MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 12 2001, between First Union National Bank, a national bank
("First Union"), 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
First Union desires to sell, assign, transfer, set over and otherwise
convey to CSFB Mortgage Securities, without recourse, and CSFB Mortgage
Securities desires to purchase, subject to the terms and conditions set forth
herein, the multifamily and commercial mortgage loans (collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule"), as such schedule may be amended from time to time
pursuant to the terms hereof.
CSFB Mortgage Securities intends to create a trust (the "Trust"), the
primary assets of which will be a segregated pool of multifamily and commercial
mortgage loans that includes the Mortgage Loans. Beneficial ownership of the
assets of the Trust (such assets collectively, the "Trust Fund" will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Xxxxx'x
Investors Service, Inc. and Fitch, Inc. (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of June 1, 2001 (the "Pooling and
Servicing Agreement"), among CSFB Mortgage Securities, as depositor (in such
capacity, the "Depositor"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key
Commercial Mortgage, as master servicer (in such capacity, the "Master
Servicer") and as special servicer (in such capacity the "Special Servicer"),
and Xxxxx Fargo Bank Minnesota, N.A., trustee (the "Trustee"), relating to the
issuance of CSFBMSC's Commercial Mortgage Pass-Through Certificates, Series
2001-CK3 (the "Certificates"). Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
in Section 1 hereof). It is anticipated that CSFB Mortgage Securities will
transfer the Mortgage Loans to the Trust contemporaneously with its purchase of
the Mortgage Loans hereunder.
CSFB Mortgage Securities intends to sell the Registered Certificates to
Credit Suisse First Boston Corporation ("CSFB"), McDonald Investments Inc.
("McDonald"), First Union Securities, Inc. ("First Union Securities") and
Xxxxxxx Xxxxx Barney Inc. ("SSBI"), pursuant to an underwriting agreement, dated
as of the date hereof (the "Underwriting Agreement"), among CSFB Mortgage
Securities, CSFB, McDonald, First Union Securities and SSBI; and CSFB Mortgage
Securities intends to sell the remaining Certificates (the "Non-Registered
Certificates") to CSFB, pursuant to a certificate purchase agreement, dated as
of the date hereof (the "Certificate Purchase Agreement"), between CSFB Mortgage
Securities, and CSFB. The Registered Certificates are more fully described in
the prospectus dated June 5, 2001 (the "Basic Prospectus"), and the supplement
to the Basic Prospectus dated June 12, 2001 (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The Non-Registered Certificates are more
fully
described in the confidential offering circular dated June 12, 2001 (the
"Confidential Offering Circular"), as it may be amended or supplemented at any
time hereafter.
First Union will indemnify CSFB Mortgage Securities, CSFB, McDonald, First
Union Securities, SSBI and certain related parties with respect to the
disclosure regarding the Mortgage Loans and contained in the Prospectus, the
Confidential Offering Circular and certain other disclosure documents and
offering materials relating to the Certificates, pursuant to an indemnification
agreement, dated the date hereof (the "Indemnification Agreement"), among First
Union, CSFB Mortgage Securities, CSFB, McDonald, First Union Securities and
SSBI.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on June 13, 2001 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). As of the close
of business on the respective Due Dates for the Mortgage Loans in June 2001
(individually and collectively, the "Cut-off Date"), the Mortgage Loans will
have an aggregate principal balance, after application of all payments of
principal due on the Mortgage Loans on or before such date, whether or not
received, of $103,424,221, subject to a variance of plus or minus 5%. The
purchase price for the Mortgage Loans shall be 100% of such aggregate principal
balance, together with accrued interest on the Mortgage Loans at their
respective Net Mortgage Rates from and including June 1, 2001 to but not
including the Closing Date, and the Purchaser shall pay such purchase price to
the Seller on the Closing Date by wire transfer in immediately available funds
or by such other method as shall be mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) On and as of the Closing Date, subject only to receipt of the purchase
price referred to in Section 1 hereof and the other conditions to the Seller's
obligations set forth herein, the Seller does hereby sell, assign, transfer, set
over and otherwise convey to the Purchaser, without recourse, all of the right,
title and interest of the Seller in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans after
the Cut-off Date (other than scheduled payments of interest and principal due on
or before the Cut-off Date), together with all of the right, title and interest
of the Seller in and to the proceeds of any related title, hazard or other
insurance policies and any escrow, reserve or other comparable accounts related
to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver or cause to be delivered to the Purchaser or its
designee the Mortgage File and any Additional Collateral (other than reserve
funds and escrow payments) with respect to each Mortgage
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Loan. In addition, with respect to each Mortgage Loan as to which any Additional
Collateral is in the form of a Letter of Credit as of the Closing Date, the
Seller shall cause to be prepared, executed and delivered to the issuer of each
such Letter of Credit such notices, assignments and acknowledgments as are
necessary to cause the recognition of the Purchaser or its designee as the
beneficiary of such Letter of Credit and drawing party thereunder. Unless the
Purchaser notifies the Seller in writing to the contrary, the designated
recipient of the items described in the second preceding sentence, and the
designated beneficiary under each Letter of Credit referred to in the preceding
sentence, shall be the Trustee.
If the Seller cannot deliver on the Closing Date any document that is
required to be part of the Mortgage File for any Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(iv) the Seller shall otherwise use commercially reasonable efforts to
cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
In addition, the Seller shall, at its expense, deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser or its designee,
on or before the Closing Date, the following items (except to the extent any of
the following items are to be retained by a subservicer that will continue to
act on behalf of the Purchaser or its designee): (i) originals or copies of all
financial statements, appraisals, environmental/engineering reports, leases,
rent rolls and tenant estoppels in the possession or under the control of the
Seller that relate to the Mortgage Loans and, to the extent they are not
required to be a part of a Mortgage File in accordance with the definition
thereof, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans and that are reasonably required for the ongoing administration
and servicing of the Mortgage Loans; provided, however, the Seller shall not be
required to deliver any attorney-client privileged communication or internal
credit analysis; and (ii) all unapplied reserve funds and escrow payments in the
possession or under the control of the Seller that relate to the Mortgage Loans.
Unless the Purchaser notifies the Seller in writing to the contrary, the
designated recipient of the items described in clauses (i) and (ii) of the
preceding sentence shall be the Master Servicer.
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If the Seller is unable to deliver any Letter of Credit constituting
Additional Collateral for any Mortgage Loan, then the Seller may, in lieu
thereof, deliver on behalf of the related Borrower, to be used for the same
purposes as such missing Letter of Credit either: (i) a substitute letter of
credit substantially comparable to, but in all cases in the same amount and with
the same draw conditions and renewal rights as, that Letter of Credit and issued
by an obligor that meets any criteria in the related Mortgage Loan documents
applicable to the issuer of that Letter of Credit; or (ii) a cash reserve in an
amount equal to the amount of that Letter of Credit. For purposes of the
delivery requirements of this Section 2(c), any such substitute letter of credit
shall be deemed to be Additional Collateral of the type covered by the first
paragraph of this Section 2(c) and any such cash reserve shall be deemed to be
reserve funds of the type covered by the third paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c), the
Seller shall receive copies, or otherwise be the beneficiary, of all
certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable out-of-pocket costs
and expenses associated with recording and/or filing any and all assignments and
other instruments of transfer with respect to the Mortgage Loans that are
required to be recorded or filed, as the case may be, under the Pooling and
Servicing Agreement; provided that the Seller shall not be responsible for
actually recording or filing any such assignments or other instruments of
transfer or for costs and expenses that the related Borrowers have agreed to
pay. If the Seller receives written notice that any such assignment or other
instrument of transfer is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
(e) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Seller shall report its transfer of the Mortgage Loans
to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof. In
connection with the foregoing, the Seller shall cause all of its records to
reflect such transfer as a sale (as opposed to a secured loan) and to reflect
that the Mortgage Loans are no longer property of the Seller.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all reasonable actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
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SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review. The
Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Mortgage Loans, that
may be undertaken by or on behalf of the Purchaser. The fact that the Purchaser
has conducted or has failed to conduct any partial or complete examination of
any of the Mortgage Files for, and/or any of such other documents and records
relating to, the Mortgage Loans, shall not affect the Purchaser's right to
pursue any remedy available in equity or at law for a breach of the Seller's
representations and warranties made pursuant to Section 4, except as expressly
set forth in Section 5.
SECTION 4. Representations, Warranties and Covenants of the Seller and the
Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the benefit
of the Purchaser, each of the representations and warranties set forth in
Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Seller, each of the representations and warranties set forth in
Exhibit B-2. The respective representations and warranties of the parties hereto
set forth in Exhibits B-1 and B-2 are hereinafter referred to collectively as
the "Corporate Representations".
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, each of the representations and warranties set
forth in Exhibit C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the initial Purchaser only, that the Seller has not dealt
with any broker, investment banker, agent or other person (other than the
initial Purchaser, CSFB, McDonald, First Union Securities and SSBI) who may be
entitled to any commission or compensation in connection with the sale to the
Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make to and for the
benefit of the Purchaser, as of the date of substitution, with respect to any
replacement mortgage loan (a "Replacement Mortgage Loan") that is substituted
for a Defective Mortgage Loan (as defined in Section 5(a) hereof) by the Seller
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit C. From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
(e) Without limiting the remedies of the Purchaser, the Certificateholders
or the Trustee on behalf of the Certificateholders pursuant to this Agreement,
it is acknowledged that the representations and warranties are being made for
risk allocation purposes. It is understood and agreed that the representations
and warranties set forth in or made pursuant to this Section 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser notwithstanding any restrictive or
qualified endorsement or assignment. With respect to the Corporate
Representations, such survival shall continue for so long as any of the Mortgage
Loans remains outstanding.
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SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) Upon discovery of any Material Breach or Material Document Defect, the
Purchaser or its designee shall notify the Seller thereof in writing and request
that the Seller correct or cure such Breach or Document Defect. Within 90 days
of the earlier of discovery or receipt of written notice by the Seller that
there has been a Material Breach or a Material Document Defect (such 90-day
period, the "Initial Resolution Period"), the Seller shall (i) cure such
Material Breach or Material Document Defect, as the case may be, in all material
respects (other than omissions solely due to a document not having been returned
by the applicable recording office) or (ii) repurchase each affected Mortgage
Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in
accordance with the terms hereof and, if applicable, the terms of the Pooling
and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller shall
certify in writing to the Purchaser (i) that any such Material Breach or
Material Document Defect, as the case may be, does not and will not cause the
Defective Mortgage Loan to fail to be a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) that such
Material Breach or Material Document Defect, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
the Seller has commenced and is diligently proceeding with the correction or
cure of such Material Breach or Material Document Defect, as the case may be,
within the applicable Initial Resolution Period, (iv) what actions the Seller is
pursuing in connection with the correction or cure thereof, and (v) that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed the
applicable Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan;
and provided, further, that, if the Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a Material Breach or Material Document
Defect arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section 1.860G-2(f)), and
if the Defective Mortgage Loan is still subject to the Pooling and Servicing
Agreement, the Seller may, at its option, in lieu of repurchasing such Defective
Mortgage Loan (but, in any event, no later than such repurchase would have to
have been completed), (i) replace such Defective Mortgage Loan with one or more
substitute mortgage loans that individually and collectively satisfy the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement, and (ii) pay any corresponding
Substitution Shortfall Amount, such substitution and payment to be effected in
accordance with the terms of the Pooling and Servicing Agreement. Any such
repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan,
servicing released basis. The Seller shall have no obligation to monitor the
Mortgage Loans regarding the existence of a Material Breach or Material Document
Defect, but if the Seller discovers a Material Breach or Material Document
Defect with respect to a Mortgage Loan, it will notify the Purchaser. For
purposes of remediating a Material Breach or Material Document Defect with
respect to any Mortgage Loan, "Resolution Extension Period" shall mean the
90-day period following the end of the applicable Initial Resolution Period.
In addition to the obligations set forth above, the Seller acknowledges
that the Mortgage Loan identified on the Mortgage Loan Schedule as Crossroads
Apartments (the "Crossroads Apartments Loan") was underwritten based on the
availability to the related Mortgaged Property of a real estate tax exemption
under Section 421(a) of the National Housing Act (the "Tax Exemption"). As of
the Closing
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Date, the Mortgaged Property securing the Crossroads Apartments Loan had not
been certified for the Tax Exemption. As an inducement to the Purchaser and its
successors and assigns to accept the Crossroads Apartments Loan pursuant to this
Agreement, the Seller agrees that in the event of a Servicing Transfer Event
occurs with respect to the Crossroads Apartments Loan before the Tax Exemption
is granted to the Mortgaged Property securing the Crossroads Apartments Loan,
then the Seller shall promptly repurchase or replace such Mortgage Loan as if it
were a Defective Mortgage Loan, but without a grace period.
If one or more of the Mortgage Loans constituting a Cross-Collateralized
Group are the subject of a Breach or Document Defect, then, for purposes of (i)
determining whether such Breach or Document Defect is a Material Breach or
Material Document Defect, as the case may be, and (ii) the application of
remedies, such Cross-Collateralized Group shall be treated as a single Mortgage
Loan.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
It is understood and agreed that the obligations of the Seller set forth in
this Section 5(a) to cure a Material Breach or a Material Document Defect or
repurchase or replace the related Defective Mortgage Loan(s), constitute the
sole remedies available to the Purchaser, the Certificateholders or the Trustee
on behalf of the Certificateholders with respect to such Breach or Document
Defect.
The remedies provided for in this Section 5 with respect to any Material
Document Defect or Material Breach with respect to any Mortgage Loan shall apply
to any REO Property.
(b) It shall be a condition to any repurchase or replacement of a Defective
Mortgage Loan by the Seller pursuant to Section 5(a) that the Purchaser shall
have (i) executed and delivered such instruments of transfer or assignment then
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Mortgage
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Loan (including any property acquired in respect thereof or proceeds of any
insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Purchaser hereunder, [and] (ii) delivered to the
Seller the Mortgage File for such Defective Mortgage Loan.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of each of the Seller
and the Purchaser made pursuant to Section 4 of this Agreement shall be
true and correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed by it after the Closing Date;
(vi) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement;
(vii) The Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
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SECTION 7. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement, duly executed by the Purchaser and the Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and
upon which CSFB Mortgage Securities, CSFB, McDonald, First Union
Securities, SSBI and the Rating Agencies (collectively, for purposes of
this Section 7, the "Interested Parties") may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Seller
authorizing the Seller's entering into the transactions contemplated by
this Agreement, and (B) the organizational documents of the Seller;
(iv) A certificate of good standing with respect to the Seller issued
by the Comptroller of the Currency not earlier than 30 days prior to the
Closing Date, and upon which the Interested Parties may rely;
(v) A Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
(vi) A written opinion of in-house counsel to the Seller, dated the
Closing Date and addressed to the Interested Parties and the Trustee, which
opinion shall be substantially in the form of Exhibit D-3A hereto (with
such additions, deletions or modifications as may be required by either
Rating Agency);
(vii) A written opinion of Cadwalader, Xxxxxxxxxx & Xxxx, special
counsel for the Seller, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinion shall be substantially in
the form of Exhibit D-3B hereto (with such additions, deletions or
modifications as may be required by either Rating Agency);
(viii) A written opinion of Cadwalader, Xxxxxxxxxx & Xxxx, special
counsel for the Seller, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinion shall be substantially in
the form of Exhibit D-3C hereto (with such additions, deletions or
modifications as may be required by either Rating Agency);
(ix) A letter from Cadwalader, Xxxxxxxxxx & Xxxx, special counsel for
the Seller, dated the Closing Date and addressed to the Interested Parties
(other than the Rating Agencies), which letter shall be substantially in
the form of Exhibit D-3D hereto;
(x) One or more comfort letters from Xxxxxx Xxxxxxxx LLP, certified
public accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and addressed to, and in
form and substance acceptable to, CSFB Mortgage Securities, CSFB, McDonald,
First Union Securities,
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SSBI and their respective counsel, stating in effect that, using the
assumptions and methodology used by CSFB Mortgage Securities, all of which
shall be described in such letters, they have recalculated such numbers and
percentages relating to the Mortgage Loans set forth in any preliminary
Prospectus Supplement and the Prospectus Supplement, compared the results
of their calculations to the corresponding items in any preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and
found each such number and percentage set forth in any preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, to be in
agreement with the results of such calculations; and
(xi) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
SECTION 8. Costs. Whether or not this Agreement is terminated, the costs
and expenses incurred in connection with the transactions herein contemplated
shall be allocated pursuant to the terms of that certain term sheet dated as of
May 31, 2001 and entitled CSFB 2001-CK3, Terms Relating to Joint Securitization
between Credit Suisse First Boston, KeyBank National Association and First Union
National Bank (the "Term Sheet").
SECTION 9. Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered to or mailed, by registered mail, postage prepaid, by overnight mail
or courier service, or transmitted by facsimile and confirmed by similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 00 Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, or such other
address as may be designated by the Purchaser to the Seller in writing, or, if
to the Seller, addressed to the Seller at One First Union Center, 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxx, or
such other address as may be designated by the Seller to the Purchaser in
writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or provision
hereof may be changed, waived, discharged or terminated except by a writing
signed by a duly authorized officer of the party against whom enforcement of
such change, waiver, discharge or termination is sought to be enforced. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
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
10
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 pursuant to Section 9-305 of the North Carolina Uniform
Commercial Code, the New York Uniform Commercial Code and the Uniform Commercial
Code of any other applicable jurisdiction; and (e) notifications to, and
acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller delivered pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser, notwithstanding any restrictive or qualified endorsement or
assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state. To the fullest extent permitted under applicable law, the Purchaser and
the Seller hereby irrevocably (i) submits to the jurisdiction of any New York
State and federal courts sitting in New York City with respect to matters
arising out of or relating to this Agreement; (ii) agrees that all claims with
respect to such action or proceeding may be heard and determined in such New
York State or federal courts; (iii) waives, to the fullest possible extent, the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or
11
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates. To the extent of
any such assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and Servicing Agreement, the Trustee, for the
benefit of the registered holders and beneficial owners of the Certificates, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be the Purchaser hereunder (but
solely with respect to such Mortgage Loan that was transferred to it). Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document.
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.
12
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]
13
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.
FIRST UNION NATIONAL BANK
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By:
----------------------------------------
Name:
Title:
14
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK3
JUNE 13, 2001
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- --------
1 The Crossroads 00 Xxxxxxx Xxxxxx Xxx Xxxx XX 00000 First Union First Union
2 Four Seasons at Xxxxxxx 0000 Xxxxxxxxxxx Xxxx Xxxxxxx XX 00000 First Union First Union
Park Apartments
3 Sterling University 0000 Xxxxxx Xxxx Xxx Xxxxxxxxx XX 00000 First Union First Union
Heights
4 Sabal Palms Apartments 3301-3371 Sabal Palm Xxxxx XX 00000 First Union First Union
Manor
5 Cambridge Towers 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxx XX 00000 First Union First Union
Apartments
6 Palm Garden Apartments 0000 Xxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000 First Union First Union
7 Shadow Ridge Apartments 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 First Union First Union
8 Rain Forest Apartments 00000 Xxx Xxx Xxxxx Xxxxxxx XX 00000 First Union First Union
9 Rite Aid Martinez 0000 Xxxxxx Xxxxx Xxxxxxxx XX 00000 First Union First Union
10 Rite Aid Morro Bay 000 Xxxxxxxx Xxxx Xxxxx Xxx XX 00000 First Union First Xxxxx
00 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 First Union First Union
Apartments
12 Colony West Apartments 0000 Xxxxxxxxxxxx Xxxxxx Xxxx XX 00000 First Union First Union
Drive
13 Falcon Pointe Apartments 000 Xxxx Xxxxxx Xxxxxxxxx XX 00000 First Union First Union
00 Xxxxxx Xxxx Xxxx 0000 Xxx Xxxxxxx Xxxx Xxxxx XX 00000 First Union First Union
Apartments
ORIG REM. ORIG REM. INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. TERM TO TERM TO ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (2) TERM TERM MATURITY (3) MATURITY (3) (MONTHS) RATE
- --------- ------- ----------- ---- ----- ------------ ------------ -------- --------
1 Fee $15,800,000 $15,790,241 360 359 120 119 0 7.0400%
2 Fee 15,000,000 15,000,000 360 360 120 118 60 7.1500%
3 Fee 11,280,000 11,280,000 360 360 120 119 24 7.4400%
4 Fee 7,500,000 7,489,899 360 358 120 118 0 7.3000%
5 Fee 7,446,000 7,435,821 360 358 120 118 0 7.2400%
6 Fee 7,282,000 7,268,405 360 357 120 117 0 7.4100%
7 Fee 6,500,000 6,488,837 360 357 120 117 0 7.7100%
8 Fee 3,900,000 3,897,814 360 359 120 119 0 7.3500%
9 Fee 3,553,831 3,553,831 144 144 144 144 0 6.9420%
10 Fee 3,474,416 3,474,416 144 144 144 144 0 6.9420%
11 Fee 3,220,000 3,218,354 360 359 120 119 0 7.6300%
12 Fee 3,182,000 3,180,262 360 359 120 119 0 7.4300%
13 Fee 3,115,000 3,099,792 360 351 180 171 0 8.5000%
14 Fee 2,720,000 2,718,514 360 359 120 119 0 7.4300%
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (4) (YES/NO) (5) PROVISION DATE FEES
- ----------- --------- -------- ------- ------------ --------- ---------- ---------
1 Actual/360 $105,543 6/1/2001 Yes Lock/42_ 1/1/11 0.0519%
Def/74_0%/4
2 Actual/360 101,311 5/1/2001 Yes Lock/26_ 12/1/2010 0.0519%
Def/90_0%/4
3 Actual/360 78,408 6/1/2001 Yes Lock/48_ 2/1/2011 0.0519%
Def/69_0%/3
4 Actual/360 51,418 5/1/2001 Yes Lock/48_ 1/1/2011 0.0519%
Def/69_0%/3
5 Actual/360 50,744 5/1/2001 Yes Lock/36_ 1/1/2011 0.000519
Def/81_0%/3
6 Actual/360 50,469 4/1/2001 Yes Lock/48_ 11/1/2010 0.000519
Def/68_0%/4
7 Actual/360 46,387 4/1/2001 Yes Lock/48_ 12/1/2010 0.000519
Def/69_0%/3
8 Actual/360 26,870 6/1/2001 No N/A 4/1/2004 0.000519
9 30/360 36,437 7/1/2001 Yes Lock/24_ 6/1/2013 0.0519%
Def/120_0%/0
10 30/360 35,623 7/1/2001 Yes Lock/24_ 6/1/2013 0.000519
Def/120_0%/0
11 Actual/360 22,802 6/1/2001 Yes Lock/48_ 2/1/2011 0.000519
Def/69_0%/3
12 Actual/360 22,097 6/1/2001 Yes Lock/49_ 10/1/2010 0.000519
Def/64_0%/7
13 Actual/360 23,952 10/1/2000 Yes Lock/48_ 5/1/2015 0.000519
Def/128_0%/4
14 Actual/360 18,888 6/1/2001 Yes Lock/48_ 10/1/2010 0.000519
Def/65_0%/7
A-1
MORTGAGE MORTGAGE
ZIP LOAN LOAN
# PROPERTY NAME (1) ADDRESS CITY STATE CODE ORIGINATOR SELLER
- ----------------- ------- ---- ----- ---- ---------- --------
15 Vista Pointe Apartments 000 Xxxxx Xxx Xxxx XX 00000 First Union First Union
16 Las Brisas Apartments 0000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 First Union First Union
17 Timberleaf Estates Gloucester Drive and Xxxxxxxxxxx XX 00000 First Union First Union
Rock Cliff Road
18 Cimarron Apartments 0000 Xxxxxx Xxxxx Xxxxxx XX 00000 First Union First Union
19 Richmond Green Apartments 000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 First Union First Union
Drive
20 Xxxxxxx Gables Apartments 0000 Xxxxx Xxxxxxx Xxxxxx XX 00000 First Union First Union
Avenue
TOTAL/WEIGHTED AVERAGE:
ORIG REM. ORIG REM. INTEREST
FEE/ ORIGINAL CUT-OFF AMORT. AMORT. TERM TO TERM TO ONLY INTEREST
# LEASEHOLD BALANCE BALANCE (2) TERM TERM MATURITY (3) MATURITY (3) (MONTHS) RATE
- --------- ------- ----------- ---- ----- ------------ ------------ -------- --------
15 Fee 2,317,330 2,306,586 360 354 180 174 0 7.3750%
16 Fee 1,920,000 1,920,000 360 360 120 119 23 7.6400%
17 Fee 1,896,000 1,882,713 360 348 180 168 0 8.8750%
18 Fee 1,336,000 1,336,000 360 360 120 119 23 7.6400%
19 Fee 1,250,000 1,242,736 360 350 180 170 0 8.1250%
20 Fee 840,000 840,000 360 360 120 119 23 7.6400%
$103,532,577 $103,424,221
7 1
INTEREST SERVICING
CALCULATION FIRST LOCKOUT AND
(30/360/ MONTHLY PAYMENT DEFEASANCE DEFEASANCE EXPIRATION TRUSTEE
# ACTUAL/360) PAYMENT DATE ARD (4) (YES/NO) (5) PROVISION DATE FEES
- ----------- --------- -------- ------- ------------ --------- ---------- ---------
15 30/360 16,005 1/1/2001 No N/A 11/1/2015 0.000519
16 Actual/360 13,609 6/1/2001 Yes Lock/48_ 2/1/2011 0.0519%
Def/69_0%/3
17 30/360 15,085 7/1/2000 No N/A 6/1/2010 0.0519%
18 Actual/360 9,470 6/1/2001 Yes Lock/48_ 2/1/2011 0.0519%
Def/69_0%/3
19 Actual/360 9,281 9/1/2000 No N/A 8/1/2010 0.0519%
20 Actual/360 5,954 6/1/2001 Yes Lock/48_ 2/1/2011 0.0519%
(1) Unless otherwise indicated, none of the mortgage loans are
cross-collateralized with other mortgage loans.
(2) Assumes a Cut-off Date of June 2001.
(3) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
X-0
XXXXXXX X-0
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
(a) The Seller is a national bank duly organized, validly existing and in
good standing under the laws of the United States of America.
(b) The execution and delivery by the Seller of this Agreement, the
execution (including, without limitation, by facsimile or machine signature) and
delivery of any and all documents contemplated by this Agreement, including,
without limitation, endorsements of Mortgage Notes, and the performance and
compliance by the Seller with the terms of this Agreement will not: (i) violate
the Seller's organizational documents; or (ii) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Seller is a party or by which it is bound or which is applicable to it
or any of its assets, which default or breach, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(c) The Seller has full power and authority to enter into and perform under
this Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (ii)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(f) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(g) There are no actions, suits or proceedings pending or, to the best of
the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would
B-1-1
be likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
(h) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
(i) The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
(j) The Mortgage Loans do not constitute all or substantially all of the
assets of the Seller.
(k) The Seller is not transferring the Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud its present or future creditors.
(l) The Seller will be solvent at all relevant times prior to, and will not
be rendered insolvent by, its transfer of the Mortgage Loans to the Purchaser,
as contemplated herein.
(m) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
(n) The Seller does not intend to, and does not believe that it will, incur
debts or obligations beyond its ability to pay such debts and obligations as
they mature.
(o) No proceedings looking toward liquidation, dissolution or bankruptcy of
the Seller are pending or contemplated.
(p) The principal place of business and chief executive office of the
Seller is located in Charlotte, North Carolina.
B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing Date:
(a) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The execution and delivery by the Purchaser of this Agreement, and the
performance and compliance by the Purchaser with the terms of this Agreement
will not: (i) violate the Purchaser's organizational documents; or (ii)
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any indenture,
agreement or other instrument to which the Purchaser is a party or by which it
is bound or which is applicable to it or any of its assets, which default or
breach, in the Purchaser's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Purchaser to perform
its obligations under this Agreement or the financial condition of the
Purchaser.
(c) The Purchaser has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(d) Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(e) The Purchaser is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms hereof will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(f) There are no actions, suits or proceedings pending or, to the best of
the Purchaser's knowledge, threatened against the Purchaser which, if determined
adversely to the Purchaser, would prohibit the Purchaser from entering into this
Agreement or, in the Purchaser's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Purchaser to
perform its obligations hereunder or the financial condition of the Purchaser.
(g) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been
B-2-1
completed, and except for those filings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
B-2-2
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE" AND
OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN, EXCEPT WHERE OTHERWISE
EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE OF THE SELLER REGARDING
THE MATTERS REFERRED TO, IN EACH CASE WITHOUT HAVING CONDUCTED ANY INDEPENDENT
INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO (EXCEPT AS
EXPRESSLY SET FORTH HEREIN).
The Seller hereby represents and warrants that, as of the date hereinbelow
specified or, if no such date is specified, as of the Closing Date and subject
to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule with respect to the Mortgage Loans is true, complete (consistent with
the definition of Mortgage Loan Schedule in the Pooling and Servicing Agreement)
and correct in all material respects as of the date of this Agreement and as of
the respective Due Dates for the Mortgage Loans in June 2001.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of the
Mortgage Loans to the Purchaser, the Seller had good title to, and was the sole
owner of, each Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each Mortgage Loan to or at the direction of the Purchaser
free and clear of any and all pledges, liens, charges, security interests,
participation interests and/or other interests and encumbrances (except for
certain servicing rights). Subject to the completion of all missing information
(including, without limitation, the names of assignees and endorsees and missing
recording information) in all instruments of transfer or assignment and
endorsements, and the completion of all recording and filing contemplated hereby
and by the Pooling and Servicing Agreement, the Seller will have validly and
effectively conveyed to the Purchaser all legal and beneficial interest in and
to each Mortgage Loan free and clear of any pledge, lien, charge, security
interest or other encumbrance (except for certain servicing rights). The sale of
the Mortgage Loans to the Purchaser or its designee does not require the Seller
to obtain any governmental or regulatory approval or consent that has not been
obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Due Date for such Mortgage
Loan in June 2001 without giving effect to any applicable grace period, nor was
any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in June 2001.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances, and
there are no liens and/or encumbrances that are pari passu with the lien of such
Mortgage, in any event except for (a) the lien for current real estate taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and/or are referred to in the
related lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or a "marked-up" commitment), none of which materially
interferes with the security intended to be provided by such
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Mortgage, the current principal use of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan, (c) exceptions and exclusions specifically
referred to in such lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or "marked-up" commitment) or appearing
of record, none of which materially interferes with the security intended to be
provided by such Mortgage, the current principal use of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service such Mortgage Loan, (d) other matters to which like
properties are commonly subject, none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan, (e)
the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property which the Seller did not require to
be subordinated to the lien of such Mortgage, which rights do not materially
interfere with the security intended to be provided by such Mortgage, the
current principal use of the related Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service the
related Mortgage Loan, (f) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group, (g) with respect
to a Rite Aid Mortgage Loan, the lien of such Mortgage securing the
corresponding Rite Aid Companion Loan, and (h) if the related Mortgaged Property
consists of one or more units in a condominium, the related condominium
declaration (the foregoing items (a) through (h) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such Mortgage executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller) and constitutes a legal, valid, binding and, subject to
the limitations and exceptions set forth in Paragraph 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the limitations and exceptions set
forth in Paragraph 13 below, enforceable first priority lien on and security
interest in, subject to applicable law, the property, rights and interests of
the related Borrower described therein and subject to the exceptions set forth
in Paragraph 4; and each assignor thereunder has the full right to assign the
same. The related assignment of any Assignment of Leases not included in a
Mortgage, executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name of the assignee and any related recording
information which is not yet available to the Seller), and constitutes a legal,
valid, binding and, subject to the limitations and exceptions set forth in
Paragraph 13 below, enforceable assignment of such Assignment of Leases from the
relevant assignor to the Trustee. If an Assignment of Leases exists with respect
to any Mortgage Loan (whether as part of the related Mortgage or separately),
then the related Mortgage or related Assignment of Leases, subject to applicable
law, provides for the appointment of a receiver for the collection of rents or
for the related mortgagee to enter into possession to collect the rents if there
is an Event of Default.
6. Mortgage Status; Waivers and Modifications. In the case of each Mortgage
Loan, except by a written instrument which has been delivered to the Purchaser
or its designee as a part of the related Mortgage File, (a) the related Mortgage
has not been impaired, waived, modified, altered, satisfied, canceled,
subordinated or rescinded, (b) the related Mortgaged Property has not been
released from the lien of such Mortgage and (c) the related Borrower has not
been released from its obligations
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under such Mortgage, in whole or in material part, in each such event in a
manner which would materially interfere with the benefits of the security
intended to be provided by such Mortgage.
7. Condition of Property; Condemnation. In the case of each Mortgage Loan,
except as set forth in an engineering report prepared in connection with the
origination of such Mortgage Loan, the related Mortgaged Property is, to the
Seller's knowledge (after inquiry of its servicer, which servicer may be an
affiliate of the Seller), free and clear of any damage that would materially and
adversely affect its value as security for such Mortgage Loan (except in any
such case where an escrow of funds or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). The Seller has not received
notice and has no knowledge of any proceeding pending for the condemnation of
all or any material portion of the Mortgaged Property securing any Mortgage
Loan. To the Seller's knowledge (based solely on surveys (if any) and/or the
lender's title policy (or, if not yet issued, a pro forma title policy or
"marked up" commitment) obtained in connection with the origination of each
Mortgage Loan), as of the date of the origination of each Mortgage Loan, (a) all
of the material improvements on the related Mortgaged Property lay wholly within
the boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below or that do not materially and adversely affect the value, marketability
or current use of such Mortgaged Property, and (b) no improvements on adjoining
properties encroached upon such Mortgaged Property so as to materially and
adversely affect the value or marketability of such Mortgaged Property, except
those encroachments that are insured against by the lender's title insurance
policy referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated in the Title Policy. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and, to the
Seller's knowledge, no material claims have been made thereunder and no claims
have been paid thereunder. To the Seller's knowledge, no holder of the related
Mortgage has done, by act or omission, anything that would materially impair the
coverage under such Title Policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including endorsement
and delivery of the related Mortgage Note to the Purchaser and recording of the
related Assignment of Mortgage in favor of Purchaser in the applicable real
estate records), such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. Such Title Policy contains no exclusion
for, or it affirmatively insures (unless, in the case of clause (b) below, the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available), (a) access to a public road, and (b) that if a
survey was reviewed or prepared in connection with the origination of the
related Mortgage Loan, the area shown on such survey is the same as the property
legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
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10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and, subject to the
limitations and exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan is a
deed of trust, then (a) a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and currently so serves or may be
substituted in accordance with the Mortgage and applicable law, and (b) no fees
or expenses are payable to such trustee by the Seller, the Depositor or any
transferee thereof except in connection with a trustee's sale after default by
the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12 (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials, lead-based paint
and radon) (a) an environmental site assessment, an environmental site
assessment update or a transaction screen was performed by an independent
third-party environmental consultant with respect to each Mortgaged Property
securing a Mortgage Loan in connection with the origination of such Mortgage
Loan, (b) a report of each such assessment, update or screen, if any (an
"Environmental Report"), has been delivered to the Purchaser, and (c) either:
(i) no such Environmental Report, if any, provides that as of the date of the
report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related to the
related Borrower was identified as a responsible party for such condition or
circumstance, (B) the related Borrower was required to provide additional
security and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Borrower provided a "no further action" letter or other evidence
acceptable to the Seller, in its sole discretion, that applicable federal, state
or local governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or circumstance,
(D) such conditions or circumstances were investigated further and based upon
such additional investigation, a qualified environmental consultant recommended
no further investigation or remediation, (E) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than 2% of
the initial 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, in the Seller's sole discretion, an
appropriate net
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worth in light of the environmental matters covered by such guaranty or
indemnity. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage for each Mortgage
Loan encumbering the Mortgaged Property requires the related Borrower to comply
with all applicable federal, state and local environmental laws and regulations.
Each of the Mortgage Loans identified on Schedule C-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 do not provide for a deductible or the
premium and the deductible amount are held in escrow.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other agreement
executed by or on behalf of the related Borrower with respect to each Mortgage
Loan is the legal, valid and binding obligation of the maker thereof (subject to
any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency or market value limit deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by (i) bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions in such loan
documents may be further limited or rendered unenforceable by applicable law,
but (subject to the limitations set forth in the foregoing clauses (i) and (ii))
such limitations or unenforceability will not render such loan documents invalid
as a whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases, where tenants, having a net worth
of at least $50,000,000 or an investment grade credit rating and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy in an amount at least equal to the lesser of the
initial principal balance of such Mortgage Loan and 100% of the full insurable
replacement cost of the improvements located on the related Mortgaged Property,
and if applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least six (6) months (or a specified
dollar amount which, in the reasonable judgement of the Seller, will cover no
less than six months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the improvements
on a Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH Area"), and flood insurance was available, a flood insurance
policy meeting the requirements of
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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 initial principal balance of such Mortgage Loan, and (3) the maximum
amount of insurance available under the applicable National Flood Insurance
Administration Program. All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without ten (10) days' prior
written notice to the mortgagee; and no such notice has been received, including
any notice of nonpayment of premiums, that has not been cured. With respect to
each Mortgage Loan, the related Mortgage requires that the related Borrower or a
tenant of such Borrower maintain insurance as described above or permits the
Mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent institutional commercial
mortgage lender and which was set forth in the related Mortgage or that would
not otherwise materially and adversely affect the security intended to be
provided by the related Mortgage, the Mortgage for each Mortgage Loan provides
that proceeds paid under any such casualty insurance policy will (or, at the
lender's option, will) be applied either to the repair or restoration of all or
part of the related Mortgaged Property or to the payment of amounts due under
such Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). In the case of each Mortgage Loan, the related Mortgaged
Property is covered by comprehensive general liability insurance in an amount at
least equal to $1 million.
15. Taxes and Assessments. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there are no
delinquent property taxes or assessments or other outstanding charges affecting
any Mortgaged Property securing a Mortgage Loan prior to the due date of such
Mortgage Loan in June 2001 that are a lien of priority equal to or higher than
the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Borrower Bankruptcy. To the Seller's knowledge, no Borrower under a
Mortgage Loan is a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a letter
from governmental authorities, a legal opinion, a zoning consultant's report, an
endorsement to the related Title Policy, or based on such other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject Mortgaged Property is located (including, without limitation,
when commercially reasonable, a representation of the related Borrower at the
time of origination of the subject Mortgage Loan), the improvements located on
or forming part of each Mortgaged Property securing a Mortgage Loan are in
material compliance with applicable zoning laws and ordinances or constitute a
legal non-conforming use or structure (or, if any such improvement does not so
comply and does not constitute a legal non-conforming use or structure, such
non-compliance and
C-6
failure does not materially and adversely affect the value of the related
Mortgaged Property as determined by the appraisal performed in connection with
the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the interest
of a Borrower as a lessee under a ground lease of all or a material portion of a
Mortgaged Property (together with any and all written amendments and
modifications thereof and any and all estoppels from or other agreements with
the ground lessor, a "Ground Lease"), but not by the related fee interest in
such Mortgaged Property or such material portion thereof (the "Fee Interest"),
then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, is
thereafter further assignable by, the Purchaser upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
either has been obtained or cannot be unreasonably withheld); provided that
such Ground Lease has not been terminated and all amounts owed thereunder
have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any material
default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan. In
addition, if required by such Ground Lease, the lessor thereunder has
received notice of the lien of the related Mortgage in accordance with the
provisions of such Ground Lease. Furthermore, such Ground Lease further
provides that no notice of termination given under such Ground Lease is
effective against the mortgagee under such Mortgage Loan unless a copy has
been delivered to such mortgagee in the manner described in such Ground
Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(g) Such Ground Lease either (i) has an original term which extends
not less than ten (10) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior to the
5th anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of
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the Borrower's leasehold interest and that, if exercised, would cause the
term of such Ground Lease to extend not less than ten (10) years beyond the
Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the
related Borrower unless the mortgagee under such Mortgage Loan fails to
cure a default of the lessee under such Ground Lease following notice
thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds with respect to the
leasehold interest will be applied either (i) to the repair or restoration
of all or part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such proceeds
as the repair or restoration progresses (except in such cases where a
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the Mortgaged Property is located
at the time of the origination of such Mortgage Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
written consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury regulation section
1.860G-2(a) (but without regard to the rule in Treasury regulation section
1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither the
Seller nor, to the Seller's knowledge, any prior holder of such Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property (other
than amounts paid by the tenant as specifically provided under related lease),
for the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the date
of disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. Except
as otherwise disclosed on Schedule C-21, 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, such Mortgage Loan provides that, during the period commencing on or about
the related Anticipated Repayment Date and continuing until
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such Mortgage Loan is paid in full, (a) additional interest shall accrue and may
be compounded monthly and shall be payable only after the outstanding principal
of such Mortgage Loan is paid in full, and (b) a portion of the cash flow
generated by such Mortgaged Property will be applied each month to pay down the
principal balance thereof in addition to the principal portion of the related
Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the Borrower under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Borrower or Mortgaged
Property, would materially and adversely affect the value of the Mortgaged
Property as security for such Mortgage Loan or the current ability of the
Borrower to pay principal, interest or any other amounts due under such Mortgage
Loan.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule C-23,
none of the Mortgage Loans permits the related Mortgaged Property to be
encumbered by any mortgage lien junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder thereof or
the satisfaction of debt service coverage or similar criteria specified therein.
To the Seller's knowledge, except as otherwise set forth on Schedule C-23, and
except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage Loans is encumbered by any mortgage liens
junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (i) each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
is free and clear of any and all mechanics' and materialmen's liens that are
prior or equal to the lien of the related Mortgage and that are not bonded or
escrowed for or covered by title insurance, and (ii) no rights are outstanding
that under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage and that is not bonded or escrowed for or
covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from, all
applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related borrower at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located, customarily performs in the origination of
comparable mortgage loans, the related Borrower was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. Except in the case of the Rite Aid Mortgage
Loans, No Mortgage Loan is cross-collateralized with any loan which is outside
the Mortgage Pool. With respect to any group of cross-collateralized Mortgage
Loans, the sum of the amounts of the respective Mortgages recorded on the
related Mortgaged Properties with respect to such Mortgage Loans is at least
equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. Except as set forth on Schedule C-28,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related
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Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
U.S. Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (i) the satisfaction of certain legal and underwriting requirements or (ii)
the payment of a release price and prepayment consideration in connection
therewith; and provided, further, that certain Cross-Collateralized Groups of
Mortgage Loans may permit the related Borrower to obtain the release of one or
more of the related Mortgaged Properties by substituting comparable real estate
property, subject to, among other conditions precedent, receipt of confirmation
from each Rating Agency that such release and substitution will not result in a
qualification, downgrade or withdrawal of any of its then-current ratings of the
Certificates; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treas. Reg. Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then the
related Mortgage Loan documents provide that the related Borrower is responsible
for the payment of all reasonable costs and expenses incurred by the related
mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. Except as set forth on Schedule C-32, in connection with
the origination of each Mortgage Loan, the Seller or an affiliate thereof
inspected, or caused the inspection of, the related Mortgaged Property.
33. No Material Default. To the Seller's knowledge, after inquiry of its
servicer, which servicer may include an affiliate of the Seller, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan (other than payments due but not yet 30
days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Exhibit C.
34. Due-on-Sale. Subject to exceptions set forth in the related mortgage
documents, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
C-10
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $15,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage loan is a whole loan and not a participation
interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more complete
separate tax lots or is subject to an endorsement under the related Title Policy
or in certain instances an application has been made to the applicable governing
authority for creation of separate tax lots which shall be effective for the
next tax year.
38. ARD Loans. As of the Closing Date, each ARD Loan requires scheduled
monthly payments of principal. If any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming it is not otherwise in default, the
rate at which such ARD Loan accrues interest will increase to the sum of the
original Mortgage Rate and a specified margin (such margin, the "Additional
Interest Rate").
39. Security Interests. If any Mortgaged Property securing a Mortgage Loan
is operated as a hospitality property or healthcare facility, then (a) the
security agreements, financing statements or other instruments, if any, related
to the Mortgage Loan secured by such Mortgaged Property establish and create a
valid security interest in all items of personal property owned by the related
Borrower which are material to the conduct in the ordinary course of the
Borrower's business on the related Mortgaged Property, subject only to purchase
money security interests, personal property leases and security interests to
secure revolving lines of credit and similar financing; and (b) one or more
Uniform Commercial Code financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a Uniform Commercial Code financing statement under applicable law). The related
assignment of such security interest (but for insertion of the name of the
assignee and any related information which is not yet available to the Seller)
executed and delivered in favor of the Trustee constitutes a legal, valid and
binding assignment thereof from the relevant assignor to the Trustee.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment Premiums
and Yield Maintenance Charges payable with respect to each Mortgage Loan, if
any, constitute "customary prepayment penalties" within meaning of Treasury
Regulation Section 1.860G-1(b)(2).
C-11
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,
no Person has been granted or conveyed the right to service any Mortgage Loan or
receive any consideration in connection therewith.
43. Recourse. The related Mortgage Loan Documents contain provisions
providing for recourse against the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower for damages
sustained in connection with the Borrower's fraud, material (or, alternatively,
intentional) misrepresentation or misappropriation of any tenant security
deposits (in some cases, only after foreclosure or an action in respect
thereof), rent (in some cases, only after an event of default), insurance
proceeds or condemnation proceeds. The related Mortgage Loan Documents contain
provisions pursuant to which the related Borrower, a principal of such Borrower
or an entity controlled by a principal of such Borrower has agreed to indemnify
the mortgagee for damages resulting from violations of any applicable
environmental laws.
44. Assignment of Collateral. There is no material collateral securing any
Mortgage Loan that has not been assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related Borrower
in the Mortgaged Property securing each Mortgage Loan includes a fee simple
and/or leasehold estate or interest in real property and the improvements
thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
which are required for the administration and servicing of such Mortgage Loan
are conveyed hereunder to the Purchaser. Any and all material requirements under
each Mortgage Loan as to completion of any material improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the Closing Date, have been complied with
in all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the related
Mortgage requires the related Borrower, in some cases at the request of the
lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and/or financial statements of the related Borrower,
and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related Mortgage
or Mortgage Note provides a grace period for delinquent Monthly Payments no
longer than 15 days from the applicable Due Date.
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:
C-12
(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. Healthcare Facilities. To the Seller's knowledge, with respect to any
Mortgaged Property securing a Mortgage Loan that is operated as a healthcare
facility, as of origination of such Mortgage Loan, the operator with respect to
such facility held all material certificates, licenses and permits required by
applicable law for the operation of such facility and was in material compliance
with all applicable state and federal laws and regulations. In addition, the
loan documents for such Mortgage Loan provide that all material certificates,
licenses and permits reasonably necessary for the operation of such facility
will continue to be maintained.
C-13
SCHEDULE C-12
ENVIRONMENTAL CONDITIONS
None.
C-12-1
SCHEDULE C-21
NO EQUITY INTEREST, EQUITY PARTICIPATION OR CONTINGENT INTEREST
LOAN NO. EXCEPTIONS
-------- ----------
100245 Richmond Green Apartments All of these loans are Section 42 loans and,
000000 Xxxxxxxxxx Xxxxxxx as a result, the lender retains an equity interest.
100417 Vista Pointe Apartments
C-21-1
OTHER MORTGAGE LIENS
LOAN NO. EXCEPTIONS
-------- ----------
300067 Rite Aid Xxxxxxxx The companion loans with respect to each of these
300068 Rite Aid Morro Bay loans is secured by the same mortgaged property.
C-23-1
SCHEDULE C-32
INSPECTION
LOAN NO. EXCEPTIONS
-------- ----------
100245 Richmond Green Apartments Engineering reports not conducted with respect to
000000 Xxxxxxxxxx Xxxxxxx these loans.
100417 Xxxxx Xxxxxx Xxxxxxxxxx
X-00-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SECRETARY OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-CK3
CERTIFICATE OF AN ASSISTANT SECRETARY OF
FIRST UNION NATIONAL BANK
I, Xxxx Xxxxxxxx, hereby certify that I am a duly elected Assistant
Secretary of First Union National Bank, a national banking association (the
"Bank"), and certify further as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the Articles
of Association of the Bank, which are in full force and effect on the date
hereof.
2. Attached hereto as Exhibit B is a true and correct copy of the Bylaws of
the Bank, which are in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a certified true copy of the resolutions
of the Members of the Special Loan Committee of the Bank, adopted on June 1,
2001, pertaining to the authorization and approval of the sale of the Bank's
right, title and interest in and to certain mortgage loans pursuant to the
Mortgage Loan Purchase Agreement (the "Mortgage Loan Purchase Agreement"), dated
as of June 13, 2001, between Credit Suisse First Boston Mortgage Securities
Corp. and the Bank and other related matters. Such resolutions have not been
amended or revoked and are in full force and effect on the date hereof.
4. Attached hereto as Exhibit D is a certificate of the Comptroller of the
Currency dated March 5, 2001, with respect to the good standing of the Bank. No
event has occurred since such date which has affected the existence of the Bank
under the laws of the United States of America.
5. Except for merger negotiations with Wachovia Corporation, no merger,
liquidation, dissolution or insolvency of the Bank is pending or contemplated.
6. Each person who, as an officer or representative of the Bank, signed the
Mortgage Loan Purchase Agreement or any other document delivered in connection
with the transactions contemplated thereby was, at the respective times of such
signing and delivery, and is now, duly elected or appointed, qualified and
acting as such officer or representative, and the signatures of such persons
appearing on such documents are their genuine signatures.
IN WITNESS WHEREOF, I have executed this Certificate as of June ___, 2001.
By:______________________________
Name:
Title: Assistant Secretary
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK3
CERTIFICATE OF FIRST UNION NATIONAL BANK
In connection with the execution and delivery by First Union National Bank
("First Union") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of June
__, 2001 (the "Mortgage Loan Purchase Agreement") between Credit Suisse First
Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and First Union, as
seller, and that certain Indemnification Agreement dated as of June __, 2001
(the "Indemnification Agreement"), among First Union, CSFBMSC, Credit Suisse
First Boston Corporation, McDonald Investments Inc., First Union Securities,
Inc. and Xxxxxxx Xxxxx Barney Inc. (together, the Mortgage Loan Purchase
Agreement and the Indemnification Agreement are referred to as the
"Agreements"), the undersigned hereby certifies that (i) the representations and
warranties of First Union 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) First Union 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 June, 2001.
FIRST UNION NATIONAL BANK
By:______________________
Name:
Title:
D-2-1
EXHIBIT D-3A
FORM OF OPINION OF IN-HOUSE COUNSEL OF THE SELLER,
PURSUANT TO SECTION 7(VI)
June 13, 2001
To: Persons on Annex A Hereto
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
Ladies and Gentlemen:
I am a Vice President and Assistant General Counsel of First Union
Corporation, and in that capacity I have acted as counsel to First Union
National Bank (the "Seller"), in connection with the sale of mortgage loans (the
"Mortgage Loans") by the Seller to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"), pursuant to a Mortgage Loan Purchase
Agreement, dated as of June 13, 2001 (the "Mortgage Loan Purchase Agreement"),
between the Seller and the Depositor, and an Indemnification Agreement, dated as
of June 13, 2001, by and among the Seller and the Underwriters (as defined
therein) (together with the Mortgage Loan Purchase Agreement, the "Agreements").
Capitalized terms used but not defined herein have the meanings set forth in the
Mortgage Loan Purchase Agreement or in agreements referred to therein.
In rendering this opinion letter, I have examined such documents as I have
deemed necessary. As to matters of fact, I have examined and relied upon
representations of the Seller contained in the Agreements and, where I have
deemed appropriate, representations or certifications of parties to the
Agreements or public officials. I have assumed the authenticity of all documents
submitted to me as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all documents
submitted to me as copies. I have assumed, except as to the Seller, that all
parties had the corporate power and authority to enter into and perform all
obligations thereunder. As to such parties, I also have assumed the due
authorization by all requisite corporate action, the due execution and delivery
and the enforceability of such documents. I have further assumed the conformity
of the Mortgage Loans and related documents to the requirements of the
Agreements and that there is not, and will not be, any other agreement that
materially supplements or otherwise modifies the agreements expressed in the
Agreements.
I am admitted to the Bar of the State of Maryland and in rendering this
opinion, I do not express any opinion concerning any law other than the laws of
the State of Maryland and the federal laws of the United States. I do not
express any opinion concerning the application of the "doing business" laws or
any federal or state securities laws. In addition, I do not express any opinion
on any issue not expressly addressed below.
Based upon and subject to the foregoing, I am of the opinion that:
D-3A-1
1. The Seller is a national banking association duly organized and validly
existing under the laws of the United States of America and has the requisite
corporate power to own its properties, to conduct its business as presently
conducted by it, to own the Mortgage Loans, to transfer and convey the Mortgage
Loans to the Depositor and to enter into and perform its obligations under the
Agreements.
2. The Agreements have been duly authorized, executed and delivered by the
Seller.
3. No consent, approval, authorization or order of any state or federal
court or governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by the Agreements except for those
consents, approvals, authorizations or orders that previously have been
obtained, as may be required under federal or state securities laws, and such
real estate filings as may be required in connection with the transfer of the
Mortgage Loans and the other matters contemplated under the Agreements.
4. Neither the transfer of the Mortgage Loans as provided in the Mortgage
Loan Purchase Agreement, nor the fulfillment of the terms of or the consummation
of any other of the transactions contemplated by the Agreements, will result in
a breach of any term or provision in the articles of association or by-laws of
the Seller or, to my knowledge, will conflict with, result in a breach of or
constitute a default under (a) any order of any state or federal court,
regulatory body, administrative agency or other governmental body having
jurisdiction over the Seller, or (b) any other document or agreement to which
the Seller is a party or by which it is bound.
5. To my knowledge, there are no actions, proceedings or investigations
pending or threatened against the Seller before any state or federal court,
administrative agency or other tribunal (a) asserting the invalidity of either
Agreement, (b) seeking to prevent the consummation of any of the transactions
contemplated in the Agreements, or (c) that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, either Agreement.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person is entitled to rely hereon. Copies of this letter
may not be furnished to any other person, nor may any portion of this letter be
quoted, circulated or referred to in any other document.
Very truly yours,
Xxxx X. Xxxxxxxx
Vice President and Assistant General Counsel
D-3A-2
ANNEX A
Credit Suisse First Boston
Mortgage Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Barney, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investor Services, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
D-3A-1
EXHIBIT D-3B
FORM OF OPINION I OF CADWALADER XXXXXXXXXX & XXXX,
PURSUANT TO SECTION 7(VII)
June 13, 2001
Addressees Listed on Schedule A
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
Ladies and Gentlemen:
We have acted as special counsel to First Union National Bank, a national
banking association (the "Mortgage Loan Seller"), in connection with the
Mortgage Loan Purchase Agreement, dated as of June 12, 2001 (the "Mortgage Loan
Purchase Agreement"), between Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor") and the Mortgage Loan Seller. Capitalized terms used
herein but not defined herein have the respective meanings given to them in the
Mortgage Loan Purchase Agreement. We are rendering this opinion letter to you at
the request of the Mortgage Loan Seller pursuant to Section 7(vii) of the
Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Mortgage Loan Purchase Agreement, and such certificates,
corporate and public records, agreements and instruments and other documents,
including, among other things, the documents delivered on the date hereof, as we
have deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to any facts
material to such opinions that were not known to us, we have relied upon
statements and representations of officers and other representatives of the
Mortgage Loan Seller, the Depositor and of public officials. Except as expressly
set forth herein, we have not undertaken any independent investigation
(including, without limitation, conducting any review, search or investigation
of any public files, records or dockets) to determine the existence or absence
of the facts that are material to our opinions, and no inference as to our
knowledge concerning such facts should be drawn from our reliance on the
representations of the Mortgage Loan Seller in connection with the preparation
and delivery of this letter.
We have also assumed that all documents, agreements and instruments have
been duly authorized, executed and delivered by all parties thereto, that all
such parties had the power and legal right to execute and deliver all such
documents, agreements and instruments, and (other
D-3B-1
than with respect to the Mortgage Loan Seller) that such documents, agreements
and instruments are valid, binding and enforceable obligations of such parties.
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and, to the extent expressly referred to in
this opinion letter, the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Mortgage Loan Purchase Agreement constitutes a legal, valid and binding
agreement of the Mortgage Loan Seller, enforceable against the Mortgage Loan
Seller in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, receivership or
other laws relating to or affecting creditors' rights generally, and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of rights with
respect to indemnification and contribution obligations and provisions (a)
purporting to waive or limit rights to trial by jury, oral amendments to written
agreements or rights of set off or (b) relating to submission to jurisdiction,
venue or service of process, may be limited by applicable law or considerations
of public policy.
We are furnishing this opinion letter to you solely for your benefit in
connection with the transactions referred to herein. This opinion letter is not
to be relied upon, used, circulated, quoted or otherwise referred to by any
other person or entity or for any other purpose without our prior written
consent. In addition, we disclaim any obligation to update this opinion for
changes in fact or law, or otherwise.
Very truly yours,
D-3B-2
SCHEDULE A
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston
Mortgage Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Key Corp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank, Minnesota, N.A.
0000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
D-3B-1
EXHIBIT D-3C
FORM OF OPINION II OF CADWALADER XXXXXXXXXX & XXXX,
PURSUANT TO SECTION 7(VIII)
June 13, 2001
Addressees listed on Schedule A
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
Ladies and Gentlemen:
We have acted as special counsel to First Union National Bank ("FUNB") in
connection with the transfer of certain mortgage loans held by FUNB (the "FUNB
Mortgage Loans") to Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor") pursuant to that certain Mortgage Loan Purchase Agreement dated as
of June 13, 2001 (the "FUNB Purchase Agreement"). The Depositor will transfer
the FUNB Mortgage Loans along with mortgage loans the Depositor acquires from
KeyBank National Association and Column Financial, Inc. (collectively with the
FUNB Mortgage Loans, the "Mortgage Loans"), to a commercial mortgage trust (the
"Trust"). The Trust will issue the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2001-CK3
(the "Certificates"). The Certificates will represent, in the aggregate, the
entire beneficial ownership interest in a separate trust fund (the "Trust
Fund"), the property of which is primarily comprised of the Mortgage Loans.
The Certificates are being issued to the Depositor pursuant to that certain
Pooling and Servicing Agreement, dated as of June 1, 2001 (the "Pooling and
Servicing Agreement"), by and among the Depositor, as depositor, KeyCorp Real
Estate Capital Markets Inc. d/b/a Key Commercial Mortgage, as master servicer
and special servicer, and Xxxxx Fargo Bank Minnesota, N.A., a national banking
association, as trustee (the "Trustee"). The Depositor will sell the Class A-1,
Class A-2, Class A-3, Class A-4, Class B, Class C and Class D Certificates (the
"Public Certificates") to Credit Suisse First Boston Corporation, McDonald
Investments Inc., First Union Securities, Inc. (an affiliate of FUNB) and
Xxxxxxx Xxxxx Barney Inc. (collectively, the "Underwriters") pursuant to that
certain Underwriting Agreement dated as of June 12, 2001 (the "Underwriting
Agreement"). The Depositor will also sell the Class A-X, E, F, X-0, X-0, X, X,
X, X, X, X, X, X and V Certificates (the "Private Certificates" and together
with the Public Certificates, the "Certificates") to Credit Suisse First Boston
Corporation (the "Certificate Purchaser") pursuant to that certain Certificate
Purchase Agreement dated as of June 12, 2001 (the "Certificate Purchase
Agreement"). The Public Certificates will be publicly offered by the
Underwriters pursuant to that certain Prospectus, dated as of June 5, 2001 and
Prospectus Supplement, dated June 12, 2001 (collectively, the "Prospectus"). The
Private Certificates will be privately offered by the Certificate Purchaser
pursuant to that certain Confidential Offering Circular (the "Confidential
Offering Circular") dated June 12, 2001.
D-3C-1
You have requested our opinion as to whether, under present reported
decisional authority and statutes applicable to federal insolvency cases: if the
Federal Deposit Insurance Corporation (the "FDIC") were to be appointed receiver
or conservator for FUNB pursuant to the Federal Deposit Insurance Act, as
amended (the "FDIA"),(1) a court which acted reasonably and correctly applied
the law to the facts as set forth herein, after full consideration of all
relevant factors, would hold that the Rule (as defined herein) applies to the
transfer of the FUNB Mortgage Loans such that the FDIC could not exercise its
authority under 12 U.S.C. 1821(e) to reclaim, recover, or recharacterize as
property of FUNB the FUNB Mortgage Loans.
FACTS AND ASSUMPTIONS
In rendering this opinion, we have examined and relied upon originals or
copies, certified or otherwise identified to our satisfaction, of such
certificates, corporate or other records, and other documents as we have deemed
appropriate for the purpose of rendering this opinion. We have examined and
relied upon, among other things, the FUNB Purchase Agreement, the Pooling and
Servicing Agreement, the Underwriting Agreement, the Prospectus and the
Confidential Offering Circular (collectively, the "Applicable Documents") and
the certificates, opinions, agreements and other documents (including exhibits
thereto) delivered in connection with the issuance and sale of the Certificates.
We have assumed that no party to any of the Applicable Documents has
entered into any agreement or understanding, either written or oral,
inconsistent with the terms of any of the Applicable Documents or the
assumptions or discussion in this opinion or that is otherwise related to the
subject matter of any of the Applicable Documents, or which otherwise pertains
to the transfer of the FUNB Mortgage Loans from FUNB to the Depositor pursuant
to the FUNB Purchase Agreement other than as expressly set forth in such
documents or in this opinion. Capitalized terms that are not defined herein
shall have the same meanings as in the Pooling and Servicing Agreement.
We have assumed and relied upon the genuineness and due authorization of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies,
and the authenticity of the originals of all documents submitted to us as
copies.
The opinions expressed herein are based upon and subject to the assumed
compliance by FUNB and the Depositor at all relevant times, with the facts and
assumptions set forth herein. We have been advised of the following facts by
FUNB and the Depositor. In rendering our opinion, we have relied upon certain
factual representations, warranties and covenants material to this opinion which
are set forth in the Applicable Documents and on the certificates of officers or
representatives of FUNB and the Depositor in which they represent that the
applicable facts and assumptions set forth herein are accurate. We have not made
any independent inquiry with regard to the accuracy of the matters stated in
such certificates or in the documents reviewed. In rendering our opinions, and
based on the documents referenced above, we have assumed that the facts and
assumptions outlined below are correct.
----------
(1) 12 U.S.C. xx.xx. 1811 et seq.
D-3C-2
FUNB is the owner of the FUNB Mortgage Loans, having originated or acquired
such Mortgage Loans prior to the date hereof. On the date hereof, the following
simultaneous transactions will occur:
1. Pursuant to the FUNB Purchase Agreement, FUNB will sell, transfer
and assign all of its respective right, title and interest in and to the
FUNB Mortgage Loans to, or at the direction of, the Depositor and will
deliver possession of the notes evidencing the FUNB Mortgage Loans to, or
at the direction of, the Depositor. As provided in the FUNB Purchase
Agreement, FUNB and the Depositor will take in a timely manner all
necessary steps under all applicable laws to convey and to perfect the
conveyance of the title to the FUNB Mortgage Loans to or upon the direction
of the Depositor. The consideration received by FUNB pursuant to the FUNB
Purchase Agreement represents the fair market value of the FUNB Mortgage
Loans and is comparable to the terms that would apply to a similar
transaction between other unaffiliated third parties.
2. Pursuant to the Pooling and Servicing Agreement, the Depositor will
transfer and assign to the Trustee, for the benefit of the holders of
Certificates, all of its right, title and interest in and to the Mortgage
Loans and will deliver or cause to be delivered possession of the notes
evidencing the Mortgage Loans to the Trustee in exchange for the
Certificates. The Depositor and the Trustee will take in a timely manner
all necessary steps under all applicable laws to convey and to perfect the
conveyance of the title to the Mortgage Loans to the Trustee. Specifically,
as required under the Pooling and Servicing Agreement, the notes evidencing
the Mortgage Loans will be endorsed and delivered to the Trustee and an
assignment of the Mortgage Loans sufficient under all applicable laws and
the terms of the Pooling and Servicing Agreement to effect the conveyance
and assignment of and transfer to the Trustee will be prepared in favor of,
and delivered to, the Trustee. The consideration received by the Depositor
pursuant to the Pooling and Servicing Agreement (i.e., the Certificates)
represents the fair market value of the Mortgage Loans and is comparable to
the terms that would apply to a similar transaction between unaffiliated
third parties.
3. Pursuant to the Underwriting Agreement and the Certificate Purchase
Agreement, the Depositor will transfer the Public Certificates to the
Underwriters and the Private Certificates to the Certificate Purchaser for
a cash consideration representing the fair market value of the Certificates
that is comparable to the terms that would apply to a similar transaction
between unaffiliated third parties. The Underwriters and the Certificate
Purchaser will transfer the Certificates that have been sold to the
purchasers thereof. The Underwriters and the Certificate Purchaser intend
to sell or transfer all of the Certificates to parties that are
unaffiliated with FUNB (the "Investors").
The Pooling and Servicing Agreement provides for the issuance of the
Certificates, which collectively evidence a 100 percent ownership interest in
the Trust Fund. The Trust Fund is comprised of the Mortgage Loans together with
certain other related contract rights and amounts held by or on behalf of the
Master Servicer, the Special Servicer or the Trustee from time to time in
certain related collection and/or distribution accounts, certain funds of the
borrowers to be held by or on behalf of the Master Servicer, the Special
Servicer or the Trustee from time to time in certain related reserve accounts,
certain insurance policies relating to such
D-3C-3
Mortgage Loans and any property acquired in respect of such Mortgage Loans by
foreclosure or deed in lieu of foreclosure.
FUNB and the Depositor intend, and the Applicable Documents indicate, that
the transfer of the FUNB Mortgage Loans from FUNB to the Depositor (the
"Transfer") pursuant to the FUNB Purchase Agreement, followed by the transfer of
the Certificates to Investors to be a sale from FUNB to the Depositor. FUNB and
the Depositor intend to treat the Transfer as a sale for accounting and tax
purposes. The purchase price for the FUNB Mortgage Loans reflects the good faith
determinations of FUNB and the Depositor of the fair market value of the FUNB
Mortgage Loans and is equal to the price that the parties believe would be paid
in a sale of the FUNB Mortgage Loans between other unaffiliated entities. No
provision exists whereby such consideration may be modified subsequent to
closing and FUNB will have no obligation to repay such consideration, or
interest thereon, to the Depositor.
FUNB will receive the entire consideration for the FUNB Mortgage Loans on
the date hereof. The Transfer was not made to or for the benefit of a creditor
of FUNB and was not made for or on account of an antecedent debt owed by FUNB
before the Transfer was made. At the time the Transfer was made, FUNB was not
indebted to the Depositor.
Pursuant to the FUNB Purchase Agreement, FUNB irrevocably transfers and
relinquishes all rights with respect to the FUNB Mortgage Loans and,
specifically, has no right to sell, pledge, or otherwise dispose of such
Mortgage Loans once transferred to the Depositor. The Depositor is free to deal
with the FUNB Mortgage Loans as its property prior to the transfer of the FUNB
Mortgage Loans to the Trustee. Pursuant to the FUNB Purchase Agreement, FUNB
transfers the FUNB Mortgage Loans without recourse and has no obligation to
deliver other property to the Depositor, the Trustee or the purchasers of
Certificates either in substitution for or in addition to such Mortgage Loans in
the event of a credit loss or decline in value of such Mortgage Loans. There are
no documents, instruments or understandings between or among the Depositor,
FUNB, or any of their affiliates in respect of the FUNB Mortgage Loans other
than as set forth in the Applicable Documents.
FUNB conveys the First Union Mortgage Loans in the ordinary course of
business and neither in contemplation of insolvency nor with an intent to
hinder, delay or defraud its creditors, the FDIC, any receiver or conservator
for FUNB or any other banking agency or with a view to the preference of one or
more of its creditors to the exclusion in whole or in part of others. FUNB has
not committed an act of insolvency nor did it transfer the FUNB Mortgage Loans
in contemplation thereof or with a view to prevent the application of their
respective assets in the manner described in the FDIA or other applicable
federal or state law.
The Transfer represents a bona fide transaction, and the Investors are not
insiders or affiliates of FUNB. The FUNB Purchase Agreement will be, and will
have been continuously from the time of its execution, an official record of
FUNB. Such agreement will be available for inspection by the FDIC and other
federal or state regulatory authorities having jurisdiction over the assets and
affairs of any bank. FUNB has determined that the sale of the FUNB Mortgage
Loans represents a practicable and reasonable course of action to improve the
financial position of FUNB without impairing the rights of its creditors. The
Board of Directors (or a Committee thereof) of FUNB has adopted resolutions
approving the FUNB Purchase Agreement and the
D-3C-4
sale of the FUNB Mortgage Loans, and such resolutions have been reflected in the
minutes of the meeting at which such transactions were approved.
Neither FUNB nor any of its affiliates will own, hold or have any direct
interest in the Mortgage Loans subsequent to the consummation of the Transfer
and the transfer of the Certificates to investors. The Depositor has no right or
obligation to transfer the FUNB Mortgage Loans back to FUNB, and FUNB has no
right or obligation to reacquire any of FUNB Mortgage Loans subsequent to the
Transfer.(2) Consequently, FUNB has transferred the benefits and risks of
ownership of the FUNB Mortgage Loans to the Depositor.
FUNB has not transferred the FUNB Mortgage Loans in contemplation of
insolvency or with a design to prefer one or more creditors to the exclusion in
whole or in part of others or with an intent to hinder, delay or defraud any of
its creditors.
The assets of FUNB are now, and are intended to be, sufficient to pay the
ongoing business expenses of FUNB as they are incurred and to discharge all of
its liabilities in the event that the business of FUNB is required to be
liquidated.
The property remaining in the hands of FUNB immediately after giving effect
to the Transfer is not an unreasonably small amount of capital for the business
in which FUNB is engaged.
We further assume that the Depositor, the Trustee or other appropriate
party in interest would actively oppose any attempt to recharacterize as
property of the receivership or conservatorship estate of FUNB the FUNB Mortgage
Loans under the FDIA.
DISCUSSION
Were the FDIC to be appointed receiver or conservator for FUNB pursuant to
the FDIA, the FDIC could not reclaim, recover, or recharacterize as property of
FUNB the FUNB Mortgage Loans, after giving effect to the transfer of the
Certificates to the investors, if the transfer by FUNB constituted an
irrevocable sale to the Depositor. The FDIA provides for the appointment of the
FDIC as receiver or conservator for FDIC-insured banking institutions under
certain circumstances. Upon the appointment of the FDIC as receiver or
conservator for a failed institution, the FDIC succeeds to "all rights, titles,
powers and privileges of the [failed institution] . . . with respect to the
institution and the assets of the institution . . . ." 12 U.S.C. ss. 1821(d)(2).
Accordingly, and pursuant to section 1821(d)(2), the FDIC as receiver or
conservator would have only the rights in and to the FUNB Mortgage Loans that
FUNB had under the FUNB Purchase Agreement. 12 U.S.C. ss. 1821(d)(2)(A).
----------
(2) FUNB makes certain representations and warranties regarding the FUNB
Mortgage Loans and, under certain circumstances, may be obligated to
repurchase Mortgage Loans or substitute new loans due to a breach of any
such representation or warranty. However, such obligation is limited, and
any repurchase or substitute Mortgage Loans pursuant to this obligation
would result from the FUNB Mortgage Loans not being of the quality
represented, not from a decline in the value of or future payment defaults
on the FUNB Mortgage Loans and does not give FUNB a general right to
repurchase or otherwise reacquire the FUNB Mortgage Loans or to reclaim any
of the benefits of its ownership.
D-3C-5
The FDIA accords the FDIC the power to modify contracts entered into by the
failed institution. Under ss. 1821(e)(1) the FDIC may disaffirm or repudiate any
contract--
(A) to which the institution is a party;
(B) the performance of which the conservator or receiver, in the
conservator's or receiver's discretion, determines to be burdensome; and
(C) the disaffirmance or repudiation of which the conservator or
receiver determines, in the conservator's or receiver's discretion, will
promote the orderly administration of the institution's affairs.
Although the FDIC retains the power to disaffirm or repudiate contracts, we
do not believe such power could or would be employed to repudiate the FUNB
Purchase Agreement in such a manner as to allow the FDIC to acquire the FUNB
Mortgage Loans. The contract has been materially completed. The only remaining
obligation FUNB has under the FUNB Purchase Agreement is to repurchase certain
Mortgage Loans if there was a breach of a representation or warranty concerning
the character of a particular FUNB Mortgage Loan. While the FDIC may have the
right to repudiate the repurchase obligation as burdensome, it has no authority
under the FDIA to compel turnover of assets previously sold for fair value.(3)
Such a turnover, which could not be accomplished without payment for such
Mortgage Loans,(4) would also be inconsistent with the obligation of the FDIC as
liquidator to dispose of assets(5) and the FDIC as conservator to "carry on the
business of the institution."(6)
The FDIC has affirmatively limited its broad powers to disaffirm or
repudiate contracts with the issuance of a rule entitled "Treatment by the
Federal Deposit Insurance Corporation as conservator or receiver of financial
assets transferred in connection with a securitization or participation" found
at 12 C.F.R. ss. 360.6 (the "Rule"). Under ss. 360.6(b), the FDIC will not use
its authority to disaffirm or repudiate contracts to reclaim, recover, or
recharacterize property of the insured institution transferred as part of a
securitization or a loan participation.(7) Securitizations are defined in ss.
360.6(a)(4) of the Rule as:(8)
----------
(3) See 12 U.S.C. ss.1821 (e)(ii).
(4) Compare the FDIA with the Bankruptcy Code, which authorizes, in Section
550, a bankruptcy trustee to recover avoided transfers. See also 12
U.S.C.ss.ss.1821(e)(8)(c)(i) and (D)(i).
(5) See 12 U.S.C. ss.ss.1821(C)(2)(A)(ii) and (d)(2)(E).
(6) See 12 U.S.C. ss.1821(d)(2)(D)(ii).
(7) However, under ss. 360.6(d) the FDIC retains the right to disaffirm or
repudiate any contract that imposes continuing obligations and duties of
the insured institution, which in the conservator's or receiver's
estimation is burdensome, and when such disaffirmance or repudiation would
promote the orderly administration of the institution's affairs.
(8) Beneficial interests are defined in ss. 360.6(a) of the Rule as, "debt or
equity (or mixed) interests or obligations issued by a special purpose
entity that entitle their holders to receive payments that depend primarily
on the cash flow from financial assets owned by the special purpose
entity."
D-3C-6
the issuance by a special purpose entity of beneficial interests, (i) the
most senior class of which at the time of issuance is rated in one of the
four highest categories assigned to long-term debt or in an equivalent
short-term category (within either of which there may be subcategories or
gradations indicating relative standing) by one or more nationally
recognized statistical rating organizations, or (ii) which are sold in
transactions by an issuer not involving any public offering for purposes of
Section 4 of the Securities Act of 1933, as amended or in transactions
exempt from registration under such Act pursuant to Regulation S thereunder
(or any successor regulation).
The Depositor meets the FDIC's definition of a special purpose entity. It
has a distinct standing at law and is primarily engaged in acquiring, holding,
or transferring financial assets to another special purpose entity in connection
with the issuance of beneficial interests by a special purpose entity. The FUNB
Mortgage Loans transferred from FUNB to the Depositor constitute financial
assets. The Certificates issued by the Trust are beneficial interests, the most
senior of which are rated investment grade as required by the Rule.
Consequently, the present transaction meets the threshold qualifications for
protection under the Rule.
Additional requirements of the Rule are that the transaction must meet the
criteria for a sale under generally accepted accounting principles, the
transaction documents must reflect an intent of the parties for it to be a sale,
and the financial institution must receive adequate consideration at the time
the transfer was made. As confirmed by its accountants, FUNB is transferring the
FUNB Mortgage Loans to the Depositor in accordance with the generally accepted
accounting principles of the Financial Accounting Standards Board for a sale.
The intent of the parties to consummate a sale is also reflected in the
documents and the consideration received at the time of the transfer is
adequate. Consequently, the transfer of the FUNB Mortgage Loans by FUNB would be
protected under the Rule without regard to whether the FDIC has the power to
obtain the FUNB Mortgage Loans.
We have also found no substantial authority analyzing circumstances in
which a sale of assets by a bank was recharacterized as a financing upon such
bank's insolvency. Based on cases considering a sale of participation interests
in loans, we believe, however, that any such analysis would be substantially the
same as that utilized by courts considering the issue in circumstances in which
the transferor was a debtor under the Bankruptcy Code. These cases are discussed
below.
While courts ultimately look to the economic substance of a transaction to
determine whether it constitutes a sale or a pledge, the judicial analysis has
typically proceeded on a case-by-case basis. The cases have not developed a
prescribed formula which can be applied in a mechanical fashion. Rather, as the
Third Circuit explained in a leading case, courts "have examined the parties'
practices, objectives, business activities and relationships and determined
whether the transaction was a sale or a secured loan only after analysis of the
evidence as to the true nature of the transaction." Major's Furniture Mart, Inc.
v. Castle Credit Corporation, Inc., 602 F.2d 538, 545 (3d Cir. 1979). The
determination of the "true nature" of a transaction is thus usually based on an
analysis of the facts and circumstances present in the
D-3C-7
particular transaction, rather than on the application of consistently applied
or well-established legal doctrines. In re Golden Plan of California, Inc., 829
X.0x 000, 000 (0xx Xxx. 0000). See also Sarf x. Xxxx (In re Xxxxx Xxxx Corp.),
38 B.R. 571, 576 (Bankr. S.D.N.Y. 1984) (true sale determination should be
"based upon an examination of the substance of the documents in the context of
the surrounding transaction").
Moreover, the published cases generally involve relatively small-scale
commercial transactions or consumer claims whose fact patterns are not closely
analogous to the transaction at issue here. While a few cases have addressed
secondary market transactions in mortgage loans, no published decision has
addressed the "true sale" issue in the context of a securitization or a transfer
of assets to a special purpose entity and a subsequent transfer by such special
purpose entity.(9)
The reported decisions indicate that no single factor or combination of
factors is dispositive and, due to the "facts and circumstances" nature of the
analysis, are not conclusive as to the relative weight to be accorded to the
factors that are present in this transaction. We also note that the cases are
not uniform in their treatment of the factors considered. For example, six cases
involving a similar fact pattern produced inconsistent results. In two cases,
the original sale characterization of the transaction was upheld while four
cases recharacterized a purported sale as a financing. Compare In re Lemons &
Assocs., Inc., 67 B.R. 198 (Bankr. D. Nev. 1986) (transfer of mortgage loan
participations treated as a sale notwithstanding that return to transferee not
related to return on transferred asset and transferee's ability to put
transferred assets back to transferor) and Xxxxx v. Army Moral Support Fund (In
re Xxxxxx, Xxxxxxx & Xxxxxxxx Asset Mgt. Corp.), 67 B.R. 557 (D. N.J. 1986)
(sale treatment for repurchase agreement upheld notwithstanding transfer of
asset at arbitrary, not fair market prices, payment by transferee to transferor
not related to value of transferred asset, obligation to reverse the transfer on
a specified date and full recourse to transferor for default on underlying
asset) with In re Coronet Capital Co., 142 B.R. 78 (Bankr. S.D. N.Y. 1992)
(transfer of participation treated as financing arrangement; return to
transferees not related to return on transferred assets); Fireman's Fund Ins.
Cos. x. Xxxxxx (In re The Xxxxxxx Co.), 813 F.2d 266 (9th Cir. 1987) (same);
Xxxxx v. Major Funding Corp. (In re Major Funding Corp.), 82 B.R. 443 (Bankr.
S.D. Tex. 1987) (same); and In re S.O.A.W. Enter., Inc., 32 B.R. 279 (Bankr.
W.D. Tex. 1983) (same).(10) In addition, in certain decisions, transactions with
facts which are also present in this
----------
(9) However, we note that on February 5, 2001, the United States Bankruptcy
Court for the Northern District of Ohio entered an order refusing to modify
an interim cash collateral order that treated inventory and receivables
sold by a chapter 11 debtor to two special purpose subsidiaries, not in
chapter 11, as property of the debtor's estate. In re LTV Steel Company,
case no 0000000 (Bankr. N.D. Ohio). In the February 5 opinion, the court
states, "To suggest that Debtor lacks some ownership interest in products
that it creates with its own labor, as well as the proceeds to be derived
from that labor, is difficult to accept." The LTV interim order does not
alter our conclusion that a court would find the Transfers to be sales. In
LTV, all of the debtor's operating assets were sold to the special purpose
subsidiaries and, by virtue of debtor's bankruptcy, all proceeds of the
receivables should have been applied to repay the borrowings of the
subsidiary. Accordingly, LTV would have had no ability to continue its
operations and, as the court observed, 17,500 employees would have lost
their jobs and 100,000 retirees would have lost medical and other benefits.
Here, FUNB is not placing all of its operating assets in the
securitization, but is making a one-time sale of financial assets which are
commonly sold in the secondary market.
(10) In Lemons, Major Funding, Coronet Capital, S.O.A.W. and Xxxxxxx, the
debtors were mortgage brokers which had assigned interests in mortgage loan
to various investors, including individuals. The transactions were
documented and advertised to potential investors as sales, but the
investors were promised a fixed return on their investment regardless of
the rate on, or performance of, the assigned loan
D-3C-8
transaction were characterized as loans, but we believe that those cases are
distinguishable in the context of this transaction.
The existing case law thus does not provide consistently applied general
principles with which to analyze all of the factors present in this
transaction.(11)
We do note that courts accord respect to the stated intent of the parties
and tend to defer to the structure selected by the parties, unless the structure
of the transaction is clearly inconsistent with that stated intent, or unless
giving effect to the structure of the transaction would result in an evasion of
public policy or perpetrate an injustice on one of the parties.(12) Several
cases have expressly articulated this concept, stating that in transactions
between sophisticated parties which have elements of both loan and sale, the
stated intent of the parties is the "controlling consideration." In re Xxxxxx,
Xxxxxxx & Xxxxxxxx Asset Mgt. Corp., 67 B.R. at 597. See also Xxxxxxxxx v.
Madison Nat'l Bank of Washington, D.C., 89 B.R. 274, 277 (D.D.C. 1988) (language
of agreement demonstrating an intent to create an absolute assignment supported
the finding of a sale despite the presence of countervailing factors); Lyon v.
Xx-Xxxx Corp., 239 A.2d 819 (Super. Ct. Pa. 1967) (same). But see In re The
Xxxxxxx Co., 813 F.2d at 272 ("Simply calling transactions `sales' does not make
them so. Labels cannot change the true nature of the underlying transactions");
In re Xxxxxx Xxxxxx Hat Co., 482 F.2d 937, 940 (2d Cir. 1973) ("courts will
determine the true nature of a security transaction, and will not be prevented
from exercising their function of judicial review by the form of words the
parties may have chosen"); In re Evergreen Valley Resort, Inc., 23 B.R. 659, 661
(Bankr. D. Me. 1982) ("the label attached to the transaction by the parties does
not control"). In this regard, we note that the relevant parties intend the
Transfer to be a sale for accounting and tax purposes and that there is no
attempt to evade public policy or accomplish an objective which would be
prohibited if the Transfer were a financing.
----------
(11) We note in particular the case of In re Best Products Co., Inc., 157 B.R.
222 (Bankr. S.D. N.Y. 1993), in which the court applied a "substance over
form" analysis to "collapse" a transaction in which a subsidiary served as
a financing vehicle for its parent. In Best Products, a secured creditor
had required the parent/"true" borrower to assign its rights as tenant
under a ground lease to a "shell" subsidiary and to enter into a sublease
with the subsidiary, which was to serve as the "technical" borrower. The
structure was established to permit the creditor to "get around" stringent
antideficiency rules under California law by taking a security interest in
the ground lease and the sublease payments. Id. at 230. The parties also
ignored the structure by causing the parent to make its "sublease"
payments, to which the creditor was looking as the source of debt service
payments, directly to the creditor. Id. Accordingly, the court set aside
the sublease and deemed the transaction a loan to the parent.
We believe Best Products to be distinguishable. The court found, "The
sub-lease was entered into between parent and subsidiary to facilitate a
loan to [the parent] from [the creditor]. Without [the parent's]
significant presence, [the creditor] would not have loaned the subsidiary
$2.2 million." Id. The critical distinction in this transaction, however,
is that FUNB has no liability for the cash flow upon which the
Certificateholders are relying. Indeed, the structure of the instant
transaction renders such entities' creditworthiness not material to the
Certificateholders receiving payments on the Certificates (except to the
limited extent that FUNB Mortgage Loan must be repurchased).
(12) In the similar context of sale-and-leaseback transactions involving realty,
courts have required a "showing by clear and convincing evidence . . . that
the transaction should be deemed a disguised financing transaction" before
they will exercise their power to "look through form to substance in
determining the true nature of a transaction." In re Omne Partners II, 67
B.R. 793, 795 (Bankr. D.N.H. 1986) (quoting Fox x. Xxxx Iron & Metal Co.,
25 B.R. 674, 688 (Bankr. S.D. Cal. 1981) and Pepper x. Xxxxxx, 000 X.X.
000, 304 (1939) (internal quotations omitted)).
D-3C-9
A comparison of the factors present in the Transfer with the factors
generally considered by courts in a bankruptcy context supports the conclusion
that the Transfer constitute a sale rather than a pledge and that the FUNB
Mortgage Loans would not be the property of the receivership or conservatorship
estate of FUNB.
The economic substance of the Transfer, after giving effect to the transfer
of the Certificates to the investors, is a sale. We note, for example, that
there is a complete and irrevocable transfer of the rewards and risks of
ownership of the FUNB Mortgage Loans. FUNB has relinquished all rights with
respect to the FUNB Mortgage Loans. Specifically, FUNB will have no right to
sell, pledge or otherwise dispose of the FUNB Mortgage Loans. Any change in the
value of the FUNB Mortgage Loans, whether due to changes in interest rates or
otherwise, would not be for the benefit or loss of FUNB.
Further, although the breach of certain representations and warranties
relative to the FUNB Mortgage Loans by FUNB may require it to repurchase one or
more FUNB Mortgage Loans or substitute a conforming loan, such obligation is
limited and any repurchase of or substitution of such FUNB Mortgage Loans
pursuant to this obligation would result from the FUNB Mortgage Loans not being
of the quality represented, not from a decline in value of or future payment
defaults on the FUNB Mortgage Loans, and does not give FUNB any general right to
repurchase or otherwise reacquire the FUNB Mortgage Loans or to reclaim any of
the benefits of ownership. This limited repurchase obligation and substitution
right is not controlled by FUNB and, accordingly, does not confer on FUNB any
opportunity to capture the benefits of ownership of the FUNB Mortgage Loans.
In addition, we note that FUNB will receive the entire consideration for
the FUNB Mortgage Loans at the closing and that such consideration represents
the fair market value for such FUNB Mortgage Loans. There will not be any
post-closing adjustment of the purchase price and FUNB has no right or
obligation to transfer additional property to the Depositor. In these
circumstances, FUNB has relinquished the benefits and risk associated with
ownership of the FUNB Mortgage Loans.
These factors, and the other aspects of the transaction, indicate that the
Transfer constitutes a sale rather than a pledge.
CONCLUSION
Based on the foregoing facts, advice, representations, statements, and
assumptions being correct at all relevant times, and based on the discussion and
analysis above, it is our opinion that, under present reported decisional
authority and statutes applicable to federal insolvency cases, and in a properly
presented case: If the FDIC were to be appointed receiver or conservator for
FUNB pursuant to the FDIA, a court which acted reasonably and correctly applied
the law to the facts as set forth herein after full consideration of all
relevant factors would hold that the Rule applies to the transfer of the FUNB
Mortgage Loans such that the FDIC could not exercise its authority under 12
U.S.C. 1821(e) to reclaim, recover, or recharacterize as property of FUNB the
FUNB Mortgage Loans.
D-3C-10
QUALIFICATIONS
The foregoing opinion assumes that the facts, representations, statements,
and assumptions set forth above will be those that exist at the time a federal
court considers the issues.
While we believe that our opinion respecting the nature of the Transfer is
supported by sound analysis of existing law, we have found no statutes or
reported judicial authority that discuss directly whether transfers such as the
Transfer would be treated as sales or pledges and have found no reported
judicial authority which has considered a transaction containing all the
material facts and circumstances that are present in the Transfer. In rendering
our opinion, we have thus relied on cases discussing certain of the facts and
circumstances that are present in the Transfer and cases discussing more
generally whether the transfer of an asset was a transfer of ownership or a
transfer of a more limited interest. Accordingly, our opinion is not based on
directly controlling precedent but rather on what we believe to be a sound
analysis of existing authorities. Also, the analysis of the nature of the
Transfer and opinion thereon contained herein are based on general principles of
law derived from a review of a significant body of case law and are not based on
the laws of any particular state. Therefore, no opinion is rendered as to the
laws of any jurisdiction other than the laws of the United States of America and
we express no opinion as to the laws of any state or jurisdiction, other than
the present laws of the state of New York as and to the extent we believe they
may be applied or given effect by a federal court having jurisdiction of the
proceeding of FUNB. Whether any particular transfer is a sale or a pledge will
be generally a matter of state law and may be governed by the laws of a
particular state. Most cases determining the matter in a context of a federal
bankruptcy case, however, are decided on the basis of general principles of law
and an analysis of the economic substance of the transaction.
We express no opinion with respect to whether, if FUNB were to become the
subject of a receivership or conservatorship proceeding under the FDIA, the FUNB
Mortgage Loans which have been repurchased or otherwise acquired by FUNB, either
due to a breach of certain representations or warranties relating to the FUNB
Mortgage Loans or otherwise, would be property of FUNB's receivership or
conservatorship estate.
We express no opinion with respect to whether, if FUNB were to become the
subject of a receivership or conservatorship proceeding under the FDIA, the
Transfer would be avoided by the court as a fraudulent conveyance or based on
other similar theories under the FDIA or applicable state law.
We express no opinion as to the availability or effect of a preliminary
injunction, temporary restraining order or other such temporary relief, or
equitable remedies.
The opinions expressed above are limited to the present federal laws of the
United States of America and the present laws of the state of New York, as and
to the extent we believe they may be applied or given effect by a federal court
having jurisdiction over the FDIA proceeding of FUNB's receivership or
conservatorship estate and to present judicial interpretations thereof.
D-3C-11
The opinions expressed herein are not a guaranty as to what any particular
court would actually hold, but an opinion as to the decision a court would reach
if the issues are competently presented to it and the court followed existing
precedent as to legal and equitable principles applicable in bankruptcy cases.
In this regard, we note that legal opinions on insolvency matters unavoidably
have inherent limitations that generally do not exist in respect of other issues
on which opinions to third parties are typically given. These inherent
limitations exist primarily because of the pervasive equity powers of the
courts, the overriding goal of reorganization and depositor protection, as
applicable, to which other legal rights and policies may be subordinated, the
potential relevance to the exercise of judicial discretion of future arising
facts and circumstances, and the nature of the bankruptcy and insolvency
process. The recipients of this opinion should take these limitations into
account in analyzing the insolvency risks associated with the transactions
described herein.
The opinions expressed above are given to you solely for your own benefit,
are not binding on any court, and may not be quoted in whole or in part or
otherwise referred to in any legal opinion, document, or other report to be
furnished to another person or entity without our prior written consent.
Very truly yours,
D-3C-12
SCHEDULE A
Credit Suisse First Boston Corporation First Union Securities, Inc.
Eleven Madison Avenue First Union Capital Markets Group
Xxx Xxxx, XX 00000 Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
McDonald Investments Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Floor 00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Fitch Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
D-3C-13
FIRST UNION NATIONAL BANK
OFFICER'S CERTIFICATE
In connection with the insolvency opinion dated June [__], 2001 (the
"Opinion") to be delivered to Fitch, Inc., Xxxxx'x Investors Service, Inc.,
Credit Suisse First Boston Corporation, McDonald Investments Inc., First Union
Securities, Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxx Fargo Bank Minnesota, N.A.
by Cadwalader, Xxxxxxxxxx & Xxxx, in connection with the issuance of Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3 pursuant to that certain
Pooling and Servicing Agreement, dated as of June 1, 2001, by and among Credit
Suisse First Boston Mortgage Securities Corp, as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer and
special servicer, and Xxxxx Fargo Bank Minnesota, N.A. as trustee, the
undersigned hereby certifies that, to the best of his knowledge after due
inquiry and review of the Opinion:
1. The undersigned understands that Cadwalader, Xxxxxxxxxx & Xxxx is
relying on this Certificate in connection with the execution and delivery of the
Opinion.
2. The facts and assumptions contained in the section of the Opinion
entitled "Facts and Assumptions" insofar as they pertain to the undersigned are
true and correct as of the date hereof.
3. The undersigned has no reason to believe that any statement or fact
expressed in the section of the Opinion entitled "Facts and Assumptions" is
untrue, inaccurate or incomplete.
4. I have been duly authorized to execute this Certificate on behalf of
First Union National Bank.
Dated: June [__], 2001 FIRST UNION NATIONAL BANK
By:______________________
Name: Xxxx Xxxxxxxx
Title: Vice President
D-3C-14
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
OFFICER'S CERTIFICATE
In connection with the insolvency opinion dated June [__], 2001 (the
"Opinion") to be delivered to Fitch, Inc., Xxxxx'x Investors Service, Inc.,
Credit Suisse First Boston Corporation, McDonald Investments Inc., First Union
Securities, Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxx Fargo Bank Minnesota, N.A.
by Cadwalader, Xxxxxxxxxx & Xxxx, in connection with the issuance of Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3 pursuant to that certain
Pooling and Servicing Agreement, dated as of June 1, 2001, by and among Credit
Suisse First Boston Mortgage Securities Corp, as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer and
special servicer, and Xxxxx Fargo Bank Minnesota, N.A. as trustee, the
undersigned hereby certifies that he is the duly elected or appointed, qualified
and acting Vice President of the Company, and certifies further that:
1. He has made such investigation, including discussions with other
responsible officers of the Company, as is necessary to enable him to deliver
this certificate.
2. The Company, to the best of its knowledge, did not (i) execute the FUNB
Purchase Agreement, (ii) take from FUNB an assignment of the FUNB Mortgage
Loans, or (iii) otherwise effectuate or consummate any transfer pursuant to the
FUNB Purchase Agreement:
(a) in contemplation by Credit Suisse First Boston Mortgage Securities
Corp of FUNB's insolvency;
(b) after FUNB committed an act of insolvency;
(c) with intent to hinder, delay or defraud FUNB or its creditors;
(d) with a view to preferring one creditor of FUNB over another; or
(e) with a view to preventing the application of FUNB's assets in the
manner required by applicable law or regulations.
3. Credit Suisse First Boston Mortgage Securities Corp's agreements
expressed in the FUNB Purchase Agreement resulted from arm's-length bona fide
negotiations on the part of the Company.
D-3C-1
All capitalized terms used herein and not otherwise defined herein shall
have the same meaning herein as in the Opinion.
Dated: June __, 2001 CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:_____________________________
Name:
Title:
D-3C-2
EXHIBIT D-3D
FORM OF LETTER OF CADWALADER XXXXXXXXXX & XXXX,
PURSUANT TO SECTION 7(IX)
June 13, 2001
Addressees Listed on Schedule A
Re Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
Ladies and Gentlemen:
We are rendering this letter pursuant to (i) Section 7(ix) of the Mortgage
Loan Purchase and Sale Agreement, dated as of June 12, 2001, (the "Mortgage Loan
Purchase Agreement"), between First Union National Bank (the "Seller") and
Credit Suisse First Boston Mortgage Securities Corp. (the "Company"), relating
to the sale by the Seller and the purchase by the Company of certain commercial
and multifamily mortgage loans (the "First Union Mortgage Loans") and (ii)
Section 6(l) of the Underwriting Agreement dated June 12, 2001 (the
"Underwriting Agreement"), among the Company, First Union Securities, Inc.
("FUSI"), Credit Suisse First Boston Corporation ("CSFBC"), Xxxxxxx Xxxxx Xxxxxx
Inc. ("SSB") and McDonald Investments Inc. (together with FUSI, CSFBC and SSB,
the "Underwriters") relating to the sale by the Company and the purchase by the
Underwriters of the Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C
and Class D Certificates (the "Offered Certificates"). The Class A-X, Class E,
Class F, Class G-1, Class G-2, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class R and Class V Certificates (the "Non-offered
Certificates") are being sold pursuant to a Certificate Purchase Agreement by
and between the Company and CSFBC. The Offered Certificates and Non-offered
Certificates are being issued pursuant to a Pooling and Servicing Agreement,
dated as of June 1, 2001 (the "Pooling and Servicing Agreement"), among the
Company, KeyCorp Real Estate Capital Markets, Inc., as master servicer and as
special servicer and Xxxxx Fargo Bank Minnesota, N.A., as Trustee. Capitalized
terms used herein but not defined herein have the respective meanings given them
in the Mortgage Loan Purchase Agreement.
We have acted as special counsel to the Seller in connection with the
aforementioned transaction, and have been asked by the Seller to deliver this
letter with respect to the Company's Prospectus, dated June 5, 2001 (the "Base
Prospectus"), as supplemented by the Prospectus Supplement, dated June 12, 2001,
relating to the Offered Certificates (collectively with the Base Prospectus, the
"Prospectus"), solely with respect to the information contained therein relating
to the First Union Mortgage Loans, which Prospectus is included as an exhibit to
the Confidential Offering Circular, dated June 12, 2001, relating to the
Non-offered Certificates.
We assume, for purposes of this letter, the conformity of the text of the
Prospectus filed with the Securities and Exchange Commission (the "Commission")
through the Commission's Electronic Data Gathering, Analysis and Retrieval
System to the printed
D-3D-1
Prospectus reviewed by us. This letter is also limited to the actual knowledge,
without independent investigation, of any lawyer in our firm actively involved
in the transactions contemplated by the Mortgage Loan Purchase Agreement.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Prospectus, and we do not
pass upon such information or assume any responsibility therefor. In particular,
without limiting the generality of the foregoing and with your consent, we have
not reviewed any files relating to the First Union Mortgage Loans including,
without limitation, any documents prepared or delivered in connection with the
origination, modification or assignment of the First Union Mortgage Loans,
except: (1) the First Union Mortgage Loans identified on Exhibit A hereto that
we reviewed pursuant to our transaction due diligence and (2) the First Union
Mortgage Loans identified on Exhibit B hereto where we acted as counsel to the
lender. However, in the course of our review of the Prospectus, we have attended
certain conferences and participated in conversations with representatives of
the Seller, representatives of the Company, and the Company's independent public
accountants. On the basis of the information which we gained in the course of
the representation referred to above and our examination of the documents
referred to above, considered in light of our understanding of applicable law
and the experience we have gained through our practice, nothing has come to our
attention in the course of our review of the Prospectus which causes us to
believe that, as of the date of the Prospectus or as of the date hereof, the
Prospectus contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that we express no view as to (a) any
information incorporated by reference in the Prospectus, (b) the adequacy or
accuracy of (i) the financial, numerical, statistical or quantitative
information included in the Prospectus or (ii) any information contained in any
computer disk, CD-ROM or other electronic media accompanying the Prospectus
Supplement, or (c) any information in the Prospectus other than information
describing the First Union Mortgage Loans.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or entity
or for any other purpose without our prior written consent. In addition, we
disclaim any obligation to update this opinion for changes in fact or law, or
otherwise.
Very truly yours,
D-3D-2
EXHIBIT A
Loan Number Loan Name
----------- ---------------------------
100474 Colony West Apartments
100430 Cambridge Towers Apartments
100329 Palm Garden Apartments
100363 Sabal Palms Apartments
100417 Vista Pointe Apartments
D-3D-3
EXHIBIT B
Loan Number Loan Name
----------- ---------------------------
100462 Cimarron Apartments
100464 Las Brisas Apartments
100463 Xxxxxxx Gables Apartments
D-3D-4
SCHEDULE A
First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X-0X-0
