MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 12, 2001, between KeyBank National Association, a national
banking association ("KeyBank"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Seller"), and Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB Mortgage
Securities"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "Purchaser").
RECITALS
KeyBank desires to sell, assign, transfer, set over and otherwise convey to
CSFB Mortgage Securities, without recourse, and CSFB Mortgage Securities desires
to purchase, subject to the terms and conditions set forth herein, the
multifamily and commercial mortgage loans (collectively, the "Mortgage Loans")
identified on the schedule annexed hereto as Exhibit A (the "Mortgage Loan
Schedule"), as such schedule may be amended from time to time pursuant to the
terms hereof.
CSFB Mortgage Securities intends to create a trust (the "Trust"), the
primary assets of which will be a segregated pool of multifamily and commercial
mortgage loans that includes the Mortgage Loans. Beneficial ownership of the
assets of the Trust (such assets collectively, the "Trust Fund" will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Xxxxx'x
Investors Service, Inc. and Fitch, Inc. (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of June 1, 2001 (the "Pooling and
Servicing Agreement"), among CSFB Mortgage Securities, as depositor (in such
capacity, the "Depositor"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key
Commercial Mortgage, as master servicer (in such capacity, the "Master
Servicer") and as special servicer (in such capacity the "Special Servicer"),
and Xxxxx Fargo Bank Minnesota, N.A., trustee (the "Trustee"), relating to the
issuance of CSFBMSC's Commercial Mortgage Pass-Through Certificates, Series
2001-CK3 (the "Certificates"). Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
in Section 1 hereof). It is anticipated that CSFB Mortgage Securities will
transfer the Mortgage Loans to the Trust contemporaneously with its purchase of
the Mortgage Loans hereunder.
CSFB Mortgage Securities intends to sell the Registered Certificates to
Credit Suisse First Boston Corporation ("CSFB"), McDonald Investments Inc.
("McDonald"), First Union Securities, Inc. ("First Union Securities") and
Xxxxxxx Xxxxx Barney Inc. ("SSBI"), pursuant to an underwriting agreement, dated
as of the date hereof (the "Underwriting Agreement"), among CSFB Mortgage
Securities, CSFB, McDonald, First Union Securities and SSBI; and CSFB Mortgage
Securities intends to sell the remaining Certificates (the "Non-Registered
Certificates") to CSFB, pursuant to a certificate purchase agreement, dated as
of the date hereof (the "Certificate Purchase Agreement"), between CSFB Mortgage
Securities, and CSFB. The Registered Certificates are more fully described in
the prospectus dated June 5, 2001 (the "Basic Prospectus"), and the supplement
to the Basic Prospectus dated June 12, 2001 (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The Non-Registered Certificates are more
fully
described in the confidential offering circular dated June 12, 2001 (the
"Confidential Offering Circular"), as it may be amended or supplemented at any
time hereafter.
KeyBank will indemnify CSFB Mortgage Securities, CSFB, McDonald, First
Union Securities, SSBI and certain related parties with respect to the
disclosure regarding the Mortgage Loans and contained in the Prospectus, the
Confidential Offering Circular and certain other disclosure documents and
offering materials relating to the Certificates, pursuant to an indemnification
agreement, dated the date hereof (the "Indemnification Agreement"), among
KeyBank, CSFB Mortgage Securities, CSFB, McDonald, First Union Securities and
SSBI.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on June 13, 2001 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). As of the close
of business on the respective Due Dates for the Mortgage Loans in June 2001
(individually and collectively, the "Cut-off Date"), the Mortgage Loans will
have an aggregate principal balance, after application of all payments of
principal due on the Mortgage Loans on or before such date, whether or not
received, of $263,339,178 subject to a variance of plus or minus 5%. The
purchase price for the Mortgage Loans shall be 100% of such aggregate principal
balance, together with accrued interest on the Mortgage Loans at their
respective Net Mortgage Rates from and including June 1, 2001 to but not
including the Closing Date, and the Purchaser shall pay such purchase price to
the Seller on the Closing Date by wire transfer in immediately available funds
or by such other method as shall be mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) On and as of the Closing Date, subject only to receipt of the purchase
price referred to in Section 1 hereof and the other conditions to the Seller's
obligations set forth herein, the Seller does hereby sell, assign, transfer, set
over and otherwise convey to the Purchaser, without recourse, all of the right,
title and interest of the Seller in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans after
the Cut-off Date (other than scheduled payments of interest and principal due on
or before the Cut-off Date), together with (i) all of the right, title and
interest of the Seller in and to the proceeds of any related title, hazard or
other insurance policies and any escrow, reserve or other comparable accounts
related to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver or cause to be delivered to the Purchaser or its
designee the Mortgage File and any
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Additional Collateral (other than reserve funds and escrow payments) with
respect to each Mortgage Loan. In addition, with respect to each Mortgage Loan
as to which any Additional Collateral is in the form of a Letter of Credit as of
the Closing Date, the Seller shall cause to be prepared, executed and delivered
to the issuer of each such Letter of Credit such notices, assignments and
acknowledgments as are necessary to cause the recognition of the Purchaser or
its designee as the beneficiary of such Letter of Credit and drawing party
thereunder. Unless the Purchaser notifies the Seller in writing to the contrary,
the designated recipient of the items described in the second preceding
sentence, and the designated beneficiary under each Letter of Credit referred to
in the preceding sentence, shall be the Trustee.
If the Seller cannot deliver on the Closing Date any document that is
required to be part of the Mortgage File for any Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(iv) the Seller shall otherwise use commercially reasonable efforts to
cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
In addition, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
on or before the Closing Date, the following items (except to the extent any of
the following items are to be retained by a subservicer that will continue to
act on behalf of the Purchaser or its designee): (i) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans; provided, however, the Seller shall not be
required to deliver any attorney-client privileged communication or internal
credit analysis; and (ii) all unapplied reserve funds and escrow payments in the
possession or under the control of the Seller that relate to the Mortgage Loans.
Unless the Purchaser
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notifies the Seller in writing to the contrary, the designated recipient of the
items described in clauses (i) and (ii) of the preceding sentence shall be the
Master Servicer.
If the Seller is unable to deliver any Letter of Credit constituting
Additional Collateral for any Mortgage Loan, then the Seller may, in lieu
thereof, deliver on behalf of the related Borrower, to be used for the same
purposes as such missing Letter of Credit either: (i) a substitute letter of
credit substantially comparable to, but in all cases in the same amount and with
the same draw conditions and renewal rights as, that Letter of Credit and issued
by an obligor that meets any criteria in the related Mortgage Loan documents
applicable to the issuer of that Letter of Credit; or (ii) a cash reserve in an
amount equal to the amount of that Letter of Credit. For purposes of the
delivery requirements of this Section 2(c), any such substitute letter of credit
shall be deemed to be Additional Collateral of the type covered by the first
paragraph of this Section 2(c) and any such cash reserve shall be deemed to be
reserve funds of the type covered by the third paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c), the
Seller shall receive copies, or otherwise be the beneficiary, of all
certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable out-of-pocket costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer with respect to the Mortgage Loans that are
required to be recorded or filed, as the case may be, under the Pooling and
Servicing Agreement; provided that the Seller shall not be responsible for
actually recording or filing any such assignments or other instruments of
transfer or for costs and expenses that the related Borrowers have agreed to
pay. If the Seller receives written notice that any such assignment or other
instrument of transfer is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof. In
connection with the foregoing, the Seller shall cause all of its records to
reflect such transfer as a sale (as opposed to a secured loan) and to reflect
that the Mortgage Loans are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all reasonable actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such
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Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the case
may be, an amended Mortgage Loan Schedule.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review. The
Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Mortgage Loans, that
may be undertaken by or on behalf of the Purchaser. The fact that the Purchaser
has conducted or has failed to conduct any partial or complete examination of
any of the Mortgage Files for, and/or any of such other documents and records
relating to, the Mortgage Loans, shall not affect the Purchaser's right to
pursue any remedy available in equity or at law for a breach of the Seller's
representations and warranties made pursuant to Section 4, except as expressly
set forth in Section 5.
SECTION 4. Representations, Warranties and Covenants of the Seller and the
Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser, each of the representations and warranties set forth in
Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller, each of the representations and warranties set forth in
Exhibit B-2. The respective representations and warranties of the parties hereto
set forth in Exhibits B-1 and B-2 are hereinafter referred to collectively as
the "Corporate Representations".
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than the
initial Purchaser, CSFB, McDonald, First Union Securities and SSBI) who may be
entitled to any commission or compensation in connection with the sale to the
Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof) by the Seller
pursuant to Section 5(a) of this Agreement each of the representations and
warranties set forth in Exhibit C. From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
(e) It is understood and agreed that the representations and warranties set
forth in or made pursuant to this Section 4 shall survive delivery of the
respective Mortgage Files to the Purchaser or its designee and shall inure to
the benefit of the Purchaser notwithstanding any restrictive or qualified
endorsement or assignment. With respect to the Corporate Representations, such
survival shall continue for so long as any of the Mortgage Loans remains
outstanding.
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SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Upon discovery of any Material Breach or Material Document Defect, the
Purchaser or its designee shall notify the Seller thereof in writing and request
that the Seller correct or cure such Breach or Document Defect. Within 90 days
of the earlier of discovery or receipt of written notice by the Seller that
there has been a Material Breach or a Material Document Defect (such 90-day
period, the "Initial Resolution Period"), the Seller shall (i) cure such
Material Breach or Material Document Defect, as the case may be, in all material
respects (other than omissions solely due to a document not having been returned
by the applicable recording office) or (ii) repurchase each affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and, if applicable, the terms of the Pooling
and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller shall
certify in writing to the Purchaser (i) that any such Material Breach or
Material Document Defect, as the case may be, does not and will not cause the
Defective Mortgage Loan to fail to be a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) that such
Material Breach or Material Document Defect, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
the Seller has commenced and is diligently proceeding with the correction or
cure of such Material Breach or Material Document Defect, as the case may be,
within the applicable Initial Resolution Period, (iv) what actions the Seller is
pursuing in connection with the correction or cure thereof, and (v) that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed the
applicable Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan;
and provided, further, that, if the Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a Material Breach or Material Document
Defect arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), and
if the Defective Mortgage Loan is still subject to the Pooling and Servicing
Agreement, the Seller may, at its option, in lieu of repurchasing such Defective
Mortgage Loan (but, in any event, no later than such repurchase would have to
have been completed), (i) replace such Defective Mortgage Loan with one or more
substitute mortgage loans that individually and collectively satisfy the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement, and (ii) pay any corresponding
Substitution Shortfall Amount, such substitution and payment to be effected in
accordance with the terms of the Pooling and Servicing Agreement. Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis. The Seller shall have no obligation to monitor the
Mortgage Loans regarding the existence of a Material Breach or Material Document
Defect, but if the Seller discovers a Material Breach or Material Document
Defect with respect to a Mortgage Loan, it will notify the Purchaser. For
purposes of remediating a Material Breach or Material Document Defect with
respect to any Mortgage Loan, "Resolution Extension Period" shall mean the
90-day period following the end of the applicable Initial Resolution Period.
If one or more of the Mortgage Loans constituting a Cross-Collateralized
Group are the subject of a Breach or Document Defect, then, for purposes of (i)
determining whether such Breach or Document Defect is a Material Breach or
Material Document Defect, as the case may be, and (ii) the application of
remedies, such Cross-Collateralized Group shall be treated as a single Mortgage
Loan.
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Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set forth in
this Section 5(a) to cure a Material Breach or a Material Document Defect or
repurchase or replace the related Defective Mortgage Loan(s), constitute the
sole remedies available to the Purchaser, the Certificateholders or the Trustee
on behalf of the Certificateholders with respect to such Breach or Document
Defect.
The remedies provided for in this Section 5 with respect to any Material
Document Defect or Material Breach with respect to any Mortgage Loan shall apply
to any REO Property.
(b) It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that the Purchaser shall
have (i) executed and delivered such instruments of transfer or assignment then
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage Loan (including any property acquired in respect thereof or
proceeds of any insurance policy with respect thereto), to the extent that such
ownership interest was transferred to the Purchaser hereunder, and (ii)
delivered to the Seller the Mortgage File for such Defective Mortgage Loan.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of each of the Seller
and the Purchaser made pursuant to Section 4 of this Agreement shall be
true and correct in all material respects as of the Closing Date;
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(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed by it after the Closing Date;
(vi) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement;
(vii) The Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement, duly executed by the Purchaser and the Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and
upon which CSFB Mortgage Securities, CSFB, McDonald, First Union
Securities, SSBI and the Rating Agencies (collectively, for purposes of
this Section 7, the "Interested Parties") may rely, attaching thereto as
exhibits
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(A) the resolutions of the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated by this Agreement, and
(B) the organizational documents of the Seller;
(iv) A certificate of good standing with respect to the Seller issued
by the Comptroller of the Currency not earlier than 30 days prior to the
Closing Date, and upon which the Interested Parties may rely;
(v) A Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
(vi) A written opinion of in-house counsel for the Seller, dated the
Closing Date and addressed to the Interested Parties and the Trustee, which
opinion shall be substantially in the form of Exhibit D-3A hereto (with
such additions, deletions or modifications as may be required by either
Rating Agency);
(vii) A written opinion of Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx
LLP, special counsel for the Seller, dated the Closing Date and addressed
to the Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3B hereto (with such additions,
deletions or modifications as may be required by either Rating Agency);
(viii) A written opinion of Xxxxxxxxxx Xxxxxxx & Xxxxx, P.C., special
counsel for the Seller, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinion shall be substantially in
the form of Exhibit D-3C hereto (with such additions, deletions or
modifications as may be required by either Rating Agency);
(ix) A letter from Xxxxxxxxxx Xxxxxxx & Xxxxx, P.C., special counsel
for the Seller, dated the Closing Date and addressed to the Interested
Parties (other than the Rating Agencies), which letter shall be
substantially in the form of Exhibit D-3D hereto;
(x) One or more comfort letters from Xxxxxx Xxxxxxxx LLP, certified
public accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and addressed to, and in
form and substance acceptable to, CSFB Mortgage Securities, CSFB, McDonald,
First Union Securities, SSBI and their respective counsel, stating in
effect that, using the assumptions and methodology used by CSFB Mortgage
Securities, all of which shall be described in such letters, they have
recalculated such numbers and percentages relating to the Mortgage Loans
set forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, compared the results of their calculations to the corresponding
items in any preliminary Prospectus Supplement and the Prospectus
Supplement, respectively, and found each such number and percentage set
forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, respectively, to be in agreement with the results of such
calculations; and
(xi) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
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SECTION 8. Costs. Whether or not this Agreement is terminated, the costs
and expenses incurred in connection with the transactions herein contemplated
shall be allocated pursuant to the terms of: (i) the Term Sheet for the Joint
Conduit Securitizations between Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Prudential Securities Incorporated, Prudential Mortgage Capital
Company, LLC, Column Financial, Inc. and KeyBank National Association, as
supplemented and modified by the Term Sheet for the Joint Securitizations among
Column Financial, Inc., Credit Suisse First Boston Corporation and KeyBank
National Association for Calendar Year 2001 (together, the "Original Term
Sheet"); and (ii) that certain term sheet dated as of May 31, 2001 and entitled
CSFB 2001-CK3, Terms Relating to Joint Securitization between Credit Suisse
First Boston, KeyBank National Association and First Union National Bank (the
"First Union Term Sheet"; and, together with the Original Term Sheet, the "Term
Sheet").
SECTION 9. Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered to or mailed, by registered mail, postage prepaid, by overnight mail
or courier service, or transmitted by facsimile and confirmed by similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 00 Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, or such other
address as may be designated by the Purchaser to the Seller in writing, or, if
to the Seller, addressed to the Seller at 000 Xxxx Xxxxxx, Xxxxx 0000x, Xxxxxx
Xxxx, Xxxxxxxx 00000, Attention: X.X. Xxxxx (with a copy to 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxx, or such other address as may
be designated by the Seller to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by CSFB Mortgage Securities to the Trustee of its
interests in the
10
Mortgage Loans as contemplated by Section 16 hereof shall be deemed to be an
assignment of any security interest created hereunder; (d) the possession by the
Purchaser of the related Mortgage Notes and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-305 of the Ohio Uniform Commercial Code,
the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (e) notifications to, and acknowledgments,
receipts or confirmations from, persons or entities holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the Purchaser for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser, notwithstanding any restrictive or qualified endorsement or
assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, the Purchaser and
the Seller hereby irrevocably (i) submits to the jurisdiction of any New York
State and federal courts sitting in New York City with respect to matters
arising out of or relating to this Agreement; (ii) agrees that all claims with
respect to such action or proceeding may be heard and determined in such New
York State or federal courts; (iii) waives, to the fullest possible extent, the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
11
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates. To the extent of
any such assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and Servicing Agreement, the Trustee, for the
benefit of the registered holders and beneficial owners of the Certificates, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be the Purchaser hereunder (but
solely with respect to such Mortgage Loan that was transferred to it). Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding anything
herein to the contrary, it is hereby acknowledged that certain groups of
Mortgage Loans are, in the case of each such particular group of Mortgage Loans
(each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and
cross-collateralized. Each Cross-collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 19. Entire Agreement. Except as otherwise expressly contemplated
hereby, this Agreement constitutes the entire agreement and understanding of the
parties with respect to the matters addressed herein, and this Agreement
supersedes any prior agreements and/or understandings, written or oral, with
respect to such matters.
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
KEYBANK NATIONAL ASSOCIATION
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By:
----------------------------------------
Name:
Title:
13
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK3
JUNE 13, 2001
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
1 The Metropolitan 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Key Key
Apartments
2 Xxxx Xxxxx Xxxxxx Xxxxxx 00-00 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 Key Key
3 French Quarters 0000 Xxxxx Xxxxxxx XX 00000 Key Key
Apartments
4 Harbor Gateway-Francisco 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Key Xxx
Xxxxxxxx Xxxxxx Xxxxxxxx
X
0 Xxxx'x Xxxxx 0000 Xxxxxxx Xxxx Xxxxxxxx XX 00000 Key Key
6 000 Xxxxxxxxx Xxxxx 000 Xxxxxxxxx Xxxxx Xxxxx Xxxx XX 00000 Key Key
7 Plaza One Financial 000 Xxxx Xxxxx Xxxxxx Xxxxx XX 00000 Key Key
Center
8 Depot Marketplace Northeast Corner of Xxxxxxxx XX 00000 Key Key
Xxxxxxx Street &
Montezuma Street
0 Xxx Xxxxx Xxxxxx 0000-00000 Xxxx Xxxxxxxxx XX 00000 Key Key
Xxxxxx Xxxxxx
00 00 Xxxxxxx Xxxxxx, X.X. 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx XX 00000 Key Key
N.E.
00 Xxxxxxxxx Xxxxxxx 000-000 X. Xxxxx Xxxx Xxxxxxxxx XX 00000 Key Xxx
Xxxxxxxx Xxxx
00 Xxxxxx Xxxxxxx Apartments 000 Xxxxxx Xxxx Xxxxxxxxxxxx XX 00000 Key Key
13 Best Buy #185 0000 Xxxx Xxxxxxxx Xxxx Xxxx Xxxx XX 00000 Key Key
Road
14 Valley View Plaza 0000-0000 Xxxx Xxxx Xxxxxxx XX 00000 Key Key
and 000-000 Xxxxx
Xxxxx Xxxxxx
ORIG REM. ORIG REM. INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. TERM TO TERM TO ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (2) TERM TERM MATURITY (3) MATURITY (3) (MONTHS) RATE
- --------- ----------- ----------- ---- ---- ------------ ------------ -------- ----
1 Fee $24,650,000 $24,615,206 360 358 120 118 0 7.1100%
2 Fee 19,000,000 18,964,334 360 357 120 117 0 7.3900%
3 Fee 12,100,000 12,063,210 300 297 84 81 0 7.4700%
4 Fee 10,054,000 10,048,182 360 359 120 119 0 7.2500%
5 Fee 9,400,000 9,371,776 360 356 120 116 0 7.5000%
6 Fee 8,600,000 8,600,000 360 360 120 120 0 7.8600%
7 Fee 8,550,000 8,535,191 360 357 84 81 0 7.6800%
8 Fee 8,520,000 8,515,054 360 359 120 119 0 7.2400%
9 Fee 8,350,000 8,324,929 360 356 120 116 0 7.5000%
10 Fee 7,100,000 7,038,800 300 291 120 111 0 8.2600%
11 Fee 6,900,000 6,887,467 360 357 120 117 0 7.5100%
12 Fee 6,670,000 6,657,649 360 357 120 117 0 7.4400%
13 Fee 6,491,000 6,479,694 360 357 144 141 0 7.6600%
14 Fee 6,400,000 6,380,657 300 297 120 117 0 7.5000%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (4) (YES/NO) (5) PROVISION DATE FEES
- ----------- ------- --------- ------- ------------ --------- ---- ----
1 Actual/360 $165,822 5/1/2001 Yes Lock/26_Def/91_0%/3 1/1/2011 0.0519%
2 Actual/360 131,423 4/1/2001 Yes Lock/27_Def/90_0%/3 12/1/2010 0.0519%
3 Actual/360 89,182 4/1/2001 No N/A 2/1/2005 0.0519%
4 Actual/360 68,586 6/1/2001 5/1/2011 Yes Lock/25_Def/91_0%/4 1/1/11 0.0519%
5 Actual/360 65,726 3/1/2001 Yes Lock/28_Def/89_0%/3 11/1/2010 0.000519
6 Actual/360 62,266 7/1/2001 Yes Lock/24_Def/93_0%/3 3/1/2011 0.000519
7 Actual/360 60,840 4/1/2001 Yes Lock/27_Def/54_0%/3 12/1/2007 0.000519
8 Actual/360 58,064 6/1/2001 Yes Lock/25_Def/91_0%/4 1/1/2011 0.000519
9 Actual/360 58,384 3/1/2001 Yes Lock/28_Def/89_0%/3 11/1/2010 0.0519%
10 Actual/360 56,027 10/1/2000 Yes Lock/33_Def/83_0%/4 5/1/2010 0.000519
11 Actual/360 48,293 4/1/2001 3/1/2011 Yes Lock/27_Def/89_0%/4 11/1/2010 0.000519
12 Actual/360 46,364 4/1/2001 Yes Lock/27_Def/90_0%/3 12/1/2010 0.000519
13 Actual/360 46,099 4/1/2001 3/1/2013 Yes Lock/27_Def/113_0%/4 11/1/2012 0.000519
14 Actual/360 47,295 4/1/2001 3/1/2011 No N/A N/A 0.000519
A-1
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
00 Xxxxxxxxxx Xxxxxxx Xxxx 000 00xx Xxxxxx, XX Xxxxx Xxxxxx XX 00000 Key Key
Manufactured Home
Community
16 400 Captain Neville Drive 400 Captain Neville Xxxxxxxxx XX 00000 Key Xxx
Xxxxx
00 Gallery Court 000-000 0xx Xxxxxx Xxxxxxxxxx XX 00000 Key Key
NW & 000-000 X
Xxxxxx XX
00 Xxx Xxxx Xxxxx Xxxxxxxxxxxxxx Xxxxxxxx XX 00000 Key Key
Turnpike
19 U of M Medical Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000 Key Key
Building Center Xxxx
00 Xxxxxxxx Xxxxx Shopping Route 31 at Church Xxxxxxxxxx XX 00000 Key Key
Center Xxxxxx
00 Xxxxxx Xxxx Apartments 0000 Xxxx Xxx Xxxx Xxxxxx XX 00000 Key Key
00 Xxxxxxxx Xxxxx 0000 and 0000 Xxxx Xxxxxxxx XX 00000 Key Key
Street
23 Storage USA 0000 Xxxxxxx Xxxxxx Xxxxx Xx XX 00000 Key Key
24 Technology Trading Park I 000 Xxxxx Xxxxx Xxxxxxxx XX 00000 Key Key
25 Parkview Plaza Shopping 0000-0000 Xxxxx Xxx Xxxxx XX 00000 Key Key
Center Xxxxxxx Xxxxx
00 00xx Xxxxxx Square 0000 Xxxx 00xx Xxxxxx Xxxxxx XX 00000 Key Key
Shopping Center
27 Stone Container 000 Xxxxx Xxxxx Xxxxxxxx XX 00000 Key Key
Corporation
Warehouse/Distribution
28 Salmon Creek Business 00000 XX 0xx Xxxxx Xxxxxxxxx XX 00000 Key Key
Park
29 Annapolis Gardens 000 X. Xxxxxxxx Xxxxxxxx Xxxx XX 00000 Key Xxx
Xxxxxxxxxx Xxxxxx
00 Xxxxxx Xxxxxx Shopping 1676-1680 Marion-Mt. Xxxxxx Xxxxxxxx XX 00000 Key Key
Center Xxxxxx Xxxx
00 Zipp Express, Inc. 00000 Xxxxx Xxxx 00 Xxxxxxxxxx XX 00000 Key Key
South
32 The Sonterra Apartments 0000 Xxxxxxx Xxxxx Xxxxxx XX 00000 Key Key
33 000 0xx Xxxxxx, XX 000 0xx Xxxxxx, XX Xxxxxxxxxx XX 00000 Key Key
00 Xxxxxxx Xxxxxxx 000 Xxxxx Xxxx Xxxxxxxxx XX 00000 Key Key
Apartments
ORIG REM. ORIG REM. INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. TERM TO TERM TO ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (2) TERM TERM MATURITY (3) MATURITY (3) (MONTHS) RATE
- --------- ----------- ----------- ---- ---- ------------ ------------ -------- ----
15 Fee 6,400,000 6,379,714 300 297 120 117 0 7.2600%
16 Fee 6,200,000 6,196,668 360 359 120 119 0 7.4800%
17 Fee 6,135,000 6,116,689 360 356 120 116 0 7.5300%
18 Fee 5,795,000 5,784,328 360 357 120 117 0 7.4600%
19 Fee 5,650,000 5,642,855 360 358 120 118 0 7.5500%
20 Fee 4,740,000 4,740,000 300 300 120 120 0 8.1800%
21 Fee 4,480,000 4,473,707 360 358 120 118 0 7.1300%
22 Fee 4,268,000 4,265,819 360 359 120 119 0 7.6300%
23 Fee 4,147,500 4,132,901 240 238 120 118 0 7.2800%
24 Fee 4,050,000 4,047,766 360 359 120 119 0 7.4000%
25 Fee 3,843,000 3,841,154 360 359 120 119 0 7.8100%
26 Fee 3,700,000 3,694,317 240 239 120 119 0 7.7500%
27 Fee 3,565,000 3,545,299 300 295 120 115 0 7.5400%
28 Fee 3,300,000 3,295,665 360 358 120 118 0 7.4000%
29 Fee 3,200,000 3,189,906 360 356 120 116 0 7.2500%
30 Fee 2,940,000 2,923,535 360 350 120 110 0 8.2700%
31 Fee 2,940,000 2,917,193 192 189 84 81 0 7.5000%
32 Fee 2,900,000 2,893,622 300 298 120 118 0 7.2000%
33 Fee 2,850,000 2,839,883 360 355 120 115 0 7.5000%
34 Fee 2,600,000 2,588,703 300 296 120 116 0 7.8700%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (4) (YES/NO) (5) PROVISION DATE FEES
- ----------- ------- --------- ------- ------------ --------- ---- ----
15 Actual/360 46,301 4/1/2001 Yes Lock/27_Def/90_0%/3 12/1/2010 0.000519
16 Actual/360 43,266 6/1/2001 No N/A N/A 0.0519%
17 Actual/360 43,023 3/1/2001 Yes Lock/28_Def/89_0%/3 11/1/2010 0.0519%
18 Actual/360 40,361 4/1/2001 Yes Lock/27_Def/90_0%/3 12/1/2010 0.1019%
19 Actual/360 39,699 5/1/2001 Yes Lock/26_Def/91_0%/3 1/1/2011 0.0519%
20 Actual/360 37,151 7/1/2001 Yes Lock/24_Def/93_0%/3 3/1/2011 0.1019%
21 Actual/360 30,198 5/1/2001 Yes Lock/26_Def/91_0%/3 1/1/2011 0.0519%
22 Actual/360 30,223 6/1/2001 Yes Lock/25_Def/91_0%/4 1/1/2011 0.0519%
23 Actual/360 32,856 5/1/2001 Yes Lock/26_Def/91_0%/3 1/1/2011 0.0519%
24 Actual/360 28,041 6/1/2001 Yes Lock/25_Def/91_0%/4 1/1/2011 0.0519%
25 Actual/360 27,691 6/1/2001 Yes Lock/25_Def/91_0%/4 1/1/2011 0.0519%
26 Actual/360 30,375 6/1/2001 Yes Lock/25_Def/91_0%/4 1/1/2011 0.0519%
27 Actual/360 26,438 2/1/2001 1/1/2011 Yes Lock/29_Def/87_0%/4 9/1/2010 0.0519%
28 Actual/360 22,849 5/1/2001 Yes Lock/26_Def/91_0%/3 1/1/2011 0.0519%
29 Actual/360 21,830 3/1/2001 Yes Lock/28_Def/89_0%/3 11/1/2010 0.1019%
30 Actual/360 22,129 9/1/2000 8/1/2010 Yes Lock/34_Def/82_0%/4 4/1/2010 0.0519%
31 Actual/360 26,337 4/1/2001 3/1/2008 Yes Lock/27_Def/53_0%/4 11/1/2007 0.0519%
32 Actual/360 20,868 5/1/2001 Yes Lock/26_Def/91_0%/3 1/1/2011 0.1019%
33 Actual/360 19,928 2/1/2001 1/1/2011 Yes Lock/29_Def/87_0%/4 9/1/2010 0.0519%
34 Actual/360 19,844 3/1/2001 Yes Lock/28_Def/89_0%/3 11/1/2010 0.0519%
A-2
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
35 Xxx Communications 0000 Xxxx 00xx Xxxxxx Xxxxxx XX 00000 Key Key
Building
36 Your Secured Storage 0000 Xxxx Xxxx Xxxx Xxx Xxxxx XX 00000 Key Xxx
Xxxxxxxxx
00 Eckerd Drug Store 0000 00xx Xxxxxx Xx. Xxxxxxxxxx XX 00000 Key Key
South
38 Office Depot Retail 0000 X. Xxxx Xxxxxx Xxxxxxx XX 00000 Key Key
Building
39 Greenbriar West Business 1500, 1501, 1505 & Xxxxxxxxxx XX 00000 Key Key
Park-Phase II 0000 Xxxxxxxxxx Xxxxx
40 Dick's Sporting Goods 0000 Xxxxx Xxxx Xxxxxxxxx XX 00000 Key Key
41 Bayberry Commons, 000 Xxxxx Xxxxx Xxxxxxx XX 00000 Key Key
Xxxxxxxx Xxxxxx College Road, 130 Pembroke
& Xxxxxxxxx Xxxxxx Xxxx, 000 Xxxxxx Xxxx
42 SECURITY SELF STORAGE 0000 Xxxx Xxxxxx Xxxxxxx XX 00000 Key Xxx
Xxxxxx
00 00 XXXXXXX XXXXXX 00 Xxxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 Key Key
44 Oakdale Townhomes 0000 Xxxxxxx Xxxxxx XX 00000 Key Key
Boulevard
00 Xxxxxx Xxxxx Xxxxxxxx 0000 Xxxxxx Xxxxx Xxxxx Xxxx XX 00000 Key Key
46 Xxxxxx Crossing I 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Key Key
47 Colony at Maple Canyon 0000 Xxxxx Xxxx Xxxxxxxx XX 00000 Key Key
Apartments
48 Tualatin Sleep Products 0000 Xxxxxx Xxx Xxxxxxxx XX 00000 Key Key
Industrial Facility
00 Xxxxx Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 Key Key
Retail Center
50 The Storage Center 00000 Xxxxxx Xxxxx Xxxxxx Xxxx Xxxxx XX 00000 Key Key
Road
00 Xxxxxxxxxx Xxxxxxx I 0000 Xxxxx Xxxx Xxxx Xxxxxxxxx XX 00000 Key Key
00 Xxxx Xxxxxxxx Xxxxx 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000 Key Key
53 Sunnymead Mini-Storage 00000 Xxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 Key Key
54 All-Star Storage and 000 X. Xxxxxxxxx Xx. Xxxxxx XX 00000 Key Key
Commercial Drive
55 Axelgaard Manufacturing 000 X. Xxxxxxxx Xxxx Xxxxxxxxx XX 00000 Key Key
Building
ORIG REM. ORIG REM. INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. TERM TO TERM TO ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (2) TERM TERM MATURITY (3) MATURITY (3) (MONTHS) RATE
- --------- ----------- ----------- ---- ---- ------------ ------------ -------- ----
35 Fee 2,550,000 2,535,812 300 295 120 115 0 7.5000%
36 Fee 2,500,000 2,492,338 300 297 120 117 0 7.4300%
37 Fee 2,317,424 2,309,274 354 349 120 115 0 7.7500%
38 Fee 2,285,000 2,280,168 300 298 120 118 0 7.4100%
39 Fee 2,225,000 2,223,773 360 359 120 119 0 7.4000%
40 Fee 2,220,000 2,212,540 360 355 120 115 0 7.7500%
41 Fee 2,080,000 2,064,492 300 292 120 112 0 8.3300%
42 Fee 1,865,000 1,859,318 300 297 120 117 0 7.4600%
43 Fee 1,813,000 1,797,069 300 290 120 110 0 8.6400%
44 Fee 1,760,000 1,746,299 360 347 120 107 0 7.9500%
45 Leasehold 1,720,000 1,711,946 300 296 120 116 0 7.4000%
46 Fee 1,600,000 1,592,777 300 296 120 116 0 7.6300%
47 Fee 1,600,000 1,591,381 300 295 120 115 0 7.6900%
48 Fee 1,500,000 1,500,000 300 300 120 120 0 7.7700%
49 Fee 1,500,000 1,497,168 300 298 120 118 0 8.0000%
50 Fee 1,400,000 1,395,870 300 297 120 117 0 7.6200%
51 Fee 1,300,000 1,297,606 360 357 120 117 0 7.4600%
52 Fee 1,300,000 1,296,490 300 297 120 117 0 8.0500%
53 Fee 900,000 897,647 180 179 120 119 0 8.1900%
54 Fee 840,000 838,414 300 298 120 118 0 8.0000%
55 Fee 647,000 645,851 300 298 120 118 0 8.3100%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (4) (YES/NO) (5) PROVISION DATE FEES
- ----------- ------- --------- ------- ------------ --------- ---- ----
35 Actual/360 18,844 2/1/2001 1/1/2011 Yes Lock/29_Def/87_0%/4 9/1/2010 0.0519%
36 Actual/360 18,361 4/1/2001 Yes Lock/27_Def/90_0%/3 12/1/2010 0.1019%
37 Actual/360 16,674 2/1/2001 1/1/2011 Yes Lock/29_Def/87_0%/4 9/1/2010 0.0519%
38 Actual/360 16,752 5/1/2001 Yes Lock/26_Def/91_0%/3 1/1/2011 0.0519%
39 Actual/360 15,405 6/1/2001 Yes Lock/25_Def/91_0%/4 1/1/2011 0.0519%
40 Actual/360 15,904 2/1/2001 1/1/2011 Yes Lock/29_Def/87_0%/4 9/1/2010 0.0519%
41 Actual/360 16,511 11/1/2000 No N/A 9/1/2003 0.1019%
42 Actual/360 13,734 4/1/2001 Yes Lock/27_Def/90_0%/3 12/1/2010 0.0519%
43 Actual/360 14,770 9/1/2000 Yes Lock/34_Def/83_0%/3 5/1/2010 0.0519%
44 Actual/360 12,853 6/1/2000 Yes Lock/37_Def/79_0%/4 1/1/2010 0.0519%
45 Actual/360 12,599 3/1/2001 Yes Lock/28_Def/89_0%/3 11/1/2010 0.0519%
46 Actual/360 11,959 3/1/2001 Yes Lock/28_Def/89_0%/3 11/1/2010 0.0519%
47 Actual/360 12,022 2/1/2001 Yes Lock/29_Def/88_0%/3 10/1/2010 0.0519%
48 Actual/360 11,350 7/1/2001 No N/A 6/1/2006 0.0519%
49 Actual/360 11,577 5/1/2001 No N/A 4/1/2006 0.0519%
50 Actual/360 10,455 4/1/2001 Yes Lock/27_Def/90_0%/3 12/1/2010 0.0519%
51 Actual/360 9,054 4/1/2001 No N/A N/A 0.0519%
52 Actual/360 10,077 4/1/2001 No N/A 3/1/2006 0.0519%
53 Actual/360 8,700 6/1/2001 No N/A 4/1/2006 0.0519%
54 Actual/360 6,483 5/1/2001 No N/A 4/1/2006 0.0519%
55 Actual/360 5,127 5/1/2001 No N/A 4/1/2006 0.0519%
A-3
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- ------
00 Xxxx Xxxxxxxx Xxxxxx 00-00-00 Xxxxxxxx Xxxxxxxx Xxxx XX 00000 Key Key
Apartments Avenue
57 0000 Xxxx Xxxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxx XX 00000 Key Xxx
Xxxxxx
00 Sanitary Products Company 000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx XX 00000 Key Key
TOTAL/WEIGHTED AVERAGE:
ORIG REM. ORIG REM. INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. TERM TO TERM TO ONLY
# LEASEHOLD BALANCE BALANCE (2) TERM TERM MATURITY (3) MATURITY (3) (MONTHS)
- --------- ----------- ----------- ---- ---- ------------ ------------ --------
56 Fee 600,000 599,452 300 299 120 119 0
57 Fee 528,750 528,339 300 299 120 119 0
58 Fee 435,000 433,281 360 352 120 112 0
$263,974,674 $263,339,178
============ ============
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
INTEREST (30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# RATE ACTUAL/360) PAYMENT DATE ARD (4) (YES/NO) (5) PROVISION DATE FEES
- ---- ----------- ------- --------- ------- ------------ --------- ---- ----
56 7.5900% Actual/360 4,469 6/1/2001 No N/A 4/1/2006 0.0519%
57 8.2700% Actual/360 4,176 6/1/2001 No N/A 5/1/2006 0.0519%
58 8.7700% Actual/360 3,428 11/1/2000 No N/A 10/1/05 0.0519%
(1) Unless otherwise indicated, none of the mortgage loans are
cross-collateralized with other mortgage loans.
(2) Assumes a Cut-off Date of June 2001.
(3) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(4) Anticipated Repayment Date.
(5) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
X-0
XXXXXXX X-0
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing
Date:
(a) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine
signature) and delivery of any and all documents contemplated by this
Agreement, including, without limitation, endorsements of Mortgage Notes,
and the performance and compliance by the Seller with the terms of this
Agreement will not: (i) violate the Seller's organizational documents; or
(ii) constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of, any
indenture, agreement or other instrument to which the Seller is a party or
by which it is bound or which is applicable to it or any of its assets,
which default or breach, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the event
that the related transaction is deemed to constitute a loan secured by all
or part of the Mortgage Loans, to pledge the Mortgage Loans) in accordance
with, and under the conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation
of the Seller, enforceable against the Seller in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Seller's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best
of the Seller's knowledge, threatened against the Seller which, if
determined adversely to the Seller, would prohibit the Seller from entering
into this Agreement or, in the Seller's good faith and reasonable judgment,
would
B-1-1
be likely to affect materially and adversely either the ability of the
Seller to perform its obligations hereunder or the financial condition of
the Seller.
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(i) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(j) The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud its present or future
creditors.
(l) The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Mortgage Loans to
the Purchaser, as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Seller, and the
Seller will not be left with unreasonably small assets or capital with
which to engage in and conduct its business.
(n) The Seller does not intend to, and does not believe that it will,
incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(o) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(p) The principal place of business and chief executive office of the
Seller is located in the State of Ohio.
B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing
Date:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Purchaser of this Agreement, and
the performance and compliance by the Purchaser with the terms of this
Agreement will not: (i) violate the Purchaser's organizational documents;
or (ii) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any indenture, agreement or other instrument to which the Purchaser is
a party or by which it is bound or which is applicable to it or any of its
assets, which default or breach, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(c) The Purchaser has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (ii) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(e) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms hereof will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(f) There are no actions, suits or proceedings pending or, to the best
of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, would be likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations hereunder or
the financial condition of the Purchaser.
(g) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been
B-2-1
completed, and except for those filings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing
Agreement to be completed after the Closing Date.
B-2-2
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" AND
OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN, EXCEPT WHERE OTHERWISE
EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE OF THE SELLER REGARDING
THE MATTERS REFERRED TO, IN EACH CASE WITHOUT HAVING CONDUCTED ANY INDEPENDENT
INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO (EXCEPT AS
EXPRESSLY SET FORTH HEREIN).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is true, complete (consistent with
the definition of Mortgage Loan Schedule in the Pooling and Servicing Agreement)
and correct in all material respects as of the date of this Agreement and as of
the respective Due Dates for the Mortgage Loans in June 2001.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Mortgage Loans to the Purchaser, the Seller had good title to, and was the sole
owner of, each Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each Mortgage Loan to or at the direction of the Purchaser
free and clear of any and all pledges, liens, charges, security interests,
participation interests and/or other interests and encumbrances (except for
certain servicing rights). Subject to the completion of all missing information
(including, without limitation, the names of assignees and endorsees and missing
recording information) in all instruments of transfer or assignment and
endorsements, and the completion of all recording and filing contemplated hereby
and by the Pooling and Servicing Agreement, the Seller will have validly and
effectively conveyed to the Purchaser all legal and beneficial interest in and
to each Mortgage Loan free and clear of any pledge, lien, charge, security
interest or other encumbrance (except for certain servicing rights). The sale of
the Mortgage Loans to the Purchaser or its designee does not require the Seller
to obtain any governmental or regulatory approval or consent that has not been
obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Due Date for such Mortgage
Loan in June 2001 without giving effect to any applicable grace period, nor was
any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in June 2001.
4. Lien; Valid Assignment. Except as set forth on Schedule C-4, the
Mortgage related to and delivered in connection with each Mortgage Loan
constitutes a valid and, subject to the exceptions set forth in Paragraph 13
below, enforceable first priority lien upon the related Mortgaged Property,
prior to all other liens and encumbrances, and there are no liens and/or
encumbrances that are pari passu with the lien of such Mortgage, in any event
except for (a) the lien for current real estate 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 that are
of public record and/or are referred to in the related lender's title insurance
policy (or, if not yet issued, referred to in a pro forma title policy or a
"marked-up" commitment), none of which materially interferes with the security
C-1
intended to be provided by such Mortgage, the current principal use of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan, (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment) or appearing of record, none of which materially
interferes with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan, (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use of the related Mortgaged Property or
the current ability of the related Mortgaged Property to generate income
sufficient to service the related Mortgage Loan, (e) the rights of tenants (as
tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property which the Seller did not require to be subordinated to the
lien of such Mortgage, which rights do not materially interfere with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, (f)
if such Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien
of the Mortgage for another Mortgage Loan contained in the same
Cross-Collateralized Group, and (g) if the related Mortgaged Property consists
of one or more units in a condominium, the related condominium declaration (the
foregoing items (a) through (g) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid, binding and, subject to the
limitations and exceptions set forth in Paragraph 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the limitations and exceptions set
forth in Paragraph 13 below, enforceable first priority lien on and security
interest in, subject to applicable law, the property, rights and interests of
the related Borrower described therein and subject to the exceptions set forth
in Paragraph 4; and each assignor thereunder has the full right to assign the
same. The related assignment of any Assignment of Leases not included in a
Mortgage, executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name of the assignee and any related recording
information which is not yet available to the Seller), and constitutes a legal,
valid, binding and, subject to the limitations and exceptions set forth in
Paragraph 13 below, enforceable assignment of such Assignment of Leases from the
relevant assignor to the Trustee. If an Assignment of Leases exists with respect
to any Mortgage Loan (whether as part of the related Mortgage or separately),
then the related Mortgage or related Assignment of Leases, subject to applicable
law, provides for the appointment of a receiver for the collection of rents or
for the related mortgagee to enter into possession to collect the rents if there
is an Event of Default.
6. Mortgage Status; Waivers and Modifications. In the case of each Mortgage
Loan, except by a written instrument which has been delivered to the Purchaser
or its designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) the related Mortgaged Property has not
been released from the lien of such Mortgage and (c) the related Borrower has
not been released from its obligations under such
C-2
Mortgage, in whole or in material part, in each such event in a manner which
would materially interfere with the benefits of the security intended to be
provided by such Mortgage.
7. Condition of Property; Condemnation. In the case of each Mortgage Loan,
except as set forth in an engineering report prepared in connection with the
origination of such Mortgage Loan, the related Mortgaged Property is, to the
Seller's knowledge (after inquiry of its servicer, which servicer may be an
affiliate of the Seller), free and clear of any damage that would materially and
adversely affect its value as security for such Mortgage Loan (except in any
such case where an escrow of funds or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). The Seller has not received
notice and has no knowledge of any proceeding pending for the condemnation of
all or any material portion of the Mortgaged Property securing any Mortgage
Loan. To the Seller's knowledge (based solely on surveys (if any) and/or the
lender's title policy (or, if not yet issued, a pro forma title policy or
"marked up" commitment) obtained in connection with the origination of each
Mortgage Loan), except as set forth on Schedule C-7, as of the date of the
origination of each Mortgage Loan, (a) all of the material improvements on the
related Mortgaged Property lay wholly within the boundaries and, to the extent
in effect at the time of construction, building restriction lines of such
property, except for encroachments that are insured against by the lender's
title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current use of such
Mortgaged Property, and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated in the Title Policy. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and, to the
Seller's knowledge, no material claims have been made thereunder and no claims
have been paid thereunder. To the Seller's knowledge, no holder of the related
Mortgage has done, by act or omission, anything that would materially impair the
coverage under such Title Policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including endorsement
and delivery of the related Mortgage Note to the Purchaser and recording of the
related Assignment of Mortgage in favor of Purchaser in the applicable real
estate records), such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. Such Title Policy contains no exclusion
for, or it affirmatively insures (unless, in the case of clause (b) below, the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available), (a) access to a public road, and (b) that if a
survey was reviewed or prepared in connection with the origination of the
related Mortgage Loan, the area shown on such survey is the same as the property
legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating
C-3
to leasing, repairs or other matters with respect to the related Mortgaged
Property), and there is no obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and, subject to the
limitations and exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan is a
deed of trust, then (a) a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may be
substituted in accordance with the Mortgage and applicable law, and (b) no fees
or expenses are payable to such trustee by the Seller, the Depositor or any
transferee thereof except in connection with a trustee's sale after default by
the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgage Loan, (a) an
environmental site assessment, an environmental site assessment update or a
transaction screen was performed by an independent third-party environmental
consultant with respect to the related Mortgaged Property in connection with the
origination of such Mortgage Loan, (b) a report of each such assessment, update
or screen, if any (an "Environmental Report"), has been delivered to the
Purchaser, and (c) either: (i) no such Environmental Report, if any, provides
that as of the date of the report there is a material violation of applicable
environmental laws with respect to any known circumstances or conditions
relating to the related Mortgaged Property; or (ii) if any such Environmental
Report does reveal any such circumstances or conditions with respect to the
related Mortgaged Property and the same have not been subsequently remediated in
all material respects, then, except as set forth on Schedule C-12, one or more
of the following are true--(A) a party not related to the related Borrower was
identified as a responsible party for such condition or circumstance, (B) the
related Borrower was required to provide additional security and/or to obtain
and, for the period contemplated by the related Mortgage Loan documents,
maintain an operations and maintenance plan, (C) the related Borrower provided a
"no further action" letter or other evidence acceptable to the Seller, in its
sole discretion, that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not requiring
any action, in respect of such condition or circumstance, (D) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation, (E) the expenditure of funds reasonably estimated
to be necessary to effect such remediation is not greater than 2% of the
outstanding principal balance of the related Mortgage Loan, (F) there exists an
escrow of funds reasonably estimated to be sufficient for purposes of effecting
such remediation, (G) the related Borrower or other responsible party is
currently taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority, (H) the related Mortgaged Property is insured under a policy of
insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances and
conditions or (I) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation and, as of the date of
C-4
origination of the related Mortgage Loan, such responsible party had, in the
Seller's sole discretion, an appropriate net worth in light of the environmental
matters covered by such guaranty or indemnity. To the Seller's knowledge, there
are no significant or material circumstances or conditions with respect to such
Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Borrower questionnaire delivered to Seller at the issue of
any related environmental insurance policy, if applicable, that render such
Mortgaged Property in material violation of any applicable environmental laws.
The Mortgage for each Mortgage Loan encumbering the Mortgaged Property requires
the related Borrower to comply with all applicable federal, state and local
environmental laws and regulations. Each of the Mortgage Loans identified on
Schedule C-12A are covered by environmental insurance policies and each such
policy is in the amount at least equal to 125% of the principal balance of the
Mortgage Loan, has a term ending no sooner than the date which is five years
after the maturity date of the Mortgage Loan to which it relates and do not
provide for a deductible or the premium and the deductible amount are held in
escrow.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower with respect to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by (i) bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions in such loan
documents may be further limited or rendered unenforceable by applicable law,
but (subject to the limitations set forth in the foregoing clauses (i) and (ii))
such limitations or unenforceability will not render such loan documents invalid
as a whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases, where tenants, having a net worth
of at least $50,000,000 or an investment grade credit rating and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least six (6) months (or a specified
dollar amount which, in the reasonable judgement of the Seller, will cover no
less than six months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the improvements
on a Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an
C-5
"SFH Area"), and flood insurance was available, a flood insurance policy meeting
the requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. All such hazard and flood insurance
policies contain a standard mortgagee clause for the benefit of the holder of
the related Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be reduced)
without ten (10) days' prior written notice to the mortgagee; and no such notice
has been received, including any notice of nonpayment of premiums, that has not
been cured. With respect to each Mortgage Loan, the related Mortgage requires
that the related Borrower or a tenant of such Borrower maintain insurance as
described above or permits the Mortgagee to require insurance as described
above. Except under circumstances that would be reasonably acceptable to a
prudent institutional commercial mortgage lender and which was set forth in the
related Mortgage or that would not otherwise materially and adversely affect the
security intended to be provided by the related Mortgage, the Mortgage for each
Mortgage Loan provides that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage may entitle the related Borrower to any portion of such proceeds
remaining after the repair or restoration of the related Mortgaged Property or
payment of amounts due under the Mortgage Loan; and provided, further, that, if
the related Borrower holds a leasehold interest in the related Mortgaged
Property, the application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph 18 below). In the case of each
Mortgage Loan, the related Mortgaged Property is covered by comprehensive
general liability insurance in an amount at least equal to $1 million.
15. Taxes and Assessments. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there are no
delinquent property taxes or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan prior to the due date of such
Mortgage Loan in June 2001 that are a lien of priority equal to or higher than
the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Borrower Bankruptcy. To the Seller's knowledge, no Borrower under a
Mortgage Loan is a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. Except as set forth on Schedule C-17, to the
Seller's knowledge, based upon a letter from governmental authorities, a legal
opinion, a zoning consultant's report, an endorsement to the related Title
Policy, or based on such other due diligence considered reasonable by prudent
commercial mortgage lenders in the lending area where the subject Mortgaged
Property is located (including, without limitation, when commercially
reasonable, a representation of the related Borrower at the time of origination
of the subject Mortgage Loan), the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure,
C-6
such non-compliance and failure does not materially and adversely affect the
value of the related Mortgaged Property as determined by the appraisal performed
in connection with the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the interest
of a Borrower as a lessee under a ground lease of all or a material portion of a
Mortgaged Property (together with any and all written amendments and
modifications thereof and any and all estoppels from or other agreements with
the ground lessor, a "Ground Lease"), but not by the related fee interest in
such Mortgaged Property or such material portion thereof (the "Fee Interest"),
then, except as set forth on Schedule C-18:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, is
thereafter further assignable by, the Purchaser upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
either has been obtained or cannot be unreasonably withheld); provided that
such Ground Lease has not been terminated and all amounts owed thereunder
have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any material
default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan. In
addition, if required by such Ground Lease, the lessor thereunder has
received notice of the lien of the related Mortgage in accordance with the
provisions of such Ground Lease. Furthermore, such Ground Lease further
provides that no notice of termination given under such Ground Lease is
effective against the mortgagee under such Mortgage Loan unless a copy has
been delivered to such mortgagee in the manner described in such Ground
Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(g) Such Ground Lease either (i) has an original term which extends
not less than ten (10) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term
C-7
which does not end prior to the 5th anniversary of the Stated Maturity Date
of such Mortgage Loan and has extension options that are exercisable by the
lender upon its taking possession of the Borrower's leasehold interest and
that, if exercised, would cause the term of such Ground Lease to extend not
less than ten (10) years beyond the Stated Maturity Date of such Mortgage
Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the
related Borrower unless the mortgagee under such Mortgage Loan fails to
cure a default of the lessee under such Ground Lease following notice
thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds with respect to the
leasehold interest will be applied either (i) to the repair or restoration
of all or part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such proceeds
as the repair or restoration progresses (except in such cases where a
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the Mortgaged Property is located
at the time of the origination of such Mortgage Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
written consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury regulation section
1.860G-2(a) (but without regard to the rule in Treasury regulation section
1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither the
Seller nor, to the Seller's knowledge, any prior holder of such Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property (other
than amounts paid by the tenant as specifically provided under related lease),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan,
C-8
such Mortgage Loan provides that, during the period commencing on or about the
related Anticipated Repayment Date and continuing until such Mortgage Loan is
paid in full, (a) additional interest shall accrue and may be compounded monthly
and shall be payable only after the outstanding principal of such Mortgage Loan
is paid in full, and (b) a portion of the cash flow generated by such Mortgaged
Property will be applied each month to pay down the principal balance thereof in
addition to the principal portion of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the Borrower under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Borrower or Mortgaged
Property, would materially and adversely affect the value of the Mortgaged
Property as security for such Mortgage Loan or the current ability of the
Borrower to pay principal, interest or any other amounts due under such Mortgage
Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any mortgage lien junior to or of equal
priority with the lien of the related Mortgage without the prior written consent
of the holder thereof or the satisfaction of debt service coverage or similar
criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
is free and clear of any and all mechanics' and materialmen's liens that are
prior or equal to the lien of the related Mortgage and that are not bonded or
escrowed for or covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage and that is not bonded or escrowed for or
covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from, all
applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related borrower at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located, customarily performs in the origination of
comparable mortgage loans, the related Borrower was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized with
any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage requires
the mortgagee to release all or any material portion of the related Mortgaged
Property from the lien of the
C-9
related Mortgage except upon (i) payment in full of all amounts due under the
related Mortgage Loan or (ii) delivery of U.S. Treasury securities in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage Loans
that are Cross-Collateralized Mortgage Loans, and the other individual Mortgage
Loans secured by multiple parcels, may require the respective mortgagee(s) to
grant releases of portions of the related Mortgaged Property or the release of
one or more related Mortgaged Properties upon (i) the satisfaction of certain
legal and underwriting requirements or (ii) the payment of a release price and
prepayment consideration in connection therewith; and provided, further, that
certain Cross-Collateralized Groups of Mortgage Loans may permit the related
Borrower to obtain the release of one or more of the related Mortgaged
Properties by substituting comparable real estate property, subject to, among
other conditions precedent, receipt of confirmation from each Rating Agency that
such release and substitution will not result in a qualification, downgrade or
withdrawal of any of its then-current ratings of the Certificates; and provided,
further, that any Mortgage Loan may permit the unconditional release of one or
more unimproved parcels of land to which the Seller did not give any material
value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then the
related Mortgage Loan documents provide that the related Borrower is responsible
for the payment of all reasonable costs and expenses incurred by the related
mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage Loan,
the Seller or an affiliate thereof inspected, or caused the inspection of, the
related Mortgaged Property.
33. No Material Default. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan(other than payments due but not yet 30
days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Exhibit C.
34. Due-on-Sale. Subject to exceptions set forth in the related Mortgage,
the Mortgage for each Mortgage Loan contains a "due-on-sale" clause that
provides for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without the prior written consent of the holder, the
Mortgaged Property subject to such Mortgage, or any controlling interest in the
related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $15,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an
C-10
individual, whose organizational documents provide substantially to the effect
that it was formed or organized solely for the purpose of owning and operating
one or more of the Mortgaged Properties securing the Mortgage Loans and prohibit
it from engaging in any business unrelated to such Mortgaged Property or
Properties, and whose organizational documents further provide, or which entity
represented in the related Mortgage Loan documents, substantially to the effect
that it does not have any material assets other than those related to its
interest in and operation of such Mortgaged Property or Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan documents, that it has its own books and records and
accounts separate and apart from any other person, that it holds itself out as a
legal entity (separate and apart from any other person), that it will not
guarantee or assume the debts of any other person, that it will not commingle
assets with affiliates, and that it will not transact business with affiliates
except on an arm's-length basis.
36. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more complete
separate tax lots or is subject to an endorsement under the related Title Policy
or in certain instances an application has been made to the applicable governing
authority for creation of separate tax lots which shall be effective for the
next tax year.
38. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate") as set forth on Schedule C-38.
39. Security Interests. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property or healthcare facility, then (a) the
security agreements, financing statements or other instruments, if any, related
to the Mortgage Loan secured by such Mortgaged Property establish and create a
valid security interest in all items of personal property owned by the related
Borrower which are material to the conduct in the ordinary course of the
Borrower's business on the related Mortgaged Property, subject only to purchase
money security interests, personal property leases and security interests to
secure revolving lines of credit and similar financing; and (b) one or more
Uniform Commercial Code financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a Uniform Commercial Code financing statement under applicable law). The related
assignment of such security interest (but for insertion of the name of the
assignee and any related information which is not yet available to the Seller)
executed and delivered in favor of the Trustee constitutes a legal, valid and
binding assignment thereof from the relevant assignor to the Trustee.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to each Mortgage Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to amortize
prior to its stated maturity date or, in the case of an ARD Loan, prior to its
Anticipated Repayment Date.
C-11
42. Servicing Rights. Except as set forth on Schedule C-42 or as otherwise
contemplated in this Agreement, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
43. Recourse. The related Mortgage Loan Documents contain provisions
providing for recourse against the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower for damages
sustained in connection with the Borrower's fraud, material (or, alternatively,
intentional) misrepresentation or misappropriation of any tenant security
deposits (in some cases, only after foreclosure or an action in respect
thereof), rent (in some cases, only after an event of default), insurance
proceeds or condemnation proceeds. The related Mortgage Loan Documents contain
provisions pursuant to which the related Borrower, a principal of such Borrower
or an entity controlled by a principal of such Borrower has agreed to indemnify
the mortgagee for damages resulting from violations of any applicable
environmental laws.
44. Assignment of Collateral. There is no material collateral securing any
Mortgage Loan that has not been assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related Borrower
in the Mortgaged Property securing each Mortgage Loan includes a fee simple
and/or leasehold estate or interest in real property and the improvements
thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
which are required for the administration and servicing of such Mortgage Loan
are conveyed hereunder to the Purchaser. Any and all material requirements under
each Mortgage Loan as to completion of any material improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the Closing Date, have been complied with
in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the related
Mortgage requires the related Borrower, in some cases at the request of the
lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and/or financial statements of the related Borrower,
and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related Mortgage
or Mortgage Note provides a grace period for delinquent Monthly Payments no
longer than 15 days from the applicable Due Date (or, alternatively, 5 days from
notice to the related Borrower of the default).
49. Disclosure to Environmental Insurer. If the Mortgaged Property securing
any Mortgage Loan is covered by a secured creditor impaired property policy,
then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in
C-12
such policy) identified in any environmental reports related to such
Mortgaged Property which are in the Seller's possession or are otherwise
known to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
X-00
XXXXXXXX X-0
XXXX XXXXXXXXX
With respect to Loan No. 9469 / 000 Xxxxxxxxx Xxxxx, there are certain
restrictions of public record which provide that no buildings are to be
constructed or used on the related Mortgaged Property for retail, commercial or
residential purposes. The Mortgagor is using the Mortgaged Property for office
and research and development space. There are other similar uses of adjacent
properties that are subject to the same restrictions. An endorsement to the
lender's title insurance policy was obtained providing affirmative coverage for
any loss or damage the lender may suffer as a result of any present violation of
these restrictions.
C-4-1
SCHEDULE C-12
ENVIRONMENTAL CONDITIONS EXCEPTION
In the case of Loan No. 13189 / Harbor Gateway - Francisco Business Center
Building B, the Mortgaged Property's groundwater has been impacted by
Trichloroethylene (TCE), which the environmental consultant reported as having
migrated onto the Mortgaged Property from an off-site source.
C-12-1
SCHEDULE C-12A
ENVIRONMENTAL INSURANCE POLICIES
The three Mortgage Loans listed in the table below are the only Mortgage
Loans being conveyed under this Agreement that are covered by an environmental
insurance policy. As set forth below, with respect to Loan Xx. 0000 / 000
Xxxxxxxxx xxx Xxxx Xx. 00000 / Captain Neville Drive, the applicable insurance
policy terms expire within 30 days prior to the date that is five years after
the maturity date of the respective Mortgage Loan.
------------------------------------------------------------------------------------------------------------------------------------
INSURANCE POLICY LOAN MATURITY POLICY
MORTGAGE LOAN EFFECTIVE DATE MATURITY DATE PLUS 5 YEARS EXPIRATION DATE
------------------------------------------------------------------------------------------------------------------------------------
Loan No. 9469 / 141 Jefferson May 21, 2001 June 1, 2011 June 1, 2016 May 20, 2016
------------------------------------------------------------------------------------------------------------------------------------
Loan No. 12500 / Capt. Xxxxxxx Xxxxx 6, 2001 May 1, 2011 May 1, 2016 April 5, 2016
------------------------------------------------------------------------------------------------------------------------------------
Loan No. 12931 / Metropolitan April 27, 2001 April 1, 2011 April 1, 2016 April 26, 2016
------------------------------------------------------------------------------------------------------------------------------------
C-12A-1
SCHEDULE C-17
LOCAL LAW COMPLIANCE EXCEPTION
With respect to Loan No. 12324 / Annapolis Garden Apartments, the
applicable zoning office was unable to confirm that the Mortgaged Property was a
legal nonconforming use because its records had been destroyed. A zoning
endorsement to the lender's title insurance policy was obtained at the time the
Mortgage Loan was originated and the Mortgagor entered into a post closing
agreement with the Seller pursuant to which the Mortgagor agreed to furnish a
Certificate of Nonconformity issued by the City of Atlantic City, New Jersey on
or before June 30, 2001.
C-17-1
SCHEDULE X-00
XXXXXXXXX XXXXXX XXXXXXXXXX
Xxxx Xx. 00000 / Nutmeg Place Building is secured by the Mortgagor's
leasehold interest in the Mortgaged Property. While a lien on the related fee
interest is superior to the Mortgagor's leasehold interest in the Mortgaged
Property, the holder of the superior mortgage lien has agreed in writing not to
disturb the Mortgagor's leasehold interest. In addition, a title endorsement was
issued on the date the Mortgage Loan was originated insuring against any loss or
damage sustained by reason of any lack of priority of the Ground Lease over the
superior mortgage lien.
C-18-1
SCHEDULE C-38
ARD LOANS
Each of the following Mortgage Loans provide for the accrual of
post-Anticipated Repayment Date interest at the following specified Additional
Interest Rates:
Loan No. 11639 / Xxxxxx Center - Interest rate adjusts to greater of (i) initial
rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 11740 / Valley View Plaza - Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12355 / Zipp Express - Interest rate adjusts to greater of (i) initial
rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12356 / 000 0xx Xxxxxx - Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12425 / Eckerd Drugstore - Interest rate adjust to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12438 / Capitol Metals - Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12519 / Dick's Sporting Goods - Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12574 / Stone Container Building - Interest rate adjusts to greater of
(i) initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12625 / Xxx Communications - Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
Loan No. 12938 / Best Buy - Palo Alto - Interest rate adjusts to initial rate
plus 2%.
Loan Xx. 00000 / Xxxxxx Xxxxxxx - Interest rate adjusts to greater of (i)
initial rate plus 2% or (ii) treasury rate plus 2%.
C-38-1
SCHEDULE C-42
SERVICING RIGHTS EXCEPTIONS
With respect to each of the following Mortgage Loans, a third party is
entitled to receive a correspondent servicing fee:
Loan Xx. 0000 / Xxx Xxxx Xxxxx
Xxxx Xx. 00000 / Bayberry Commons, Xxxxxxxx Xxxxxx College & Courtyard Square
Loan Xx. 00000 / Xxxxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxx Xx. 00000 / Your Second Storage
Loan No. 12402 / The Sonterra Apartments
Loan Xx. 00000 / Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xx. 00000 / Parkview Xxxxx Xxxxxxxx Xxxxxx
X-00-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SECRETARY OF THE SELLER
KEYBANK NATIONAL ASSOCIATION
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxxx X. Xxxxxxx, hereby certify that I am a duly appointed Assistant
Secretary of KeyBank National Association, a national banking association (the
"Bank"), and further certify as follows:
1. Attached hereto as Attachment A are true, correct and complete copies of
the Articles of Association and the By-Laws of the Bank, which are in full force
and effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of the Bank authorizing and approving the Bank's execution, delivery
and performance of (a) the Mortgage Loan Purchase Agreement, dated as of June
____, 2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse First
Boston Mortgage Securities Corp., as purchaser and the Bank, as seller, and (b)
the corresponding Indemnification Agreement referred to in the Mortgage Loan
Purchase Agreement (the "Indemnification Agreement"). Such resolutions are in
full force and effect on the date hereof and do not conflict with any other
resolutions of the board of directors of the Bank in effect on the date hereof.
3. Attached hereto as Attachment C is a certificate of good standing with
respect to the Bank issued by the Comptroller of the Currency within 30 days of
the date hereof and no event (including, without limitation, any act or omission
on the part of the Bank) has occurred since the date thereof that has affected
the good standing of the Bank under the laws of the United States of America.
4. Each person who, as an officer or representative of the Bank, signed the
Mortgage Loan Purchase Agreement, the Indemnification Agreement or any other
document or certificate delivered by or on behalf of the Bank prior hereto or on
the date hereof in connection with the transactions contemplated in the Mortgage
Loan Purchase Agreement and/or the Indemnification Agreement, was, at the
respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of each such person appearing on any such
documents is his or her genuine signature.
D-1-1
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
June ____, 2001.
By:
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
D-1-2
ATTACHMENT A
ARTICLES OF ASSOCIATION AND BY-LAWS OF THE BANK
D-1-3
ATTACHMENT B
RESOLUTIONS OF THE BANK
D-1-4
ATTACHMENT C
OCC CERTIFICATE OF GOOD STANDING
D-1-5
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
KEYBANK NATIONAL ASSOCIATION
OFFICER'S CERTIFICATE
In connection with the execution and delivery by KeyBank National
Association (the "Bank") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement (the "Mortgage
Loan Purchase Agreement"), dated as of June ____, 2001, between Credit Suisse
First Boston Mortgage Securities Corp., as purchaser, and the Bank, as seller,
and the corresponding Indemnification Agreement referred to in the Mortgage Loan
Purchase Agreement (the "Indemnification Agreement"; and, together with the
Mortgage Loan Purchase Agreement, the "Agreements") the undersigned hereby
certifies that (i) the representations and warranties of the Bank in the
Agreements are true and correct in all material respects at and as of the date
hereof (or, in the case of any particular representation and warranty set forth
in Exhibit C to the Mortgage Loan Purchase Agreement, as of such other date
specifically set forth in such representation and warranty) with the same effect
as if made on the date hereof (or, in the case of any particular representation
and warranty set forth in Exhibit C to the Mortgage Loan Purchase Agreement, on
such other date specifically set forth in such representation and warranty), and
(ii) the Bank has, in all material respects, complied with all the agreements
and satisfied all the conditions on its part required under the Agreements to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified as of the _____ day of June, 2001.
KEYBANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
-------------------------------
Title:
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D-2-1
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL TO KEYBANK,
PURSUANT TO SECTION 7(VI)
June __, 2001
Xxxxx'x Investors Service, Inc. Fitch, Inc.
00 Xxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
McDonald Investments Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Credit Suisse First Boston Credit Suisse First Boston
Corporation Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx, Inc. First Union Securities, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx _______________________
Xxx Xxxx, XX 00000 Xxx Xxxx, XX ______
Re: Credit Suisse First Boston Mortgage Securities Corp. Series 2001-CK3
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Ladies and Gentlemen:
As Senior Vice President and Associate General Counsel of KeyBank National
Association, a national banking association (the "Bank"), I have acted as
counsel to the Bank and to its affiliate KeyCorp Real Estate Capital Markets,
Inc. (the "Corporation"), in connection with the negotiation, execution and
delivery by the Bank and the Corporation of the agreements listed below.
In that regard, I or attorneys working under my direction have examined and
relied upon originals or copies, certified or otherwise identified to my
satisfaction as being true copies of all such records of the Bank and the
Corporation, all such agreements, certificates and other documents as I have
deemed necessary as a basis for the opinions set forth herein, including the
following agreements executed in connection with the above referenced
securities:
1. The Mortgage Loan Purchase Agreement between the Bank and Credit
Suisse First Boston Mortgage Securities Corp. ("CSFBMSC");
2. The Pooling and Servicing Agreement among the Corporation, as
Master Servicer and Special Servicer, CSFBMSC and Xxxxx Fargo Bank
Minnesota, N.A., as Trustee; and
D-3A-1
The Indemnification Agreement among the Bank, CSFBMSC, First Union
Securities, Inc., McDonald Investments Inc., Xxxxxxx Xxxxx Barney, Inc. and
Credit Suisse First Boston Corporation.
The agreements listed in items 1 through 3 above are collectively
referenced herein as the "Agreements."
In such examination, I or such attorneys working under my direction have
assumed the genuineness of all signatures other than those signatures for the
Bank and the Corporation, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as certified or
photostatic copies. I or such attorneys have investigated such questions of law
for the purpose of rendering these opinions as I have deemed necessary.
Based on the foregoing, and subject to the limitations and qualifications
set forth below, I am of the opinion that:
(a) the Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with corporate power and authority to own its properties
and to conduct its business as now conducted by it and to enter into and
perform its obligations under the Agreements it is a party to;
(b) the Corporation has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Ohio;
(c) the Corporation has the corporate power and authority to own its
properties and to conduct its business as now conducted by it and to enter
into and perform its obligations under the Agreements it is a party to;
(d) the Agreements to which it is a party have been duly and validly
authorized, executed and delivered by each of the Bank and the Corporation;
(e) neither the execution and delivery by the Bank of the Agreements
it is a party to, nor the consummation by the Bank of the transactions
contemplated by such Agreements, nor the performance by the Bank of its
obligations thereunder will result in a material breach or violation of, or
constitute a material default under (i) the Articles of Association or
by-laws, as amended, of the Bank, (ii) the terms of applicable current
provisions of statutory law or regulation, (iii) any existing obligation of
the Bank under any indenture, agreement, or instrument actually known to
me, after reasonable investigation, which breach, violation or default
would reasonably be expected to have a material adverse effect on the
condition of the Bank, financial or otherwise, or adversely affect the
transactions contemplated by, or the Bank's performance of its obligations
under, the Agreements to which the Bank is a party, or (iv) the terms of
any order, writ, judgement or decree actually known to me after reasonable
investigation, issued by a court of competent jurisdiction and specifically
directed to the Bank or its property;
(f) neither the execution and delivery by the Corporation of the
Agreements it is a party to, nor the consummation by the Corporation of the
transactions contemplated by such Agreements, nor the performance by the
Corporation of its obligations thereunder will result in a
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material breach or violation of, or constitute a material default under (i)
the Articles of Incorporation or by-laws, as amended, of the Corporation,
(ii) the terms of applicable current provisions of statutory law or
regulation, (iii) any existing obligation of the Corporation under any
indenture, agreement, or instrument actually known to me, after reasonable
investigation, which breach, violation or default would reasonably be
expected to have a material adverse effect on the condition of the
Corporation, financial or otherwise, or adversely affect the transactions
contemplated by, or the Corporation's performance of its obligations under,
the Agreements to which the Corporation is a party, or (iv) the terms of
any order, writ, judgement or decree actually known to me after reasonable
investigation, issued by a court of competent jurisdiction and specifically
directed to the Corporation or its property;
(g) no consent, approval or authorization of, or filing with, any
governmental agency or body is required of either the Bank or the
Corporation in connection with its execution, delivery and performance of
the Agreements to which it is a party, except such consents, approvals or
authorizations as have been obtained or such filings as have been made; and
(h) to my actual knowledge, after reasonable investigation, there are
no actions, proceedings or investigations pending or threatened against the
Bank or the Corporation before any court, administrative agency, or
tribunal (i) asserting the invalidity of any of the Agreements, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by any of the Agreements, or (iii) that could reasonably be expected to
materially and adversely affect the enforceability of any of the Agreements
against the Bank or the Corporation, as the case may be, or the ability of
the Bank or the Corporation, as the case may be, to perform its obligations
thereunder.
For purposes of this opinion letter, I have assumed that (i) the Agreements
have been duly executed and delivered by all parties thereto (other than the
Bank and/or the Corporation, as the case may be) and are valid and binding upon
and enforceable against such parties (other than the Bank and/or the
Corporation, as the case may be), subject to applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and (ii) there has been no mutual mistake of fact or misunderstanding, fraud,
duress, or undue influence.
The opinions expressed above are limited to Federal law and the laws of the
State of Ohio.
This opinion is rendered solely to the addressees hereof, for their use in
connection with the transactions contemplated herein and may not be relied upon
for any other purpose or by any other person.
Very truly yours,
Xxxxxx X. Xxxxx
Senior Vice President and
Associate General Counsel
D-3A-3
EXHIBIT D-3B
FORM OF OPINION OF PHILLIPS, LYTLE, XXXXXXXXX, XXXXXX & XXXXX LLP
PURSUANT TO SECTION 7(VII)
June 13, 2001
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Xxxxx Fargo Bank Minnesota, N.A.
Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
First Union Securities Fitch, Inc.
One First Union Center Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc. McDonald Investments Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, XX 00000
Re: Pooling and Servicing Agreement among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor ("Depositor"), KeyCorp
Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage,
as Master Servicer and Special Servicer and Xxxxx Fargo Bank
Minnesota, N.A., as Trustee dated as of June 1, 2001 ("PSA") and
Mortgage Loan Purchase Agreement between KeyBank National
Association, as Seller and Depositor, as Purchaser dated as of
June 12, 2001 ("MLPA" and together with the PSA, the
"Agreements")
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Ladies and Gentlemen:
We have acted as special local counsel to KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage ("Company"), as Master Servicer and
Special Servicer in connection with the execution and delivery of the PSA, and
to KeyBank National Association ("KeyBank"), as Seller in connection with the
execution and delivery of the MLPA.
In connection with rendering our opinion, we have reviewed the PSA and the
MLPA and have made such investigations of law as we have deemed necessary or
appropriate to enable us to render this opinion. As to facts material to our
opinion we have, when relevant facts were not independently established, relied
upon the representations of the Company and KeyBank in the Agreements.
In rendering the opinions expressed herein, we have assumed (i) the
genuineness of all signatures by each party; (ii) the authenticity of all
documents submitted to us as originals; (iii) the
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conformity to original documents of all documents submitted to us as conformed
or photostatic copies; (iv) the conformity in all material respects of the final
executed form of the Agreements with the versions submitted to us in draft form
on June 12, 2001; (v) the due formation and valid existence of the parties to
the Agreements; and (vi) the due authorization, execution and delivery of the
Agreements by the parties thereto, and their power and authority (including the
obtaining of all necessary permits, licenses and approvals) to execute and
perform each of the Agreements.
Based upon the foregoing assumptions and subject to the qualifications
hereinafter set forth, it is our opinion that, as of the date hereof:
1. The PSA constitutes the legal, valid and binding contract and
agreement of the Company and is enforceable in accordance with its terms.
2. The MLPA constitutes the legal, valid and binding contract and
agreement of KeyBank and is enforceable in accordance with its terms.
Our opinions concerning the enforceability of the Agreements are subject to
the qualification that:
(a) enforceability may be limited by or subject to (i) state and/or
federal bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies; (ii) an implied duty of good
faith; and (iii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable in whole
or in part, although the inclusion of such provisions does not render any
of the Agreements invalid as a whole, and the Agreements contain legally
adequate provisions for enforcing the other obligations of the parties
thereunder and for the practical realization of the principal rights and
benefits purported to be afforded thereby, subject to the economic
consequences of any judicial, administrative, or other procedural delay in
connection with such enforcement and realization.
In connection with servicing by the Company of mortgages on residential
property located in New York State, we point out that Section 6-k of the New
York Banking Law imposes certain obligations on mortgagees with
respect to casualty insurance escrow accounts, and Section 254 of the New York
Real Property Law imposes certain restrictions on the right of the mortgagee to
retain casualty insurance proceeds.
We express no opinion as to the applicability to, or effect on, the
transactions contemplated by either of the Agreements of any federal or state
securities law.
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We are qualified to practice law in the State of New York and we do not
purport to be experts on, or to express any opinion herein concerning, any
matter governed by the laws of any jurisdiction other than the laws of the State
of New York and the federal law of the United States. This letter is furnished
to you solely for your benefit in connection with the transactions contemplated
by the Agreements. This opinion is not to be publicly filed, used, circulated,
quoted or otherwise relied upon by any other person or entity or, for any other
purpose, without our prior written consent.
Very truly yours,
D-3B-3
EXHIBIT D-3C
FORM OF OPINION OF XXXXXXXXXX XXXXXXX & XXXXX, P.C.
PURSUANT TO SECTION 7(VIII)
June 13, 2001
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Xxxxx'x Investors Service, Inc.
Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
First Union Securities, Inc. Fitch, Inc.
One First Union Center One State Street Plaza, 31st Floor
Charlotte, North Carolina 28288-1075 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association, a
national banking association ("Key"), in connection with the following
transactions (collectively, the "Transactions"):
(i) the sale by Key, and the purchase by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor") (such Transaction, the "Sale"),
of certain multifamily and commercial mortgage loans (the "Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of June 12, 2001 (the "Loan Purchase Agreement"), between Key as seller
and the Depositor as purchaser;
(ii) the creation of a common law trust (the "Trust") and the issuance
of Commercial Mortgage Pass-Through Certificates, Series 2001-CK3 (the
"Certificates"), pursuant to that certain Pooling and Servicing Agreement,
dated as of June 1, 2001 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key
Commercial Mortgage as master servicer and special servicer, and Xxxxx
Fargo Bank Minnesota, N.A. as trustee (the "Trustee"); and
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(iii) the transfer of the Mortgage Loans by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement in exchange for the
issuance of the Certificates at the direction of the Depositor.
The Loan Purchase Agreement and the Pooling and Servicing Agreement are
collectively referred to herein as the "Agreements". Capitalized terms not
defined in this letter have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the Loan Purchase
Agreement.
Under the terms of the Loan Purchase Agreement, Key will sell to the
Depositor, without recourse (except to the extent specified therein), all right,
title and interest of Key in and to the Mortgage Loans and the proceeds thereof.
Pursuant to the Pooling and Servicing Agreement, the Depositor will transfer the
Mortgage Loans to the Trustee, and the Trust will issue the Certificates
representing interests in the Trust. The following twenty-one classes of
Certificates representing beneficial interests in the Trust Fund will be issued
pursuant to the Pooling and Servicing Agreement: Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G-1, Class
G-2, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class A-X,
Class R, and Class V.
You have requested our opinion whether, in the event that the Federal
Deposit Insurance Corporation (the "FDIC") were appointed as conservator or
receiver for Key pursuant to Section 11(c) of the Federal Deposit Insurance Act
(the "FDIA"), the transfer of the Mortgage Loans by Key to the Depositor
pursuant to the Loan Purchase Agreement would be enforceable against Key
notwithstanding the appointment of the FDIC as conservator or receiver of Key.
ASSUMPTIONS OF FACT
In connection with this opinion, we have reviewed the Agreements and a
certificate, dated the date hereof, of an officer of Key (the "Key
Certificate"), which certifies, to the best of such person's knowledge, inter
alia, as to certain of the matters in the immediately succeeding paragraph as of
the date hereof. This opinion is based solely upon our review of the Agreements
and such other documents, and such other investigations of law and fact, as we
have deemed necessary or advisable in connection with this opinion. Our opinion
is limited to the specific issues of federal law addressed and is further
limited in all respects, except as otherwise stated, to the facts assumed. We
express no opinion as to any other matter.
In rendering the opinions set forth herein, we have relied upon, and
assumed, without independent investigation or inquiry, the following to be true
at all relevant times:
(a) All representations and warranties set out in the Agreements, and
all statements in the Key Certificate and the certificates relating to the
Agreements or furnished in connection with the Transactions pertaining to
the transfer of the Mortgage Loans pursuant to the Agreements, are true and
correct.
(b) All signatures are genuine, all natural persons have the legal
capacity to execute and deliver the documents signed by them, all documents
submitted to us as originals are authentic and all documents submitted to
us as certified or photostatic copies conform in all respects to the
original documents.
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(c) Each of the Agreements has been duly authorized, executed and
delivered by, and constitutes the legal, valid and binding obligation of
all parties thereto, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, conservatorship, fraudulent
transfer, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (2) general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
(d) The execution, delivery and performance of the Agreements by the
parties thereto do not violate any applicable law. All notices to, filings
with, and approvals of, all applicable governmental or regulatory
authorities required for the execution and delivery by Key, the Depositor,
and the Trustee of the Agreements and the performance by Key, the
Depositor, and the Trustee thereof have been obtained or made, and are in
full force and effect.
(e) Each of Key and the Depositor has taken all actions required under
applicable law to effectuate the transfer of the Mortgage Loans.
(f) There are no agreements or courses of prior dealing between any of
the parties that would alter the relationships set forth in the Agreements.
(g) The Depositor, Key, and the Trustee will at all times and in all
respects that are material to the opinions expressed in this letter comply
with all material provisions of the Agreements, as applicable.
(h) Key is a national banking association, the deposits of which are
insured by the FDIC pursuant to the provisions of the FDIA.
(i) As of the date of this opinion, Key has not violated any law or
regulation and is not in an unsafe or unsound condition that would
constitute a basis for the appointment of a conservator or receiver
pursuant to the FDIA.
(j) Key received adequate consideration for the transfer to the
Depositor of the Mortgage Loans pursuant to the Loan Purchase Agreement.
(k) Each of Key, the Depositor, and the Trustee did not and will not
(i) execute the Agreements or any other agreement to which it is a party in
connection with the Transactions or (ii) otherwise effectuate or consummate
any transfer of the Mortgage Loans pursuant to the Agreements or any other
agreement, in any case:
(1) in contemplation of Key's or the Depositor's insolvency;
(2) with a view to preferring one creditor of Key or the
Depositor over another or to preventing the application of Key's or
the Depositor's assets in the manner required by applicable law or
regulations;
(3) after Key or the Depositor committed an act of insolvency; or
(4) with any intent to hinder, delay, or defraud Key or the
Depositor or any of their respective creditors.
D-3C-3
(l) The execution, delivery and performance of each of the Agreements
and the Transactions constitute bona fide and arm's length transactions and
were and are undertaken in the ordinary course of business of the parties
to such Agreements.
(m) The Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, and Class A-X Certificates are, as of the date hereof, each rated
in one of the four highest categories assigned to long-term debt or in an
equivalent short-term category by Fitch and Moody's.
(n) It is the stated intention of Key and the Depositor, as set forth
in Section 11 of the Loan Purchase Agreement, to treat the transfer of the
Mortgage Loans by Key to the Depositor pursuant to the Loan Purchase
Agreement as a sale, and not a secured borrowing, including for accounting
purposes.
(o) All of the requirements of generally accepted accounting
principles for treating the transfer of the Mortgage Loans as a sale have
been satisfied (other than the "legal isolation" condition).
(p) Key is and shall remain a separate and distinct entity from, and
shall not commingle its assets with those of, the Depositor, the Trustee
and/or the Trust. Key does not control, is not controlled by, and is not
under common control with, directly or indirectly, the Depositor or the
Trustee.
(q) The Depositor is a Delaware corporation and is a "special purpose
entity" (as defined in 12 C.F.R. ss. 360.6(a)(5)) and, as such, is
primarily engaged in acquiring and holding (or transferring to another
"special purpose entity") financial assets, and in activities related or
incidental thereto, in connection with the issuance of beneficial interests
by the Depositor (or by another "special purpose entity" that acquires
financial assets directly or indirectly from the Depositor).
OPINION EXPRESSED
Based on the reasoning and subject to the assumptions, qualifications and
limitations set forth in this letter, it is our opinion that in a properly
presented and decided case, a court would hold that the FDIC, if appointed as
receiver or conservator of Key pursuant to Section 11(c) of the FDIA:
(b) could not, in the exercise of its authority under 12 X.X.X.xx.
1821(e), reclaim, recover, or recharacterize as property of Key or the
receivership the Mortgage Loans that have been transferred by Key to the
Depositor pursuant to the Loan Purchase Agreement; and
(c) could not seek to avoid the Loan Purchase Agreement under 12
X.X.X.xx. 1823(e).
We wish to point out that we are giving no opinion (i) as to whether the
transfer of the Mortgage Loans by Key to the Depositor and, in turn, by the
Depositor to the Trust is a true sale or absolute conveyance, (ii) as to the
perfection or priority of any ownership interest or security interest in the
Mortgage Loans, (iii) concerning any law other than the federal laws of the
United States of America, or (iv) concerning any matter not expressly addressed
in this letter.
D-3C-4
DISCUSSION
In an insolvency proceeding for Key, the United States Bankruptcy Code (the
"Bankruptcy Code") would not apply.(1) Therefore, neither the provisions of the
Bankruptcy Code that impact the right of a secured creditor to liquidate
collateral nor the provisions of Section 547 of the Bankruptcy Code concerning
"preferential" transfers would apply in the event of the insolvency of Key. The
FDIC is authorized under Sections 11(c)(1) and (2) of the FDIA to accept
appointment as conservator, and is required to be appointed as receiver, for a
federal savings bank such as Key.
Our opinions above rely on the FDIC's rule regarding the treatment by the
FDIC, as receiver or conservator of an insured depository institution, of
financial assets transferred by the institution in connection with a
securitization or participation (the "Rule").(2) As of the date of this opinion,
the Rule has not been modified or repealed, and we are not aware of any reported
judicial decision that questions the validity of the Rule.
For the Sale to be covered by the Rule, the Sale must involve the (1)
transfer of financial assets (2) in connection with a securitization or
participation.3 The first element is satisfied because the Sale is a transfer of
the Mortgage Loans, each of which "conveys to one entity a contractual right to
receive cash" and therefore qualifies as a "financial asset."(4)
The second element requires a determination of whether the Sale is "in
connection with a securitization or participation."(5) In our analysis we are
relying on the Rule's treatment of transfers in connection with a
securitization. We have found no case law that interprets the phrase "in
connection with a securitization" under the Rule. The Rule states that a
"securitization" means the issuance by a special purpose entity of beneficial
interests, the most senior class of which is rated in one of the four highest
rating categories by one or more nationally recognized statistical rating
organizations or which are sold in transactions not involving any public
offering or in transactions exempt from registration pursuant to Regulation S
under the Securities Act.(6)
The Sale is an integral part of the Transactions and is entered into for
the sole purpose of effectuating the Transactions under the Pooling and
Servicing Agreement. In connection with the Transactions, pursuant to the Loan
Purchase Agreement Key will transfer the Mortgage Loans to the Depositor, which
we have assumed to be a "special purpose entity" under the Rule. Pursuant to the
Pooling and Servicing Agreement, the Depositor will then immediately sell the
Mortgage Loans to the Trust, and the Trust will contemporaneously issue
beneficial interests in the form of the Certificates for
----------------
(1) 11 U.S.C. xx.xx. 109(b)(2) and (d).
(2) See Treatment by the FDIC as Conservator or Receiver of Financial Assets
Transferred by an Insured Depository Institution in Connection With a
Securitization or Participation, 65 Fed. Reg. 49,189 (2000) (codified at 12
C.F.R. ss. 360.6).
(3) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R. ss. 360.6(b)).
(4) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R. ss. 360.6(a)(2)).
(5) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R. ss. 360.6(b)).
(6) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R. ss. 360.6(a)(4)(i)).
D-3C-5
public and private sale. Key and the Depositor will engage in the Sale
transaction for the sole purpose of effectuating the creation of the Trust and
the issuance of the Certificates pursuant to the Pooling and Servicing
Agreement. For these reasons, we believe that a court would hold that the Sale
is "in connection with" the Transactions.
For the Transactions to constitute a "securitization" under the Rule, the
Trust must be a "special purpose entity," as defined by the Rule. The Rule
defines "special purpose entity" to mean:
a trust . . . or other entity demonstrably distinct from the insured
depository institution that is primarily engaged in acquiring and
holding (or transferring to another special purpose entity) financial
assets, and in activities related or incidental thereto, in connection
with the issuance by such special purpose entity (or by another
special purpose entity that acquires financial assets directly or
indirectly from such special purpose entity) of beneficial
interests.(7)
The Trust is a trust established upon effectuation of the Transactions
under the laws of New York pursuant to the Pooling and Servicing Agreement. Key
does not control, is not controlled by, nor is it under common control with, the
Trustee or the Trust. Although a subsidiary of Key will act as the master and
special servicer of the Trust's assets for the benefit of the Trustee and the
Certificateholders, the ultimate decision-making authority permitted under the
Pooling and Servicing Agreement is vested in the Trustee and the
Certificateholders or is otherwise limited or dictated by the terms of the
Pooling and Servicing Agreement, as set forth in the Pooling and Servicing
Agreement. Key will not share in the ownership of any of the principal assets of
the Trust. Neither Key nor the Trust will commingle any of its assets with the
other. Moreover, the documents evidencing the principal assets of the Trust, the
Mortgage Notes and related Mortgage Files, will be assigned to and physically
delivered into the possession of the Trustee, or a custodian appointed by the
Trustee (which custodian may not, as set forth in the Pooling and Servicing
Agreement, be Key or an affiliate of Key). Although the Rule does not provide
any guidance regarding the circumstances under which a special purpose entity is
"demonstrably distinct" from a depository institution, we believe that the facts
set forth above demonstrate that the Trust is an entity distinct from Key.
The Trust will be primarily engaged in acquiring and holding financial
assets and in activities related or incidental thereto, in connection with the
issuance of beneficial interests, which in this case are the Certificates. The
Certificates fall within the Rule's definition of "beneficial interests" because
they will be issued by the Trust and will entitle the Certificateholders to
receive payments that depend primarily on the cash flow from the Mortgage Loans
owned by the Trust. For the foregoing reasons, the Trust appears to satisfy the
definition of a "special purpose entity" under the Rule.
The other requirement for the Transactions to constitute a securitization
under the Rule is also met because the most senior class of securities issued in
the Transactions are rated in one of the four highest categories assigned to
long-term debt or in an equivalent short-term category by Fitch and Xxxxx'x,
which are nationally recognized statistical rating organizations.(8) Although
the Rule does not
--------------
(7) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R. ss. 360.6(a)(5)).
(8) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R. ss. 360.6(a)(4)(i)).
D-3C-6
define the phrase "nationally recognized statistical rating organizations," this
phrase is used by the FDIC, other bank regulatory agencies and the Securities
and Exchange Commission in several regulations, is defined by the Securities and
Exchange Commission in several regulations and is defined by the Securities and
Exchange Commission at 17 C.F.R. ss. 240.150c3-1(c)(2)(vi)(F) as including Fitch
and Moody's, the two agencies rating the most senior classes of securities in
the Transactions. Although the Rule does not expressly adopt that definition, we
believe that a court would hold that Fitch and Moody's are nationally recognized
statistical rating organizations, either on the basis of the Securities and
Exchange Commission's rule or otherwise.
OTHER QUALIFICATIONS
The foregoing opinion is subject to the following qualifications:
1. If Key were to become a debtor under the FDIA and the FDIC were to
assert that the beneficial interest in and legal title to the Mortgage
Loans were part of Key's estate, we express no opinion as to how long the
Trust would be denied possession of the Mortgage Loans in Key's possession
before the validity of such an assertion could be finally decided. We also
express no opinion as to whether, if the FDIC were to assert that the
beneficial interest in and legal title to the Mortgage Loans were part of
Key's receivership estate, a court would permit Key to use collections of
the Mortgage Loans in Key's possession without the consent of the Trustee
either before deciding the issue or pending appeal after a decision adverse
to the Trust.
2. We express no opinion as to the availability or effect of a
preliminary injunction, temporary restraining order or other such temporary
relief affording delay pending a determination on the merits; by such
reservation, however, we do not imply that we have undertaken any analysis
to determine whether any such equitable relief would ultimately be
available to prevent enforcement of the transaction.
3. We express no opinion with respect to the power of the FDIC, as
receiver or conservator, to disaffirm or repudiate any agreement
(including, but not limited to, the Loan Purchase Agreement) to the extent
it imposes continuing obligations or duties upon Key in receivership or
conservatorship.
4. We express no opinion herein as to whether any transfer or
obligation is avoidable as a preference or fraudulent transfer.
5. The opinions are subject to the effect of general principles of
equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing, and other similar doctrines
affecting the enforceability of agreements generally (regardless of whether
considered in a proceeding in equity or at law).
6. We express no opinion as to compliance or the effect of
noncompliance by the Trustee with any state or federal laws or regulations
applicable to it in connection with the transactions described in the
Pooling and Servicing Agreement.
7. We express no opinion with respect to the enforceability of any
Mortgage Loan or the existence of any claims, rights, defenses,
counterclaims or objections in favor of the mortgagor thereon that can be
asserted against or are effective against Key, the Depositor, the Trustee
or the
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Certificateholders. We note that unless the mortgagor with respect to a
Mortgage Loan has received notice of the assignment thereof (such notice
not being contemplated by the Loan Purchase Agreement), bona fide payments
made by such mortgagor to Key or a second assignee of such Mortgage Loan
shall discharge such mortgagor's obligations to the extent of such payment,
and such payment will only be recoverable from Key or, in certain cases,
from such second assignee, as the case may be.
8. We have assumed that there are no agreements (other than the
Agreements) prohibiting, restricting or conditioning the assignment of any
portion of the Mortgage Notes.
9. We express no opinion as to the ability of the FDIC, as conservator
or receiver, to transfer the Loan Purchase Agreement without any approval
or consent of the parties, pursuant to 12 U.S.C.ss.1821(d)(2)(G).
The foregoing analysis and its conclusions are premised upon, and limited
to, the law and the structure of the proposed Transactions in effect as of the
date of this letter. We do not assume responsibility for updating this opinion
letter as of any date subsequent to the date of this opinion letter, and assume
no responsibility for advising you of (i) the discovery subsequent to the date
of this opinion letter of factual information not previously known to us
pertaining to the events occurring prior to the date of this opinion letter or
(ii) the amendment or repeal of the Rule after the date of this opinion letter.
Furthermore, we note that a court's decision regarding matters upon which we
opine herein is based on the court's own analysis and interpretation of the
factual evidence before the court, and applicable legal principles.
This opinion is solely for the benefit of the addressees and should not
relied on by any other person. It is rendered solely in connection with the
Transactions. It may not be quoted, in whole or in part, or otherwise referred
to or used by you for any purpose, nor may copies hereof be delivered to any
other person (except to parties involved in the Transactions and their counsel
as part of the closing set related to the Transactions) without our prior
written consent.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
D-3C-8
EXHIBIT D-3D
FORM OF LETTER OF XXXXXXXXXX XXXXXXX & XXXXX, P.C.,
PURSUANT TO SECTION 7(IX)
June 13, 2001
Credit Suisse First Boston Mortgage Xxxxx Fargo Bank Minnesota, N.A.
Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
First Union Securities, Inc. Fitch, Inc.
One First Union Center One State Street Plaza, 31st Floor
Charlotte, North Carolina 28288-1075 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass Through Certificates, Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association
("KeyBank") and KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage ("KRECM"), in connection with the Pooling and Servicing Agreement
("Pooling and Servicing Agreement") dated as of June 1, 2001, among Credit
Suisse First Boston Mortgage Securities Corp. as Depositor (the "Depositor"),
KRECM as Master Servicer and Special Servicer, and Xxxxx Fargo Bank Minnesota,
N.A. as Trustee, and in connection with the Mortgage Loan Purchase Agreement
("Loan Purchase Agreement") dated as of June 12, 2001, among KeyBank as Seller
and the Depositor as Purchaser.
This letter is delivered to you at the request of KeyBank pursuant to the
Loan Purchase Agreement, the Underwriting Agreement ("Underwriting Agreement")
dated June 12, 2001, among the Depositor, Credit Suisse First Boston Corporation
("CSFB"), First Union Securities, Inc., Xxxxxxx Xxxxx Barney Inc. and McDonald
Investments Inc. as Underwriters (in such capacity, collectively, the
"Underwriters") and pursuant to the Certificate Purchase Agreement ("Certificate
Purchase Agreement") dated June 12, 2001, between the Depositor and CSFB.
D-3D-1
The Certificates to be issued by the Depositor pursuant to the Pooling and
Servicing Agreement are divided into classes. The Certificates of Classes X-0,
X-0, X-0, X-0, X, X and D (collectively, the "Publicly Offered Certificates")
will be sold to the Underwriters pursuant to the Underwriting Agreement and
offered for sale to the public pursuant to a prospectus dated June 5, 2001
("Base Prospectus"), as supplemented by a prospectus supplement dated June 12,
2001 ("Prospectus Supplement" and along with the Base Prospectus, the
"Prospectus"). The Certificates of Classes E, F, G-1, X-0, X, X, X, X, X, X, X,
X-X, R and V (the "Privately Offered Certificates" and along with the Publicly
Offered Certificates, the "Certificates") will be sold to CSFB pursuant to the
Certificate Purchase Agreement. CSFB will offer the Privately Offered
Certificates pursuant to a confidential offering circular dated June 12, 2001
(the "Confidential Offering Circular"). Capitalized terms not otherwise defined
herein are defined as set forth in the Underwriting Agreement or the Pooling and
Servicing Agreement, as applicable.
The purpose of our professional engagement was to advise with respect to
legal matters and not to determine or verify facts. Many of the determinations
involved in the preparation of the Prospectus Supplement and the Confidential
Offering Circular were factual. We have not independently verified, do not make
any representation as to, and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus
Supplement or the Confidential Offering Circular.
In connection with the delivery of this letter, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of the
Prospectus, the Confidential Offering Circular, the Loan Purchase Agreement, the
Pooling and Servicing Agreement, and other such documents and records as we have
deemed relevant or necessary as the basis for the views expressed in this
letter. We have obtained such certificates from and made such inquiries of
officers and other representatives of KeyBank and KRECM as we have deemed
relevant or necessary as the basis of the views expressed in this letter. We
have relied upon and assumed the accuracy of, such other documents and records,
such certificates and the statements made in response to such inquiries, with
respect to the factual matters upon which the views expressed in this letter are
based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the Loan
Purchase Agreement and the Pooling and Servicing Agreement and underlying the
assumptions set forth below or that are otherwise factually relevant to the
opinions expressed in this letter, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures (except for the signatures of officers
of KRECM and KeyBank) and the authenticity of all documents submitted to us as
originals, (iv) the conformity to the originals of all documents submitted to us
as certified, conformed or photostatic copies, (v) the due authorization by all
necessary action, and the due execution and delivery, of each of the Loan
Purchase Agreement and the Pooling and Servicing Agreement by the parties
thereto and the constitution of each of the Loan Purchase Agreement and the
Pooling and Servicing Agreement as the legal, valid and binding obligations of
each party thereto, enforceable against such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, and similar laws relating to or affecting the
enforceability of creditors' rights generally, the effect of general equitable
principals (in equity or at law), and the availability of equitable remedies,
(vi) the compliance with the relevant provisions of each of the Loan Purchase
Agreement and the Pooling and Servicing Agreement by the parties thereto, (vii)
the conformity, to the requirements of each of the Loan Purchase Agreement and
the Pooling and Servicing Agreement, of the Mortgage Loan Documents delivered to
the
D-3D-2
Depositor by KeyBank, (viii) the absence of any agreement that supplements or
otherwise modifies the agreements expressed in each of the Loan Purchase
Agreement and the Pooling and Servicing Agreement, and (ix) the conformity of
the text of each document filed with the Securities Exchange Commission through
the XXXXX system to the printed documents reviewed by us. In rendering this
letter, we do not express any view concerning the laws of any jurisdiction other
than the federal laws of the United States of America.
In the course of acting as special counsel to KeyBank and KRECM we have
responded to inquiries from time to time by KeyBank's closing coordinators,
reviewed title insurance commitments and surveys and prepared most of the loan
documents for a majority of the Mortgage Loans (as defined in the Loan Purchase
Agreement) originated by KeyBank. In connection with the preparation of the
Prospectus Supplement and the Confidential Offering Circular, we met in
conferences and participated in telephone conversations with officers and
employees of KeyBank and KRECM and counsel, officers and other representatives
of the Depositor, the Underwriters, CSFB and the other Mortgage Loan Sellers,
during which conferences and telephone conversations the contents of the
Prospectus Supplement and the Confidential Offering Circular were discussed. We
have not independently undertaken any procedures that were intended or likely to
elicit information concerning the accuracy, completeness or fairness of the
statements made in the Prospectus Supplement or the Confidential Offering
Circular. On the basis of the foregoing and subject to the limitations set forth
herein, nothing has come to our attention to cause us to believe that either the
Prospectus Supplement or the Confidential Offering Circular, as of their
respective dates or as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that we have not been requested to and we do not make any
comment in this paragraph with respect to (i) financial statements, schedules or
other accounting, financial, or statistical data or other information of that
nature contained in or omitted from the Prospectus Supplement or the
Confidential Offering Circular, or (ii) information contained in the computer
diskette or the CD-ROM accompanying the Prospectus Supplement which we assume,
but have not verified, does not vary from and is not different in any way from
the information contained in the Prospectus Supplement). In that connection, we
advise you that we have, as to materiality, relied to the extent we deemed
appropriate on the judgment of officers and other representatives of KeyBank,
KRECM and their affiliates. In addition, in that connection we call to your
attention that, with your knowledge and consent, we have not (except as
described above) examined or otherwise reviewed any of the Mortgage Files in
connection with the transactions contemplated by the Pooling and Servicing
Agreement and the Loan Purchase Agreement (collectively, the "Transactions"),
any particular documents contained in such files or any other documents with
respect to the Mortgage Loans.
Whenever a statement herein is qualified by the phrase "come to our
attention," it is intended to indicate that, during the course of our
representation of KeyBank or KRECM, no information that would give us current
actual knowledge of the inaccuracy of such statement has come to the attention
of those attorneys currently in this firm who have been actively involved in
representing KRECM or KeyBank in connection with the Transactions or in
connection with the origination of any of the Mortgage Loans being sold as part
of the Transactions. However, we have not undertaken any independent
investigation to determine the accuracy of any such statement, and any limited
inquiry undertaken by us during the preparation of this letter should not be
regarded as such an investigation; no inference as to our knowledge of any
matters bearing on the accuracy of any such statement should be drawn from the
fact of our representation of KRECM or KeyBank.
D-3D-3
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to the parties involved in the
Transactions and their respective counsel as part of the closing set related to
the Transactions) without our prior written approval. We disclaim any obligation
to update this letter for events occurring or coming to our attention after the
date hereof, notwithstanding that such changes may affect the views or beliefs
expressed in this letter.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
D-3D-4
