Exhibit 99.3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "AGREEMENT"), is dated
and effective as of May 2, 2002, 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 Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and
Xxxxx'x Investors Service, Inc. (together, the "RATING AGENCIES"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement dated as of May 13, 2002 (the "POOLING AND SERVICING
AGREEMENT"), among CSFB Mortgage Securities as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage and ARCap Special Servicing,
Inc., as master servicer and special servicer, respectively, of mortgage loans
that are not residential cooperative mortgage loans, NCB, FSB and National
Consumer Cooperative Bank, as master servicer and special servicer,
respectively, of residential cooperative mortgage loans, and Xxxxx Fargo Bank
Minnesota, N.A., as trustee. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
in SECTION 1 hereof). It is anticipated that CSFB Mortgage Securities will
transfer the Mortgage Loans to the Trust contemporaneously with its purchase of
the Mortgage Loans hereunder.
CSFB Mortgage Securities intends to sell certain classes of the
Certificates (collectively, the "PUBLICLY OFFERED CERTIFICATES") to Credit
Suisse First Boston Corporation ("CSFB CORPORATION") and the other underwriters
named in the Underwriting Agreement (as defined below) (collectively in such
capacity, the "UNDERWRITERS"), pursuant to an underwriting agreement dated as of
May 2, 2002 (the "UNDERWRITING AGREEMENT"), between CSFB Mortgage Securities and
CSFB Corporation as representative of the Underwriters, and CSFB Mortgage
Securities intends to sell certain classes of the remaining Certificates (the
"PRIVATELY OFFERED Certificates") to CSFB Corporation, pursuant to a certificate
purchase agreement dated as of May 2, 2002 (the "CERTIFICATE PURCHASE
AGREEMENT"), between CSFB Mortgage Securities and the CSFB Corporation. The
Publicly Offered Certificates are more fully described in a prospectus dated May
2, 2002 (the "BASIC Prospectus"), and the supplement to the Basic Prospectus
dated May 2, 2002 (the "PROSPECTUS SUPPLEMENT" and, together with the Basic
Prospectus, the "PROSPECTUS"), as each may be amended or supplemented at any
time hereafter. The Privately Offered Certificates are more fully described in a
confidential offering circular dated May 2,
2002 (the "CONFIDENTIAL OFFERING CIRCULAR"), as it may be amended or
supplemented at any time hereafter.
KeyBank will indemnify CSFB Mortgage Securities, CSFB Corporation,
the other Underwriters and certain related parties with respect to the
disclosure regarding the Mortgage Loans contained in the Prospectus, the
Confidential Offering Circular and certain other disclosure documents and
offering materials relating to the Certificates, pursuant to an indemnification
agreement dated as of May 2, 2002 (the "INDEMNIFICATION AGREEMENT"), among
KeyBank, CSFB Mortgage Securities and CSFB Corporation, both as a representative
of the Underwriters and as initial purchaser of the Privately Offered
Certificates.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT TO PURCHASE. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on May 16, 2002 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 May 2002
(individually and collectively, the "CUT-OFF DATE"), the Mortgage Loans will
have an aggregate principal balance, after application of all payments of
principal due on the Mortgage Loans on or before the Cut-off Date, whether or
not received, of $65,789,687.46, subject to a variance of plus or minus 5%. The
consideration for the Mortgage Loans shall consist of cash in the amount of
104.36% of such aggregate principal balance of the Mortgage Loans, together with
accrued interest on the Mortgage Loans at their respective Net Mortgage Rates
from and including May 1, 2002 to but not including the Closing Date, which cash
amount the Purchaser shall pay to the Seller on the Closing Date by wire
transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
SECTION 2. CONVEYANCE OF THE MORTGAGE LOANS.
(a) Effective as of the Closing Date, subject only to receipt of the
consideration referred to in SECTION 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Mortgage Loans, including all interest and principal received on or with respect
to the Mortgage Loans after the Cut-off Date (other than scheduled payments of
interest and principal due on or before the Cut-off Date), together with all of
the right, title and interest of the Seller in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to SECTION 18, deliver to and deposit with, or cause to be delivered to
and deposited with, the Purchaser or
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its designee the Mortgage File and any Additional Collateral (other than reserve
funds and escrow payments) with respect to each Mortgage Loan. In addition, with
respect to each Mortgage Loan, as to which any Additional Collateral is in the
form of a Letter of Credit as of the Closing Date, the Seller shall cause to be
prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are required under such Letter
of Credit to assign, without recourse, to, and vest in, the Trustee the Seller's
rights as the beneficiary thereof and drawing party thereunder. The designated
recipient of the items described in the second preceding sentence, and the
designated beneficiary under each Letter of Credit referred to in the preceding
sentence, shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original or
certified recorded document or original policy of title insurance which is to be
delivered as part of the related Mortgage File for any Mortgage Loan solely
because the Seller is delayed in making such delivery by reason of the fact that
such original or certified recorded document has not been returned by the
appropriate recording office or such original policy of title insurance has not
yet been issued, then the Seller shall deliver such documents to the Purchaser
or its designee, promptly upon the Seller's receipt thereof.
In addition, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, on or before the Closing Date, the following items (except to the
extent that any of the following items are to be retained by a subservicer that
will continue to act on behalf of the Purchaser or its designee): (i) originals
or copies of all financial statements, appraisals, environmental/engineering
reports, leases, rent rolls (or, in the case of any Mortgage Loans secured by
residential cooperative properties, maintenance schedules), third-party
underwriting reports, insurance policies, legal opinions, tenant estoppels and
any other documents that the Purchaser or its servicing agent reasonably deems
necessary to service the subject Mortgage Loan in the possession or under the
control of the Seller that relate to the Mortgage Loans and, to the extent they
are not required to be a part of a Mortgage File for any Mortgage Loan,
originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans (PROVIDED that the Seller shall not be required to deliver any
attorney-client privileged communication or any documents or materials prepared
by the Seller or its affiliates solely for internal uses); and (ii) all
unapplied reserve funds and escrow payments in the possession or under the
control of the Seller that relate to the Mortgage Loans. The designated
recipient of the items described in clauses (i) and (ii) of the preceding
sentence shall be the applicable Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to deliver
any Letter of Credit constituting Additional Collateral for any Mortgage Loan,
then the Seller may, in lieu thereof, deliver on behalf of the related Borrower,
to be used for the same purposes as such missing Letter of Credit either: (i) a
substitute letter of credit substantially comparable to, but in all cases in the
same amount and with the same draw conditions and renewal rights as, that Letter
of Credit and issued by an obligor that meets any criteria in the related
Mortgage Loan Documents applicable to the issuer of that Letter of Credit; or
(ii) a cash reserve in an amount equal to the amount of that Letter of Credit.
For purposes of the delivery requirements of this SECTION 2(c), any such
substitute letter of credit shall be deemed to be Additional Collateral of the
type covered by the first paragraph of this SECTION 2(c) and any such cash
reserve shall be deemed to be reserve funds of the type covered by the third
paragraph of this SECTION 2(c).
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In connection with the foregoing paragraphs of this SECTION 2(C),
the Seller is a designated recipient, or shall otherwise be the beneficiary, of
all certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to SECTION 2.02(A) and SECTION 2.02(B) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable fees and
out-of-pocket costs and expenses associated with recording and/or filing any and
all assignments and other instruments of transfer with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; PROVIDED that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer. If the Seller receives written notice that any such
assignment or other instrument of transfer is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
prepare or cause the preparation of a substitute therefor or cure such defect,
as the case may be; PROVIDED that the cost of such preparation shall be borne by
the Purchaser if the loss or return is caused by the Purchaser's negligence. The
Seller shall provide the Purchaser or its designee with a power of attorney to
enable it or them to record any loan documents that the Purchaser has been
unable to record. Unless the Purchaser notifies the Seller in writing to the
contrary, the designated recipients of the power of attorney referred to in the
preceding sentence shall be the Trustee.
(e) The Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to the Purchaser, as
provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange
for the consideration specified in SECTION 1 hereof. In connection with the
foregoing, the Seller shall cause all of its financial and accounting records to
reflect such transfer as a sale (as opposed to a secured loan). The Seller shall
at all times following the Closing Date cause all of its records and financial
statements and any relevant consolidated financial statements of any direct or
indirect parent to clearly reflect that the Mortgage Loans have been transferred
to the Purchaser and are no longer available to satisfy claims of the Seller's
creditors.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such 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
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to, the Mortgage Loans, that may be undertaken by or on behalf of the Purchaser.
The fact that the Purchaser has conducted or has failed to conduct any partial
or complete examination of any of the Mortgage Files for, and/or any of such
other documents and records relating to, the Mortgage Loans, shall not affect
the Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to SECTION 4
(subject, however, to SECTION 5(d)).
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER
AND THE PURCHASER.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser, each of the representations and warranties set forth
in EXHIBIT B-1. The Purchaser hereby makes, as of the Closing Date, to and for
the benefit of the Seller, each of the representations and warranties set forth
in EXHIBIT B-2.
(b) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, with respect to each Mortgage Loan,
each of the representations and warranties set forth in EXHIBIT C.
(c) The Seller hereby represents and warrants, as of the Closing
Date, to and for the benefit of CSFB Mortgage Securities only, that the Seller
has not dealt with any broker, investment banker, agent or other person (other
than the CSFB Mortgage Securities, CSFB Corporation and the other Underwriters)
who may be entitled to any commission or compensation in connection with the
sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Purchaser, with respect
to any replacement mortgage loan (a "REPLACEMENT MORTGAGE LOAN") that is
substituted for a Defective Mortgage Loan (as defined in SECTION 5(a) hereof),
pursuant to SECTION 5(a) of this Agreement, each of the representations and
warranties set forth in EXHIBIT C (references therein to "Closing Date" being
deemed to be references to the "date of substitution", references therein to
"Cut-off Date" being deemed to be references to the "most recent Due Date for
the subject Replacement Mortgage Loan on or before the date of substitution" and
references to "May 2002" and "April 2002" being deemed to be references to the
"month of substitution" and the "month preceding the month of substitution",
respectively). From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
(e) It is understood and agreed that the representations and
warranties set forth in 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 for so long as any of the Mortgage
Loans remains outstanding, notwithstanding any restrictive or qualified
endorsement or assignment.
SECTION 5. NOTICE OF BREACH; CURE, REPURCHASE AND SUBSTITUTION.
(a) The Purchaser or its designee shall provide the Seller with
written notice of any Material Breach or Material Document Defect with respect
to any Mortgage Loan. Within 90 days of the earlier of discovery or receipt
(including, without limitation, from any party to the Pooling and Servicing
Agreement) of written notice by the Seller that there has been a Material Breach
or Material Document Defect with respect to any Mortgage Loan (or, if such
Material Breach or Material Document Defect, as the case may be, relates to
whether such Mortgage Loan is or, as of the Closing Date (or, in
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the case of a Replacement Mortgage Loan, as of the related date of
substitution), was a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (a "QUALIFIED MORTGAGE"), and provided that the Seller
received prompt written notice thereof, within 90 days after any earlier
discovery by any party to the Pooling and Servicing Agreement of such Material
Breach or Material Document Defect, as the case may be) (such 90-day period, in
any case, the "INITIAL RESOLUTION PERIOD"), the Seller shall, subject to SECTION
5(b) and SECTION 5(c) below, (i) correct or cure such Material Breach or
Material Document Defect, as the case may be, in all material respects or (ii)
repurchase the Mortgage Loan affected by such Material Breach or Material
Document Defect, as the case may be (such Mortgage Loan, a "DEFECTIVE MORTGAGE
LOAN"), at the related Purchase Price, with payment to be made in accordance
with the reasonable directions of the Purchaser; PROVIDED that if the Seller
shall have delivered to the Purchaser a certification executed on behalf of the
Seller by an officer thereof stating (i) that such Material Breach or Material
Document Defect, as the case may be, does not relate to whether the Defective
Mortgage Loan is or, as of the Closing Date (or, in the case of a Replacement
Mortgage Loan, as of the related date of substitution), was a Qualified
Mortgage, (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being cured but not within the applicable Initial
Resolution Period, (iii) that the Seller has commenced and is diligently
proceeding with the cure of such Material Breach or Material Document Defect, as
the case may be, within the applicable Initial Resolution Period, (iv) what
actions the Seller is pursuing in connection with the cure thereof and (v) that
the Seller anticipates that such Material Breach or Material Document Defect, as
the case may be, will be cured within an additional period not to exceed 90 more
days, then the Seller shall have an additional 90 days following the end of the
Initial Resolution Period (such additional 90-day period, the "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, then the Seller may, at its option, subject to the
terms, conditions and limitations set forth in the Pooling and Servicing
Agreement, in lieu of repurchasing such Defective Mortgage Loan (but, in any
event, no later than such repurchase would have to have been completed), (i)
replace such Defective Mortgage Loan with one or more substitute mortgage loans
that individually and collectively satisfy the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such
substitution and payment to be effected in accordance with the terms of the
Pooling and Servicing Agreement. Any such repurchase or replacement of a
Defective Mortgage Loan shall be on a whole loan, servicing released basis. The
Seller shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Material Breach or Material Document Defect, but if the Seller
discovers a Material Breach or Material Document Defect with respect to any
Mortgage Loan, it will notify the Purchaser. The Seller acknowledges the rights
of the applicable Master Servicer and Special Servicer under Section 2.03 of the
Pooling and Servicing Agreement to enforce the repurchase/substitution
obligations of the Seller under this SECTION 5(A), on behalf of the Trustee for
the benefit of the Certificateholders.
Whenever one or more mortgage loans are substituted by the Seller
for a Defective Mortgage Loan as contemplated by this SECTION 5(a), the Seller
shall (i) deliver the related Mortgage File for each such substitute mortgage
loan to the Purchaser or its designee (which designee, unless otherwise stated,
is the Trustee), (ii) certify that such substitute mortgage loan satisfies or
such substitute
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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. 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.
The remedies provided for in this SECTION 5(a) with respect to any
Material Breach or Material Document Defect as to any Mortgage Loan shall also
apply to any related REO Property.
(b) If one or more (but not all) of the Mortgage Loans constituting
a Cross-Collateralized Group (as defined in SECTION 18) are to be repurchased or
replaced by the Seller as contemplated by SECTION 5(a), then, prior to the
subject repurchase or substitution, the Purchaser or its designee shall use its
reasonable efforts, subject to the terms of such Mortgage Loans, to prepare and,
to the extent necessary and appropriate, have executed by the related Borrower
and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans in such Cross-Collateralized
Group that are to be repurchased or replaced, on the one hand, and the remaining
Mortgage Loans therein, on the other hand, such that those two groups of
Mortgage Loans are each secured only by the Mortgaged Properties identified in
the Mortgage Loan Schedule as directly corresponding thereto (as to each such
group, the "PRIMARY REAL PROPERTY Collateral"); PROVIDED that no such
termination shall be effected unless the Mortgage Loans from such
Cross-Collateralized Group that are to remain with the Purchaser have a
loan-to-value ratio of no more than 75% and a debt service coverage ratio of no
less than 1.25x; and PROVIDED, FURTHER, that, if the affected
Cross-Collateralized Group is then subject to the Pooling and Servicing
Agreement, then no such termination shall be affected unless and until the
Trustee and the applicable Master Servicer shall have received from the Seller
(i) an Opinion of Counsel from independent counsel addressed to the Trustee and
the applicable Master Servicer to the effect that such termination will not
cause an Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool and (ii)
written confirmation from each Rating Agency that such termination will not
cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates; and PROVIDED, FURTHER, that the Seller may, at its option,
purchase the entire subject Cross-Collateralized Group in lieu of terminating
the cross-collateralization. All costs and expenses incurred by the Purchaser
and its servicing agents pursuant to this paragraph shall be included in the
calculation of Purchase Price for the Mortgage Loan(s) to be repurchased or
replaced.
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If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the prior paragraph for
any reason (including, but not limited to, the Seller's failure to satisfy any
of the conditions set forth in the provisos to the first sentence of the prior
paragraph), and if the Seller has not elected to purchase the entire affected
Cross-Collateralized Group, then, for purposes of this SECTION 5, including for
purposes of (i) determining whether the particular Breach or Document Defect
that gave rise to the repurchase/substitution obligation for such
Cross-Collateralized Group 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.
(c) It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to SECTION 5(A) that the
Purchaser (which shall include the Trustee) shall have executed and delivered
such instruments of transfer or assignment then presented to it by the Seller,
in each case without recourse, as shall be necessary to vest in the Seller the
legal and beneficial ownership of such Defective Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto), to the extent that such ownership interest was transferred to
the Purchaser hereunder.
(d) It is understood and agreed that the obligations of the Seller
set forth in this SECTION 5 to cure a Material Breach or a Material Document
Defect, or to 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 a Breach or
Document Defect in respect of any Mortgage Loan; PROVIDED that there is no
limitation on the part of the Purchaser, the Certificateholders or the Trustee
on behalf of the Certificateholders, or any person or entity acting on its or
their behalf, with regard to enforcing such repurchase or replacement
obligations or suing for damages in the event of a breach of such repurchase or
replacement obligations.
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 LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on
the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Seller
made pursuant to SECTION 4 of this Agreement shall be true and correct in
all material respects as of the Closing Date;
(ii) all documents specified in SECTION 7 of this Agreement
(the "CLOSING Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the
Purchaser or its designee, all documents, funds and other assets required
to be delivered thereto pursuant to SECTION 2 of this Agreement;
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(iv) the result of any examination of the Mortgage Files for,
and any other documents and records relating to, the Mortgage Loans
performed by or on behalf of the Purchaser pursuant to SECTION 3 hereof
shall be satisfactory to the Purchaser in its reasonable determination;
(v) all other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been complied
with in all material respects, and the Seller shall have the ability to
comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing
Date;
(vi) the Seller shall have received the consideration for the
Mortgage Loans, as contemplated by SECTION 1;
(vii) the Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this Agreement; and
(viii) neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. CLOSING DOCUMENTS. The Closing Documents shall consist of
the following:
(i) this Agreement, duly executed by the Purchaser and the
Seller;
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) an Officer's Certificate substantially in the form of
EXHIBIT D-1A hereto, executed by the Secretary or an assistant secretary
of the Seller, in his or her individual capacity, and dated the Closing
Date, and upon which CSFB Mortgage Securities, CSFB Corporation, the other
Underwriters and the Rating Agencies (collectively, for purposes of this
SECTION 7, the "INTERESTED PARTIES") may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Seller
authorizing the Seller's entering into the transactions contemplated by
this Agreement, and (B) the organizational documents of the Seller;
(iv) a certificate of good standing with respect to the Seller
issued by the Comptroller of the Currency or the Office of Thrift
Supervision of the U.S. Department of the Treasury not earlier than 30
days prior to the Closing Date, and upon which the Interested Parties may
rely;
(v) a Certificate of the Seller substantially in the form of
EXHIBIT D-1B hereto, executed by an executive officer of the Seller on the
Seller's behalf and dated the Closing Date, and upon which the Interested
Parties may rely;
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(vi) a written opinion of in-house counsel for the Seller,
dated the Closing Date and addressed to the Interested Parties and the
respective parties to the Pooling and Servicing Agreement, which opinion
shall be substantially in the form of EXHIBIT D-2A hereto;
(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 respective parties to the
Pooling and Servicing Agreement, which opinion shall be substantially in
the form of EXHIBIT D-2B hereto;
(viii) copies of all other opinions rendered by counsel for
the Seller to the Rating Agencies in connection with the transactions
contemplated by this Agreement, with each such opinion to be addressed to
CSFB Mortgage Securities, CSFB Corporation, the other Underwriters and the
Trustee or accompanied by a letter signed by such counsel stating that
CSFB Mortgage Securities, CSFB Corporation, the other Underwriters and the
Trustee may rely on such opinion as if it were addressed to them as of
date thereof;
(ix) a letter from Xxxxxxxxxx Xxxxxxx & Xxxxx, P.C., special
counsel for the Seller, dated the Closing Date and addressed to CSFB
Mortgage Securities, CSFB Corporation and the other Underwriters, which
letter shall be substantially in the form of EXHIBIT D-2C hereto;
(x) one or more comfort letters from PricewaterhouseCoopers
LLP, certified public accountants, dated the date of any preliminary
Prospectus Supplement and of the Prospectus Supplement, respectively, and
addressed to, and in form and substance acceptable to, CSFB Mortgage
Securities, CSFB Corporation, the other Underwriters and their respective
counsel, stating in effect that, using the assumptions and methodology
used by CSFB Mortgage Securities, all of which shall be described in such
letters, they have recalculated such numbers and percentages relating to
the Mortgage Loans set forth in any preliminary Prospectus Supplement and
the Prospectus Supplement, compared the results of their calculations to
the corresponding items in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, and found each such number and
percentage set forth in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, to be in agreement with the results
of such calculations; and
(xi) such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date or any Rating
Agency may require and in a form reasonably acceptable to the Purchaser
and the Seller.
SECTION 8. COSTS. Whether or not this Agreement is terminated, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated pursuant to the terms of a settlement statement
dated the Closing Date (the "SETTLEMENT STATEMENT").
In addition, it is hereby acknowledged that CSFB Mortgage Securities
has acquired from NCB, NCB Capital Corporation ("NCBCC") and NCB, FSB other
mortgage loans for transfer to the Trust. The Seller agrees that the costs and
expenses associated with such transactions will be allocated as follows: (i) all
out-of-pocket and/or internally allocated costs and expenses incurred by NCB,
NCBCC and/or NCB, FSB in connection with such transactions, including, without
limitation, the fees and disbursements of counsel for NCB, NCBCC and/or NCB,
FSB, together with all other due diligence
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and accounting costs and expenses relating to the mortgage loans so acquired
from NCB, NCBCC and/or NCB, FSB, shall be borne by NCB, NCBCC, NCB, FSB and
their affiliates; and (ii) all other costs and expenses incurred in connection
with such transactions shall be allocated in accordance with the Settlement
Statement.
SECTION 9. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, by
overnight mail or courier service, or transmitted by facsimile and confirmed by
similar mailed writing, if to the Purchaser, addressed to the Purchaser at 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx,
or such other address as may be designated by the Purchaser to the Seller in
writing, or, if to the Seller, addressed to the Seller at 000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: X.X. Xxxxx (with a copy to 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxx), 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 Mortgage Loans as contemplated by SECTION 16 hereof shall be
deemed to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser of the related Mortgage Notes and such other items
of property as constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest under applicable law; and (e) notifications to,
and acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents (as applicable)
of the
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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. In connection with the
foregoing, the Seller authorizes the Purchaser to execute and file such UCC
financing statements as the Purchaser may deem necessary or appropriate to
accomplish the foregoing.
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 SELLER
AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
SECTION 15. FURTHER ASSURANCES. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. SUCCESSORS AND ASSIGNS. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser,
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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]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Official
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 0000-XXX0
XXXXXXX COLLATERAL
[SEE EXHIBIT B-1B TO THE POOLING AND SERVICING AGREEMENT]
X-0
XXXXXXX X-0
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing
Date:
1. The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
2. The execution and delivery by the Seller of, and the performance
by the Seller under, this Agreement, the execution (including, without
limitation, by facsimile or machine signature) and delivery of any and all
documents contemplated by this Agreement, including, without limitation,
endorsements of Mortgage Notes, and the consummation by the Seller of the
transactions herein contemplated, will not: (a) violate the Seller's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound or which is applicable to it or any of
its assets, which default or breach, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
3. The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the event that
the related transaction is deemed to constitute a loan secured by all or part of
the Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under
the conditions set forth in, this Agreement.
5. Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (b)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
6. The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance under and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
7. There are no actions, suits or proceedings pending or, to the
best of the Seller's knowledge, threatened against the Seller which, if
determined adversely to the Seller, would prohibit the Seller from entering into
this Agreement or, in the Seller's good faith and reasonable judgment, would
B-1-1
be likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
8. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
9. The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
10. The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
11. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
12. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
13. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
14. The Seller does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
15. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
16. In connection with its transfer of the Mortgage Loans to the
Purchaser as contemplated herein, the Seller is receiving new value and
consideration constituting at least reasonably equivalent value and fair
consideration.
B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing
Date:
1. The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Purchaser of, and the
performance by the Purchaser under, this Agreement, and the consummation by the
Purchaser of transactions herein contemplated, will not: (a) violate the
Purchaser's organizational documents; or (b) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Purchaser is a party or by which it is bound or which is applicable to
it or any of its assets, which default or breach, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
3. The Purchaser has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (a) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
5. The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance under and compliance with the
terms hereof will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
6. There are no actions, suits or proceedings pending or, to the
best of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, would be likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations hereunder or the financial condition
of the Purchaser.
B-2-1
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been 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 (AND, AS
TO ANY MORTGAGE LOAN, WITH RESPECT TO THE PERIOD SUBSEQUENT TO ORIGINATION, ANY
SERVICER ACTING ON BEHALF OF THE SELLER WITH RESPECT TO THAT MORTGAGE LOAN)
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); PROVIDED THAT THE SELLER SHALL BE DEEMED
TO HAVE KNOWLEDGE OF THE INFORMATION CONTAINED IN THE MORTGAGE LOAN DOCUMENTS
RELATING TO THE MORTGAGE LOANS. FOR PURPOSES OF THIS EXHIBIT C, THE "VALUE" OF A
MORTGAGED PROPERTY SHALL MEAN THE VALUE OF SUCH MORTGAGED PROPERTY AS DETERMINED
BY THE APPRAISAL (AND SUBJECT TO THE ASSUMPTIONS SET FORTH IN THE APPRAISAL)
PERFORMED IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN.
The Seller hereby represents and warrants with respect to the
respective Mortgage Loans that, as of the date hereinbelow specified or, if no
such date is specified, as of the Closing Date and subject to SECTION 18 of this
Agreement:
1. MORTGAGE LOAN SCHEDULE. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (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 May 2002.
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 identified on SCHEDULE C-2). The Seller has
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 identified on SCHEDULE C-2); PROVIDED that recording and/or filing of
various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Note is, or shall be as of the Closing Date, properly endorsed to
the Purchaser or its designee and each such endorsement is genuine.
3. PAYMENT RECORD. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in May 2002 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 May 2002, without
giving effect to any applicable grace period.
C-1
4. LIEN; VALID ASSIGNMENT. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and 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 subject to the following
(collectively, the "PERMITTED ENCUMBRANCES"): (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 binding upon the title
insurer), none of which materially interferes with the security intended to be
provided by such Mortgage, the current principal use of the related Mortgaged
Property, the Value of the 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 binding upon the title insurer),
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use of the related Mortgaged Property, the
Value of the 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 such
Mortgage Loan; (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property, 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 terms of which condominium declaration do
not materially interfere with the security intended to be provided by such
Mortgage, the current principal use of the related Mortgaged Property, the Value
of the Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan. The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name and address of the
assignee and any related recording information which is not yet available to the
Seller) 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. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that 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, except for Permitted Encumbrances and except that a license
may have been granted to the related Borrower to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of
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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. 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 or provides for rents to
be paid directly to the related mortgagee, if there is an event of default. No
person other than the related Borrower owns any interest in any payments due
under the related leases on which the Borrower is the landlord, covered by the
related Assignment of Leases.
6. MORTGAGE STATUS; WAIVERS AND MODIFICATIONS. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part.
7. CONDITION OF PROPERTY; CONDEMNATION. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds or insurance coverage exists sufficient to effect the necessary
repairs and maintenance). As of the date of origination of the Mortgage Loan,
there was no proceeding pending for the condemnation of all or any material part
of the related Mortgaged Property. 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. As of the date of
origination of each Mortgage Loan and, to the Seller's knowledge, as of the
Closing Date (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, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in PARAGRAPH 8 below or that do
not materially and adversely affect the Value or 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 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 binding on the
title insurer) 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 Permitted
Encumbrances. Such Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and, to the Seller's knowledge, no material claims have been made
thereunder and no claims
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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, 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 whether, or it affirmatively insures
(unless the related Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available) that, (a) the related Mortgaged Property
has access to a public road, and (b) the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. NO HOLDBACK. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan Documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. MORTGAGE PROVISIONS. The Mortgage Loan Documents for each
Mortgage Loan, together with applicable state law, contain 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). None of the Mortgage Loan Documents contain any provision that
expressly excuses the related Borrower from obtaining and maintaining insurance
coverage for acts of terrorism.
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 Mortgaged
Property, (a) an environmental site assessment or an environmental site
assessment update, in each case meeting ASTM standards and covering all
environmental hazards typically assessed for similar properties including use,
type and tenants of the related Mortgaged Property, or a transaction screen
meeting ASTM standards, was performed by an independent third-party
environmental consultant (licensed to the extent required by applicable state
law) with respect to each Mortgaged Property securing a Mortgage Loan in
connection with the origination of such Mortgage Loan, (b) the report of each
such assessment, update or screen, if any (an "ENVIRONMENTAL Report"), is dated
no earlier than (or, alternatively, has been updated within) twelve (12) months
prior to the Closing Date, (c) a copy of each such Environmental Report has been
delivered to the Purchaser, and (d) either: (i) no such Environmental Report, if
any, reveals 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
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(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 one or more of the
following are true--(A) one or more parties not related to the related Borrower
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstance, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Borrower was required to provide additional security reasonably estimated to be
adequate to cure the violations 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, or other responsible party, provided
a "no further action" letter or other evidence that would be acceptable to a
reasonably prudent commercial mortgage lender, that applicable federal, state or
local governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or circumstance,
(D) such conditions or circumstances were investigated further and based upon
such additional investigation, 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 origination of the related
Mortgage Loan, such responsible party had financial resources reasonably
estimated to be adequate to cure the subject violation in all material respects.
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 the Seller in connection with the issue of any related environmental
insurance policy, if applicable, that would require investigation or remediation
by the related Borrower under, or otherwise be a material violation of, any
applicable environmental law. The Mortgage Loan Documents for each Mortgage Loan
require the related Borrower to comply in all material respects with all
applicable federal, state and local environmental laws and regulations. Each of
the Mortgage Loans identified on SCHEDULE C-12 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 either do not provide for a deductible or the deductible
amount is held in escrow. Each Borrower represents and warrants in the related
Mortgage Loan Documents that except as set forth in certain environmental
reports and to its actual knowledge it has not used, caused or permitted to
exist and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal, state or
local laws, ordinances, regulations, orders, directives or policies governing
the use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. With respect to each Mortgage
Loan, the related Borrower (or affiliate thereof) has agreed to indemnify,
defend and hold the Seller and its successors and assigns harmless from and
against any and all losses, liabilities, damages, injuries, penalties, fines,
expenses and claims of any kind whatsoever (including attorneys' fees and costs)
paid, incurred or suffered by or asserted against, any such party resulting from
a breach of environmental representations, warranties or covenants given by such
Borrower in connection with such Mortgage Loan.
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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,
fraudulent transfer and conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and except that certain provisions in such loan documents may be
further limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing CLAUSES (I) and (II)) such limitations 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 is also covered by comprehensive general
liability insurance in amounts customarily required by prudent commercial
lenders for properties of similar types. Except as disclosed on SCHEDULE C-14,
each Mortgaged Property securing a Mortgage Loan is the subject of a business
interruption or rent loss insurance policy providing coverage for at least
twelve (12) months (or a specified dollar amount which is reasonably estimated
to cover no less than twelve (12) months of rental income), 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 "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.
Each Mortgaged Property located in California or seismic zones 3 and 4 is
covered by seismic insurance to the extent such Mortgaged Property has a
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in the same area or earthquake zone. 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
C-6
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. Additionally, for any Mortgage
Loan having a Cut-off Date Principal Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A:V" (or the equivalent). With respect to each Mortgage Loan, the related
Mortgage Loan Documents require that the related Borrower or a tenant of such
Borrower maintain insurance as described above or permit the related mortgagee
to require insurance as described above. Except under circumstances that would
be reasonably acceptable to a prudent institutional commercial mortgage lender
or that would not otherwise materially and adversely affect the security
intended to be provided by the related Mortgage, the Mortgage Loan Documents for
each Mortgage Loan provide that proceeds paid 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 Loan Documents may entitle the related Borrower to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and PROVIDED,
FURTHER, that, if the related Borrower holds a leasehold interest in the related
Mortgaged Property, the application of such proceeds will be subject to the
terms of the related Ground Lease (as defined in PARAGRAPH 18 below).
Except as set forth on SCHEDULE C-14B, each Mortgaged Property is
insured by an "all-risk" casualty insurance policy that does not contain an
express exclusion for (or, alternatively, is covered by a separate policy that
insures against property damage resulting from) acts of terrorism.
15. TAXES AND ASSESSMENTS. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan 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. No Borrower under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding, and
no Mortgaged Property is the subject of any such proceeding in which any
affiliate of the related Borrower is a debtor.
17. LOCAL LAW COMPLIANCE. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or 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, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance
C-7
coverage has been obtained in an amount that would be required by prudent
commercial mortgage lenders (or, if the related Mortgaged Property may not be
restored or repaired to the full extent of the use or structure at the time of
such casualty and law and ordinance coverage has not been obtained in an amount
that would be required by prudent commercial mortgage lenders, such fact does
not materially and adversely affect the Value of the related Mortgaged
Property).
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:
(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; and 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;
(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 has been obtained); PROVIDED that such Ground Lease has not
been terminated and all amounts owed thereunder have been paid;
(d) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no 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; and 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 twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such
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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 twenty (20) 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 for any
reason, including 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 (other
than DE MINIMIS amounts for minor casualties) with respect to the
leasehold interest will be applied either (i) to the repair or restoration
of all or part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (ii) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued interest
thereon;
(j) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
and
(k) such Ground Lease provides that it 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. Each 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 or by the property manager), 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-9
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, proceedings or governmental investigations 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. Except for Mortgage Loans secured by
residential cooperative properties, 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. The related Mortgage Loan
Documents require the Borrower under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. NO MECHANICS' LIENS. To the Seller's knowledge: (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,
C-10
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 related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Treasury regulation section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
PROVIDED that the Mortgage Loans that are Cross-Collateralized Mortgage Loans,
and the other individual Mortgage Loans secured by multiple parcels, may require
the respective mortgagee(s) to grant releases of 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 in connection therewith; and PROVIDED, FURTHER,
that certain Cross-Collateralized Groups of Mortgage Loans or individual
Mortgage Loans secured by multiple parcels 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. No release or partial release of any Mortgaged
Property, or any portion thereof, expressly permitted by the related Mortgage
Loan Documents, will constitute a significant modification of the related
Mortgage Loan under Treasury regulation section 1.860G-2(b)(2).
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 Treasury regulation
section 1.860G-2(a)(8)(i). To the Seller's knowledge, defeasance under each such
Mortgage Loan is only for the purpose of facilitating the disposition of a
Mortgaged Property and not as part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
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, including Rating Agency fees.
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. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within twelve (12)
months preceding the Closing Date.
33. NO MATERIAL DEFAULT. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan (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.
C-11
34. DUE-ON-SALE. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Borrower, is
transferred or sold, other than by reason of: (i) if the related Mortgaged
Property is a residential cooperative property, transfers of stock of the
Borrower in connection with the assignment of a proprietary lease for a unit in
the related Mortgaged Property by a tenant-shareholder of the Borrower to other
persons who by virtue of such transfers become tenant-shareholders in the
Borrower; and (ii) in the case of other types of Mortgaged Properties, family
and estate planning transfers, transfers of less than a controlling interest in
the Borrower, transfers of shares in public companies, issuance of
non-controlling new equity interests, transfers to an affiliate meeting the
requirements of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Borrower, transfers among affiliated Borrowers with respect
to cross-collateralized Mortgage Loans or multi-property Mortgage Loans,
transfers among co-Borrowers or transfers of a similar nature to the foregoing
meeting the requirements of the Mortgage Loan.
35. SINGLE PURPOSE ENTITY. Except in cases where the related
Mortgaged Property is a residential cooperative property, the Borrower on each
Mortgage Loan with a Cut-off Date Principal Balance of $5,000,000 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
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 insuring same, 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, (i)
the rate at which such ARD Loan accrues interest will increase by at least two
(2) percentage points and (ii) the related Borrower is required to enter into a
lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable Master Servicer.
C-12
39. SECURITY INTERESTS. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording, in all places
necessary to perfect (to the extent that the filing of such a UCC financing
statement can perfect such a security interest), a valid security interest in
the personal property of the related Borrower granted under the related
Mortgage. If any Mortgaged Property securing a Mortgage Loan is operated as a
hospitality property, 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.
42. SERVICING RIGHTS. Except as otherwise contemplated in this
Agreement or the Pooling and Servicing Agreement, no Person has been granted or
conveyed the right to service any Mortgage Loan or receive any consideration in
connection therewith.
43. RECOURSE. Except as otherwise set forth on SCHEDULE C-43, and
unless the related Mortgaged Property is a residential cooperative property, 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, liabilities, expenses or
claims sustained in connection with the Borrower's fraud, material (or,
alternatively, intentional) misrepresentation, waste 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 is a fee simple
interest in real property and the improvements thereon.
C-13
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
are conveyed hereunder to the Purchaser. Any and all material requirements under
each Mortgage Loan as to completion of any 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, except
as otherwise set forth on SCHEDULE C-47, the related Mortgage requires the
related Borrower, in some cases at the request of the lender, to provide the
holder of such Mortgage Loan with at least quarterly operating statements and
rent rolls (if there is more than one tenant) (except in cases where the related
Mortgaged Property is a residential cooperative property) for the related
Mortgaged Property and annual 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 fifteen (15) days from the applicable Due Date (or, in
the case of Mortgage Loans identified on SCHEDULE C-48, five (5) days after the
date of written 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 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.
50. NO FRAUD. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. SERVICING. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. APPRAISAL. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Borrower or in any loan made on the security thereof, and whose compensation is
not affected by
C-14
the approval or disapproval of the Mortgage Loan; the appraisal, or a letter
from the appraiser, states that such appraisal satisfies the requirements of the
"Uniform Standards of Professional Appraisal Practice" as adopted by the
Appraisal Standards Board of the Appraisal Foundation, all as in effect on the
date the Mortgage Loan was originated.
53. LOANS TO ONE BORROWER. As of the Closing Date, not more than
$55,000,000 of the Mortgage Loans have the same Borrower or, to the Seller's
KNOWLEDGE, have Mortgagors that are affiliates of each other.
C-15
SCHEDULE C-2
(SERVICING RIGHTS)
A third party is entitled to receive a correspondent servicing fee with respect
to Loan No. 10015124/Storage at Xxxxxxxxx and Loan No.10015196/Marshalls
Shopping Center.
C-16
SCHEDULE C-12
(ENVIRONMENTAL INSURANCE)
An environmental insurance policy was obtained for the Mortgaged Property
securing Loan Number 10015212/ 32 and 00 Xxxxxx Xxxxxx.
C-17
SCHEDULE C-14
(TERRORISM INSURANCE)
Each of Mortgage Loan No. 10014314/Main Street Commons and Mortgage Loan Xx.
00000000/ Xxxxxxxxx Xxxxxxx is insured by an "all -risk" casualty insurance
policy that contains an express exclusion for acts of terrorism.
C-18
SCHEDULE C-43
(RECOURSE)
The related Mortgage Loan Documents for Loan No. 4159667/Hiawatha Industrial
Center contain provisions providing for recourse against the related Borrower
for damages, liabilities, expenses or claims sustained due to certain actions of
the Borrower, however, there is no recourse for waste.
C-19
SCHEDULE C-47
(OPERATING STATEMENTS)
With the exception of Loan Xx. 0000000/Xxxxxxxx Xxxxxxxxxx Xxxxxx, xxxx of the
Mortgage Loans require the delivery of an annual financial statement of the
related Borrower, but do require the delivery of an annual balance sheet of the
related Borrower.
C-20
SCHEDULE C-48
(GRACE PERIOD)
The related Mortgage Note for Loan Xx. 00000000/Xxxx Xxxxxx Xxxxxxx Xxxxxxxx
Center provides a grace period for delinquent Monthly Payments of five days
after the date of written notice.
C-21
EXHIBIT D-1A
FORM OF CERTIFICATE OF THE SECRETARY
OR AN ASSISTANT SECRETARY OF THE SELLER
KEYBANK NATIONAL ASSOCIATION
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxx 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 May 2, 2002 (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-1A-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 May __, 2002.
By:
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
D-1A-2
ATTACHMENT A
ARTICLES OF ASSOCIATION AND BY-LAWS OF THE BANK
D-1A-3
ATTACHMENT B
RESOLUTIONS OF THE BANK
D-1A-4
ATTACHMENT C
OCC CERTIFICATE OF GOOD STANDING
D-1A-5
EXHIBIT D-1B
FORM OF CERTIFICATE OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-CKN2
CERTIFICATE OF KEYBANK NATIONAL ASSOCIATION
In connection with the execution and delivery by KeyBank National
Association ("KeyBank") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of May
2, 2002 (the "MORTGAGE LOAN PURCHASE AGREEMENT"), between Credit Suisse First
Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and KeyBank, as
seller, and that certain Indemnification Agreement dated as of May 2, 2002 (the
"Indemnification Agreement and, together with the Mortgage Loan Purchase
Agreement, the "AGREEMENTS"), between KeyBank, CSFBMSC and Credit Suisse First
Boston Corporation, as representative of the Underwriters and as initial
purchaser of the Privately Offered Certificates, the undersigned hereby
certifies that (i) the representations and warranties of KeyBank in the
Agreements are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) KeyBank has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Mortgage Loan Purchase Agreement to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified this day of May, 2002.
KEYBANK NATIONAL ASSOCIATION
By:
----------------------------------------
Name:
Title:
D-1B-1
EXHIBIT D-2A
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE SELLER,
PURSUANT TO SECTION 7(vi)
May 16, 2002
Xxxxx'x Investors Service, Inc. Standard & Poor's Ratings Services,
00 Xxxxxx Xxxxxx a division of The XxXxxx-Xxxx
Xxx Xxxx, XX 00000 Companies, Inc.
00 Xxxxx Xxxxxx.
Xxx Xxxx, XX 00000-0000
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
Xxxxx Fargo Bank Minnesota, X.X. Xxxxxx Brothers Inc.
0000 Xxx Xxxxxxxxx Xxxx 000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000-0000 Xxx Xxxx, XX 00000
Re: CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
SERIES 2002-CKN2
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., dba Key Commercial Mortgage (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 CSFBMSC, as Depositor, the
Corporation , as General Master Servicer, ARCap Special Servicing,
Inc., as General Special Servicer,
D-2A-1
NCB, FSB, as Co-op Master Servicer, National Consumer Cooperative
Bank, as Co-op Special Servicer, and Xxxxx Fargo Bank Minnesota,
N.A., as Trustee; and
3. The Indemnification Agreement among the Bank, CSFBMSC and Credit
Suisse First Boston Corporation, as Representative for the named
underwriters and as Initial Purchaser.
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;
D-2A-2
(f) neither the execution and delivery by the Corporation of the
Agreements it is a party to, nor the consummation by the Corporation of the
transactions contemplated by such Agreements, nor the performance by the
Corporation of its obligations thereunder will result in a material breach or
violation of, or constitute a material default under (i) the Articles of
Incorporation or by-laws, as amended, of the Corporation, (ii) the terms of
applicable current provisions of statutory law 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. Xxxxxxx
Senior Vice President and
Associate General Counsel
D-2A-3
EXHIBIT D-2B
FORM OF OPINION OF PHILLIPS, LYTLE, XXXXXXXXX, XXXXXX & XXXXX LLP,
SPECIAL COUNSEL TO THE SELLER,
PURSUANT TO SECTION 7(vii)
Credit Suisse First Boston Mortgage
Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Mortgage Loan Purchase Agreement between KeyBank National
Association, as Seller, and Credit Suisse First Boston Mortgage
Securities Corp., as Depositor dated as of May 2, 2002, Series
2002-CKN2 ("MLPA")
and
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
General Master Servicer, ARCap Special Servicing, Inc., as General
Special Servicer, NCB, FSB, as Co-op Master Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, and Xxxxx
Fargo Bank Minnesota, N.A., as Trustee dated as of May 13, 2002
("PSA" and collectively with the MLPA, the "Agreements")
Ladies and Gentlemen:
D-2B-1
We have acted as special local counsel to KeyBank National
Association ("KeyBank"), as Seller in connection with the execution and delivery
of the MLPA.
We have also acted as special local counsel to KeyCorp Real Estate
Capital Markets, Inc. ("KRECM") in connection with the execution and delivery of
the PSA.
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 KeyBank and KRECM in the
Agreements.
In rendering the opinions expressed herein, we have assumed (i) the
genuineness of all signatures by each party; (ii) the authenticity of all
documents submitted to us as originals; (iii) the conformity to original
documents of all documents submitted to us as conformed or photostatic copies;
(iv) the conformity in all material respects of the final executed form of the
PSA with the version submitted to us in draft form on May 9, 2002 and the final
executed form of the MLPA with the version submitted to us in draft form on
April 29, 2002; (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 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 MLPA against KeyBank constitutes the legal, valid and
binding contract and agreement of KeyBank and is enforceable in accordance with
its terms.
2. The PSA constitutes the legal, valid and binding contract
and agreement of KRECM and is enforceable against KRECM in accordance with its
terms.
Our opinions concerning the enforceability of the Agreements are
subject to the qualification that:
(a) enforceability may be limited by or subject to (i) state
and/or federal bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws and rules of law affecting the enforcement generally
of creditors' rights and remedies; (ii) an implied duty of good faith; and (iii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable
in whole or in part, although the inclusion of such provisions does not render
any of the Agreements invalid as a whole, and the Agreements contain legally
adequate provisions for enforcing the other obligations of the parties
thereunder and for the practical realization of the principal rights and
benefits purported to be afforded thereby, subject to the economic consequences
of any judicial, administrative, or other procedural delay in connection with
such enforcement and realization.
D-2B-2
In connection with servicing by KRECM 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, or the statutes, rules or regulations of any county,
municipality or political subdivision.
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, subject to the preceding paragraph, 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-2B-3
EXHIBIT D-2C
FORM OF LETTER OF XXXXXXXXXX XXXXXXX & XXXXX, P.C., SPECIAL COUNSEL TO
THE SELLER, PURSUANT TO SECTION 7(ix)
May 16, 2002
Credit Suisse First Boston Mortgage Xxxxxx Brothers Inc.
Securities Corp. and 000 Xxxx Xxxxxx
Credit Suisse First Boston Corporation Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2002-CKN2
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association
("Key") in connection with the sale by Key, and the purchase by Credit Suisse
First Boston Mortgage Securities Corp. (the "DEPOSITOR"), of certain multifamily
and commercial mortgage loans (the "KEY LOANS") pursuant to that certain
Mortgage Loan Purchase Agreement ("MORTGAGE LOAN PURCHASE AGREEMENT") dated as
of May 2, 2002 between Key as Seller and the Depositor as Purchaser, and further
in connection with the preparation and review of the sections of the Prospectus
Supplement dated May 2, 2002 ("PROSPECTUS SUPPLEMENT") to the Depositor's
Prospectus dated May 2, 2002 ("BASE PROSPECTUS," and together with the
Prospectus Supplement, the "PROSPECTUS") titled "Summary of Prospectus
Supplement--Relevant Parties/Entities," "Summary of Prospectus
Supplement--Significant Dates and Periods," "Summary of Prospectus
Supplement--The Underlying Mortgage Loans," "Risk Factors--Risks Related to the
Underlying Mortgage Loans" and "Description of the Underlying Mortgage Loans"
(collectively, the "PROSPECTUS SUPPLEMENT--SPECIFIED SECTIONS"), and further in
connection with the preparation and review of the sections of the Confidential
Offering Circular dated May 2, 2002 (the "CONFIDENTIAL OFFERING CIRCULAR")
titled "Summary--Relevant Parties," "Summary--Significant Dates and Periods" and
"Summary--The Mortgage Loans" (the "CONFIDENTIAL OFFERING CIRCULAR--SPECIFIED
Sections"). Capitalized terms not otherwise defined herein are defined as set
forth in the Mortgage Loan Purchase Agreement.
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 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 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 Mortgage Loan Purchase
Agreement, and other such documents and records as we have deemed
D-2C-1
relevant or necessary as the basis for the views expressed in this letter,
solely with respect to the information contained therein relating to the Key
Loans. We have obtained such certificates from and made such inquiries of
officers and other representatives of Key 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
Mortgage Loan Purchase 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 Key) 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 the Mortgage Loan Purchase Agreement by the
parties thereto and the constitution of the Mortgage Loan Purchase 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 the Mortgage Loan Purchase Agreement by the parties thereto, (vii)
the conformity to the requirements of the Mortgage Loan Purchase Agreement of
the Mortgage Loan Documents delivered to the Depositor by Key, (viii) the
absence of any agreement that supplements or otherwise modifies the agreements
expressed in the Mortgage Loan Purchase 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 Key we have responded
to inquiries from time to time by Key's closing coordinators, reviewed
securitization questionnaires, title insurance commitments and surveys and
prepared most of the loan documents for a majority of the Key Loans. In
connection with the preparation of the Prospectus Supplement--Specified Sections
and the Confidential Offering Circular--Specified Sections, we met in
conferences and participated in telephone conversations with officers and
employees of Key and counsel, officers and other representatives of the
Depositor, Credit Suisse First Boston Corporation, Xxxxxx Brothers Inc., Column
Financial, Inc., National Consumer Cooperative Bank, NCB Capital Corporation and
NCB, FSB, during which conferences and telephone conversations the contents of
the Prospectus Supplement--Specified Sections and the Confidential Offering
Circular--Specified Sections 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 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--Specified Sections or the Confidential
Offering Circular--Specified Sections, 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
D-2C-2
requested to make, and we do not make, any comment in this paragraph with
respect to (i) financial statements, financial ratings, tables, schedules,
exhibits, annexes or other accounting, financial, numerical, statistical, or
portfolio data or other information of that nature contained in or omitted from
the Prospectus Supplement--Specified Sections or the Confidential Offering
Circular--Specified Sections, 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 regard, we
advise you that, as to any facts material to the opinions expressed herein that
we have not independently established or verified, we have relied upon
statements and representations of officers and other representatives of Key and
its affiliates. In addition, 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 Mortgage Loan Purchase Agreement (the "TRANSACTIONS"), any
particular documents contained in such files (including the Mortgage Loan
Documents) or any other documents with respect to the Key Loans.
We note that investors in the certificates marketed and sold
pursuant to the Confidential Offering Circular (the "PRIVATE CERTIFICATES")
typically conduct due diligence on their own behalf, including review and
analysis of the Key Loans and related information to a greater degree than we
have done in the course of our representation of Key. Consequently, they have
been and/or may be provided information regarding the Key Loans that we have not
reviewed, and had we reviewed such information something may have come to our
attention that would have lead us to believe that the Confidential Offering
Circular at the date thereof or at the date of this letter contained or contains
an untrue statement of material fact or that otherwise would have been material
in connection with evaluating an investment in the Private Certificates.
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 Key, 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
Key in connection with the Transactions or in connection with the origination of
any of the Key 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 Key.
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 of this letter, notwithstanding that such changes may affect the views or
beliefs expressed herein.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
D-2C-3
