================================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
(Seller)
-------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 11, 1999
-------------------------------------------
================================================================================
TABLE OF CONTENTS
Page
Section 1. Transactions on or Prior to the Closing Date.................
Section 2. Closing Date Actions.........................................
Section 3. Conveyance of Mortgage Loans.................................
Section 4. Depositor's Conditions to Closing............................
Section 5. Seller's Conditions to Closing...............................
Section 6. Representations and Warranties of Seller.....................
Section 7. Obligations of Seller........................................
Section 8. Representations and Warranties of Depositor..................
Section 9. Survival of Certain Representations, Warranties and
Covenants....................................................
Section 10. Accountant's Letters.........................................
Section 11. Expenses; Recording Costs....................................
Section 12. Notices......................................................
Section 13. Examination of Mortgage Files................................
Section 14. Successors...................................................
Section 15. Governing Law................................................
Section 16. Severability.................................................
Section 17. Further Assurances...........................................
Section 18. Counterparts.................................................
Section 19. Treatment as Security Agreement..............................
Section 20. Recordation of Agreement.....................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations
and Warranties
Exhibit A Representations and Warranties of Seller Regarding
the Mortgage Loans
Exhibit B Form of Lost Mortgage Note Affidavit
Exhibit C Form of Assignment of Mortgage(s) and Assignment of
Assignment of Lessor's Interests in Leases, Rents
and Profits
Exhibit D Form of Seller's In-House Counsel Opinion
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of October 11, 1999, is made by and between CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC, a Delaware limited liability company ("Seller") and CREDIT SUISSE
FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor").
RECITALS
I Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II. Depositor intends to deposit the Mortgage Loans
and other assets into the Trust Fund created pursuant to the Pooling and
Servicing Agreement and to cause the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to The Chase
Manhattan Bank as custodian (in such capacity, the "Custodian") or as trustee
(in such capacity, the "Trustee"), against receipt by Seller of a trust receipt,
pursuant to an arrangement between Seller and the Custodian.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Offered Certificates by Depositor to the
Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing shall take place at the offices of Cadwalader,
Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
location as agreed upon between the parties hereto. On the Closing Date, the
following actions shall take place in sequential order on the terms set forth
herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price (as defined herein) shall be paid by Depositor to Seller or at its
direction by wire transfer in immediately available funds to an account
designated by Seller on or prior to the Closing Date. The "Mortgage Loan
Purchase Price" paid by Depositor shall be equal to 98.5142% of the
aggregate outstanding principal balance of the Mortgage Loans, after
giving effect to any scheduled monthly payments due on or prior to the
Cut-off Date, plus accrued interest at the weighted average Mortgage Rate
from the Cut-off Date to but not including the Closing Date.
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Offered Certificates pursuant to the
Underwriting Agreement, and Depositor shall sell to the Initial Purchaser,
and the Initial Purchaser shall purchase from Depositor, the Private
Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Offered Certificates for sale
to the public pursuant to the Prospectus and the Prospectus Supplement and
the Initial Purchaser will privately place certain classes of the
Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, without recourse except as provided
herein, to Depositor, free and clear of any liens, claims or other encumbrances,
all of Seller's right, title and interest in, to and under each of the Mortgage
Loans identified on the Mortgage Loan Schedule and all property of Seller
described in Section 19 of this Agreement. On or prior to the Closing Date, each
Mortgage File shall be delivered by Seller to the Custodian. Each Mortgage File
shall contain the following documents:
(a) the original Mortgage Note, or with respect to those Mortgage
Loans listed in Schedule IV hereto, a "lost note" affidavit substantially
in the form of Exhibit B hereto and a true and complete copy of the
Mortgage Note, bearing, or accompanied by, all prior and intervening
endorsements or assignments thereof showing a complete chain of
endorsement or assignment from the Originator of the related Mortgage Loan
to Seller, and further endorsed (at the direction of Depositor given
pursuant to this Agreement) by Seller, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of The Chase Manhattan Bank, as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, without
recourse, representation or warranty, express or implied;"
(b) a duplicate original Mortgage (or a certified copy thereof from
the applicable recording office) and originals (or certified copies from
the applicable recording office) of any intervening assignments thereof
showing a complete chain of assignment from the Originator of the related
Mortgage Loan to Seller, in each case with evidence of recording indicated
thereon;
(c) an original (or a true and complete copy if the original has
been sent by the Seller for recordation) Assignment of Mortgage
substantially in the form of Exhibit C hereto, in recordable form, from
Seller to The Chase Manhattan Bank, as trustee for the registered Holders
of Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1999-C1;
(d) an original Assignment of Leases (if such item is a document
separate from the Mortgage), in recordable form;
(e) an original (or a true and complete copy if the original has
been sent by the Seller for recordation) of any related assignment of
Assignment of Leases (if such item is a document separate from the
Mortgage) substantially in the form of Exhibit C hereto and the originals
or copies of any intervening assignments thereof showing a complete chain
of assignment from the Originator of the related Mortgage Loan to Seller,
in each case with evidence of recording thereon;
(f) an original or a true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
executed by Seller in favor of The Chase Manhattan Bank, as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 1999-C1;
(h) originals or true and complete copies of all assumption,
modification, written assurance and substitution agreements, with evidence
of recording thereon, where appropriate, in those instances where the
terms or provisions of the related Mortgage or Mortgage Note or any
related security document have been modified or the related Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the related Mortgage Loan,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, or if the policy has not yet
been issued, a written binding commitment or interim binder, dated as of
the date the related Mortgage Loan was funded;
(j) the original or a true and complete copy of any guaranty of the
obligations of the Mortgagor under the related Mortgage Loan and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller, in each case with evidence of recording thereon;
(k) all UCC Financing Statements and continuation statements or
copies thereof filed with respect to the Mortgage Loans;
(l) the original or a true and complete copy of the power of
attorney (with evidence of recording thereon) granted by the Mortgagor if
the Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(m) any intercreditor agreement relating to any debt of a Borrower
secured by the related Mortgaged Property other than the related Mortgage
Loan;
(n) if any related Lock-Box Agreement or Cash Collateral Agreement
is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a
copy of the UCC-1 financing statements, if any, submitted for filing with
respect to the Seller's security interest in the Cash Collateral Accounts
and Lock-Box Accounts and all funds contained therein (and UCC-2 or UCC-3
financing statements assigning such security interest to the Trustee on
behalf of the Certificateholders);
(o) any Loan Agreement;
(p) any Credit Leases and all other documents or amendments related
thereto;
(q) any environmental insurance policies;
(r) the original Residual Value Policy;
(s) letters of credit, if any, relating to the Additional Collateral
Loans;
(t) the related intercreditor agreement, if any;
(u) the applicable participation documents, including (i) the
Participation and Intercreditor Agreement for Loan No. 9 on the Mortgage
Loan Schedule (the "L'Enfant Loan"), dated October 11, 1999, by and
between the Depositor and the Seller, and (ii) the Co-Lender Agreement
relating to the L'Enfant Loan, dated November 11, 1998, by and between The
Chase Manhattan Bank, as trustee for Credit Suisse First Boston Mortgage
Securities Corp., Commercial Pass Through Certificates, Series 1998 C-2 as
successor to Credit Suisse First Boston Mortgage Securities Corp. and the
Seller; and
(v) any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
With respect to the L'Enfant Loan, document delivery requirements
(other than those specified in clause (u) above) will be met by the delivery of
copies of any mortgage loan documents required to be delivered under this
agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan (other than the L'Enfant Loan), Seller cannot deliver an
original recorded counterpart of any of the documents required to be delivered
pursuant to clauses (b), (d), (f), (h), (k) (with respect to UCC financing
statements filed other than in accordance with the transfer contemplated by this
Agreement) and (l) above with evidence of recording or filing thereon
concurrently with the execution and delivery hereof, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation, Seller shall deliver, or cause to be delivered, to
the Custodian a duplicate original or true copy of such document certified by
the applicable public recording or filing office to be a true and complete
duplicate original or copy of the original thereof submitted for recording or
filing.
Notwithstanding the foregoing, in the event that Seller cannot
deliver to the Custodian any UCC-2 or UCC-3 assignment with the filing
information of the UCC-1 financing statement being assigned, solely because of a
delay caused by the public filing office where such UCC-1 financing statement
has been delivered for filing, Seller shall deliver or cause to be delivered to
the Custodian a photocopy of such UCC-2 or UCC-3 assignment with the filing
information left blank. Seller, promptly upon receipt of the applicable filing
information of the UCC-1 financing statement being so assigned, shall deliver to
the Custodian the original UCC-2 or UCC-3 assignment with all appropriate filing
information set forth thereon.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of documents prepared by Seller
or any of its affiliates solely for internal uses, shall immediately vest in
Depositor and shall be forwarded by Seller to the Custodian by overnight mail
for next-day delivery and retained and maintained, in trust, by the Custodian at
the will of Depositor, in such custodial capacity only. All Monthly Payments,
Principal Prepayments and other amounts received by Seller and not otherwise
belonging to Seller pursuant to this Agreement shall be sent by Seller within
three (3) Business Days of Seller's receipt thereof to the Servicer via wire
transfer for deposit by the Servicer into the Collection Account.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor under this Agreement shall be subject to the satisfaction, on the
Closing Date, of the following conditions:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
all of the representations and warranties of Seller under this Agreement
shall be true and correct in all material respects as of the Closing Date;
and no event shall have occurred with respect to Seller or any of the
Mortgage Loans and related Mortgage Files which, with notice or the
passage of time, would constitute a material default under this Agreement;
and Depositor shall have received certificates to the foregoing effect
signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Custodian or
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other
than Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, which shall have been delivered to and
held by the Custodian on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) an officer's certificate of Seller, dated as of the
Closing Date, with certified copies of the charter, by-laws, and a
certificate of good standing dated as of a recent date of Seller;
(iv) an opinion of Seller's in-house counsel, dated the
Closing Date, in substantially the same form as Exhibit D attached hereto.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made herein, and on certificates or other documents furnished by officers of
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the Limited Liability Company Act of the
State of Delaware and the laws of the State of New York and the United States
and shall not be required to express any opinion with respect to the
registration or qualification of the Certificates under any applicable state or
federal securities laws.
Such counsel shall state that, although such counsel has not
specifically considered the possible applicability to Seller of any other laws,
regulations, judgments, orders or decrees, no facts have been disclosed to such
counsel that cause such counsel to conclude that any other consent, approval or
action is required;
(v) an opinion of Cadwalader, Xxxxxxxxxx & Xxxx, special
counsel to Seller, dated the Closing Date, substantially to the effect of
the following (with such changes and modifications as Depositor may
approve):
Assuming the due authorization, execution and delivery of this
Agreement by Seller, this Agreement constitutes a valid and
binding agreement of Seller, enforceable against Seller in
accordance with its terms, except to the extent that
enforcement hereof may be limited by (x) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect and (y) general principles of
equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of,
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the laws of the State of New York and the
United States to the extent specifically referred to.
(vi) such other certificates of Seller's officers or others
and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as Depositor or its counsel may reasonably
request.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
and all of the representations and warranties of Seller under this
Agreement shall be true and correct in all material respects as of the
Closing Date; and no event shall have occurred with respect to Depositor
which, with notice or the passage of time, would constitute a material
default under this Agreement, and Seller shall have received certificates
to that effect signed by authorized officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to
Seller and Depositor, duly executed by all signatories other than Seller,
as required pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(B) such other certificates of its officers or others and such
other documents required to evidence fulfillment of the conditions
set forth in this Agreement as Seller or its counsel may reasonably
request.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller has conducted and
is conducting its business so as to comply in all material respects with
all applicable statutes and regulations of regulatory bodies or agencies
having jurisdiction over it, except where the failure so to comply would
not have a materially adverse effect on the performance by Seller of this
Agreement, and there is no charge, investigation, action, suit or
proceeding before or by any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Seller, threatened, which
is reasonably likely to materially and adversely affect the performance by
Seller of this Agreement or the consummation of transactions contemplated
by this Agreement.
(ii) Neither the execution and delivery by Seller of this
Agreement, nor the compliance by Seller with the provisions hereof, nor
the consummation by Seller of transactions contemplated by this Agreement
will (I) conflict with or result in a breach of, or constitute a default
or result in the acceleration of any obligations under, the certificate of
formation or operating agreement of Seller or, after giving effect to the
consents or the taking of the actions contemplated by clause (II) of this
subparagraph (ii), any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on Seller or its properties
or any of the provisions of any material indenture or mortgage or any
other material contract or instrument to which Seller is a party or by
which it or any of its properties is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument (other than pursuant to this Agreement) or (II) require the
consent of or notice to, or any filing with, any person, entity or
governmental body, which has not been obtained or made by Seller, except
where, in any of the instances contemplated by clause (I) above or this
clause (II), the failure to do so will not have a material adverse effect
on any transactions relating to the sale of the Mortgage Loans by Seller.
(iii) The execution and delivery by Seller of this Agreement,
and the consummation of transactions contemplated by this Agreement on the
terms set forth herein, have been duly authorized by all necessary limited
liability company action on the part of Seller and are within the limited
liability company power of Seller, and this Agreement has been duly
executed and delivered by Seller and constitutes a legal, valid and
binding instrument, enforceable against Seller in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws of general applicability relating to or
affecting the enforcement of creditors' rights generally, and to general
principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in
equity or at law).
(iv) No consent, approval, authorization or order of,
registration or filing with, or notice to any federal, state or local
governmental authority or court that has not been obtained, made or given
is required in connection with the execution, delivery and performance of
this Agreement by Seller.
(v) No litigation is pending or, threatened against the Seller
which would materially and adversely affect the validity of the Mortgage
Loans, or the ability of the Seller to carry out any transactions relating
to the sale of the Mortgage Loans by Seller.
(vi) Except as set forth on Schedule V hereto, the
representations and warranties contained in Exhibit A hereto are true and
correct in all material respects as of the Closing Date.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, subject to Section 14 of this Agreement,
notwithstanding any restrictive or qualified endorsement on the mortgage notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement. The representations and warranties contained in or required
to be made by Seller pursuant to Section 6 of this Agreement shall not be
impaired by any review or examination of the Mortgage Files or other documents
evidencing or relating to the Mortgage Loans or any failure on the part of
Depositor to review or examine such documents and shall inure to the benefit of
any initial transferee of the Mortgage Loans from Depositor including, without
limitation, the Trustee for the benefit of the Holders of the Certificates.
Upon discovery of any Defect (as defined herein) in a Mortgage File
related to a Mortgage Loan, Depositor or its assignee shall promptly notify
Seller in writing of such Defect and request that Seller cure such Defect within
90 days from the date Seller was notified of such Defect; provided, however,
that if such Defect would cause such Mortgage Loan to be other than a "qualified
mortgage" under Section 860G(a)(3) of the Code, then such cure shall be within
90 days of discovery of such Defect. A document in the Mortgage File shall be
deemed to have a "Defect" if (a) any document required to be included in the
Mortgage File is not in the possession of the Custodian, on behalf of the
Trustee, within the time required to be delivered pursuant to this Agreement or
(b) such document has not been properly executed or is otherwise defective on
its face; provided, however, that a document shall not be deemed to have a
Defect if such Defect is caused by the failure by Depositor to execute such
document after having been directed by Seller to execute such document. If
Seller does not correct or cure such Defect within such period, Seller shall
purchase such Mortgage Loan from the Trust Fund at the Purchase Price pursuant
to Section 2.03 of the Pooling and Servicing Agreement.
Within 90 days of the receipt of written notice by Seller of a
breach (a "Breach") of any of the representations, warranties or covenants of
Seller with respect to the Mortgage Loans set forth in Exhibit A to this
Agreement (or, if any such Breach would cause the Mortgage Loan to be other than
a "qualified mortgage" under Section 860G(a)(3) of the Code, within 90 days of
discovery of the Breach) which, in either case, materially and adversely affects
either (i) the interests of Depositor or the Certificateholders in the related
Mortgage Loan or (ii) the value of the related Mortgage Loan, Seller shall cure
such Breach and, if Seller does not correct or cure such Breach within such
period, or if such Breach cannot be so cured, then Seller shall purchase the
affected Mortgage Loan at the Purchase Price pursuant to Section 2.03 of the
Pooling and Servicing Agreement. If Seller is required to repurchase any
Mortgage Loan that is part of a Mortgage Group (as defined herein), Seller shall
also be required to repurchase the remaining Mortgage Loans in such Mortgage
Group. For purposes of this paragraph, a "Mortgage Group" is any group of
Mortgage Loans identified as a Mortgage Group on Schedule III to this Agreement.
The Purchase Price for any repurchased Mortgage Loan shall be
payable to Depositor or, subsequent to the assignment of the Mortgage Loans to
the Trustee, the Trustee as its assignee, by wire transfer of immediately
available funds to the account designated by Depositor or its assignee, and
Depositor or its assignee, upon receipt of such funds, shall promptly release
the related Mortgage File or cause it to be released, to Seller and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in Seller title to any Mortgage
Loan released pursuant hereto. The Depositor or the Servicer, as applicable,
shall deliver to Seller an officer's certificate setting forth the calculation
of the Purchase Price.
With respect to each Servicer Remittance Date, if any, on which the
Servicer makes a Yield Protection Payment Advance pursuant to Section 4.03(g) of
the Pooling and Servicing Agreement, the Seller shall reimburse the Servicer for
such Yield Protection Payment Advance, in immediately available funds wired to
the account specified by the Servicer in a written notice to the Seller,
specifying the amount of such Yield Protection Payment Advance and the Loan with
respect to which it was made.
Section 8. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its
business as it is conducted, and is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the ownership
or lease of its property or the conduct of its business requires such
qualification (except where the failure to qualify would not have a
materially adverse effect on the consummation of any transactions
contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the
corporate power of Depositor and have been duly authorized by Depositor
and neither the execution and delivery by Depositor of this Agreement nor
the compliance by Depositor with the provisions hereof, nor the
consummation by Depositor of the transactions contemplated by this
Agreement, will (i) conflict with or result in a breach of, or constitute
a default under, the certificate of incorporation or by-laws of Depositor
or, after giving effect to the consents or taking of the actions
contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on Depositor or its properties, or any of the provisions of any
material indenture or mortgage or any other material contract or other
instrument to which Depositor is a party or by which it is bound or result
in the creation or imposition of any lien, charge or encumbrance upon any
of its properties pursuant to the terms of any such indenture, mortgage,
contract or other instrument or (ii) require the consent of or notice to,
or any filing with any person, entity or governmental body, which has not
been obtained or made by Depositor, except where, in any of the instances
contemplated by clause (i) above or this clause (ii), the failure to do so
will not have a material and adverse effect on the consummation of any
transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally and to general principles of equity and the discretion of the
court (regardless of whether enforcement of such remedies is considered in
a proceeding in equity or at law) and, as to rights of indemnification
hereunder, subject to limitations of public policy under applicable
securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Depositor, threatened
against Depositor the outcome of which could be reasonably expected to
materially and adversely affect the consummation of any transactions
contemplated by this Agreement.
Section 9. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 11 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 10. Accountant's Letters. On or before the Closing Date,
PriceWaterhouseCoopers LLP will have reviewed the characteristics of the
Mortgage Loans described in (a) the Mortgage Loan Schedule attached hereto and
set forth as an exhibit to the Pooling and Servicing Agreement and (b) the
computer disk prepared by Seller and provided to Depositor and will compare
those characteristics to, and ensure their agreement with (i) the description of
the Mortgage Loans contained in the Prospectus Supplement and the Offering
Circular, respectively; (ii) original documentation and files of Seller
maintained with respect to each Mortgage Loan; and (iii) if applicable,
information with respect to such Mortgage Loans contained in the report on Form
8-K to be filed by Depositor with the Commission in connection with the offering
of the Certificates. Seller will cooperate with Depositor and
PriceWaterhouseCoopers LLP in making available all information and taking all
steps reasonably necessary to permit such accountants to complete the review set
forth in this Section 10 and to deliver the letters required of them under the
Underwriting Agreement and the Certificate Purchase Agreement.
Section 11. Expenses; Recording Costs. Seller agrees to pay to
Depositor or its designee all recording and filing fees incurred in connection
with the recording or filing of the documents listed in Section 3 of this
Agreement.
Section 12. Notices. All communications hereunder will be in
writing, and, (a) if sent to Depositor, will be mailed, delivered or telecopied
and confirmed to it at Credit Suisse First Boston Mortgage Securities Corp.,
Eleven Madison Avenue, 5th Floor, New York, New York 10010, Attention: Xxxxx X.
Xxxx, Telecopy No.: (000) 000-0000; and (b) if sent to Seller, will be mailed,
delivered or telecopied to it at Credit Suisse First Boston Mortgage Capital
LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President,
Telecopy No.: (000) 000-0000.
Section 13. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 14. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and legal representatives, and nothing expressed in this Agreement is intended
or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; it being understood that (a) the indemnities
of Seller contained in that certain Indemnification Agreement dated November 5,
1999 among Seller, Depositor and the Underwriters, subject to all limitations
therein contained, shall also be for the benefit of the officers and directors
of Depositor, the Underwriters and the Initial Purchaser and any person or
persons who control Depositor, the Underwriters and the Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the 1934 Act,
and (b) the rights of Depositor pursuant to this Agreement, subject to all
limitations herein contained, including those set forth in Section 9 of this
Agreement, may be assigned to the Trustee as may be required to effect the
purposes of the Pooling and Servicing Agreement and, upon such assignment, the
Trustee shall succeed to such rights of Depositor hereunder. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
Section 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 16. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 17. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other parties
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 18. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 19. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in
and to:
(i) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to any of the
property described in the Mortgage Loans, including the related Mortgage
Notes, Mortgages and title, hazard and primary mortgage insurance policies
identified on the Mortgage Loan Schedule, including all replacement
Mortgage Loans, and all distributions with respect thereto payable on and
after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property arising from or by virtue of the disposition of, or
collections with respect to, or insurance proceeds payable with respect
to, or claims against other persons with respect to, all or any part of
the collateral described in (i) above (including any accrued discount
realized on liquidation of any investment purchased at a discount); and
(iii) all cash and non-cash proceeds of the collateral
described in (i) and (ii) above;
(c) the possession by Depositor or its assignee of the Mortgage
Notes, the Mortgages and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or
possession by a purchaser or a person designated by him or her, for
purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law. Seller, Depositor or their assignee at the direction of
Seller shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Mortgage Loans and the proceeds
thereof, such security interest would be a perfected security interest of
first priority under applicable law and will be maintained as such
throughout the term of this Agreement. In connection herewith, Depositor
and its assignee shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the
relevant jurisdiction.
Section 20. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
as Seller
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of October 11, 1999, between Credit Suisse First Boston Mortgage Capital LLC ("
the Seller") and Credit Suisse First Boston Mortgage Securities Corp. (" the
Depositor"). Capitalized terms used herein without definition have the meanings
given them in or by reference in the Agreement or, if not defined in the
Agreement, in the Pooling and Servicing Agreement, the Underwriting Agreement or
the Certificate Purchase Agreement, as the case may be.
"Borrower" means the borrower under the Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated November 10,1999, between Depositor and the Initial Purchaser.
"Certificates" means each class of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1999-C1.
"Closing Date" means November 10, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means, October 11, 1999.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Initial Purchaser" means Credit Suisse First Boston Corporation.
"Investment Officer" means any employee of Seller designated by
Seller as an "investment officer" or whose title includes the words "investment
officer."
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the Originator and the Borrower, pursuant to which
such Mortgage Loan was made.
"Mortgage Loan Pool" means the pool of Mortgage Loans, which are the
primary assets of the Trust Fund.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Mortgage Loans" means the mortgage loans to be sold to Depositor
pursuant to the Agreement, specifically identified in the Mortgage Loan Schedule
to the Agreement.
"Offered Certificates" means the Class A-1, Class A-2, Class A-X,
Class B, Class C, Class D, Class E and Class F Certificates.
"Offering Circular" means the confidential offering circular dated
November 5, 1999, describing certain classes of the Certificates.
"Originator" means any institution which originated a Mortgage Loan
for a related Borrower.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of October
11, 1999, among the Servicer, the Special Servicer, Depositor and the Trustee,
including the Mortgage Loan Schedule annexed thereto.
"Prospectus" means the Prospectus, dated October 12, 1999.
"Prospectus Supplement" means the Prospectus Supplement, dated
November 4, 1999, relating to the Offered Certificates.
"Underwriters" means Credit Suisse First Boston Corporation and
Xxxxxx Xxxxxxx Mortgage Capital Inc.
"Underwriting Agreement" means the Underwriting Agreement, dated
November 5, 1999, between Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
Loan No. 2 (Xxxxx -Third and Broad), Loan Xx. 0 (Xxxxx - 0000 Xxxxxxx Xxxxxxxx)
and Loan No. 4 (Xxxxx - Airborne Building)
Loan No. 6 (ACCOR - Mountain) and Loan No. 7 (ACCOR - California - North)
Loan No. 137 (Xxxxx Xxxx Apartments) and Loan No. 138 (Poolside Apartments)
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
1) Loan No. 88; Surf Club at Montauk
2) Loan No. 22; Xxxxxx North
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties contained in
Exhibit A corresponding to the roman numerals listed below:
(xvi):
Xxxx Xx. 0, X'Xxxxxx Xxxxx - This Mortgage Loan is a 50%
participation (the "L'Enfant Participation") in a mortgage note
("L'Enfant Note B") which represents a portion of a mortgage loan
(the "L'Enfant Whole Loan") which was originated by the Seller on
September 18, 1998. The L'Enfant Whole Loan consists of Note A
("L'Enfant Note A") and L'Enfant Note B. Neither the L'Enfant Note A
nor the participation in the remaining 50% of L'Enfant Note B is
included in the Trust Fund. Such remaining 50% participation in the
L'Enfant Note B will initially be retained by the Seller or an
affiliate of the Seller. L'Enfant Note A is held by the trustee of
the Depositor's Commercial Mortgage Pass-Through Certificates,
Series 1998-C2 (the "1998-C2 Securitization"). The L'Enfant Note B
is subject to an intercreditor agreement (the "L'Enfant
Intercreditor Agreement") with the trustee of the 1998-C2
Securitization. All amounts received in respect of the L'Enfant
Participation will be allocated between L'Enfant Note A and L'Enfant
Note B pro rata in accordance with the amounts due thereunder. The
L'Enfant Intercreditor Agreement generally requires that all amounts
due under the L'Enfant Note B be paid to the Trustee, as holder of
the L'Enfant Note B. The participation agreement pursuant to which
the L'Enfant Participation was created provides that the Trustee
will allocate amounts received on account of the L'Enfant Note B
among the Trust and the holder of the remaining 50% participation in
the L'Enfant Note B. L'Enfant Note A and L'Enfant Note B are
cross-collateralized and cross-defaulted.
(xxv):
Loan No. 30, Investor's Business Daily Building -- The Phase I and
Phase II environmental assessments revealed the presence of
groundwater contamination arising from underground storage tanks
that once existed on the property but were subsequently removed.
Funds sufficient to cure such findings have not been escrowed by the
Borrower. The Borrower has received an indemnity (the
"Indemnification") from Citicorp North America, Inc. ("Citicorp"),
the previous owner of the Investor's Business Daily Property. The
Indemnification indemnifies and holds harmless the Borrower from any
costs, liabilities, claims, lawsuits and expenses arising out of the
conditions disclosed in the environmental reports. The
Indemnification also requires that Citicorp cooperate with any
governmental agencies having jurisdiction over removal and
remediation of hazardous materials and diligently seek sign-off
clearance from such governmental agencies. The Indemnification runs
to the benefit of the Seller and its successors in connection with
any securitization of the Mortgage Loan.
(xxix)(K):
Loan Xx. 0, Xxxxxxxxxxx Xxxx -- Insurance proceeds must be used to
rebuild in all cases, with any surplus being deposited into the
lockbox.
(xxix)(L):
Xxxx Xx. 0, X'Xxxxxx Xxxxx -- The Seller has not been given the
right to enter into a new lease upon termination of the ground
lease; however, the ground lease may only be terminated, after
notice to Seller, for non-payment of ground rent, which equals
$500.00 per year. Seller has the right to cure any Tenant default
under the ground lease.
(xxxiii):
Loan No. 1, Exchange Apartments -- The related Borrower and an
affiliate thereof, are the borrowers under a mezzanine loan (the
"Exchange Apartments Mezzanine Loan") with an aggregate principal
balance of $6,000,000, made by the Union Planters Bank, N.A. The
Exchange Apartments Mezzanine Loan is secured by a pledge of 99% of
the membership interests of the principals of the Borrower in the
Borrower. The Exchange Apartments Mezzanine Loan matures on
September 1, 2002 and bears interest at a per annum rate equal to
the prime rate plus 1%.
Loan No. 2, Xxxxx- Third and Broad; Loan Xx. 0, Xxxxx- 0000 Xxxxxx
Xxxxxxxx; Loan Xx. 0, Xxxxx- Xxxxxxxx Xxxxxxxx -- Xxxxx Xxxx Xxxxxx
Holdings Twelve, L.L.C., the regular member of the related
Borrowers, and certain affiliates of Xxxxxx Xxxxx (the principal of
the related Borrowers), are the borrowers under a mezzanine loan
(the "Xxxxx Mezzanine Loan") with an aggregate principal balance of
$23,100,000, made by Starwood Financial Trust, a Maryland real
estate investment trust, on April 27, 1999. The Xxxxx Mezzanine Loan
is secured by, among other things, a pledge of the regular
membership interests in each of the related Borrowers and by the
equity of certain other special purpose real estate borrowers. The
Xxxxx Mezzanine Loan matures on April 27, 2004 and bears interest at
a per annum rate of 15%.
Xxxx Xx. 0, X'Xxxxxx Xxxxx -- Potomac Creek Associates XX XX, the
limited partner of the related Borrower, is the borrower under a
mezzanine loan (the "L'Enfant Mezzanine Loan") with an aggregate
principal balance of $2.5 million, made by the Seller on September
18, 1998. The L'Enfant Mezzanine Loan is secured by, among other
things, a pledge of the limited partnership interests in the related
Borrower and the stock of the general partner of the Borrower. The
L'Enfant Mezzanine Loan matures on September 12, 2005 and bears
interest at a per annum rate equal to the greater of (i) LIBOR plus
5.235% and (ii) 10.325%. The Seller also owns a preferred equity
interest (as such holder, the "L'Enfant Special Limited Partner") in
the related Borrower having an initial equity investment in the
amount of $45,400,000 (the "L'Enfant Preferred Equity Interest").
The L'Enfant Special Limited Partner is entitled to receive
preferred monthly distributions at a yield equal to the greater of
(i) LIBOR plus 5.235% and (ii) 10.325%. The L'Enfant Preferred
Equity Interest is scheduled to be redeemed in full on September 12,
2005.
Loan No. 122, Xxxxxx North Cooperative, Inc. -- The related Borrower
has encumbered the Mortgaged Property with a $258,100.00 second
mortgage. The note matures on January 1, 2012 and amortizes over 15
years. The note bears interest at a rate of 8.69% through and
including December 31, 1999. Beginning January 1, 2000 and every
three years thereafter the interest rate is adjusted based on 3-year
U.S. Treasury notes plus 2.75%.
Loan No. 61, Grand Cove I Apartments -- The related Borrower has
encumbered the Mortgaged Property with a credit line second mortgage
which secures an amount of up to $600,000. The note matures on the
earlier of (a) March 1, 2013 or (b) the date of closing of any
refinancing or prepayment or default under the Mortgage Loan. The
note bears interest at LIBOR plus 2.75%.
(xxxiv):
Loan Xx. 00, Xxxx Xxxxxx Xxxxxxxxxx; Xxxx Xx. 00, Oasis Apartments;
Loan Xx. 00, Xxxxxxx Xxxxxx Xxxxxx Xxxx; Loan Xx. 000, 0000 Xxxxxx
Xxxx. Apartments; Loan No. 126, Sequoia Apartments; Loan No. 127,
Broadmill Apts.; Loan No. 129, Chick Hampton Office Building; Loan
Xx. 000, 000 Xxxxx 0xx Av.; Loan Xx. 000, 000 Xxxxxxxx Xxxxxx; Loan
No. 135, Azadgan Center; Loan Xx. 000, Xxxxxxxxx Xxxxxxxxxx; Xxxx
Xx. 000, 0000 "D" Street; Loan No. 142, Tempe Manor Apartments; Loan
No. 145, Desert Winds Apartments; Loan No. 148, 0000 0xx Xxxxxx;
Loan No. 149, Crown Apartments; Loan No. 151, Gladstone & Xxxxxx
Apartments; Loan No. 152, Country Manor; Loan No. 153, Homestead Inn
Apartments; -- The Borrowers under these Mortgage Loans are
individuals or a combination of individuals and living trusts.
Loan Xx. 00, Xxxx xxx Xxxxxxx Xxxxxx Xxxx; Loan Xx. 00,
Xxxxxxx-Xxxxxxx Xxxxxxxxxx; Xxxx Xx. 000, Xxxxxxx Xxxxxxx
Apartments; Xxxx Xx. 000, Xxxxxx'x Xxxxxxxxxx; Xxxx Xx 000, Xxxxxx
Xxxxxxx Apartments; Loan No. 140, 1011-1019 Ocean Front Walk; Loan
No. 144, Xxxxx Xxxx Apartments; Loan No. 249, Poolside Apartments;
-- This representation is not true with respect to these Mortgage
Loans.
Loan No. 20, Kings Village Corp; Loan No. 56, Sea Crest at
Amagansett Corp.; Loan No. 61, Grand Cove I Apartments; Loan No. 81,
The Westhampton Bath & Tennis Club; Loan Xx. 00, Xxxxx Xxxxx Xxxxxx,
Ltd.; Loan No. 88, Surf Club at Montauk Corp.; Loan No. 99, Port
Royal Motel Cooperative; Loan Xx. 000, 00 Xxxx 00xx Xx. Xxxxxx Xxxx;
Loan No. 120, 11825 Owners Corp; Loan No. 122, Xxxxxx North
Cooperative, Inc.; -- This representation is not true with respect
to these Mortgage Loans, however, these Mortgage Loans were made to
cooperative corporations the activities of which consist of the
ownership and operation of the related Mortgaged Properties and
related activities.
(xxxv):
Loan Xx. 00, Xxxx Xxxxxx Xxxxxxxxxx; Xxxx Xx. 00, Oasis Apartments;
Loan Xx. 00, Xxxxxxx Xxxxxx Xxxxxx Xxxx; Loan Xx. 000, 0000 Xxxxxx
Xxxx. Apartments; Loan No. 126, Sequoia Apartments; Loan No. 127,
Broadmill Apts.; Loan No. 129, Chick Hampton Office Building; Loan
Xx. 000, 000 Xxxxx 0xx Av.; Loan Xx. 000, 000 Xxxxxxxx Xxxxxx; Loan
No. 135, Azadgan Center; Loan Xx. 000, Xxxxxxxxx Xxxxxxxxxx; Xxxx
Xx. 000, 0000 "D" Street; Loan No. 142, Tempe Manor Apts.; Loan No.
145, Desert Winds Apartments; Loan No. 148, 0000 0xx Xxxxxx; Loan
No. 149, Crown Apartments; Loan No. 151, Gladstone & Xxxxxx
Apartments; Loan No. 152, Country Manor; Loan No. 153, Homestead Inn
Apartments; -- The related Borrowers under these Mortgage Loans are
individuals or a combination of individuals and living trusts,
therefore, there are no restrictions to the related Borrower's
carrying additional unsecured indebtedness.
Loan No. 93, Scandia-Xxxxxxx Apartments; Loan Xx. 000, Xxxxxx'x
Xxxxxxxxxx; Xxxx Xx. 000, Xxxxxx Xxxxxxx Apartments; Loan. No. 140,
1011-1019 Ocean Front Walk; Loan No. 147, Xxxxx Apartments; -- There
are no restrictions to the related Borrower's carrying additional
unsecured indebtedness.
Loan No. 10, Holiday Inn - Broadway -- The related Borrower is the
obligor under an unsecured subordinate loan (the "Holiday Inn -
Broadway Subordinate Loan") from its affiliates in the amount of
$3,059,290. The Holiday Inn-Broadway Subordinate Loan is
non-interest bearing and is not payable until the Mortgage Loan is
paid in full. A subordination and standstill agreement is in place
between the subordinate lender and the Seller.
Loan No. 79, Xxxxx Ridge Apartments - The related Borrower is the
obligor under an unsecured subordinate loan made by New Jersey
Realty Company in the original principal amount of $2,734,168. The
loan is subordinated to the Mortgage Loan and no payment of
principal or interest on this debt is permitted until June 11, 2034,
which is five years beyond the amortization term of the Mortgage
Loan.
Loan Xx. 000, 00 Xxxx 00xx Xxxxxx Tenants Corp.; -- The related
Borrower under this loan is a cooperative corporation and may obtain
subordinate mortgage financing up to an amount of $500,000 if, among
other things, (a) the principal amount of the subordinate mortgage
loan plus all other indebtedness then secured by the Mortgaged
Property does not exceed the lesser of (i) 20% of the value of the
Mortgaged Property as a residential co-operative or (ii) 35% of the
value of the Mortgaged Property as a multifamily residential rental
apartment building; (b) the subordinate mortgage loan: (i) matures
at the same time or later than the Mortgage Loan and amortizes over
a period of at least 20 years, (ii) does not provide for negative
amortization or interest accrual and is not a participating loan,
(iii) bears an interest rate equal to or less than the Mortgage
Loan, (iv) provides that any casualty or condemnation proceeds will
be disbursed as provided in the Mortgage Loan, (v) the subordinate
mortgage loan is held by a bank with at least $2.5B in assets and
$100M in net worth; (c) the subordinate mortgage loan is used solely
to fund capital reserves and/or capital improvements; (d) the
subordinate mortgage loan expressly provides that it is subject and
subordinate to the Mortgage Loan, that the subordinate mortgagee
shall upon request enter into a satisfactory, recordable
subordination and standstill agreement and the subordinate mortgage
loan contains notice and cure provisions; and (e) an appraisal of
the Mortgaged Property must show an appraised value of not less than
$4,150,000.00.
Loan No. 120, 11825 Owners Corp.; The related Borrower under this
loan is a cooperative corporation and may obtain subordinate
mortgage financing up to an amount of $500,000 if, among other
things, (a) the principal amount of the subordinate mortgage loan
plus all other indebtedness then secured by the Mortgaged Property
does not exceed the lesser of (i) 20% of the value of the Mortgaged
Property as a residential co-operative or (ii) 35% of the value of
the Mortgaged Property as a multifamily residential rental apartment
building; (b) the subordinate mortgage loan: (i) matures at the same
time or later than the Mortgage Loan and amortizes over a period of
at least 20 years, (ii) does not provide for negative amortization
or interest accrual and is not a participating loan, (iii) bears an
interest rate equal to or less than the Mortgage Loan, (iv) provides
that any casualty or condemnation proceeds will be disbursed as
provided in the first mortgage; (v) the subordinate mortgage loan is
held by a bank with at least $2.5B in assets and $100M in net worth;
(c) the subordinate mortgage loan is used solely to fund capital
reserves and/or capital improvements; and (d) the subordinate
mortgage loan expressly provides that it is subject and subordinate
to the Mortgage Loan and contains notice and cure provisions; and
(e) an appraisal of the Mortgaged Property must show an appraised
value of not less than $4,740,000.00.
Loan No. 83, Ocean Beach Resort, Ltd. -- The related Borrower under
this loan is a cooperative corporation and may obtain subordinate
mortgage financing up to an amount of $250,000 if, among other
things, (a) the principal amount of the subordinated mortgage loan
plus all other indebtedness then secured by the Mortgaged Property
does not exceed 50% of the value of the Mortgaged Property as a
multifamily residential rental apartment building; (b) the
subordinate mortgage loan: (i) matures at the same time or later
than the Mortgage Loan, (ii) does not provide for negative
amortization or interest accrual and is not a participating loan,
(iii) provides that any casualty or condemnation proceeds will be
disbursed as provided in the Mortgage Loan and; (c) the subordinate
mortgage loan is used solely to fund capital reserves and/or capital
improvements. The Borrower is also allowed to incur additional
unsecured indebtedness of up to $150,000 without the consent of the
Seller.
Loan No. 88, Surf Club at Montauk Corp.; Loan No. 99, Port Royal
Motel Cooperative - The related Borrowers are cooperative
corporations and are allowed to incur additional unsecured
indebtedness up to $50,000 without the consent of the Seller.
Loan No. 56, Sea Crest at Amagansett Corp. -- The related Borrower
is a cooperative corporation and is allowed to incur additional
unsecured indebtedness up to $150,000 without the consent of the
Seller.
Loan No. 81, The Westhampton Bath & Tennis Club -- The related
Borrower is a cooperative corporation and is allowed to incur
additional unsecured indebtedness up to $300,000 without the consent
of the Seller.
(xxxvii):
Loan Xx. 00, Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx - This
representation is true and accurate except that the Mortgaged
Property currently shares a tax parcel with three undeveloped
outparcels owned by an affiliate of the related Borrower. The
related Borrower has covenanted to make all necessary applications
to obtain separate tax parcel status on the three undeveloped
outparcels before the start of the 2000 tax year. The related
Borrower has also covenanted that it will not permit any
improvements to be made on the outparcels that would increase the
amount of property taxes payable on such outparcels. At origination
of the Mortgage Loan an amount sufficient to pay all taxes due on
the Mortgaged Property and the three undeveloped outparcels was
escrowed.
(liii):
Xxxx Xx. 0, X'Xxxxxx Xxxxx - This representation is true and
accurate except that fraud and material and intentional
misrepresentations are not carve outs to the non-recourse provisions
but fraudulent misrepresentation is a carve out to the non-recourse
provisions. Additionally, the Mortgage Loan documents do not provide
that the related Borrower will be liable for any acts of willful
waste.
Loan No. 28, Tops Appliance Realty; Loan No. 15, White Lodging
Summary - WL Indiana Residence Inn- Indianapolis -- This
representation is true and accurate except that willful misconduct
is not a carve out to the non-recourse provisions.
Loan No. 81, The Westhampton Bath & Tennis Club; Loan No. 83, Ocean
Beach Resort, Ltd. - This representation is true and correct except
that voluntary bankruptcy is not a carve out to the non-recourse
provisions. Additionally, the Mortgage Loan documents do not provide
that the related Borrower will be liable for any acts of willful
waste. It should be noted that these Mortgage Loans were made to
cooperative corporations the activities of which consist of the
ownership and operation of the related Mortgaged Properties and
related activities.
Loan No. 115, Country Village Apartments -- This Mortgage Loan
allows recourse to the related Borrower for (i) the first 50% of the
outstanding principal and (ii) the first 50% of costs of all accrued
interest and other sums due, repayment of which is guaranteed by the
principals of the related Borrower.
Loan No. 127, Broadmill Apts. -- This Mortgage Loan allows recourse
to the related Borrower up to an amount equal to 15% of the
outstanding principal and 15% of accrued interest and other sums
due, repayment of which is guaranteed by a principal of the related
Borrower.
Loan No. 128, West Wood Village Apts. -- This Mortgage Loan allows
recourse to the related Borrower for (i) up to 20% of the
outstanding principal balance as of the date of an Event of Default
and (ii) up to 20% of all accrued interest and other sums due
(inclusive of late charges, foreclosure costs, attorneys' fees and
other costs of collection and enforcement), repayment of which is
guaranteed by the principals of the related Borrower.
Loan No. 68, Hill Castle Apartments; Loan Xx. 00, Xxxxx Xxxxxxxxxx;
Xxxx Xx. 00, Xxxxxxx-Xxxxxxx Apartments; Loan No. 126, Sequoia
Apartments; Loan Xx. 000, 000 Xxxxxxxx Xxxxxx; Loan Xx. 000, Xxxxxxx
Xxxxxx; Xxxx Xx. 000, Xxxxxx Xxxxxxx Apartments; Loan No. 141, 2555
"D" Street; Loan No. 145, Desert Winds Apartments; Loan No. 147,
Xxxxx Apartments; Loan Xx. 000, 0000 0xx Xxxxxx; Loan No. 149, Crown
Apartments; Loan No. 151, Gladstone & Xxxxxx Apartments; Loan No.
152, Country Manor; Loan No. 153, Homestead Inn Apartments -- These
Mortgage Loans are full recourse to the related Borrower.
Loan No. 20, Kings Village Corp.; Loan No. 56, Sea Crest at
Amagansett Corp; Loan No. 61, Grand Cove I Apartments; Loan No. 88,
Surf Club at Montauk Corp; Loan No. 99, Port Royal Motel
Cooperative; Loan No. 122, Xxxxxx North Cooperative, Inc. - This
representation is true and accurate except that there are no carve
outs to the non-recourse provisions. It should be noted that these
Mortgage Loans were made to cooperative corporations the activities
of which consist of the ownership and operation of the related
Mortgaged Properties and related activities.
(liv)
Loan No. 27, Courtyard by Marriott-Scottsdale; Loan No. 64,
Courtyard by Marriott -- With respect to these Mortgage Loans, their
Mortgage Rates increase to the greater of the Base Rate plus 5% and
the Index Rate plus 5% after their respective Anticipated Repayment
Dates. Prior to the Closing Date, the Seller will execute and
deliver to the related Borrowers a waiver of any interest accruing
at a rate above the Mortgage Rate plus 2.00%, such waiver to be
effective for so long as the Trustee is the holder of such Mortgage
Loans.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
The Seller represents and warrants with respect to each Mortgage
Loan, as applicable, that as of the date hereof:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Mortgage Note or Mortgage was subject to any assignment (other
than to the Seller), participation or pledge, and the Seller had good and
marketable title to, and was the sole owner of, the related Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iii) The Seller is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iv) Each related Mortgage Note, Mortgage, assignment of leases (if
any) and other agreement executed in connection with such Mortgage Loan is the
legal, valid and binding obligation of the related borrower, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and there is no valid defense, counterclaim, or right of
rescission available to the related borrower with respect to such Mortgage Note,
Mortgage, assignment of leases and other agreements;
(v) Each related assignment of leases creates a valid collateral or
first priority assignment of, or a valid first priority security interest in,
certain rights under the related lease, subject only to a license granted to the
related borrower to exercise certain rights and to perform certain obligations
of the lessor under such lease, including the right to operate the related
Mortgaged Property; no person other than the related borrower owns any interest
in any payments due under such lease that is superior to or of equal priority
with the lender's interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the assignment of leases, if any, or
assignment of any other agreement executed in connection with such Mortgage Loan
from the Seller to the Depositor constitutes the legal, valid and binding
assignment from the Seller to the Depositor, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights generally,
or by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and, each related Mortgaged Property has not
been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(viii) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), and such Mortgaged Property is free and clear of any mechanics' and
materialmen's liens which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's title insurance
policy (as described below). A UCC financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property; any security
agreement, chattel mortgage or equivalent document related to and delivered in
connection with the Mortgage Loan establishes and creates a valid and
enforceable lien on property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights generally or by
the application of general principles of equity).
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related borrower in the Mortgage
Loan not to be true;
(x) The Seller has no knowledge that the material representations
and warranties made by each related borrower in such Mortgage Loan are not true
in any material respect;
(xi) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the original principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller and its successors and assigns as
to such lien, subject only to (a) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property and (c) the exceptions (general and specific) set forth in
such policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or materially
interferes with the security intended to be provided by such Mortgage or with
the related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property (items (a), (b) and (c) collectively,
"Permitted Encumbrances"); the premium for such policy was paid in full; such
policy was issued by a title insurance company licensed to issue policies in the
state in which the related Mortgaged Property is located and is assignable to
the Depositor and the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement; no claims
have been made under such policy and the Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder and the Seller
covenants that it will not make any future advances under the Mortgage Loan to
the related borrower;
(xiii) As of the later of the date of origination of such Mortgage
Loan or the most recent inspection of the related Mortgaged Property by the
Seller, as applicable, and to the knowledge of Seller as of the Closing Date,
each related Mortgaged Property is free of any material damage that would affect
materially and adversely the value of such Mortgaged Property as security for
the Mortgage Loan or reserves have been established to remediate such damage
and, as of the closing date for each Mortgage Loan and, to the Seller's
knowledge, as of the date hereof, there is no proceeding pending for the total
or partial condemnation of such Mortgaged Property that would have a material
adverse effect on the value of the Mortgaged Property;
(xiv) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgage
Property within three months of origination of the Mortgage Loan;
(xv) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xvi) Each Mortgage Loan is a whole loan and contains no equity
participation by Seller;
(xvii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury; and any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xviii) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan and the origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in accordance with customary
industry standards;
(xix) All taxes and governmental assessments that became due and
owing prior to the Closing Date with respect to each related Mortgaged Property
have been paid or an escrow of funds in an amount sufficient to cover such
payments has been established;
(xx) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies in connection therewith and all such escrows
and deposits have been conveyed by the Seller to the Depositor and identified as
such with appropriate detail;
(xxi) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the
replacement cost (with no deduction for physical depreciation) and the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the related Mortgaged Property; each related Mortgaged Property is also covered
by business interruption insurance which covers a period of not less than 12
months and comprehensive general liability insurance in amounts generally
required by institutional lenders for similar properties; all premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received; such insurance names the
lender under the Mortgage Loan and its successors and assigns as a named or
additional insured; other than the Credit Lease Loan, each related Mortgage Loan
obligates the related borrower to maintain all such insurance and, at such
borrower's failure to do so, authorizes the lender to maintain such insurance at
the borrower's cost and expense and to seek reimbursement therefor from such
borrower;
(xxii) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) material non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b) event
(other than payments due but not yet delinquent) which, with the passage of time
or with notice and the expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of acceleration;
(xxiii) No Mortgage Loan has been more than 30 days delinquent since
origination and as of the Cut-off Date no Mortgage Loan is 30 or more days
delinquent;
(xxiv) Each related Mortgage contains provisions so as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure, and there is no exemption
available to the borrower which would interfere with such right to foreclose
(except as may be imposed by bankruptcy, insolvency, moratorium, redemption or
other similar laws affecting creditors' rights generally, or by general
principles of equity) and to the Seller's knowledge, no borrower is a debtor in
a state or federal bankruptcy or insolvency proceeding;
(xxv) At origination, each borrower represented and warranted that
except as set forth in certain environmental reports and to its knowledge it has
not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related borrower or an affiliate or an
affiliate thereof agreed to indemnify, defend and hold the mortgagee and its
successors and assigns harmless from and against losses, liabilities, damages,
injuries, penalties, fines, expenses, and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in connection
with such Mortgage Loan. A Phase I environmental report and with respect to
certain Mortgage Loans, a Phase II environmental report, was conducted by a
reputable environmental engineer in connection with such Mortgage Loan, which
report did not indicate any material non-compliance with applicable
environmental laws or material existence of hazardous materials or, if any
material non-compliance or material existence of hazardous materials was
indicated in any such report, funds sufficient to cure such findings have been
escrowed by the related borrower and held by the related mortgagee or an
operations and maintenance program has been required to be instituted by the
related borrower. To the best of the Seller's knowledge, in reliance on such
environmental reports and except as set forth in such environmental reports,
each Mortgaged Property is in material compliance with all applicable federal,
state and local environmental laws, and to the best of the Seller's knowledge,
no notice of violation of such laws has been issued by any governmental agency
or authority, except, in all cases, as indicated in certain environmental
reports or other documents previously provided to the Rating Agencies; and the
Seller has not taken any action which would cause the Mortgaged Property to not
be in compliance with all federal, state and local environmental laws pertaining
to environmental hazards;
(xxvi) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) each Mortgage Loan with a Stated Principal Balance
of over $20,000,000 also contains the provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
consent of the holder of the Mortgage, (and the mortgage requires the mortgagor
to pay all fees and expenses associated with obtaining such consent) a
controlling interest in the related Borrower is directly or indirectly
transferred or sold;
(xxvii) All improvements included in any MAI appraisals are within
the boundaries of the related Mortgaged Property, except for de minimis
encroachments onto adjoining parcels for which the Seller has obtained title
insurance against losses arising therefrom and no improvements on adjoining
parcels encroach onto the related Mortgaged Property except for de minimis
encroachments;
(xxviii) The mortgage loan schedule which is attached as an exhibit
to the Pooling and Servicing Agreement is complete and accurate in all material
respects as of the dates of the information set forth therein;
(xxix) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate,
based upon the terms of the ground lease and any estoppel received from the
ground lessor, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest of the
lessee to be encumbered by the related Mortgage and does not restrict the
use of the related Mortgaged Property by such lessee, its successors or
assigns in a manner that would adversely affect the security provided by
the related Mortgage. To the Seller's best knowledge, there has been no
material change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the related
mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is not
binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the lender) that extends not
less than 10 years beyond the stated maturity of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
Mortgage, subject to Permitted Encumbrances and liens that encumber the
ground lessor's fee interest;
(E) The ground lease is assignable to the lender under the
leasehold estate and its assigns without the consent of the lessor
thereunder;
(F) As of the Closing Date, the ground lease is in full force
and effect, the Seller has received no notice that any default beyond
applicable notice and grace periods has occurred, and there is no existing
condition which, but for the passage of time or giving of notice, would
result in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by the
lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee in
the relevant portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect the
security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case
of condemnation awards, the ground lessor may be entitled to a portion of
such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in respect
of a total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
as provided by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest rate are paid in
full, neither the lessee nor the lessor under the ground lease will have
an option to terminate or modify the ground lease without the prior
written consent of the lender as a result of any casualty or partial
condemnation, except to provide for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxx) With respect to Mortgage Loans that are cross-collateralized,
all other loans that are cross-collateralized by such Mortgage Loans are
included in the Trust Fund;
(xxxi) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan, other
than contributions made on or prior to the Closing Date;
(xxxii) (1) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (2) the fair market
value of such real property, as evidenced by an MAI appraisal conducted within
12 months of the origination of the Mortgage Loan, was at least equal to 80% of
the principal amount of the Mortgage Loan (a) at origination (or if the Mortgage
Loan has been modified in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage Loan was not in default or
default with respect thereto was not reasonably foreseeable, the date of the
last such modification) or (b) at the Closing Date; provided that the fair
market value of the real property interest must first be reduced by (A) the
amount of any lien on the real property interest that is senior to the Mortgage
Loan (unless such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on an aggregated basis) and
(B) a proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregate basis);
(xxxiii) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in this Exhibit A or in the related Mortgage Loan Purchase Agreement;
(xxxiv) The loan documents executed in connection with each Mortgage
Loan require that the related borrower be a single-purpose entity (for this
purpose, "single-purpose entity" shall mean an entity, other than an individual,
that is formed or organized solely for the purpose of owning and operating one
or more Mortgaged Properties, is prohibited from engaging in any business
unrelated to such property and the related Mortgage Loan, does not have any
assets other than those related to its interest in the related Mortgaged
Property or its financing, or any indebtedness other than as permitted under the
related Mortgage Loan);
(xxxv) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property and, except in
connection with trade debt and equipment financings in the ordinary course of
borrower's business, from carrying any additional indebtedness, except, in each
case, liens contested in accordance with the terms of the Mortgage Loans;
(xxxvi) Each borrower covenants in the Mortgage Loan documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xxxvii) Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, is served by public utilities and services generally available in the
surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and is a separate tax parcel;
(xxxviii) Based solely on a flood zone certification or a survey of
the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency, with respect to certain Mortgage Loans, or the Secretary of
Housing and Urban Development with respect to other Mortgage Loans, as having
special flood hazards, the terms of the Mortgage Loan require the borrower to
maintain flood insurance or at such borrowers failure to do so, authorizes the
Lender to maintain such insurance at the cost and expense of the borrower;
(xxxix) To the knowledge of the Seller, with respect to each
Mortgage which is a deed of trust, a trustee, duly qualified under applicable
law to serve as such, currently so serves and is named in the deed of trust or
has been substituted in accordance with applicable law, and except in connection
with a trustee's sale after a default by the related borrower, no fees are
payable to such trustee;
(xl) With respect to the ACCOR Loans:
(A) the base rental payments under each ACCOR Credit Lease are
equal to or greater than the payments due under the loan documents
executed in connection with the related ACCOR Credit Lease Loan and are
payable without notice or demand, and without setoff, counterclaim,
recoupment, abatement, reduction or defense and a Residual Value Policy
has been obtained;
(B) the obligations of the Tenant under each ACCOR Credit
Lease, including, but not limited to, the obligation of Tenant to pay
fixed and additional rent, are not affected by reason of any damage to or
destruction of any portion of the related ACCOR Credit Lease Property; any
taking of such ACCOR Credit Lease Property or any part thereof by
condemnation or otherwise; or any prohibition, limitation, interruption,
cessation, restriction, prevention or interference of Tenant's use,
occupancy or enjoyment of such ACCOR Credit Lease Property; except that
the Tenant under either ACCOR Credit Lease may terminate such ACCOR Credit
Lease in the event of a significant casualty or a significant
condemnation; provided, however, the Tenant must either purchase the ACCOR
Credit Lease Property for an amount sufficient to purchase defeasance
collateral to defease a portion of the ACCOR Loan equal to the allocated
loan amount for such Mortgage Property or substitute a replacement
property of equal or greater value;
(C) every obligation associated with managing, owning,
developing and operating each ACCOR Credit Lease Property, including, but
not limited to, the costs associated with utilities, taxes, insurance,
capital and structural improvements, maintenance and repairs is an
obligation of the Tenant;
(D) neither ACCOR Credit Lease Borrower has a monetary
obligation under their respective ACCOR Credit Lease that has not been
met, or any nonmonetary obligations under their respective ACCOR Credit
Lease the breach of which would result in either the abatement of rent, a
right of setoff or the termination of the related ACCOR Credit Lease;
(E) the Tenant under either ACCOR Credit Lease can not
terminate or xxxxx rent under either ACCOR Credit Lease for any reason
prior to the payments in full of (a) the principal balance of the related
ACCOR Loan, (b) all accrued and unpaid interest on such ACCOR Loan and (c)
any other sums due and payable under such ACCOR Loan; except that the
Tenant under either ACCOR Credit Lease may terminate such ACCOR Credit
Lease in the event of a significant casualty or a significant
condemnation; provided, however, the Tenant must either purchase the ACCOR
Credit Lease Property for an amount sufficient to purchase defeasance
collateral to defease a portion of the ACCOR loan equal to the allocated
Loan amount for such Mortgage Property or substitute a replacement
property of equal or greater value;
(F) if the Tenant assigns an ACCOR Credit Lease or sublets the
related ACCOR Credit Lease Property, the Tenant remains primarily
obligated under such ACCOR Credit Lease unless each Rating Agency has
confirmed in writing that such transfer or sublet will not result in a
downgrade, qualification or withdrawal of the then current ratings of the
Certificates;
(G) the Tenant has agreed to indemnify the ACCOR Credit Lease
Borrower from any claims of any nature relating to both ACCOR Credit
Leases and the ACCOR Credit Lease Properties;
(H) if the obligations of the Tenant under either ACCOR Credit
Lease are guaranteed by a guarantor pursuant to a guaranty, such guaranty
is the legal, valid and binding obligation of the guarantor, has been
validly assigned to the mortgagee, is binding on the guarantor's
successors and assigns, and may not be amended or released without the
mortgagee's consent and the guaranty states that it represents the
unconditional obligation of the guarantor without any right of offset,
counter claim or defense and is a guarantee of payment and performance,
not merely of collection;
(I) each ACCOR Credit Lease contains customary and enforceable
provisions which render the rights and remedies of the lessor thereunder
adequate for the enforcement and satisfaction of the lessor's rights
thereunder;
(J) in reliance on a tenant estoppel certificate and
representations made by the Tenant under both ACCOR Credit Leases or
representations made by the related borrower under the Mortgage Loan
documents, as of the date of origination of each ACCOR Loan and to the
knowledge of Seller as of the Closing Date (a) each ACCOR Credit Lease was
in full force and effect, and no default by the borrower or the Tenant has
occurred under either ACCOR Credit Lease, nor is there any existing
condition which, but for the passage of time or the giving of notice, or
both, would result in a default under the terms of either ACCOR Credit
Lease, (b) none of the terms of either ACCOR Credit Lease have been
impaired, waived, altered or modified in any respect, (c) the Tenant has
been released, in whole or in part, from its obligations under the ACCOR
Credit Leases, (d) there is no right of rescission, offset, abatement,
diminution, defense or counterclaim to either ACCOR Credit Lease, nor will
the operation of any of the terms of the ACCOR Credit Leases, or the
exercise of any rights thereunder, render either ACCOR Credit Lease
unenforceable, in whole or in part, or subject to any right of rescission,
offset, abatement, diminution, defense or counterclaim, and no such right
of rescission, offset, abatement, diminution, defense or counterclaim has
been asserted with respect thereto and (e) each ACCOR Credit Lease has a
term ending on or after the final maturity of the related ACCOR Loan;
(K) the Mortgaged Property is not subject to any lease other
than the related ACCOR Credit Lease, no person has any possessory interest
in, or right to occupy, the Mortgaged Property except under and pursuant
to such ACCOR Credit Lease and the Tenant under the related ACCOR Credit
Lease is in occupancy of the Mortgaged Property;
(L) the lender is entitled to notice of any event of default
from the Tenant under the ACCOR Credit Leases and a reasonable opportunity
to cure;
(M) the Tenant under each ACCOR Credit Lease is required to
make all rental payments directly to the lender, its successors and
assigns under the related ACCOR Loan;
(N) both ACCOR Loans provide that the related ACCOR Credit
Lease cannot be modified without the consent of the lender thereunder;
(O) both ACCOR Loans have a DSCR equal to or greater than
1.00x;
(P) both ACCOR Loans are Balloon Loans and will have an
outstanding principal balance equal to or less than 50% of the original
principal balance; and
(Q) Residual Value Policy No. 01-01-20-0239 is in effect for
the California North Loan and Residual Value Policy No. 01-01-20-0244 is
in effect for the ACCOR Mountain Loan, each of which policies was issued
by R.V.I. America Insurance Company;
(xli) With respect to the ACCOR Loans:
(A) The claims on the Residual Value Policy will be payable to
the loss payee and the Trustee, on behalf of the Certificateholders, has
been designated as the loss payee;
(B) Pursuant to the terms of the Residual Value Policy, the
person designated as loss payee is only obligated to file a notice of
final claim with R.V.I. America Insurance Company in order to collect the
insured amount;
(C) The Residual Value Policy premium has been paid in full as
of the effective date of such policy;
(D) The Residual Value Policy cannot be terminated prior to
the termination date;
(E) The effective date for each ACCOR Loan on the Residual
Value Policy is prior to the Closing Date;
(F) The date upon which the outstanding principal balance of
the ACCOR Loan is reduced to zero is the policy termination date;
(G) The insured value is a pre-determined amount for each
ACCOR Loan and, unless otherwise noted, is equal to the expected Mortgage
Loan balance at Mortgage Loan maturity or expiration of initial lease
term;
(H) The insured value shall always be greater than the amount
R.V.I. America Insurance Company will pay to the loss payee upon the
notification of a claim (i.e., lesser of (i) the insured value and (ii)
the outstanding principal balance at the time the claim is made, plus all
accrued interest, less any sales proceeds received by the loss payee);
(I) The Residual Value Policy cannot be amended at any time
without the consent of the lender;
(J) The Residual Value Policy will not contain borrower
transfer restriction;
(K) The lease termination date does not occur prior to the
policy termination date or Mortgage Loan maturity date; and
(L) R.V.I. America Insurance Company is required to pay claims
made under the Residual Value Policy (subject to compliance with the
payment requirements under the Residual Value Policy), within ten business
days after receipt of such claims.
(xlii) To the knowledge of the Seller as of the Closing Date, there
was no pending action, suit or proceeding, arbitration or governmental
investigation against any borrower or Mortgaged Property, an adverse outcome of
which would materially and adversely affect such borrower's ability to perform
under the related Mortgage Loan;
(xliii) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of preferred
equity interests by the Preferred Interest Holder, as disclosed in the
Prospectus Supplement) and no funds have been received from any person other
than, or on behalf of, the related borrower for, or on account of, payments due
on the Mortgage Loan;
(xliv) To the extent required under applicable law, as of the
Cut-off Date, the Seller was authorized to transact and do business in the
jurisdiction in which each related Mortgaged Property is located, or failure to
be so authorized does not materially affect the ability of the Seller to
transact business in the jurisdiction in which each related Mortgaged Property
is located;
(xlv) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvi) Except as disclosed in the Prospectus Supplement, in
connection with Crossed Loans and Multi-Property Loans, no Mortgage Loan
requires the lender to release any portion of the Mortgaged Property from the
lien of the related Mortgage except upon (a) payment in full or defeasance of
the related Mortgage Loan, (b) releases of unimproved out-parcels or (c)
releases of portions of the Mortgaged Property which will not have a material
adverse effect on the value of the collateral for the related Mortgage Loan;
(xlvii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all Mortgage Loans other
than Credit Lease Loans and with respect to all casualty losses or takings in
excess of a specified percentage of the related loan amount, the lender (or a
trustee appointed by it) having the right to hold and disburse such proceeds as
the repair or restoration progresses or (b) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon;
(xlviii) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, together with each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller and each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement executed by the Seller in blank which the
Trustee or its designee is authorized to complete (and but for the insertion of
the name of the assignee and any related filing information which is not yet
available to the Seller) is in suitable form for filing in the filing office in
which such financing statement was filed;
(xlix) To the Seller's knowledge, (a) all material commercial leases
affecting the Mortgaged Properties securing the Mortgage Loans are in full force
and effect and (b) there exists no default under any such material commercial
lease either by the lessee thereunder or by the related borrower that could give
rise to the termination of such lease;
(l) The improvements located on or forming part of each Mortgaged
Property comply with applicable zoning laws and ordinances, or constitute a
legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property. With respect to properties with a Stated
Principal Balance of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent the Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(li) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision) and all Prepayment Premiums and Yield Maintenance Charges
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(lii) With respect to any Mortgage Loan that pursuant to the
mortgage documents can be defeased, (i) the Mortgage Loan cannot be defeased
within two years of the Closing Date, (ii) the borrower can pledge only United
States government securities in an amount sufficient to make all scheduled
payments under the Mortgage Loan when due, (iii) the borrower is required to
provide independent certified public accountants certify that the collateral is
sufficient to make such payments, (iv) the loan may be required to be assumed by
a single-purpose entity designated by the holder of the Mortgage Loan, and (v)
the borrower is required to provide an opinion of counsel be provided that the
trustee has a perfected security interest in such collateral prior to any other
claim or interest;
(liii) The mortgage loan documents for each Mortgage Loan provide
that such Mortgage Loan is non-recourse to the related parties thereto except
for certain acts including the fraud, willful misconduct or material and
intentional misrepresentation by the related borrower and/or its affiliates and
any act resulting in the Mortgaged Property becoming an asset in a voluntary
bankruptcy or insolvency proceeding. Additionally, the Mortgage Loan Documents
for each Mortgage Loan provide that the related borrower thereunder shall be
liable to the Seller for any losses incurred by the Seller due to (i) the
misapplication or misappropriation of rents, insurance proceeds or condemnation
awards, (ii) any willful act of material waste, (iii) any breach of the
environmental covenants contained in the related Mortgage Loan Documents, and
(iv) fraud;
(liv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (i) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (ii) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (iii) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Servicer; and (iv) any cash flow from the
related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures.
(lv) Except as disclosed in the Prospectus Supplement, not more than
5% of the aggregate initial principal amount of the Mortgage Loans have the same
Mortgagor or, to the Seller's best knowledge, have mortgagors that are
affiliates of each other;
(lvi) The servicing and collection practices used with respect to
(i) the Mortgage Loans originated by the Seller since their origination, and
(ii) the Mortgage Loans purchased by the Seller (the "Purchased Mortgage Loans")
since the time of such purchase, have, in each case, been legal and meet
customary standards utilized by prudent commercial mortgage loan servicer. The
servicing and collection practices used with respect to the Purchased Mortgage
Loans prior to their sale to the Seller were, to the best of knowledge of the
Seller, legal and met customary standards utilized by prudent commercial
mortgage loan servicers;
(lvii) 28 CSFB Mortgage Loans securing 1.45% of the Initial Pool
Balance are covered by an Environmental Insurance Policy issued by Commerce and
Industry Insurance Company; all premiums therefor have been paid in full and
such policy is in full force and effect. All environmental conditions actually
known by the Seller, including any "Pollution Conditions" (as defined in the
Environmental Insurance Policy) actually known by the Seller, have been
disclosed to Commerce and Industry Insurance Company.
(lviii) Each of the Participation and Intercreditor Agreement (the
"L'Enfant Participation Agreement") relating to Loan No. 9 on the Mortgage Loan
Schedule (the L'Enfant Loan) and the Co-Lender Agreement relating to Loan No. 1
on the Mortgage Loan Schedule (the Exchange Apartments Loan) represent legal,
valid and binding obligations of the Seller, enforceable against the Seller, as
the Other B Note Participant (as defined in the L'Enfant Participation
Agreement) and as the holder of the Exchange Apartments Other Note (as defined
in the Prospectus Supplement), respectively, enforceable against the Seller in
accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization of other similar laws
affecting the enforcement of creditors rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity of at law).
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
________________________, _____________________, being duly sworn,
deposes and says:
1. that he is an authorized signatory of Credit Suisse First Boston
Mortgage
Capital LLC ("CSFBMC");
2. that CSFBMC is the owner and holder of a mortgage loan in the
original principal amount of $ secured by a mortgage (the "Mortgage")
on the premises known as located in ;
3. (a) that CSFBMC, after having conducted a diligent investigation
of its records and files, has been unable to locate the following original note
and believes that said original note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a note in the original sum of $ made by , to
CS First Boston Mortgage Capital Corp., under date of
(the "Note");
4. that the Note is now owned and held by CSFBMC;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except CSFBMC; and
7. upon assignment of the Note by CSFBMC to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor") and subsequent assignment by
the Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series (the "Trustee") (which assignment may, at the discretion
of the Depositor, be made directly by CSFBMC to the Trustee) CSFBMC covenants
and agrees (a) promptly to deliver to the Trustee the original Note if it
is subsequently found, and (b) to indemnify and hold harmless the Trustee and
its successors and assigns from and against any and all costs, expenses and
monetary losses arising as a result of CSFBMC's or the Depositor's failure to
deliver said original Note to the Trustee.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:
-----------------------------
Authorized Signatory
Sworn to before me this
_____ day of October , 1999
EXHIBIT C
FORM OF
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KNOW ALL MEN BY THESE PRESENTS:
THAT, as of , 1999, Credit Suisse First Boston Mortgage
Capital LLC, a Delaware limited liability company, whose address is Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("ASSIGNOR") in consideration of
ten and 00/100 ($10.00) dollars and other good and valuable consideration,
paid by The Chase Manhattan, a New York banking corporation, as trustee for
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, whose address is 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("ASSIGNEE"), receipt of which is
acknowledged by ASSIGNOR, hereby sells, assigns, transfers, sets over and
conveys unto the ASSIGNEE certain mortgage(s) and assignments of leases,
rents and profits and other collateral documents as follows: See Schedule
"A" attached hereto and incorporated herein by this reference.
TOGETHER with the note(s), debt(s) and claim(s) secured by said
mortgage(s) and the covenants contained in said mortgage(s), together with all
amendments, supplements and modifications thereto and all liens, financing
statements, guaranties and security interests securing the payment of such
notes, including, without limitation, any other documents recorded in the real
property records of the jurisdiction in which the real property covered by the
mortgage(s) is located with respect to such notes, and any other documents,
agreements, instruments or property relating to such loan(s) and all right,
title, interest, claims, demands, causes of action and judgments securing or
relating to such loan(s); TO HAVE AND TO HOLD the same unto the ASSIGNEE and to
the successors, legal representatives and assigns of the ASSIGNEE forever.
THIS ASSIGNMENT is made without recourse or representation or
warranty of any kind or nature, express or implied except as expressly set forth
in that certain Mortgage Loan Purchase Agreement, dated as of _______ __, 1999
between ASSIGNOR and Credit Suisse First Boston Mortgage Securities Corp.
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment
the __ day of ________ 199_.
IN PRESENCE OF:___
By:
--------------------------------
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On this _____ day of _________, 199_, before me the undersigned, a
NOTARY PUBLIC OF ______________, personally appeared , as ___________of Credit
Suisse First Boston Mortgage Capital LLC, a Delaware limited liability company,
who, I am satisfied, was the maker of the foregoing instrument and who then
stated and acknowledged to me that, as such officer and maker (1) he was
authorized to execute the foregoing instrument on behalf of said limited
liability company and (2) he executed said instrument as the act and deed of
said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in the day and year last above written.
Signature
------------------------------
Print Name
-----------------------------
Residing at
----------------------------
----------------------------
----------------------------
A NOTARY PUBLIC OF__________
[AFFIX SEAL] My Commission expires on____________________
ASSIGNMENT OF MORTGAGE
AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
TO
THE CHASE MANHATTAN BANK, AS TRUSTEE
RECORD AND RETURN TO:
Exhibit D
Form of Seller's In-House Counsel Opinion
