherwise set forth on Schedule C-28B, at least
equal to 125% of the allocated loan amount for the released property or parcel)
and prepayment consideration in connection therewith or (iii) the delivery of
substitute real estate collateral. No release or partial release of any
Mortgaged Property, or any portion thereof, expressly permitted pursuant to the
terms of any Mortgage Note or Mortgage will constitute a significant
modification of the related Mortgage Loan under Treas. Reg. Section
1.860G-2(b)(2).
29. Defeasance. With respect to any Mortgage Loan that
contains a provision for any defeasance of mortgage collateral (a "Defeasance
Loan"), the related Mortgage Note or Mortgage provides that the defeasance
option is not exercisable prior to a date that is at least two (2) years
following the Closing Date and is otherwise in compliance with applicable
statutes, rules and regulations governing REMICs; requires prior written notice
to the holder of the Mortgage Loan of the exercise of the defeasance option and
payment by the Borrower of all related reasonable fees, costs and expenses as
set forth below; if the Borrower would continue to own assets in addition to the
defeasance collateral, requires, or permits the lender to require, the Mortgage
Loan (or the portion thereof being defeased) to be assumed by a single-purpose
entity; and requires counsel to provide a legal opinion that the Trustee has a
perfected security interest in such collateral prior to any other claim or
interest. In addition, each Mortgage Loan that is a Defeasance Loan permits
defeasance only with substitute collateral constituting "government securities"
within the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note (or the
portion thereof being defeased) when due, and in the case of ARD Loans, assuming
the Anticipated Repayment Date is the Maturity Date. To the 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 Loan Documents provide that the related
Borrower shall (a) pay all Rating Agency fees associated with defeasance (if
rating confirmation is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not limited to,
accountant's fees and opinions of counsel, or (b) provide all opinions required
under the related loan documents, including, if applicable, a REMIC opinion and
a perfection opinion and any applicable rating agency letters confirming no
downgrade or qualification of ratings on any classes in the transaction.
Additionally, for any Mortgage Loan having a Cut-off Date Principal Balance
equal to or greater than $19,900,000, the Mortgage Loan or the related documents
require confirmation from the Rating Agency that exercise of the defeasance
option will not cause a
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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. Except as set forth on Schedule C-31, the
Seller, an affiliate of the Seller, or a correspondent in the conduit funding
program of the Seller, inspected, or caused the inspection of, each Mortgaged
Property securing a Mortgage Loan within twelve (12) months of the Closing Date.
32. No Material Default. To the 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 for each Mortgage Loan contains
a "due-on-sale" clause, which provides for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Borrower, is
transferred or sold, other than by reason of: (i) if the related Mortgaged
Property is a residential cooperative property, transfers of stock of the
Borrower in connection with the assignment of a proprietary lease for an
apartment unit in the related Mortgaged Property by a tenant-shareholder of the
Borrower to other persons who by virtue of such transfers become
tenant-shareholders in the Borrower; and (ii) in the case of other types of
Mortgaged Properties, 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.
Except in the case where the related Mortgaged Property is a residential
cooperative property, the related Mortgage Loan Documents require the Borrower
under each Mortgage Loan to pay all reasonable fees and expenses associated with
securing the consent or approval of the holder of the related Mortgage for all
actions requiring such consent or approval under the related Mortgage, including
the cost of counsel opinions relating to REMIC or other securitization and tax
issues or require the payment of a specified fee or fees, including a 1%
assumption fee that would be applied to pay such fees and expenses.
34. Single Purpose Entity. Except in cases where the related
Mortgaged Property is a residential cooperative property and, further, except as
otherwise described on Schedule C-34 hereto, each Mortgage Loan with an original
principal balance over $5,000,000.00 requires the related Borrower to be, at
least for so long as the Mortgage Loan is outstanding, and to the Seller's
actual knowledge, the related Borrower is, a Single-Purpose Entity. For this
purpose, "Single-Purpose Entity" means a person, other than an individual, which
is formed or organized solely for the purpose of owning and operating the
related Mortgaged Property or Properties; does not engage in any business
unrelated to such
C-13
Mortgaged Property or Properties and the financing thereof; and whose
organizational documents provide, or which entity represented and covenanted in
the related Mortgage Loan Documents, substantially to the effect that such
Borrower (i) does not and will not have any material assets other than those
related to its interest in such Mortgaged Property or Properties or the
financing thereof; (ii) does not and will not have any indebtedness other than
as permitted by the related Mortgage or other related Mortgage Loan Documents;
(iii) maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other person; and
(iv) holds itself out as being a legal entity, separate and apart from any other
person. In addition, each Mortgage Loan with a Cut-off Date Principal Balance of
$20,000,000 or more, except in cases where the related Mortgaged Property is a
residential cooperative property and, further, except as set forth on Schedule
C-34, the related Borrower's organizational documents provide substantially to
the effect that the Borrower shall: conduct business in its own name; not
guarantee or assume the debts or obligations of any other person; not commingle
its assets or funds with those of any other person; prepare separate tax returns
and financial statements, or if part of a consolidated group, be shown as a
separate member of such group; transact business with affiliates on an arm's
length basis; hold itself out as being a legal entity, separate and apart from
any other person, and such organizational documents further provide
substantially to the effect that: any dissolution and winding up or insolvency
filing for such entity is prohibited or requires the consent of an independent
director or member or the unanimous consent of all partners or members, as
applicable; such documents may not be amended with respect to the Single-Purpose
Entity requirements without the approval of the mortgagee or rating agencies;
the Borrower shall have an outside independent director or member. Except in
cases where the related Mortgaged Property is a residential cooperative
property, the Seller has obtained, with respect to each Mortgage Loan having a
Cut-off Date Principal Balance of $20,000,000 or more, in connection with its
origination or acquisition thereof, a counsel's opinion regarding
non-consolidation of the Borrower in any insolvency proceeding involving any
other party. To the Seller's actual knowledge, each Borrower has fully complied
with the requirements of the related Mortgage Note and Mortgage and the
Borrower's organizational documents regarding Single-Purpose-Entity status. The
organization documents of any Borrower on a Mortgage Loan having a Cut-off Date
Principal Balance of $20,000,000 or more that is a single member limited
liability company, provide that the Borrower shall not dissolve or liquidate
upon the bankruptcy, dissolution, liquidation or death of the sole member. Any
such single member limited liability company Borrower is organized in
jurisdictions that provide for such continued existence, and the Seller has
obtained, in connection with its origination or acquisition of the subject
Mortgage Loan, an opinion of such Borrower's counsel confirming such continued
existence and that the applicable law provides that creditors of the single
member may only attach the assets of the member including the membership
interests in the Borrower but not the assets of the Borrower.
35. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
36. Tax Parcels. Except as described on Schedule C-36 of this
Agreement, each Mortgaged Property constitutes one or more complete separate tax
lots containing no other property, or is subject to an endorsement under the
related Title Policy insuring same, or an application for the creation of
separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made and approved by
the applicable governing authority and such separate tax lots shall be effective
for the next tax year.
C-14
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 operation
and use of the Mortgaged Property as presently operated, and if such Mortgaged
Property is a hotel operated by the related Borrower, then such personal
property constitutes such portion of the material personal property required to
operate the Borrower's business as the 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 any Mortgage Loan secured by a hotel, the
related loan documents contain such provisions as are necessary and UCC
Financing Statements have been filed as necessary, in each case, to perfect a
valid first priority security interest in the related revenues with respect to
such Mortgaged Property. An assignment of each UCC financing statement relating
to the Mortgage Loan has been executed by the Seller in blank which the
Purchaser or Trustee, as applicable, or its designee is authorized to complete
and to file in the filing office in which such financing statement was filed.
Each Mortgage Loan and the related Mortgage (along with any security agreement
and UCC financing statement), together with applicable state law, contain
customary and enforceable provisions such as to render the rights and remedies
of the holders thereof adequate for the practical realization against the
personal property described above, and the principal benefits of the security
intended to be provided thereby.
39. Disclosure to Environmental Insurer and Other Matters. If
the Mortgaged Property securing any Mortgage Loan is covered by a secured
creditor impaired property policy, then the 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
C-15
such policy) identified in any environmental reports related to such Mortgaged
Property which are in the Seller's possession or are otherwise known to the
Seller; and
(b) has delivered or caused to be delivered to the insurer
under such policy copies of all environmental reports in the Seller's
possession related to such Mortgaged Property;
in each case to the extent required by such policy or to the extent the failure
to make any such disclosure or deliver any such report would materially and
adversely affect the Purchaser's ability to recover under such policy. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impaired property policy, then: (x) all premiums for such insurance have been
paid; (y) such insurance is in full force and effect; and (z) (i) an
environmental report, a property condition report or an engineering report was
prepared that included an assessment for lead based paint ("LBP") (in the case
of a multifamily property built prior to 1978), asbestos containing materials
("ACM") (in the case of any property built prior to 1985) and radon gas ("RG")
(in the case of a multifamily property) at such Mortgaged Property and (ii) if
such report disclosed the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting such Mortgaged Property, then,
except as otherwise described on Schedule C-39, (A) the related Borrower was
required to remediate such condition or circumstance prior to the closing of the
subject Mortgage Loan, or (B) the related Borrower was required to provide
additional security reasonably estimated to be adequate to cure such condition
or circumstance, or (C) the related Mortgage Loan documents require the related
Borrower to establish an operations and maintenance plan with respect to such
condition or circumstance after the closing of such Mortgage Loan. If the
Mortgage Loan is listed on Schedule C-12(EI) and the environmental insurance for
such Mortgage Loan is not a secured creditor policy but was required to be
obtained by the Borrower, then the holder of the Mortgage Loan is entitled to be
an additional insured under such policy, all premiums have been paid, such
insurance is in full force and effect and, to the Seller's knowledge, the
Borrower has made the disclosures and complied with the requirements of clauses
(a) and (b) of this Paragraph 39.
40. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treas. Reg. Section 1.860G-1(b)(2).
41. Operating Statements. Except for the Mortgage Loans with
an initial principal balance less than $3,000,000, which may only require annual
statements, and except as set forth on Schedule C-41, each Mortgage Loan
requires the Borrower, in some cases only at the request of the holder of the
related Mortgage, to provide the owner or holder of the related Mortgage with at
least quarterly and annual operating statements, rent rolls (if there is more
than one tenant) and related information (except in cases where the related
Mortgaged Property is a residential cooperative property) and annual financial
statements, which annual financial statements with respect to each Mortgage Loan
with an original principal balance greater than $20 million shall be audited (or
prepared and certified) by an independent certified public accountant upon the
request of the holder of the related Mortgage.
42. Servicing Rights. Except as set forth on Schedule C-42 or
as otherwise contemplated in this Agreement or the Pooling and Servicing
Agreement, no Person has been granted or conveyed the right to service any
Mortgage Loan or receive any consideration in connection therewith.
43. Recourse. Each Mortgage Loan (other than a Mortgage Loan
secured by a residential cooperative property) is non-recourse; provided that,
except as described on Schedule C-43
C-16
or for Mortgage Loans with a Cut-off Date Principal Balance of less than
$5,000,000, the Borrower and either a principal of the Borrower or other
individual guarantor, with assets other than any interest in the Borrower, is
liable in the event of (i) fraud or material misrepresentation, (ii)
misapplication or misappropriation of rents, insurance payments, condemnation
awards or tenant security deposits, (iii) violation of applicable environmental
laws or breaches of environmental covenants or (iv) the filing of a voluntary
bankruptcy or insolvency proceeding by the Borrower; and provided, further,
that, with respect to clause (iii) of the preceding proviso, an indemnification
against losses related to such violations or environmental insurance shall
satisfy such requirement. No waiver of liability for such non-recourse
exceptions has been granted to the Borrower or any such guarantor or principal
by the 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, as of the Mortgage Loan's funding date and at all
times when it held such Mortgage Loan, the originator of each Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located, except where the failure to be so authorized does not
adversely affect the enforceability of such Mortgage Loan.
48. No Fraud In Origination. In the origination of the
Mortgage Loan, neither the originator nor any employee or agent of the Seller or
the originator, participated in any fraud or intentional material
misrepresentation with respect to the Borrower, the Mortgaged Property or any
guarantor. To the 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. In connection with its origination or
acquisition of each Mortgage Loan, the Seller obtained an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser, who, to
the 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.
C-17
51. Borrower Concentration. Except as otherwise specified on
Schedule C-51, no single Borrower or group of affiliated Borrowers is/are the
obligor(s) under any one or more Mortgage Loans with a Cut-off Date Principal
Balance of $50,000,000 or more.
52. Escrows. All escrow deposits (including capital
improvements and environmental remediation reserves) relating to any Mortgage
Loan that were required to be delivered to the lender under the terms of the
related Mortgage Loan Documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession or under the
control of the 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.
53. Access. The Mortgaged Property securing each Mortgage Loan
is located on or adjacent to a public road, or has access to an irrevocable
easement permitting ingress and egress.
C-18
SCHEDULE C-6
Amendments to Xxxxxxxxxx Industrial Portfolio and Alexandria Roselle Street
Portfolio are included in the Mortgage Files but were executed after [DATE].
C-19
SCHEDULE C-7A
None.
C-20
SCHEDULE C-7B
None.
C-21
SCHEDULE C-12(AB/LBP)
In the case of the mortage loans identified as 1020 Crystal Lake Drive, 1060
Crystal Lake Drive, 1102 & 0000 Xxxxx Xxxxxxx Xxxxxx, 1595-1597 Second Avenue,
0000 XX 00xx Xxxxxx, Xxxxxx Xxxx Commercial Center, Bay Bluff Apartments, Beacon
Hill Apartments, Brookside Business Center, 000 Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx
Shopping Center, East End Apartments, Fair Oaks Apartments, InSite
Chicago/Xxxxxxxx, InSite Chicago - Blockbuster Video, InSite Downers Grove,
InSite Palm Beach - Blockbuster Video, InSite Saginaw (Blockbuster Building),
Kings Meadow Center, Knell's Ridge Plaza, La Maison Apartments, Lulen
Apartments, Mountain View Mobile Estates, Northstream Manor Apartments, Xxxxxxx
Apartments, Sherwood Forest Shopping Center, Sulphur Plaza Shopping Center,
Terrace Hills Apartments, Timberwood Apartments, Tomshir Apartments, Westchester
Apartments and Westgate Professional Center, the properties were assessed for
asbestos, lead-based paint and radon, and environmental insurance in the form of
secured creditor impaired property was obtained in lieu of a Phase I
environmental assessment.
C-22
SCHEDULE C-12(TS)
None.
C-23
SCHEDULE C-12(NU)
None.
C-24
SCHEDULE C-12(OLD)
None.
C-25
SCHEDULE C-12(MV)
None.
C-26
SCHEDULE C-12(EI)
None.
X-00
XXXXXXXX X-00(X)
Xxxx.
X-00
XXXXXXXX X-00(X)
None.
C-29
SCHEDULE C-17
None.
C-30
SCHEDULE C-18(I)
None.
C-31
SCHEDULE C-21
None.
C-32
SCHEDULE C-23
1. In the case of the mortgage loan identified as Rivergate Station, the
principals of the related borrower are permitted to incur up to $1,500,000 in
indebtedness which may be secured by membership interests in the borrower. It is
a condition to the incurrence of such future subordinate indebtedness that, at
the time the subordinate indebtedness is first incurred, the combined debt
service coverage ratio of the subject mortgage loan and the related subordinate
loan be no less than 1.25x and the loan-to-value ratio of the subject mortgage
loan and the related subordinate loan be not more than 80%. It is a further
condition to the incurrence of such future subordinate debt that the holder of
the subordinate debt execute an intercreditor agreement satisfactory to the
holder of the subject mortgage loan, which agreement would under certain
circumstances permit the subordinate lender to foreclose the pledged ownership
interest in the borrower.
2. In the case of the mortgage loan identified as Windsor Wichita Portfolio, the
principal of the related borrower was permitted to obtain mezzanine debt in the
amount of $3,000,000 from Nichimen America Capital Corp., secured by 100% of the
ownership interests in the related borrower. The holder of the mezzanine debt
has entered into an intercreditor agreement with the lender, which gives cure
rights to the mezzanine lender and permits the mezzanine lender, under limited
circumstances, to exercise remedies against the collateral for the mezzanine
loan. The mezzanine lender has also agreed not to take any action enforcing its
rights against the equity collateral unless the senior loan is paid in full, the
borrower under the senior loan effectuated a defeasance or if permitted by the
senior lender.
C-33
SCHEDULE C-26
None.
C-34
SCHEDULE C-28A
None.
C-35
SCHEDULE C-28B
In the case of the mortgage loan identified as the Xxxxxxxxxx Industrial
Portfolio, individual properties may be released from the deed of trust upon
payment of 110% of the allocated loan amount for the released property, rather
than 125%.
C-36
SCHEDULE C-29
None.
C-37
SCHEDULE C-31
None.
C-38
SCHEDULE C-33
1. In the case of the mortgage loan identified as Xxxxxxxxxx Industrial
Portfolio, a $50,000 assumption fee is required, rather than a 1% assumption
fee.
2. In the case of the mortgage loan identified as Rivergate Station, a 0.5%
assumption fee is required if the loan is assumed by the mezzanine lender, and a
1% assumption fee is required for other transfers.
3. In the case of the mortgage loan identified as Macomb Mall, a 0.5% assumption
fee is required for the first transfer, and a 1% assumption fee is required for
subsequent transfers.
4. In the case of the mortgage loan identified as Alexandria Roselle Street
Portfolio, a 0.5% assumption fee is required.
C-39
SCHEDULE C-34
1. In the case of the mortgage loan identified as 12820 & 00000 Xxxxxxxxxx
Xxxxxxx, the Borrower, which is a general partnership, is not a single purpose
entity and the loan amount exceeds $5,000,000.
2. In the case of the mortgage loans identified as Alexandria Roselle Street
Portfolio and One Sugar Creek Place, the SPE provisions do not expressly require
Borrower to prepare separate tax returns.
3. In the case of the mortgage loan identified as Macomb Mall, although Borrower
does not itself have an independent director, an independent director is
contained in the organizational structure. Borrower is owned by Macomb Mall
Associates Limited Partnership and Macomb Mall SPE, Inc. Macomb Mall SPE, Inc.
is the manager of Borrower and has an independent director.
C-40
SCHEDULE C-36
None.
C-41
SCHEDULE C-37
In the case of the mortgage loan identified as 0000 Xxxxxx Xx Xxxxx Xx., the
Anticipated Repayment Date of the loan is five years, not seven years or more.
C-42
SCHEDULE C-39
None.
C-43
SCHEDULE C-41
1. In the case of the mortgage loan identified as Alexandria Roselle Street
Portfolio, Borrower does not prepare separate audited financial statements.
Borrower must submit unaudited financial statements together with audited
financial statements for the guarantor, Alexandria Real Estate Equities, Inc.
Lender may require Borrower's separate audited financial statements during any
Event of Default.
2. In the case of the mortgage loan identified as 000 X Xxxxxx, the loan
documents do not require that the annual financial statements be auditied by an
independent certified public accountant. Instead, such financial statements must
be prepared in accordance with generally accepted accounting principles and must
be certified by the CFO or general partner of Borrower.
3. In the case of the mortgage loan identified as Rosslyn Marriott Residence
Inn, audited financial statements are not required.
4. In the case of the mortgage loans identified as One Sugar Creek Place and
Macomb Mall, audited financial statements are not required except that the cash
flow statement required by the cash management agreement must be audited.
C-44
SCHEDULE C-42
None.
C-45
SCHEDULE C-43
1. In the case of the mortgage loans identified as 000 X Xxxxxx, Xxxxxxxx XX-0,
Xxxxxx Xxxx Apartments, Dupont Circle Marriott Residence Inn and One Sugar Creek
Place, the respective non-recourse guarantors are not expressly made liable for
willful misconduct.
2. In the case of the mortgage loans identified as Waddington North America,
Alliance GT-4, Alliance GT-3, and Alexandria Roselle Street Portfolio, the
respective non-recourse guarantors are not individuals.
3. In the case of the mortgage loan identified as One Xxxxxxxxxx Street, there
is no non-recourse guarantor.
4. In the case of the mortgage loans identified as 000-000 Xxxxxxxxxx Xxxxxx,
00000 & 00000 Xxxxxxxxxx Xxxxxxx, Alliance GT-4, Alliance XX-0, Xxxxxxxxx
Xxxxxxx, Xxxxxxx at Xxxxxxx Square, Windsor at Woodgate, Windsor at Eastborough,
Raytheon Office Complex, 0000 Xxx Xxxxxx and Crossroads Shopping Center, neither
the borrower nor the non-recourse guarantor is liable in the event of voluntary
bankruptcy.
5. In the case of the mortgage loans identified as Rosslyn Marriot Residence
Inn, Dupont Circle Marriott Residence Inn, Xxxxxxxx Square and Spring Creek,
although the borrower is liable in the event of voluntary bankruptcy, the
non-recourse guarantor is not.
C-46
SCHEDULE C-51
In the case of the mortgage loans identified as Alliance GT-4 and Alliance GT-3,
the Borrower, or a group of affiliated Borrowers, is the obligor on mortgage
loan(s) in excess of $50,000,000.
X-00
XXXXXXX X-0X
FORM OF CERTIFICATE OF THE SECRETARY
OR AN ASSISTANT SECRETARY OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CKN5
CERTIFICATE OF SECRETARY OF COLUMN FINANCIAL, INC.
I, _____________, hereby certify that I am a duly appointed
Assistant Secretary of Column Financial, Inc. ("Column"), a Delaware
corporation, and further certify as follows:
1. Attached hereto as Exhibit A are true and correct copies of
the Certificate of Incorporation and By-Laws of Column, which Certificate of
Incorporation and By-Laws are, on the date hereof, and have been at all times
since the formation of Column, in full force and effect.
2. Attached hereto as Exhibit B are the resolutions of the
board of directors of Column (the "Resolutions"). The Resolutions have not been
amended, modified, annulled or revoked since they were adopted, and are in full
force and effect as of the date hereof, and the instruments authorized in the
Resolutions were executed pursuant thereto and in compliance therewith.
3. Attached hereto as Exhibit C is a certificate of good
standing of Column issued by the Secretary of State of the State of Delaware
within ten (10) days of the date hereof, and no event (including, without
limitation, any act or omission on the part of Column) has occurred since the
date thereof which has affected the good standing of Column under the laws of
the State of Delaware.
4. Each person who, as an officer or representative of Column,
signed the Mortgage Loan Purchase Agreement dated as of November 1, 2001,
between Credit Suisse First Boston Mortgage Securities Corp. ("CSFBMSC") and
Column (the "Mortgage Loan Purchase Agreement"), the Indemnification Agreement
dated as of November 1, 2001 (the "Indemnification Agreement"), between Column,
CSFBMSC and Credit Suisse First Boston Corporation, as representative of the
Underwriters and as initial purchaser of the Privately Offered Certificates, or
any other document or certificate delivered by or on behalf of Column prior
hereto or on the date hereof in connection with the transactions contemplated in
the Mortgage Loan Purchase Agreement and the Indemnification Agreement, was, at
the respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of such persons appearing on any such document
are their genuine signatures.
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Mortgage Loan Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
D-1A-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of November
__, 2001.
By:
-------------------------------
Name:
Title:
D-1A-2
EXHIBIT A
CERTIFICATE OF INCORPORATION AND BY-LAWS OF COLUMN FINANCIAL, INC.
D-1A-3
EXHIBIT B
RESOLUTIONS OF COLUMN FINANCIAL, INC.
D-1A-4
EXHIBIT C
CERTIFICATE OF GOOD STANDING OF COLUMN FINANCIAL, INC.
D-1A-5
EXHIBIT D-1B
FORM OF CERTIFICATE OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CKN5
CERTIFICATE OF COLUMN FINANCIAL, INC.
In connection with the execution and delivery by Column
Financial, Inc. ("Column") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
November 1, 2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse
First Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and Column, as
seller, and that certain Indemnification Agreement dated as of November 1, 2001
(the "Indemnification Agreement and, together with the Mortgage Loan Purchase
Agreement, the "Agreements"), between Column, CSFBMSC and Credit Suisse First
Boston Corporation, as representative of the Underwriters and as initial
purchaser of the Privately Offered Certificates, the undersigned hereby
certifies that (i) the representations and warranties of Column in the
Agreements are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) Column has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Mortgage Loan Purchase Agreement to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified this day of November, 2001.
COLUMN FINANCIAL, INC.
By: ___________________________________
Name:
Title:
D-1B-1
EXHIBIT D-2A
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE SELLER,
PURSUANT TO SECTION 7(VI)
November 13, 2001
To the Parties Listed on Annex A hereto
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston
Corporation ("CSFB") and have acted as special counsel to Column Financial, Inc.
(the "Mortgage Loan Seller") in connection with certain matters relating to: (i)
the Mortgage Loan Seller's sale to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor") of certain multifamily and commercial
mortgage loans pursuant to the Mortgage Loan Purchase Agreement (the "Mortgage
Loan Purchase Agreement"), dated as of November 1, 2001, by and between the
Depositor and the Mortgage Loan Seller, and (ii) the Mortgage Loan Seller's
providing indemnities to the Depositor, CSFB, McDonald Investments Inc.
("McDonald") and Xxxxxx Brothers Inc. ("Xxxxxx"), pursuant to the
Indemnification Agreement (the "Indemnification Agreement"), dated as of
November 1, 2001, by and among the Mortgage Loan Seller, the Depositor and CSFB,
on behalf of itself and as representative of McDonald and Xxxxxx. Capitalized
terms used and not otherwise defined herein have the meanings given to them in
the Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, I have examined and relied
upon originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Indemnification Agreement and the Mortgage Loan Purchase
Agreement (together, the "Agreements"), and such certificates, corporate records
and other documents, agreements, instruments and opinions, as I have deemed
appropriate as a basis for the opinions hereinafter expressed. In connection
with such examination, I have assumed the genuineness of all signatures (other
than with respect to the Mortgage Loan Seller), the authenticity of all
documents, agreements and instruments submitted to me as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to me as copies or specimens and the
authenticity of the originals of such documents, agreements and instruments
submitted to me as copies or specimens and the accuracy of the matters set forth
in the documents, agreements and instruments I reviewed, to the extent such
matters do not constitute legal conclusions upon which I have been asked to
opine. As to any facts material to such opinions that were not known to me, I
have relied upon statements, certificates and representations of officers and
other representatives of the Depositor and the Mortgage Loan Seller and of
public officials.
D-2A-1
Based upon and subject to the foregoing, I am of the opinion that:
1. The Mortgage Loan Seller is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
with requisite power and authority to execute and deliver the
Agreements and to perform its obligations thereunder.
2. The execution, delivery and performance of the Agreements
have been duly authorized by the Mortgage Loan Seller and the
Agreements have been duly executed and delivered by the Mortgage Loan
Seller.
3. The execution and delivery by the Mortgage Loan Seller of
the Agreements, the performance by the Mortgage Loan Seller of its
obligations under the Agreements and the consummation by the Mortgage
Loan Seller of the transactions therein contemplated, do not conflict
with or result in a breach or violation of the Mortgage Loan Seller's
organizational documents or, to my knowledge, conflict with or result
in a breach or violation of any material indenture, agreement or
instrument to which the Mortgage Loan Seller is a party or by which it
or any of its property is bound, or any judgment, decree or order
applicable to the Mortgage Loan Seller, of any New York State or
federal court, regulatory body, administrative agency or other
governmental authority, other than potential conflicts, breaches or
violations which individually and in the aggregate are not reasonably
expected to have a material adverse effect on the ability of the
Mortgage Loan Seller to enter into and perform its obligations under
the Agreements.
4. To my knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against the Mortgage
Loan Seller (a) asserting the invalidity of any of the Agreements, (b)
seeking to prevent the consummation of any of the transactions
contemplated by the Agreements or (c) which could reasonably be
expected to materially and adversely affect the performance by the
Mortgage Loan Seller of its obligations under, or the validity or
enforceability (with respect to the Mortgage Loan Seller) of, the
Agreements. For purposes of the opinion set forth in this paragraph, I
have not regarded any legal or governmental actions, investigations or
proceedings to be "threatened" unless the potential litigant or
governmental authority has overtly threatened in writing to the
Mortgage Loan Seller a present intention to initiate such proceedings.
I am a member of the Bar of the State of New York and the opinions set
forth above are limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America (in each case without regard to conflicts of laws principles).
I am not licensed to practice law in the State of Delaware, and the opinions in
paragraphs (1) and (2) above as to the Delaware General Corporation Law are
based solely on standard compilations of the official statutes of Delaware. I
express no opinion as to the effect of the laws of any other jurisdiction on
matters addressed in this letter.
This letter is limited to the matters specifically addressed herein,
and I express no opinion as to any other matters relating to, or which may arise
in connection with, the consummation of the transaction contemplated by the
Agreements.
D-2A-2
I am furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose.
Very truly yours,
D-2A-3
Annex A
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Column Financial, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx--00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
National Consumer Cooperative Bank
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage
000 Xxxx Xxxxxx--Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
D-2A-4
EXHIBIT D-2B
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX,
PURSUANT TO SECTION 7(VII)
November 13, 2001
Credit Suisse First Boston Xxxxx Fargo Bank Minnesota, N.A.
Mortgage Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Xxxxx'x Investors Service, Inc.
Corporation 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Standard & Poor's Ratings Services,
000 Xxxxxxxx Xxxxxx a Division of The XxXxxx-Xxxx Companies, Inc.
Xxxxxxxxx, Xxxx 00000 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. National Consumer Cooperative Bank
101 Xxxxxx 0000 Xxx Xxxxxx X.X.
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxxxxxxxxx, X.X. 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc.
("Column") with respect to certain matters in connection with the sale by
Column, and the purchase by Credit Suisse First Boston Mortgage Securities Corp.
("CSFBMSC"), of a segregated pool of multifamily and commercial mortgage loans
(the "Mortgage Loans"), pursuant to that certain Mortgage Loan Purchase
Agreement dated as of November 1, 2001 (the "Agreement"), between Column and
CSFBMSC.
This opinion letter is being provided to you pursuant to
Section 7(vii) of the Agreement. Capitalized terms that are used, but not
defined, herein have the respective meanings set forth in, or otherwise assigned
to them pursuant to, the Agreement.
For purposes of this opinion letter, we have reviewed the
Agreement. In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents and records as
we have deemed relevant or necessary as the basis for the opinions contained
D-2B-1
in this letter; we have obtained such certificates from and made such inquiries
of officers and representatives of the parties to the Agreement and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreement, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of each of the parties to the
Agreement and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) except to the extent expressly
addressed by our opinions below, the power and authority of all parties to the
Agreement to enter into, perform under and consummate the transactions
contemplated by the Agreement, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order, writ or decree applicable to any such party or its assets,
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreement by the parties thereto, (ix) except to
the extent expressly addressed by our opinions below, the constitution of the
Agreement as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, and (x) the absence
of any other agreement that supplements or otherwise modifies the intentions and
agreements of the parties to the Agreement, as expressed therein.
Our opinions set forth below with respect to the
enforceability of the Agreement or any particular right or obligation under the
Agreement are subject to: (1) general principles of equity, including concepts
of materiality, reasonableness, good faith and fair dealing and the doctrine of
estoppel; (2) the possible unavailability of specific performance and injunctive
relief, regardless of whether considered in a proceeding in equity or at law;
(3) the effect of certain laws, rules, regulations and judicial and other
decisions upon the enforceability of (a) any provision that purports to waive
(i) the application of any federal, state or local statute, rule or regulation,
(ii) the application of any general principles of equity or (iii) the obligation
of diligence, (b) any provision that purports to grant any remedies that would
not otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the
X-0X-0
Xxxxx xx Xxx Xxxx; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of the Agreement that purports or is construed to provide
indemnification with respect to securities law violations.
In rendering this opinion letter, we do not express any
opinion concerning the laws of any jurisdiction other than the laws of the State
of New York and, where expressly referred to below, the federal laws of the
United States of America (without regard to conflicts of law principles). In
addition, we do not express any opinion with respect to (i) the tax, securities
or "doing business" laws of any particular jurisdiction, including, without
limitation, the State of New York, or (ii) any law, rule or regulation to which
Column may be subject as a result of any other person's or entity's legal or
regulatory status or any such other person's or entity's involvement in the
transactions contemplated by the Agreement. Furthermore, we do not express any
opinion with respect to any matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Agreement constitutes a valid, legal and binding
agreement of Column, enforceable against Column in accordance with its terms.
2. No consent, approval, authorization or order of any federal
or State of New York court or governmental agency or body is required for the
consummation by Column of the transactions contemplated by the Agreement, except
for those consents, approvals, authorizations or orders that previously have
been obtained.
3. Column's execution, delivery and performance of the
Agreement will not in any material respect conflict with or result in a material
violation of any federal or State of New York statute or regulation of general
applicability in transactions of the type contemplated by the Agreement.
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such changes
may affect the legal analysis or conclusions contained herein. This opinion
letter is solely for your benefit in connection with the closing of Column's
sale of the Mortgage Loans to CSFBMSC, pursuant to the Agreement, and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
D-2B-3
EXHIBIT D-2C
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX,
PURSUANT TO SECTION 7(VIII)
November 13, 2001
Credit Suisse First Boston Xxxxx Fargo Bank Minnesota, N.A.
Mortgage Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Xxxxx'x Investors Service, Inc.
Corporation 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Standard & Poor's Ratings Services,
000 Xxxxxxxx Xxxxxx a division of The XxXxxx-Xxxx Companies, Inc.
Xxxxxxxxx, Xxxx 00000 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxx
Xxxxxx Xxxx, XX 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"), Column Financial, Inc. ("Column")
and Credit Suisse First Boston Mortgage Capital LLC ("CSFBMC") with respect to
certain matters in connection with the following transactions (collectively, the
"Transactions"):
(i) the sale by CSFBMC, and the purchase by Column, of a
segregated pool of multifamily and commercial mortgage loans
(collectively, the "CSFBMC Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement dated as of November 1, 2001 (the "CSFBMC
Mortgage Loan Purchase Agreement"), between CSFBMC as seller and Column
as purchaser (such Transaction, the "CSFBMC Sale");
(ii) the sale by Column, and the purchase by the Depositor, of
the CSFBMC Mortgage Loans and certain other multifamily and commercial
mortgage loans (the CSFBMC Mortgage Loans and such other mortgage
loans, collectively, the "Column Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement, dated as of November 1, 2001 (the
D-2C-1
"Column Mortgage Loan Purchase Agreement"), between Column as seller
and the Depositor as purchaser (such Transaction, the "Column Sale");
(iii) the sale by KeyBank National Association ("KeyBank"),
and the purchase by the Depositor, of a second segregated pool of
multifamily and commercial mortgage loans (collectively, the "KeyBank
Mortgage Loans"), pursuant to the Mortgage Loan Purchase Agreement
dated as of November 1, 2001 (the "KeyBank Mortgage Loan Purchase
Agreement"), between KeyBank as seller and the Depositor as purchaser
(such Transaction, the "KeyBank Sale");
(iv) the sale by National Consumer Cooperative Bank ("NCB"),
and the purchase by the Depositor, of a third segregated pool of
multifamily and commercial mortgage loans (collectively, the "NCB
Mortgage Loans"), pursuant to the Mortgage Loan Purchase Agreement
dated as of November 1, 2001 (the "NCB Mortgage Loan Purchase
Agreement"), between NCB as seller and the Depositor as purchaser (such
Transaction, the "NCB Sale");
(v) the sale by NCB Capital Corporation ("NCBCC"), and the
purchase by the Depositor, of a fourth segregated pool of multifamily
and commercial mortgage loans (collectively, the "NCBCC Mortgage
Loans"), pursuant to the Mortgage Loan Purchase Agreement dated as of
November 1, 2001 (the "NCBCC Mortgage Loan Purchase Agreement"),
between NCBCC as seller and the Depositor as purchaser;
(vi) the creation of a commercial mortgage trust (the
"Trust"), and the issuance of an aggregate $1,072,782,114 Certificate
Principal Balance of Commercial Mortgage Pass-Through Certificates,
Series 2001-CKN5 (the "Certificates"), consisting of 23 classes
designated Class A-X, Class A-CP, Class A-Y, Class A-1, Class A-2,
Class A-3, Class A-4, Class B, Class C, Class D, Class A-X, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class R and Class V, pursuant to the Pooling and
Servicing Agreement dated as of November 12, 2001 (the "Pooling and
Servicing Agreement"), among the Depositor as depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage ("KeyCorp")
and NCB, as master servicers, KeyCorp and NCB, as special servicers,
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
(vii) the transfer of the Column Mortgage Loans, the KeyBank
Mortgage Loans, the NCB Mortgage Loans and the NCBCC Mortgage Loans
(collectively, the "Mortgage Loans") by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates being issued to or at the direction of the Depositor (such
Transaction, the "Transfer to the Trust");
(viii) the sale by the Depositor, and the purchase by Credit
Suisse First Boston Corporation ("CSFB Corporation"), McDonald
Investments Inc. and Xxxxxx Brothers Inc. (collectively, in such
capacity, the "Underwriters") of the Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement dated as of November 1, 2001 (the "Underwriting
Agreement"), between the Depositor and CSFB Corporation, as
representative of the Underwriters; and
D-2C-2
(ix) the sale by the Depositor, and the purchase by CSFB
Corporation (in such capacity, the "Initial Purchaser") of the Class
A-X, Class A-CP, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class R and Class V Certificates
(collectively, the "Privately Offered Certificates" and, collectively
with the Publicly Offered Certificates, the "Offered Certificates"),
pursuant to the Certificate Purchase Agreement dated as of November 1,
2001 (the "Certificate Purchase Agreement"), between the Depositor and
the Initial Purchaser.
The Pooling and Servicing Agreement, the Underwriting
Agreement, the Certificate Purchase Agreement, the CSFBMC Mortgage Loan Purchase
Agreement, the Column Mortgage Loan Purchase Agreement, the KeyBank Mortgage
Loan Purchase Agreement, the NCB Mortgage Loan Purchase Agreement and the NCBCC
Mortgage Loan Purchase Agreement are collectively referred to herein as the
"Agreements". Capitalized terms not defined herein have the respective meanings
set forth in the Pooling and Servicing Agreement and, to the extent not defined
therein, in the other Agreements.
We have been asked by our clients to provide our opinion to
you as to whether:
(i) in connection with any bankruptcy proceedings instituted
by or on behalf of CSFBMC under the Federal Bankruptcy Code, as amended
(Title 11 of the United States Code)(the "Bankruptcy Code"), the CSFBMC
Sale would be treated by a court as a true sale of the CSFBMC Mortgage
Loans from CSFBMC to Column rather than as a loan secured by the CSFBC
Mortgage Loans, such that the CSFBMC Mortgage Loans would not, on such
basis, constitute property of CSFBMC's estate under Section 541(a)(1)
of the Bankruptcy Code or property of CSFBMC subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of CSFBMC in such a proceeding;
(ii) in connection with any bankruptcy proceedings instituted
by or on behalf of Column under the Bankruptcy Code, the Column Sale
would be treated by a court as a true sale of the Column Mortgage Loans
from Column to the Depositor rather than as a loan secured by the
Column Mortgage Loans, such that the Column Mortgage Loans would not,
on such basis, constitute property of Column's estate under Section
541(a)(1) of the Bankruptcy Code or property of Column subject to the
automatic stay provisions of Section 362(a) of the Bankruptcy Code that
would be applicable to the property of Column in such a proceeding; and
(iii) in connection with any bankruptcy proceedings instituted
by or on behalf of the Depositor under the Bankruptcy Code, the
Transfer to the Trust would be treated by a court as an absolute
transfer of the Mortgage Loans from the Depositor to the Trust rather
than as a loan secured by the Mortgage Loans, such that the Mortgage
Loans would not, on such basis, constitute property of the Depositor's
estate under Section 541(a)(1) of the Bankruptcy Code or property of
the Depositor subject to the automatic stay provisions of Section
362(a) of the Bankruptcy Code that would be applicable to the property
of the Depositor in such a proceeding.
For purposes of this opinion letter, we have reviewed the
following documents and all exhibits thereto (collectively, the "Relevant
Documents"):
(i) the Agreements;
D-2C-3
(ii) a certificate of CSFBMC regarding the CSFBMC Sale, a copy
of which is attached hereto;
(iii) a certificate of Column regarding the Column Sale, a
copy of which is attached hereto;
(iv) a certificate of the Depositor regarding the Transfer to
the Trust, a copy of which is attached hereto; and
(v) a certificate of CSFB Corporation regarding its sales of
the Certificates purchased by it, a copy of which is attached hereto.
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters underlying the assumptions set forth below or that are otherwise
factually relevant to the opinions expressed herein and contained in the
Relevant Documents, (ii) the legal capacity of natural persons, (iii) the
genuineness of all signatures, (iv) the authenticity of all documents submitted
to us as originals, (v) the conformity to authentic originals of all documents
submitted to us as certified, conformed or photostatic copies, (vi) the due
organization of all parties to each of the Agreements and the valid existence of
each such party in good standing under the laws of its jurisdiction of
organization, (vii) the power and authority of the parties to each of the
Agreements to enter into, perform under and consummate the transactions
contemplated by such Agreement, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order, writ or decree applicable to any such party or its assets,
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by the parties thereto, (ix) the
constitution of each Agreement as the legal, valid and binding obligation of
each party thereto, enforceable against such party in accordance with its terms,
(x) compliance with the Agreements by all parties thereto, and (xi) the
conformity, to the requirements of the CSFBMC Mortgage Loan Purchase Agreement,
the Column Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase
Agreement, the NCB Mortgage Loan Purchase Agreement, the NCBCC Mortgage Loan
Purchase Agreement and the Pooling and Servicing Agreement, of the Mortgage
Notes, the Mortgages and the other documents delivered to the Trustee by, on
behalf of or at the direction of CSFBMC, Column, KeyBank, NCB, NCBCC and/or the
Depositor.
In addition, we have assumed that the following statements are
true and the following actions (except as otherwise indicated) have occurred on
the date hereof based upon representations or other provisions in the Relevant
Documents:
D-2C-4
1. CSFB Corporation either has sold, or is actively attempting
and expects to sell (on commercially reasonable terms and within a
commercially reasonable time frame), to third parties unrelated to
CSFBMC, Column, the Depositor or any of their affiliates, substantially
all of the Certificates acquired by CSFB Corporation pursuant to the
Underwriting Agreement and the Certificate Purchase Agreement.
2. The CSFBMC Sale, the Column Sale and the Transfer to the
Trust, the sale of the Offered Certificates by the Depositor to the
Underwriters and the Initial Purchaser and the transfer of the Class
A-Y Certificates by the Depositor, directly or indirectly, to NCB as
partial consideration for the NCB Mortgage Loans, as provided in the
Agreements, are contemporaneous exchanges in which CSFBMC, Column and
the Depositor, respectively, receive new value and consideration
constituting at least reasonably equivalent value and fair
consideration.
3. Following the CSFBMC Sale, the Column Sale and the Transfer
to the Trust, none of CSFBMC, Column or the Depositor has the right to
unilaterally modify or alter the terms of such Transactions. The
consideration received by CSFBMC in connection with the CSFBMC Sale, by
Column in connection with the Column Sale and by the Depositor in
connection with its sales of the Offered Certificates to the
Underwriters and the Initial Purchaser are, in each case, fixed and not
subject to adjustment following the Closing Date.
4. No provision exists whereby the terms of the Certificates,
the Pooling and Servicing Agreement, the Column Mortgage Loan Purchase
Agreement or the CSFBMC Mortgage Loan Purchase Agreement may be
unilaterally modified by CSFBMC, Column or the Depositor following the
CSFBMC Sale, the Column Sale and the Transfer to the Trust.
5. Pursuant to the CSFBMC Mortgage Loan Purchase Agreement, it
is the intention of CSFBMC and Column that the CSFBMC Sale constitute a
sale by CSFBMC to Column of all of CSFBMC's right, title and interest
in and to the CSFBMC Mortgage Loans. Pursuant to the Column Mortgage
Loan Purchase Agreement, it is the intention of Column and the
Depositor that the Column Sale constitute a sale by Column to the
Depositor of all of Column's right, title and interest in and to the
Column Mortgage Loans. Pursuant to the Pooling and Servicing Agreement,
it is the intention of the Depositor and the Trustee that the Transfer
to the Trust constitute an absolute transfer by the Depositor to the
Trust of all of the Depositor's right, title and interest in and to the
Mortgage Loans. Upon the sale of Certificates representing at least 10%
of the total principal balance of all the Certificates to third parties
that are not affiliated with CSFBMC, Column or the Depositor: pursuant
to the CSFBMC Mortgage Loan Purchase Agreement, CSFBMC will treat the
CSFBMC Sale as a sale (as opposed to a secured loan) under generally
accepted accounting principles in the United States ("GAAP"); pursuant
to the Column Mortgage Loan Purchase Agreement, each of Column and the
Depositor will treat the Column Sale as a sale (as opposed to a secured
loan) under GAAP; and pursuant to the Pooling and Servicing Agreement,
the Underwriting Agreement and/or the Certificate Purchase Agreement,
the Depositor will treat the Transfer to the Trust and the sale of the
Offered Certificates by the Depositor to the Underwriters and the
Initial Purchaser and the transfer of the Class A-Y Certificates by the
Depositor, directly or indirectly, to NCB as a sale (as opposed to a
secured loan) under GAAP.
D-2C-5
6. After the completion of the CSFBMC Sale, the Column Sale
and the Transfer to the Trust, none of CSFBMC, Column, the Depositor or
any of their affiliates has (i) the right to repurchase or otherwise to
cause the reconveyance to itself of any Mortgage Loan or (ii) any
obligation to repurchase or otherwise remove any Mortgage Loan from the
Trust (other than (a) in the case of CSFBMC, in connection with a
material breach of certain representations, warranties and covenants
made by such party with respect to each CSFBMC Mortgage Loan in the
CSFMBC Mortgage Loan Purchase Agreement and (b) in the case of Column,
in connection with a material breach of certain representations,
warranties and covenants made by such party with respect to each Column
Mortgage Loan, in the Column Mortgage Loan Purchase Agreement).
7. There is no agreement, arrangement or understanding,
written or otherwise (including, without limitation, with respect to
the CSFBMC Sale, the Column Sale or the Transfer to the Trust), that
supplements or otherwise modifies in any material respect the
intentions and agreements of the parties to the Agreements, as
expressed therein.
8. After the completion of the CSFBMC Sale, the Column Sale
and the Transfer to the Trust, none of CSFBMC, Column or the Depositor
will take any action inconsistent with the Trust's ownership of the
Mortgage Loans.
9. Immediately before the CSFBMC Sale, CSFBMC owned the CSFBMC
Mortgage Loans free and clear of any adverse claims or other interests.
Immediately before the Column Sale, Column owned the Column Mortgage
Loans (other than the CSFBMC Mortgage Loans) free and clear of any
adverse claims or other interests. Immediately before the KeyBank Sale,
KeyBank owned the KeyBank Mortgage Loans free and clear of any adverse
claims or other interests. Immediately before the NCB Sale, NCB owned
the NCB Mortgage Loans free and clear of any adverse claims or other
interests. Immediately before the NCBCC Sale, NCBCC owned the NCBCC
Loans free and clear of any adverse claims or other interests. In
connection with the KeyBank Sale, KeyBank will have validly and
effectively conveyed to the Depositor all legal and beneficial
ownership in and to each KeyBank Mortgage Loan free and clear of any
pledge, lien, charge, security interest or other encumbrance. In
connection with the NCB Sale, NCB will have validly and effectively
conveyed to the Depositor all legal and beneficial ownership in and to
each NCB Mortgage Loan free and clear of any pledge, lien, charge,
security interest or other encumbrance. In connection with the NCBCC
Sale, NCBCC will have validly and effectively conveyed to the Depositor
all legal and beneficial ownership in and to each NCBCC Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance. The Depositor has not transferred and will not transfer
its right, title and interest in and to any Mortgage Loan except to the
Trustee as contemplated by the Pooling and Servicing Agreement (except
insofar as the sale of the Certificates by the Depositor to the
Underwriters and the Initial Purchaser and the transfer of the Class
A-Y Certificates by the Depositor, directly or indirectly, to NCB may
be construed as a transfer of beneficial interests in the Mortgage
Loans). No adverse claims or other interests with respect to any
Mortgage Loan were created by or through the Depositor, except as
contemplated by the Agreements.
10. Each of CSFBMC and Column has taken all actions required
under applicable law to effectuate the CSFBMC Sale. Each of Column and
the Depositor has taken all actions required under applicable law to
effectuate the Column Sale. Each of the Depositor and the Trustee has
D-2C-6
taken (or the Pooling and Servicing Agreement provides that, within a
reasonable time period following the Closing Date, each of them will be
required to take) all actions required under applicable law to
effectuate the Transfer to the Trust.
11. In connection with the CSFBMC Sale, the Column Sale and
the Transfer to the Trust, none of CSFBMC, Column or the Depositor had
any intent to hinder, delay or defraud its present or future creditors.
12. After giving effect to the CSFBMC Sale, the Column Sale
and the Transfer to the Trust, the value of the assets of each of
CSFBMC, Column and the Depositor, respectively, either taken at their
present fair salable value or at fair valuation, exceeded the amount of
the debts and obligations, including contingent and unliquidated debts
and obligations, of CSFBMC, Column and the Depositor, respectively.
13. After giving effect to the CSFBMC Sale, the Column Sale
and the Transfer to the Trust, none of CSFBMC, Column or the Depositor
was left with unreasonably small assets or capital with which to engage
in and conduct its business.
14. After giving effect to the CSFBMC Sale, the Column Sale
and the Transfer to the Trust, none of CSFBMC, Column or the Depositor
intends to, or believes that it will, incur debts or obligations beyond
its ability to pay such debts and obligations as they mature.
There is limited judicial authority relating to the issue of
when a transaction styled as a sale of assets or an absolute transfer of assets
constitutes a true sale or an absolute transfer, as the case may be, as opposed
to a secured loan, and we have not located any controlling precedent for the
transactions described herein. However, the existing case law indicates that an
analysis of a purported true sale or absolute transfer should examine the intent
of the parties as well as the economic consequences of the transaction to
determine whether they are consistent with characterization as a true sale or
absolute transfer, as the case may be. Some of the most important factors
relevant to this economic analysis include (i) whether the buyer or transferee
has assumed the risks inherent in the ownership of the assets purportedly sold
or transferred (i.e., whether the risk of loss has been borne by the buyer or
transferee), (ii) the presence (or absence) of a fixed consideration that is not
subject to further adjustment, given in connection with the purchase or
transfer, (iii) the level of recourse (if any) that the buyer or transferee has
against the seller or transferor, (iv) whether the buyer's or transferee's
rights in the acquired assets could be extinguished by repayment of a debt owed
by the seller or transferor or by the recovery of the consideration (if any)
given in connection with the purchase or transfer and (v) in what circumstances
(if any) the seller or transferor has the right or the obligation to repurchase
or otherwise reacquire the assets or any interest therein.
In rendering this opinion letter, we do not express any
opinion concerning any law other than the Bankruptcy Code and the law of the
State of New York to the extent that it may be applicable thereunder. We do not
express any opinion on any matter not expressly addressed below.
Based upon and subject to the foregoing, the further
qualifications set forth below, and the reasoned analysis of analogous case law
(although there is no precedent directly on point), it is our opinion that:
D-2C-7
1. In connection with any bankruptcy proceedings instituted by
or on behalf of CSFBMC under the Bankruptcy Code, the CSFBMC Sale would
be treated by a court as a true sale of the CSFBMC Mortgage Loans from
CSFBMC to Column, rather than as a loan secured by the CSFBMC Mortgage
Loans, such that the CSFBMC Mortgage Loans would not, on such basis,
constitute property of CSFBMC's estate under Section 541(a)(1) of the
Bankruptcy Code or property of CSFBMC subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of CSFBMC in such a proceeding.
2. In connection with any bankruptcy proceedings instituted by
or on behalf of Column under the Bankruptcy Code, the Column Sale would
be treated by a court as a true sale of the Column Mortgage Loans from
Column to the Depositor, rather than as a loan secured by the Column
Mortgage Loans, such that the Column Mortgage Loans would not, on such
basis, constitute property of Column's estate under Section 541(a)(1)
of the Bankruptcy Code or property of Column subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of Column in such a proceeding.
3. In connection with any bankruptcy proceedings instituted by
or on behalf of the Depositor under the Bankruptcy Code, the Transfer
to the Trust would be treated by a court as an absolute transfer of the
Mortgage Loans from the Depositor to the Trust, rather than as a loan
secured by the Mortgage Loans, such that the Mortgage Loans would not,
on such basis, constitute property of the Depositor's estate under
Section 541(a)(1) of the Bankruptcy Code or property of the Depositor
subject to the automatic stay provisions of Section 362(a) of the
Bankruptcy Code that would be applicable to the property of the
Depositor in such a proceeding.
The foregoing opinions are subject to the qualifications that
(i) the assumptions set forth herein are and continue to be true in all respects
relevant to this opinion, (ii) there are no additional facts that would affect
the validity of the assumptions set forth herein or upon which this opinion is
based, (iii) any claim contrary to or inconsistent with any opinion expressed
herein made in any judicial proceeding will be opposed and litigated to a final
resolution by one or more persons or entities with standing to do so, (iv) such
case is properly presented and argued, and (v) the law is properly applied.
The foregoing opinions are not intended to be a guaranty as to
what a particular court would actually hold, but an opinion as to the decision a
court should reach if the issue were properly presented to it and the court
followed what we believe to be the applicable legal principles. In that regard,
you should be aware that bankruptcy opinions are subject to inherent limitations
because of the pervasive equity powers of bankruptcy courts, the overriding goal
of reorganization to which other legal rights and policies may be subordinated,
the potential relevance to the exercise of judicial discretion of future-arising
facts and circumstances and the nature of the bankruptcy process.
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such changes
may affect the legal analysis or conclusions contained herein. This opinion
letter is solely for your benefit in connection with the Transactions and may
not be relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior written consent.
Very truly yours,
D-2C-8
EXHIBIT D-2D
FORM OF LETTER OF SIDLEY XXXXXX XXXXX & XXXX,
PURSUANT TO SECTION 7(IX)
November 13, 2001
Credit Suisse First Boston XxXxxxxx Investments Inc.
Mortgage Securities Corp. 000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxxx Brothers Inc.
Eleven Madison Avenue 101 Xxxxxx
New York, New York 10010 Xxxxxx Xxxx, Xxx Xxxxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc.
("Column") and Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor") with respect to certain matters in connection with the following
transactions (collectively, the "Transactions"):
(i) the filing by the Depositor of a registration statement on
form S-3 (No. 333-53012) (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), for purposes of
registering under the Securities Act of 1933, as amended (the "1933
Act"), certain offerings of mortgage pass-through certificates
evidencing interests in trust funds established by the Depositor;
(ii) the sale by Column, and the purchase by the Depositor, of
a segregated pool of multifamily and commercial mortgage loans
(collectively, the "Column Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement dated as of November 1, 2001 (the "Column
Mortgage Loan Purchase Agreement"), between Column as seller and the
Depositor as purchaser;
(iii) the sale by KeyBank National Association ("KeyBank"),
and the purchase by the Depositor, of a second segregated pool of
multifamily and commercial mortgage loans (collectively, the "KeyBank
Mortgage Loans"), pursuant to the Mortgage Loan Purchase Agreement
dated as of November 1, 2001 (the "KeyBank Mortgage Loan Purchase
Agreement"), between KeyBank as seller and the Depositor as purchaser;
(iv) the sale by National Consumer Cooperative Bank ("NCB"),
and the purchase by the Depositor, of a third segregated pool of
multifamily and commercial mortgage loans (collectively, the "NCB
Mortgage Loans"), pursuant to the Mortgage Loan Purchase Agreement
D-2D-1
dated as of November 1, 2001 (the "NCB Mortgage Loan Purchase
Agreement"), between NCB as seller and the Depositor as purchaser;
(v) the sale by NCB Capital Corporation ("NCBCC"), and the
purchase by the Depositor, of a fourth segregated pool of multifamily
and commercial mortgage loans (collectively, the "NCBCC Mortgage
Loans"), pursuant to the Mortgage Loan Purchase Agreement dated as of
November 1, 2001 (the "NCBCC Mortgage Loan Purchase Agreement"),
between NCBCC as seller and the Depositor as purchaser;
(vi) the creation of a commercial mortgage trust (the
"Trust"), and the issuance of an aggregate $1,072,782,114 Certificate
Principal Balance of Commercial Mortgage Pass-Through Certificates,
Series 2001-CKN5 (the "Certificates"), consisting of 23 classes
designated Class A-X, Class A-CP, Class A-Y, Class A-1, Class A-2,
Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class R and Class V, pursuant to the Pooling and Servicing
Agreement dated as of November 12, 2001 (the "Pooling and Servicing
Agreement"), among the Depositors as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage ("KeyCorp") and
NCB, as master servicers, KeyCorp and NCB, as special servicers, and
Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
(vii) the transfer of the Column Mortgage Loans, the KeyBank
Mortgage Loans, the NCB Mortgage Loans and the NCBCC Mortgage Loans
(collectively, the "Mortgage Loans") by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates being issued to or at the direction of the Depositor; and
(viii) the sale by the Depositor, and the purchase by Credit
Suisse First Boston Corporation ("CSFB Corporation"), McDonald
Investments Inc. and Xxxxxx Brothers Inc. (collectively, in such
capacity, the "Underwriters"), of the Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement dated as of November 1, 2001 (the "Underwriting
Agreement"), between the Depositor and CSFB Corporation, as
representative of the Underwriters.
The Pooling and Servicing Agreement, the Underwriting
Agreement, the Column Mortgage Loan Purchase Agreement, the KeyBank Mortgage
Loan Purchase Agreement, the NCB Mortgage Loan Purchase Agreement and the NCBCC
Mortgage Loan Purchase Agreement are collectively referred to herein as the
"Agreements". Capitalized terms not defined herein have the respective meanings
set forth in the Pooling and Servicing Agreement and, to the extent not defined
therein, in the other Agreements.
For the purposes of this letter, we have reviewed: the
Agreements; the Registration Statement; the Prospectus, dated October 22, 2001,
relating to publicly offered mortgage pass-through certificates evidencing
interests in trust funds established by the Depositor (the "Basic Prospectus");
and the Prospectus Supplement, dated November 1, 2001, specifically relating to
the Trust and the Publicly Offered Certificates (the "Prospectus Supplement";
and, together with the Basic Prospectus, the "Prospectus"). In addition, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for rendering this letter; we have obtained such
certificates from and made such inquiries of officers and
D-2D-2
representatives of the parties to the Agreements and public officials as we have
deemed relevant or necessary as the basis for rendering this letter; and we have
relied upon, and assumed the accuracy of, such other documents and records, such
certificates and the statements made in response to such inquiries, with respect
to the factual matters upon which the statements made in this letter are based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the
Agreements, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed or photostatic copies, (vi) the due organization
of all parties to each of the Agreements and the valid existence of each such
party in good standing under the laws of its jurisdiction of organization, (vii)
the due authorization by all necessary action, and the due execution and
delivery, of the Agreements by the parties thereto, (viii) the constitution of
each of the Agreements as the legal, valid and binding obligation of each party
thereto, enforceable against such party in accordance with its terms, (ix)
compliance with the Agreements by the parties thereto, (x) the conformity, to
the requirements of the Column Mortgage Loan Purchase Agreement, the KeyBank
Mortgage Loan Purchase Agreement, the NCB Mortgage Loan Purchase Agreement, the
NCBCC Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement,
of the Mortgage Notes, the Mortgages and the other documents delivered to the
Trustee by, on behalf of, or at the direction of, the Depositor, Column,
KeyBank, NCB and NCBCC, (xi) the conformity of the text of each document filed
with the Commission through the Commission's Electronic Data Gathering, Analysis
and Retrieval System to the printed documents reviewed by us, and (xii) the
absence of any other agreement that supplements or otherwise modifies the
intentions and agreements of the parties to the Agreements, as expressed
therein. In making the statements set forth below, we do not express any view
concerning the laws of any jurisdiction other than the federal laws of the
United States of America.
We are delivering this letter in our capacity as special
counsel to the Depositor and Column. In the course of our acting in such
capacity, we have generally reviewed and discussed with certain representatives
of the Depositor, Column, the Underwriters and the other parties to the
Agreements and their respective counsel (in addition to us) the information set
forth in the Registration Statement and the Prospectus, other than any documents
or information included therein solely by incorporation by reference (all such
documents and information so incorporated by reference shall be referred to
herein as the "Excluded Information"), and we have reviewed certain loan
summaries prepared by Column in respect of the Column Mortgage Loans and, in the
case of those Column Mortgage Loans identified in the Prospectus Supplement
under the heading "Description of the Underlying Mortgage Loans--Significant
Mortgage Loans", selected provisions of the related mortgage note, the related
mortgage and certain other related mortgage loan documents. While we have made
no independent check or verification of, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing, nothing
has come to our attention that causes us to believe that (a) the Registration
Statement (exclusive of the Excluded Information therein, as to which we express
no view or belief), as of its effective date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (b) the Prospectus
(exclusive of the Excluded Information therein, as to which we express no view
or belief), as of the date of the Prospectus Supplement or as of the date
hereof, contained or contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that we express no view or belief as to (x) any financial statements,
schedules and/or other numerical,
D-2D-3
financial or statistical data set forth or referred to therein or omitted
therefrom or (y) any information contained in or omitted from the Prospectus
regarding the nature and characteristics of (i) the KeyBank Mortgage Loans
and/or the borrowers and mortgaged properties relating to the KeyBank Mortgage
Loans, (ii) the NCB Mortgage Loans and/or the borrowers and mortgaged properties
relating to the NCB Mortgage Loans or (iii) the NCBCC Mortgage Loans and/or the
borrowers and mortgaged properties relating to the NCBCC Mortgage Loans. In that
connection, we advise you that we have relied, to the extent that we may
properly do so in the discharge of our professional responsibilities as
experienced securities law practitioners, upon the judgment and statements of
officers and representatives of the Depositor, Column and the Underwriters in
connection with the determination of materiality.
When used in this letter, the term "attention" or words of
similar import mean the conscious awareness of facts or other information of the
Sidley Xxxxxx Xxxxx & Xxxx attorneys currently practicing law with this firm who
have been involved in any material respect in representing the Depositor and/or
Column in connection with the Transactions. We call to your attention that, with
your knowledge and consent, except as described above, such Sidley Xxxxxx Xxxxx
& Xxxx attorneys have not examined or otherwise reviewed any of the Mortgage
Files, any particular documents contained in such files or any other documents
with respect to the Mortgage Loans for purposes of delivering this letter.
The statements set forth herein are being made to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such changes
may affect the views or beliefs expressed herein. This letter is being delivered
solely for the benefit of the persons to which it is addressed in connection
with the Transactions. It may not be quoted, filed with any governmental
authority or other regulatory agency or otherwise circulated or utilized for any
other purpose without our prior written consent.
Very truly yours,
D-2D-4
