CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
DEPOSITOR
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CKN5
UNDERWRITING AGREEMENT
as of November 1, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage Securities Corp.,
a Delaware corporation (the "Depositor"), proposes to form a commercial mortgage
trust (the "Trust"), which will issue, in multiple classes, securities entitled
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-CKN5. The Depositor further proposes,
subject to the terms and conditions stated in this underwriting agreement (this
"Agreement"), to sell to the underwriters named in Schedule I hereto (each, an
"Underwriter" and, collectively, the "Underwriters"; provided, however, that if
you are the only underwriter named in Schedule I hereto, then the terms
"Underwriter" and "Underwriters" shall refer solely to you), for whom you act as
representative (in such capacity, the "Representative"), those classes of such
securities as are identified on Schedule II hereto (the classes of securities
identified on Schedule II hereto, collectively, the "Certificates"). Each
Certificate will evidence a fractional undivided, percentage interest or
beneficial interest in the Trust. The terms on which the Trust will issue the
Certificates will be specified in the Prospectus (as defined in Section 2(c)).
The assets of the Trust (all such assets collectively, the "Trust Fund") will
consist primarily of a segregated pool of multifamily, commercial and
residential cooperative mortgage loans (collectively, the "Mortgage Loans") that
will be purchased by the Depositor from Column Financial, Inc. ("Column"),
KeyBank National Association ("KeyBank"), National Consumer Cooperative Bank
("NCB") and NCB Capital Corporation ("NCBCC" and, collectively with Column,
KeyBank and NCB, the "Mortgage Loan Sellers"), respectively, pursuant to
separate mortgage loan purchase agreements dated as of November 1, 2001 (each, a
"Mortgage Loan Purchase Agreement"). The Trust will be created, the Mortgage
Loans will be transferred to the Trust, and the Certificates will be issued,
pursuant to a pooling and servicing agreement dated as of November 12, 2001 (the
"Pooling and Servicing Agreement"), among the Depositor, NCB as master servicer
(in such capacity, the "Co-op Master Servicer") and special servicer (in such
capacity, the "Co-op Special Servicer") with respect to those Mortgage Loans
that are secured by residential cooperative properties (the "Co-op Mortgage
Loans"), KeyCorp Real Estate Capital Markets, Inc. d/b/a KeyCorp Commercial
Mortgage ("KRECM") as master servicer (in such capacity, the "General Master
Servicer") and special servicer (in such capacity, the "General Special
Servicer") for the Mortgage Loans that are not Co-op Mortgage Loans, and Xxxxx
Fargo Bank Minnesota, N.A. as trustee (in such capacity, the "Trustee").
The offering of the Certificates made pursuant to the Registration
Statement (as defined in Section 2(a)) will be made through the Underwriters.
This Agreement provides for the sale of the Certificates to, and the purchase
and offering thereof by, the Underwriters. Schedule I sets forth the aggregate
amount of each class of Certificates that is to be purchased by each
Underwriter. Schedule II sets forth the classes of the Certificates subject to
this Agreement, the principal balance of each class of the Certificates to be
issued and any terms thereof not otherwise specified in the Pooling and
Servicing Agreement and the price at which each class of the Certificates is to
be purchased by the Underwriters from the Depositor. The offering of the
Certificates will be governed by this Agreement.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to the Underwriters as of the date hereof as follows:
(a) a registration statement on Form S-3, including a prospectus and
such amendments thereto as may have been required to the date hereof, relating
to the Certificates and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "Act"), in the
form heretofore delivered to you, as the Representative, has been filed with the
Securities and Exchange Commission (the "Commission") and has become effective;
such registration statement, as amended (exclusive of any related Computational
Materials and ABS Term Sheets (each as defined in Section 8(a) below) previously
filed or to be filed pursuant to Section 5(a) and any Computational Materials
and ABS Term Sheets relating to securities other than the Certificates), and the
prospectus relating to the sale of the Certificates offered thereby by the
Depositor and constituting a part of such registration statement, as such
prospectus is from time to time amended or supplemented (including any
prospectus filed with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission (the "Rules and Regulations") under the Act), are
respectively referred to herein as the "Registration Statement" and the "Base
Prospectus"; the conditions to the use of a registration statement on Form S-3
under the Act, as set forth in the General Instructions to Form S-3, and the
conditions of Rule 415 under the Act have been satisfied with respect to the
Registration Statement; and no other amendment to the Registration Statement
(other than any amendment thereof by reason of Rule 429) will be filed which
shall be reasonably disapproved by you, as the Representative, promptly after
reasonable notice thereof;
(b) there is no request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional information;
the Commission has not issued any stop order suspending the effectiveness of the
Registration Statement and the Depositor is not aware of any proceeding for that
purpose having been instituted or threatened; and the Depositor has not received
notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or with respect to any initiation or
threat of any proceeding for such purpose;
(c) the Registration Statement (i) on its effective date and on the
date of the then most recently filed Prospectus Supplement (as defined below)
conformed in all respects to the requirements of the Act and the Rules and
Regulations thereunder and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (ii) on the date
hereof will conform in all respects to the requirements of the Act and the Rules
and Regulations thereunder and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; the Base Prospectus
and the supplement to the Base Prospectus prepared pursuant to Section 5(a)
below (the "Prospectus Supplement" and, together with the Base Prospectus,
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the "Prospectus"), on the date hereof and on the Specified Delivery Date (as
defined in Section 3 below), will conform in all respects to the requirements of
the Act and the Rules and Regulations thereunder and will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the foregoing does not apply to (A) the information contained in or omitted
from the Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto, in reliance upon and in conformity with written or
electronic information furnished to the Depositor by any Underwriter
specifically for use therein, (B) the information contained in or omitted from
the Prospectus, or any amendment thereof or supplement thereto, in reliance upon
and conformity with (1) the Master Tape, (2) the representations and warranties
of any Mortgage Loan Seller set forth in or made pursuant to the related
Mortgage Loan Purchase Agreement, or (3) any other information concerning the
characteristics of the Mortgage Loans, the related obligors on the Mortgage
Loans (the "Borrowers") or the related mortgaged real properties securing the
Mortgage Loans (the "Mortgaged Properties") furnished electronically or in
writing to the Depositor or the Underwriters by any Mortgage Loan Seller in
connection with the preparation of the Prospectus, or any amendment thereof or
supplement thereto, (C) the information regarding the Mortgage Loans, the
Borrowers, the Mortgaged Properties and/or the Mortgage Loan Sellers contained
in or omitted from the Prospectus Supplement, or any amendment thereof or
supplement thereto, under the headings "Summary of Prospectus Supplement--The
Underlying Mortgage Loans", "Risk Factors--Risks Related to the Underlying
Mortgage Loans" and "Description of the Underlying Mortgage Loans", on Exhibit
A-1 or Exhibit A-2 thereto or on the accompanying diskette, or (D) the
information contained in or omitted from any Computational Materials and/or ABS
Term Sheets, or any amendment thereof or supplement thereto, incorporated by
reference in the Registration Statement or the Prospectus (or any amendment
thereof or supplement thereto). The "Master Tape" consists of the compilation of
underlying information and data regarding the Mortgage Loans covered by the
Independent Accountants Report on Applying Agreed Upon Procedures dated November
1, 2001, as supplemented to the Closing Date, and rendered by Xxxxxx Xxxxxxxx
LLP;
(d) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as
described in the Prospectus and now conducted by it, is duly qualified as a
foreign corporation in good standing in all jurisdictions in which the ownership
or lease of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Depositor, and is conducting its business so as
to comply in all material respects with the applicable statutes, ordinances,
rules and regulations of the jurisdictions in which it is conducting business;
(e) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the Specified
Delivery Date, to the description thereof contained in the Registration
Statement and the Prospectus; and the Certificates, on the Specified Delivery
Date, will be duly and validly authorized and, when such Certificates are duly
and validly executed by the Trustee, authenticated by the Trustee or any other
applicable registrar and delivered in accordance with the Pooling and Servicing
Agreement and delivered and paid for as provided herein, will be validly issued
and outstanding and entitled to the benefits and security afforded by the
Pooling and Servicing Agreement;
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(f) the Depositor is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material and
adverse to the Depositor or which violation or default would have a material
adverse effect on the performance by the Depositor of its obligations under this
Agreement, the Pooling and Servicing Agreement or any of the Mortgage Loan
Purchase Agreements; and the issue and sale of the Certificates and the
compliance by the Depositor with all of the provisions of the Certificates, this
Agreement and the Pooling and Servicing Agreement, and the execution and
delivery by the Depositor of this Agreement, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements are within the corporate power of the
Depositor and have been, or will have been, duly authorized by all necessary
corporate action on the part of the Depositor; and neither the execution and
delivery by the Depositor of such instruments, nor the consummation by the
Depositor of the transactions herein or therein contemplated, nor the compliance
by the Depositor with the provisions hereof or thereof, did, does or will (A)
conflict with or result in a breach of, or constitute a default under, any of
the provisions of the certificate of incorporation or by-laws of the Depositor,
(B) conflict with any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties, (C) conflict with any of the provisions of any indenture, mortgage,
contract or other instrument to which the Depositor is a party or by which it is
bound or (D) except as contemplated by the Pooling and Servicing Agreement,
result in the creation or imposition of any lien, charge or encumbrance upon any
of its property or assets pursuant to the terms of any such indenture, mortgage,
contract or other instrument;
(g) there are no actions or proceedings against, or investigations of,
the Depositor pending, or, to the knowledge of the Depositor, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement, any of the Mortgage Loan
Purchase Agreements or the Certificates, (ii)seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Pooling and Servicing Agreement or any of the Mortgage Loan
Purchase Agreements, (iii)which might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability against the Depositor of this Agreement, the Pooling and
Servicing Agreement, any of the Mortgage Loan Purchase Agreements or the
Certificates or (iv)seeking to affect adversely the federal income tax
attributes of the Certificates described in the Prospectus;
(h) there has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Depositor since the
date of its latest audited financial statements which would have a material
adverse effect on the ability of the Depositor to perform its obligations under
this Agreement, the Pooling and Servicing Agreement or any of the Mortgage Loan
Purchase Agreements;
(i) there are no contracts, indentures or other documents of a
character required by the Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto;
(j) the Depositor possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Depositor has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization or
permit which,
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singly or in the aggregate, if the subject of any unfavorable decision, ruling
or finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Depositor;
(k) this Agreement has been duly authorized, executed and delivered by
the Depositor; and, assuming due authorization, execution and delivery hereof by
the other parties hereto, this Agreement constitutes a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor in accordance
with the terms hereof, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity), and
(iii) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport or are construed to provide
indemnification from liabilities under applicable securities laws;
(l) on the Specified Delivery Date, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements will have been duly authorized,
executed and delivered by the Depositor and will be legal, valid and binding
agreements of the Depositor, enforceable against the Depositor in accordance
with their respective terms, except to the extent that enforcement thereof may
be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(m) all approvals, authorizations, consents, orders or other actions of
any person, corporation or other organizations, or of any court, governmental
agency or body or official (except with respect to the state securities or "blue
sky" laws of various jurisdictions) required in connection with the valid and
proper authorization, issuance, offering and sale of the Certificates pursuant
to this Agreement and the Pooling and Servicing Agreement have been or will be
taken or obtained on or prior to the Specified Delivery Date;
(n) at the Specified Delivery Date, each of the Mortgage Loans will
meet the criteria for selection described in the Prospectus Supplement;
(o) neither the Depositor nor the Trust Fund is, and neither the sale
of the Certificates in the manner contemplated by the Prospectus nor the
activities of the Trust Fund pursuant to the Pooling and Servicing Agreement
will cause the Depositor or the Trust Fund to be an "investment company" or
under the control of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act"); and
the Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act");
(p) at the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (i) except as disclosed in the Prospectus,
will convey to the Trustee, or cause to be conveyed to the Trustee, all of the
Depositor's right, title and interest in and to the Mortgage Loans being
transferred to the Trustee pursuant to the Pooling and Servicing Agreement, free
and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively "Liens") granted by or imposed upon the
Depositor, (ii) will not have assigned to any other person any of its right,
title or interest in the Mortgage Loans or in the Pooling and Servicing
Agreement or the
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Certificates, and (iii) will have the power and authority to transfer or cause
the transfer of the Mortgage Loans to the Trustee and to sell the Certificates
to the Underwriters;
(q) upon execution and delivery of the Pooling and Servicing Agreement
by the Trustee, the Trustee will have acquired ownership of all of the
Depositor's right, title and interest in and to the Mortgage Loans except to the
extent disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor;
(r) upon the sale of 10% of the total principal balance of the
Certificates and any other mortgage pass-through certificates of the same series
to unaffiliated third parties, the Depositor will, under generally accepted
accounting principles, report the transfer of the Mortgage Loans to the Trustee
in exchange for the Certificates and the sale of the Certificates to the
Underwriters pursuant to this Agreement as a sale of the interest in the
Mortgage Loans evidenced by the Certificates;
(s) the consideration received by the Depositor upon the sale of the
Certificates to the Underwriters will constitute at least reasonably equivalent
value and fair consideration for the Certificates;
(t) the Depositor will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Certificates to the
Underwriters;
(u) the Depositor is not selling the Certificates to the Underwriters
with any intent to hinder, delay or defraud any of the creditors of the
Depositor;
(v) at the Specified Delivery Date, the respective Classes of
Certificates shall have been assigned ratings no lower than those set forth in
Schedule II hereto by the nationally recognized statistical rating organizations
identified in Schedule II hereto (the "Rating Agencies"); and
(w) any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other than
income taxes) have been paid or will be paid at or prior to the Specified
Delivery Date.
3. Purchase, Sale and Delivery of Certificates. The closing for the
purchase and sale of the Certificates contemplated hereby (the "Closing"), shall
be made at the date, location and time of delivery set forth in Schedule II
hereto, or such later date as shall be mutually acceptable to you, as the
Representative, and the Depositor (such date and time of purchase and sale of
the Certificates being herein called the "Specified Delivery Date"). Delivery of
the Certificates will be made in book-entry form through the facilities of The
Depository Trust Company ("DTC"). Each class of Certificates will be represented
by one or more definitive global certificates to be deposited by or on behalf of
the Depositor with DTC. Delivery of the Certificates shall be made to the
several Underwriters against payment by the several Underwriters of the purchase
price for the Certificates to or upon the order of the Depositor by wire
transfer of immediately available funds or by such other method as may be
acceptable to the Depositor.
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The Depositor agrees to have the Certificates available for inspection
by the Underwriters in New York, New York, not later than 1:00 p.m. on the
business day prior to the Specified Delivery Date.
4. Offering by Underwriters. (a) It is understood that the Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Prospectus. It is further understood that the Depositor, in reliance upon Policy
Statement 105, has not filed and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Certificates. As required by Policy Statement 105, each Underwriter
therefore covenants and agrees with the Depositor that sales of the Certificates
made by such Underwriter in the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
(b) Each Underwriter represents, warrants and covenants that: (i) it
has not offered or sold and, prior to the date six months after the date of
issue of the offered certificates, will not offer or sell any of the
Certificates to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulation Act 1995 (as amended); (ii) it has complied and will
comply with all applicable provisions for the Financial Services Xxx 0000 with
respect to anything done by it in relation to the Certificates in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom such
document may otherwise lawfully be issued or passed on.
5. Covenants of the Depositor. The Depositor covenants and agrees with
the Underwriters that:
(a) the Depositor has prepared and/or shall prepare (and shall file
with the Commission pursuant to Rule 424 under the Act) a prospectus supplement
setting forth the amount of Certificates covered thereby and the terms thereof
not otherwise specified in the Base Prospectus, the price at which such
Certificates are to be purchased by the Underwriters from the Depositor, either
the initial public offering price or the method by which the price at which such
Certificates are to be sold will be determined, the selling concessions and
reallowances, if any, and such other information as the Underwriters and the
Depositor deem appropriate in connection with the offering of such Certificates,
but the Depositor shall not file any amendments to the Registration Statement as
in effect with respect to the Certificates (other than an amendment by reason of
Rule 429 under the Act), or any amendments or supplements to the Prospectus,
unless it has first delivered copies of such amendments or supplements to you,
as the Representative, and given you a reasonable opportunity to review the
same, or if you have reasonably objected thereto promptly after receipt thereof;
the Depositor shall immediately advise the Underwriters (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement (other than an amendment by reason of Rule 429 under the
Act) has been filed or has become or will become effective or any supplement to
the Prospectus or any amended Prospectus, in each case relating to the
Certificates specified in Schedule I has been filed and will furnish the
Underwriters with copies thereof, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any additional
information relating to the Certificates
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and (iii) of any order or communication suspending or preventing, or threatening
to suspend or prevent, the offer and sale of the Certificates or of any
proceedings or examinations that may lead to such an order or communication,
whether by or of the Commission or any authority administering any state
securities or "blue sky" law, as soon as the Depositor is advised thereof, and
shall use its best efforts to prevent the issuance of any such order or
communication and to obtain as soon as possible its lifting, if issued. Subject
to the Underwriters' compliance with their obligations set forth in Section 8
below, the Depositor shall file with the Commission a Current Report on Form 8-K
including any Computational Materials and ABS Term Sheets provided to it by any
Underwriter pursuant to Section 8 below not later than the date on which such
Current Report is required to be filed with the Commission;
(b) if, at any time when a prospectus is required to be delivered under
the Act in connection with the initial offering of the Certificates as
contemplated by this Agreement, any event occurs as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the Depositor
shall prepare and file with the Commission, at its expense and subject to clause
(a) above, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance;
(c) the Depositor shall make generally available to the holders of the
Certificates (the "Certificateholders"), in each case as soon as practicable,
earning statements covering (i) a period of 12 months beginning not later than
the first day of the Trust's fiscal quarter next following the effective date of
the Registration Statement and (ii) a period of 12 months beginning no later
than the first day of the Trust's fiscal quarter next following the date hereof,
which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of
the Commission with respect to the Certificates. The Depositor shall cause the
Pooling and Servicing Agreement to require the Trustee to furnish or make
available, within a reasonable time after the end of each calendar year, to each
holder of a Certificate at any time during such year, such information as the
Depositor deems necessary or desirable to assist Certificateholders in preparing
their federal income tax returns;
(d) the Depositor shall furnish to any Underwriter, without charge,
copies of the Prospectus, and all amendments and supplements to such documents
relating to the Certificates, in each case as soon as available and in such
quantities as such Underwriter may reasonably request;
(e) the Depositor shall arrange for the qualification of the
Certificates for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as you, as the Representative, designate
and shall continue such qualifications in effect so long as required for the
distribution; provided, however, that neither the Depositor nor the Trust shall
be required to qualify to do business in any jurisdiction where it is now not
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is now not subject to service
of process;
(f) the costs and expenses incurred in connection with the transactions
herein contemplated shall be allocated as follows: (i) the Underwriters shall
bear all out-of-pocket and/or internally allocated costs and expenses incurred
by them in connection with the transaction herein contemplated, including,
without limitation, fees and expenses of their counsel, any transfer taxes on
the
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Certificates and the expenses of any advertising of the offering the
Certificates made by the Underwriters; and (ii) the Depositor and the Mortgage
Loan Sellers, in such proportions as they may agree, shall bear (A) the costs
incident in the preparation, printing and filing under the Act of the
Registration Statement, any Preliminary Prospectus (as defined in Section 6
below), each Prospectus and any amendments thereof and supplements and exhibits
thereto, (B) the costs of distributing the Registration Statement as originally
filed and each amendment and post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, each Prospectus and any amendment or
supplement to the Prospectus as provided in this Agreement, (C) the costs of
printing and distributing the Pooling and Servicing Agreement, (D) the costs of
filings, if any, with the National Association of Securities Dealers, Inc., (E)
fees paid to the Rating Agencies in connection with the rating of the
Certificates, (F) the fees and expenses of qualifying the Certificates under
State securities laws as provided herein, and of preparing and printing, if so
requested by any Underwriter, a preliminary blue sky survey and legal investment
survey concerning the legality of the Certificates as an investment (including
fees and disbursements of counsel to the Underwriters in connection therewith),
and (G) any other costs and expenses incident to the performance of the
Company's obligations under this Agreement; provided that neither Xxxxxx
Brothers Inc. nor XxXxxxxx Investments Inc., in each case, in its capacity as an
Underwriter, shall be required to bear more than its own out-of-pocket and/or
internally allocated costs and expenses incurred in connection with the
transactions herein contemplated.
(g) to the extent that the Pooling and Servicing Agreement provides
that the Underwriters are to receive any notices or reports, or have any other
rights thereunder, the Depositor will cause the Pooling and Servicing Agreement
to provide that the Underwriters are to be third-party beneficiaries and that it
may not be amended in any manner that would materially adversely affect such
rights of the Underwriters without their consent; and
(h) during the period when a prospectus is required by law to be
delivered in connection with the initial offering of the Certificates as
contemplated by this Agreement, the Depositor shall file, or cause the Trustee
to file on behalf of the Trust, on a timely and complete basis, all documents
that are required to be filed by the related Trust with the Commission pursuant
to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
6. Conditions to the Obligations of the Underwriters. The obligation of
each Underwriter to purchase and pay for its allotment of the Certificates
subject to this Agreement will be subject to the accuracy of the representations
and warranties on the part of the Depositor as of the date hereof and the
Specified Delivery Date, to the accuracy of the statements of the Depositor made
pursuant to the provisions thereof, to the performance by the Depositor in all
material respects of its obligations hereunder and to the following additional
conditions precedent:
(a) The Underwriters shall have received from Xxxxxx Xxxxxxxx LLP,
certified public accountants, letters dated the date of the Prospectus
Supplement and the date of any preliminary version of the Prospectus Supplement
delivered to prospective investors in the Certificates (a "Preliminary
Prospectus Supplement" and, together with the accompanying form of the Base
Prospectus, a "Preliminary Prospectus"), respectively, and satisfactory in form
and substance to you, as the Representative, and your counsel, stating in effect
that, using the assumptions and methodology used by the Depositor, all of which
shall be described in such letters, they have recalculated such numbers and
percentages set forth in the Prospectus Supplement and any Preliminary
Prospectus Supplement as you, as the Representative, may reasonably request and
as are agreed to by Xxxxxx Xxxxxxxx LLP, compared
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the results of their calculations to the corresponding items in the Prospectus
Supplement and any Preliminary Prospectus Supplement, respectively, and found
each such number and percentage set forth in the Prospectus Supplement and any
Preliminary Prospectus Supplement, respectively, to be in agreement with the
results of such calculations.
(b) all actions required to be taken and all filings required to be
made by the Depositor under the Act prior to the Specified Delivery Date shall
have been duly taken or made; and prior to the Specified Delivery Date, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or to the
knowledge of the Depositor or any Underwriter, shall be contemplated by the
Commission;
(c) unless otherwise specified in Schedule II, the Certificates subject
to this Agreement and offered by means of the Registration Statement shall be
rated the ratings specified in Schedule II, and shall not have been lowered or
placed on any credit watch with a negative implication for downgrade;
(d) the Underwriters shall have received an opinion of in-house counsel
to the Depositor, dated the Specified Delivery Date, in substantially the same
form as Exhibit A attached hereto;
(e) the Underwriters shall have received opinions and a letter of
Sidley Xxxxxx Xxxxx & Xxxx, special counsel to the Depositor, dated the
Specified Delivery Date, in substantially the same forms as Exhibit B-1, Exhibit
B-2 and Exhibit B-3, respectively, attached hereto;
(f) the Underwriters shall have received an opinion of in-house counsel
to Column, dated the Specified Delivery Date, in substantially the same form as
Exhibit C attached hereto;
(g) the Underwriters shall have received an opinion of Sidley Xxxxxx
Xxxxx & Xxxx, special counsel to Column, dated the Specified Delivery Date, in
substantially the same form as Exhibit D attached hereto;
(h) the Underwriters shall have received an opinion of in-house counsel
to KeyBank and KRECM, dated the Specified Delivery Date, in substantially the
same form as Exhibit E attached hereto;
(i) the Underwriters shall have received an opinion and a letter of
Xxxxxxxxxx, Xxxxxxx & Xxxxx, P.C., special counsel to KeyBank, dated the
Specified Delivery Date, in substantially the same forms as Exhibit F-1 and
Exhibit F-2, respectively, attached hereto;
(j) the Underwriters shall have received an opinion of Phillips, Lytle,
Xxxxxxxxx, Xxxxxx & Xxxxx, special counsel to KeyBank and KRECM, dated the
Specified Delivery Date, in substantially the same form as Exhibit G attached
hereto;
(k) the Underwriters shall have received opinions and a letter of
Xxxxxxxx Xxxxxxxxx Xxxxxx Arronsohn & Xxxxxx LLP, special counsel to NCB and
NCBCC, dated the Specified Delivery Date, in substantially the same forms as
Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0, Exhibit H-4 and Exhibit H-5,
respectively, attached hereto;
10
(l) the Underwriters shall have received opinions of counsel to the
Trustee, dated the Specified Delivery Date, in substantially the same forms as
Exhibit I-1 and Exhibit I-2, respectively, attached hereto;
(m) the Underwriters shall have received from the counsel referred to
in clauses 6(d) through 6(l) above copies of any other opinions rendered thereby
to the Rating Agencies, together with reliance letters, dated the Specified
Delivery Date, authorizing the Underwriters to rely on those opinions as if they
were addressed to the Underwriters;
(n) the Underwriters shall have received certificates signed by one or
more duly authorized officers of the Depositor, dated the Specified Delivery
Date, in substantially the same forms as Exhibit J-1 and Exhibit J-2,
respectively, attached hereto;
(o) the Underwriters shall have received certificates, signed by one or
more duly authorized officers of KeyBank, dated the Specified Delivery Date, in
substantially the same forms as Exhibit K-1 and Exhibit K-2, respectively,
attached hereto;
(p) the Underwriters shall have received certificates, signed by one or
more duly authorized officers of NCB, dated the Specified Delivery Date, in
substantially the same forms as Exhibit L-1 and Exhibit L-2, respectively,
attached hereto;
(q) the Underwriters shall have received certificates, signed by one or
more duly authorized officers of NCBCC, dated the Specified Delivery Date, in
substantially the same forms as Exhibit M-1 and Exhibit M-2, respectively,
attached hereto;
(r) the Underwriters shall have received a certificate of the Trustee,
signed by one or more duly authorized officers of the Trustee, dated the
Specified Delivery Date, in substantially the same form as Exhibit N attached
hereto;
(s) the Underwriters shall have received a certificate signed by one or
more duly authorized officers of KRECM, dated the Specified Delivery Date, in
substantially the same form as Exhibit O;
(t) Column, KeyBank, NCB and NCBCC shall have sold the Mortgage Loans
to the Depositor, pursuant to the respective Mortgage Loan Purchase Agreements;
and
(u) all proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to you, as the Representative, and your
counsel, and the Underwriters shall have received such additional information,
certificates and documents as it or any of the other Underwriters may have
reasonably requested.
7. Indemnification. (a) The Depositor shall indemnify and hold harmless
each Underwriter, each of its officers and directors and each person, if any,
that controls any Underwriter within the meaning of the Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act") against any expenses,
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or any such officer, director or controlling person may become
subject, under the Act, the Exchange Act or otherwise, insofar as such expenses,
losses, claims, damages or liabilities (or actions in
11
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of any material fact contained in any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and the Depositor
shall reimburse, as incurred, each Underwriter and each such officer, director
and controlling person for any legal or other expenses reasonably incurred by
such Underwriter, officer, director or controlling person in connection with
investigating or defending any such expense, loss, claim, damage, liability or
action; provided, however, that the Depositor shall not be liable in any such
case to the extent that any such expense, loss, claim, damage or liability (A)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written or electronic information furnished
to the Depositor by any Underwriter through the Representative specifically for
use therein (the "Underwriters' Information"), (B) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto) in reliance upon and
in conformity with (1) the Master Tape, (2) the representations and warranties
of any Mortgage Loan Seller set forth in or made pursuant to the related
Mortgage Loan Purchase Agreement or (3) any other information concerning the
characteristics of the Mortgage Loans, the Mortgaged Properties or the Borrowers
furnished electronically or in writing to the Depositor or the Representative by
any Mortgage Loan Seller in connection with the preparation of any Preliminary
Prospectus or the Prospectus or any amendment thereof or supplement thereto, or
(C) arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission (other than a Depositor Mathematical
Error (as defined below)) made in any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto) with
respect to the Mortgage Loans, the Mortgaged Properties, the Borrowers and/or
the Mortgage Loan Sellers under the headings "Summary of Prospectus
Supplement--The Underlying Mortgage Loans", "Risk Factors--Risks Related to the
Underlying Mortgage Loans" and "Description of the Underlying Mortgage Loans"
therein, on Exhibit A-1 or Exhibit A-2 thereto or on the accompanying diskette,
or (D) arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Computational Materials or
ABS Term Sheets (or any amendments thereof or supplements thereto) furnished to
prospective investors and made a part of, or incorporated by reference into, the
Registration Statement, any Preliminary Prospectus or the Prospectus (or any
amendment thereof or supplement thereto); and provided, further, that the
Depositor shall not be liable to any Underwriter or any such officer, director
or controlling person under the indemnity agreement in this Section 7(a) with
respect to any untrue statement in, or omission from, any Preliminary
Prospectus, to the extent that any such expense, loss, claim, damage or
liability of such Underwriter or such officer, director or controlling person
results from the fact that such Underwriter sold Certificates to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus or a copy of the Prospectus as then amended
or supplemented, the Depositor had previously furnished copies thereof to such
Underwriter, delivery of the Prospectus to such Person was required under
applicable law and the Prospectus corrected the untrue statement in, or omission
from, such Preliminary Prospectus.
12
The Depositor and the Underwriters acknowledge that the following
statements constitute the only Underwriters' Information furnished in writing or
electronically by or on behalf of the Underwriters for inclusion in the
Registration Statement, the Prospectus or any Preliminary Prospectus: the second
sentence of the second paragraph, and the only sentence of the sixth paragraph,
on the cover of each of the Prospectus Supplement and any Preliminary Prospectus
Supplement; the entire subsection entitled "Summary of Prospectus
Supplement--Relevant Parties/Entities--Underwriters" in each of the Prospectus
Supplement and any Preliminary Prospectus Supplement; and the first sentence of
the fourth paragraph, and the second sentence of the fifth paragraph, under the
heading "Underwriting" in each of the Prospectus Supplement and any Preliminary
Prospectus Supplement.
A "Depositor Mathematical Error" consists of any untrue statement or
omission made in the Prospectus Supplement, any Preliminary Prospectus
Supplement or, if it was developed by the Depositor or Credit Suisse First
Boston Corporation, any ABS Term Sheet as a result of an error in the
manipulation of, or any calculations based upon, or any aggregation (other than
an aggregation made in the Master Tape) of, the numerical, financial and/or
statistical information regarding the Mortgage Loans, the Mortgaged Properties,
the Borrowers and/or the Mortgage Loan Sellers contained in the Master Tape or
otherwise provided to the Depositor by any Mortgage Loan Seller.
(b) Each Underwriter shall severally, and not jointly, indemnify and
hold harmless the Depositor, each of its officers and directors and each person,
if any, who controls the Depositor within the meaning of the Act or the Exchange
Act against any expenses, losses, claims, damages or liabilities to which the
Depositor or any such officer, director or controlling person may become subject
under the Act, the Exchange Act or otherwise, and shall reimburse, as incurred,
any legal or other expenses reasonably incurred by the Depositor or any such
officer, director or controlling person in connection with investigating or
defending any such expense, loss, claim, damage, liability or action, in each
case insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Underwriter's Information in any Preliminary Prospectus Supplement, the
Prospectus Supplement or any amendment or supplement thereto or the omission or
alleged omission to state in such Underwriter's Information a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or (ii)
arise out of or are based upon (A) any untrue statement or alleged untrue
statement of any material fact (other than a Depositor Mathematical Error)
contained in the Computational Materials or ABS Term Sheets, as applicable, that
such Underwriter provides to its respective potential investors, or (B) the
omission or the alleged omission to state therein a material fact required to be
stated therein or which, when any such item is read together with any
Preliminary Prospectus Supplement and the Prospectus Supplement, is necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that no Underwriter shall be liable to
the extent that any expense, loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission in any Computational Materials or ABS Term Sheets (or any
amendment thereof or supplement thereto) made in reliance upon and in conformity
with (A) the Master Tape, (B) the representations and warranties of any Mortgage
Loan Seller set forth in or made pursuant to the related Mortgage Loan Purchase
Agreement or (C) any other information concerning the characteristics of the
Mortgage Loans, the Mortgaged Properties or the Borrowers furnished to the
Underwriters by the Depositor or any Mortgage Loan Seller (the error in the
Master Tape or any such other information concerning the characteristics of the
Mortgage Loans, the Mortgaged Properties or the Borrowers or the breach in such
representations and warranties that gave rise to such untrue statement or
13
omission, a "Collateral Error"), except to the extent that a Mortgage Loan
Seller or the Depositor notified such Underwriter in writing of such Collateral
Error or provided in written or electronic form information superseding or
correcting such Collateral Error (in any case, a "Corrected Collateral Error") a
reasonable time period prior to confirmation of sale to the person that
purchased the Certificates that are the subject of any such loss, claim, damage,
liability, cost or expense, or action in respect thereof, and such Underwriter
failed to deliver to such person corrected Computational Materials or ABS Term
Sheets (or, if the superseding or correcting information was contained in the
Prospectus, failed to deliver to such person, where such delivery was required
by applicable law, the Prospectus as then amended or supplemented) at or prior
to confirmation of such sale to such person. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. Any
Computational Materials or ABS Term Sheets (or amendments thereof or supplements
thereto) so furnished to the Depositor by a particular Underwriter shall relate
exclusively to and be, to the extent provided herein, the several responsibility
of such Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party under this Section 7,
except to the extent that the indemnified party's failure to so notify the
indemnifying party has materially prejudiced the indemnifying party. In case any
such action is brought against any indemnified party, after such indemnifying
party has been notified of the commencement thereof, such indemnifying party
shall be entitled to participate therein (at its own expense), and, to the
extent that it may wish, shall be entitled to assume the defense thereof
(jointly with any other indemnifying party similarly notified) with counsel
reasonably satisfactory to such indemnified party (which shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election to so assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 7 for any legal fees or
expenses of separate counsel subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party shall
have failed to designate within a reasonable period of time counsel reasonably
satisfactory to the indemnified party (in which case the fees and expenses of
separate counsel shall be paid as incurred by the indemnifying party). In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. An indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent. However, if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party shall indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing two sentences, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel for which the indemnifying party is obligated
under this subsection, the
14
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. If an indemnifying party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the indemnified
party or, if such settlement (i) provides for an unconditional release of the
indemnified party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by the other
parties to such settlement and (ii) does not require an admission of fault,
culpability or failure to act by the indemnified party, without the consent of
the indemnified party.
(d) If recovery is not available under Section 7(a) or Section 7(b) for
any reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contribution from the
Depositor (in the case of Section 7(a)) or one or more Underwriters (in the case
of Section 7(b)), as applicable, for the expenses, losses, claims, damages
and/or liabilities intended to be covered under the relevant Section, as
incurred, except to the extent that contribution is not permitted under Section
11(f) of the Act. In determining the amount of contribution to which the
respective parties are entitled, there shall be considered the relative benefits
received by the Depositor on the one hand and each Underwriter on the other from
the offering of the Certificates subject to this Agreement (taking into account
the portion of the proceeds of the offering realized by each). In the event
contribution according to the foregoing sentence is not permitted by law, in
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission and
any other equitable considerations appropriate under the circumstances. The
Depositor and the Underwriters agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method that does not take account of the equitable considerations referred
to above. Notwithstanding anything herein to the contrary, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter in
connection with the offering of the Certificates exceeds the amount of damages
that such Underwriter has otherwise been required to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. The obligations of
the Underwriters in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(e) The amount paid or payable by an indemnified party as a result of
the expenses, losses, claims, damages or other liabilities referred to in this
Section 7 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to any indemnified party at law or in equity.
15
(f) The indemnity and contribution agreements contained in this Section
7 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, any
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or any Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of any
Underwriter and to each person, if any, who controls any Underwriter within the
meaning of the Act or the Exchange Act; and the obligations of the Underwriters
under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Depositor and to each person, if
any, who controls the Depositor within the meaning of the Act or the Exchange
Act.
8. Computational Materials.
(a) The Underwriters agree to provide to the Depositor not later than
10:30 a.m., New York time, on the Business Day before the date on which a
Current Report on Form 8-K is required to be filed by the Depositor with the
Commission pursuant to the No-Action Letters (as defined below) (each, a
"Current Report") five complete copies of all materials that have been provided
by the Underwriters to prospective investors in the Certificates and that
constitute (i) "Computational Materials" within the meaning of the no-action
letter dated May 20, 1994 and issued by the Division of Corporation Finance of
the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody &
Co. Incorporated and Xxxxxx Structured Asset Corporation and the no-action
letter dated May 27, 1994 and issued by the Division of Corporation Finance of
the Commission to the Public Securities Association (together, the "Xxxxxx
Letters") and (ii) "ABS Term Sheets" within the meaning of the no-action letter
dated February 17, 1995 and issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together with the Xxxxxx
Letters, the "No-Action Letters"), and the Underwriters acknowledge that the
filing of such materials is a condition of relief granted in such letter (such
materials, the "Computational Materials" and the "ABS Term Sheets,"
respectively); provided, however, that any ABS Term Sheets are subject to the
review and approval of the Depositor prior to their distribution to any
prospective investors, and a copy of all such ABS Term Sheets and Computational
Materials as are delivered to prospective investors shall, in addition to the
foregoing delivery requirements, be delivered to the Depositor simultaneously
with delivery thereof to prospective investors. Each delivery of Computational
Materials and ABS Term Sheets to the Depositor pursuant to this Section 8(a)
shall be effected by delivering four copies of such materials to counsel for the
Depositor on behalf of the Depositor and one copy of such materials to the
Depositor. No Underwriter shall provide to any investor or prospective investor
in the Certificates any Computational Materials or ABS Term Sheets on or after
the day on which Computational Materials or ABS Term Sheets are required to be
provided to the Depositor pursuant to this subsection (a) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to the Depositor
in accordance with this subsection (a)) for filing pursuant to Section 5(a),
unless such Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or prospective
investor.
(b) As of the date of this Agreement and as of the Specified Delivery
Date, each of the Underwriters represents and warrants to, and agrees with, the
Depositor and with each other
16
Underwriter that: (i) the Computational Materials and ABS Term Sheets furnished
to the Depositor pursuant to Section 8(a) above by such Underwriter, if any,
constitute (either in original, aggregated or consolidated form) all of the
materials furnished to prospective investors by such Underwriter that is
required to be filed with the Commission with respect to the Certificates in
accordance with the No-Action Letters, and such Computational Materials and ABS
Term Sheets comply with the requirements of the No-Action Letters; (ii) on the
date any such Computational Materials and ABS Term Sheets developed by such
Underwriter with respect to such Certificates (or any written or electronic
materials furnished to prospective investors on which such Computational
Materials and ABS Term Sheets are based) were last furnished by such Underwriter
to a prospective investor and on the date of delivery thereof to the Depositor
pursuant to Section 8(a) above and on such Specified Delivery Date, such
Computational Materials and ABS Term Sheets (or materials) were accurate in all
material respects when read in conjunction with the Prospectus (taking into
account the assumptions explicitly set forth in the Computational Materials),
except to the extent of any errors therein that are caused by Collateral Errors
(other than Corrected Collateral Errors) or Depositor Mathematical Errors; (iii)
such Underwriter will not represent to potential investors that any
Computational Materials and ABS Term Sheets were prepared or disseminated on
behalf of the Depositor; and (iv) all Computational Materials and ABS Term
Sheets (or underlying materials distributed to prospective investors on which
the Computational Materials and ABS Term Sheets were based) shall bear a legend
substantially in the form of Exhibit P or as otherwise reasonably approved by
the Depositor in writing.
(c) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. In the event that any
Computational Materials and ABS Term Sheets that are required to be filed were
based on assumptions with respect to the Mortgage Loans that are incorrect or
that differ from the Master Tape in any material respect prior to the printing
of the Prospectus, the Underwriters shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the information in
the Master Tape and the final Certificate structuring assumptions, shall
circulate such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated orally to the
Underwriters they would purchase all or any portion of the Certificates, and
shall include such revised Computational Materials or ABS Term Sheets (marked
"as revised") in the materials delivered to the Depositor pursuant to Section
8(a) above.
(d) If, within the period during which a prospectus relating to the
Certificates is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of the
Depositor or the related Underwriter, to contain a material error or, when read
together with the Prospectus, a material omission, then (unless such material
error or omission was corrected in the Prospectus) such Underwriter shall
prepare a corrected version of such Computational Materials or ABS Term Sheets,
shall circulate such corrected Computational Materials or ABS Term Sheets to all
recipients of the prior versions thereof that either indicated orally to such
Underwriter they would purchase all or any portion of the Certificates, or
actually purchased all or any portion thereof, and shall deliver copies of such
corrected Computational Materials or ABS Term Sheets (marked, "as corrected") to
the Depositor for filing with the Commission in a subsequent Form 8-K submission
(which filing the Depositor shall so complete subject to its obtaining an
accountant's comfort letter in respect of such corrected Computational Materials
and ABS Term Sheets, which the
17
parties acknowledge shall be at the expense of the Mortgage Loan Sellers). As of
the date that any Underwriter disseminates any Computational Materials or ABS
Term Sheets, such Underwriter shall not have any knowledge or reason to believe
that such Computational Materials or ABS Term Sheets disseminated by it
contained any material error or, when read together with the Prospectus, any
material omission and each Underwriter agrees to promptly notify the Depositor
of any such material error or omission of which such Underwriter becomes aware.
(e) Each Underwriter shall be deemed to have represented, as of the
Specified Delivery Date, that, except for Computational Materials and ABS Term
Sheets provided to the Depositor pursuant to subsection (a) above, such
Underwriter did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Certificates
that is required to be filed with the Commission in accordance with the
No-Action Letters.
(f) In the event of any delay in the delivery by any Underwriter to the
Depositor of Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (a) above, the Depositor shall have the
right to delay the release of the Prospectus to investors or to the
Underwriters, to delay the Specified Delivery Date and to take other appropriate
actions in each case as necessary in order to allow the Depositor to comply with
its agreement set forth in Section 5(a) to file the Computational Materials and
ABS Term Sheets by the time specified therein.
(g) Each Underwriter further represents and warrants that, if and to
the extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in clauses (a),
(c), (d) and (f) above have been satisfied with respect thereto.
(h) Computational Materials and ABS Term Sheets may be distributed by
the Underwriter through electronic means in accordance with SEC Release No.
33-7233 or other applicable laws or regulations.
9. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Certificates hereunder and the aggregate principal
amount of Certificates that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of
Certificates to be purchased hereunder, the non-defaulting Underwriters may make
arrangements satisfactory to the Depositor for the purchase of such Certificates
by other persons, but if no such arrangements are made by the Specified Delivery
Date, the Representative shall be obligated to purchase the Certificates that
such defaulting Underwriter agreed but failed to purchase hereunder. If any
Underwriter so defaults and the aggregate principal amount of Certificates with
respect to which such default occurs exceeds 10% of the total principal amount
of Certificates to be purchased hereunder and arrangements satisfactory to the
Representative and the Depositor for the purchase of such Certificates by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Depositor, except as provided in Section 5(f) and Section 7. As used in this
Agreement, the term "Underwriter" includes any person substituted for a
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. Termination of the Obligations of the Underwriters. (a) Any
Underwriter may terminate its obligations under this Agreement by notice to the
Depositor, at any time at or prior to the Specified Delivery Date if the sale of
the Certificates provided for herein is not consummated because of
18
any failure or refusal on the part of the Depositor to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Depositor shall be unable to perform its obligations under this Agreement.
(b) The obligations of the Underwriters to purchase on the Specified
Delivery Date the Certificates described in Schedule I shall be terminable by
the Underwriters if at any time on or prior to the Specified Delivery Date (i)
any change, or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of operations of
the Depositor or the Trust which, in the judgment of a majority in interest of
the Underwriters (based on Underwriting obligations) including the
Representative, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Certificates; (ii) any downgrading in the rating of any of the Certificates
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any of the
Certificates (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters including the
Representative, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Certificates, whether in the primary market
or in respect of dealings in the secondary market; (iv) any material suspension
or material limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any Certificates on any relevant exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S. Federal or
New York authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States; or (vii) any attack on, outbreak or
escalation of hostilities or acts of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of a majority in interest of the Underwriters
including the Representative, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Certificates.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Depositor and of the several Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
or statement as to the results thereof made by or on behalf of the Underwriters,
the Depositor or any of their respective officers, directors and controlling
persons, and shall survive delivery of and payment of the related Certificates.
If this Agreement is terminated pursuant to Section 10 above or if for
any reason the purchase by the Underwriters of the Certificates is not
consummated, the obligations of the Depositor and the Underwriters pursuant to
Section 7 above shall remain in effect.
12. Notices. All communications hereunder shall be in writing and: if
sent to the Underwriters, shall be mailed, delivered or telecopied to Credit
Suisse First Boston Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000,
Attention: Transactions Advisory Group, Telecopy No.: (000) 000-0000; or, if
sent to the Depositor, shall be mailed, delivered or telecopied to it at Credit
Suisse First Boston Mortgage Securities Corp., Eleven Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000,
19
Attention: Xxxxxxx Xxxxxxx, Telecopy No.: (000) 000-0000; or, in the case of any
of the foregoing parties, to such other address as may be furnished by such
party to the other parties.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 above, and
their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Certificates from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding on all the
Underwriters.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES).
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Depositor and the Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Depositor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written communications.
Very truly yours,
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Representative on behalf of the Underwriters specified
on Schedule I
By:
-----------------------------
Name:
Title:
21
SCHEDULE I
AMOUNTS OF CERTIFICATES
UNDERWRITER TO BE PURCHASED
------------------------------------------------------- --------------------------
1. Credit Suisse First Boston Corporation Class A-1 $ 38,582,000
Class A-2 $ 25,000,000
Class A-3 $ 108,000,000
Class A-4 $ 581,279,000
Class B $ 37,548,000
Class C $ 18,773,000
Class D $ 24,138,000
Class E $ 10,728,000
2. Xxxxxx Brothers Inc. Class A-1 $ 0
Class A-2 $ 0
Class A-3 $ 0
Class A-4 $ 25,000,000
Class B $ 0
Class C $ 0
Class D $ 0
Class E $ 0
3. XxXxxxxx Investments Inc. Class A-1 $ 0
Class A-2 $ 0
Class A-3 $ 0
Class A-4 $ 75,000,000
Class B $ 0
Class C $ 0
Class D $ 0
Class E $ 0
SCHEDULE II
Certificates: Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5,
Class X-0, X-0, X-0, X-0, X, X, X and E.
Closing: 10:00 A.M., November 13, 2001, at the offices of Sidley Xxxxxx Xxxxx &
Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Prospectus: Prospectus Supplement dated November 1, 2001 and Base Prospectus
dated October 22, 2001 (Registration Statement No.: 333-53012)
Total Principal Amount of Certificates: $944,048,000 (approximate)
Total Principal Amount:
---------------------
Class A-1 $ 38,582,000
Class A-2 $ 25,000,000
Class A-3 $ 108,000,000
Class A-4 $ 681,279,000
Class B $ 37,548,000
Class C $ 18,773,000
Class D $ 24,138,000
Class E $ 10,728,000
Ratings by Standard & Poor's Ratings Services/Xxxxx'x Investors Service, Inc.:
------------------------------------------------------------------------------
Class A-1 AAA/Aaa
Class A-2 AAA/Aaa
Class A-3 AAA/Aaa
Class A-4 AAA/Aaa
Class B AA/Aa2
Class C AA-/Aa3
Class D A/A2
Class E A-/A3
Initial Pass-Through Rates:
---------------------------
Class A-1 3.801%
Class A-2 4.890%
Class A-3 5.107%
Class A-4 5.435%
Class B 5.692%
Class C 5.781%
Class D 5.961%
Class E 6.083%
Price (Expressed as a Percentage of Par):
Class A-1 100.2500%
Class A-2 100.5000%
Class A-3 100.5000%
Class A-4 100.5000%
Class B 101.0000%
Class C 101.0000%
Class D 101.0000%
Class E 101.0000%
EXHIBIT A
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE DEPOSITOR
November 13, 2001
To the Parties Listed on Annex A hereto
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston
Corporation ("CSFB") and have acted as special counsel to Credit Suisse First
Boston Mortgage Securities Corp., a Delaware corporation (the "Depositor"), in
connection with certain matters relating to: (i) the Depositor's purchase from
Column Financial Inc. (the "Mortgage Loan Seller") of certain multifamily and
commercial mortgage loans pursuant to the Mortgage Loan Purchase Agreement (the
"Mortgage Loan Purchase Agreement"), dated as of November 1, 2001, by and
between the Depositor and the Mortgage Loan Seller, (ii) the issuance of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2001-CKN5, consisting of the classes designated as follows:
(a) the Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class D
and Class E Certificates (collectively, the "Public Certificates") which will be
sold pursuant to the terms of the Underwriting Agreement (the "Underwriting
Agreement"), dated as of November 1, 2001, by and between the Depositor and
CSFB, as representative of the several underwriters named therein, (b) the Class
A-X, Class A-CP, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class R and Class V Certificates (collectively, the
"Private Certificates") which will be sold pursuant to the terms of the
Certificate Purchase Agreement (the "Certificate Purchase Agreement"), dated as
of November 1, 2001, by and between the Depositor and CSFB, and (c) the Class
A-Y Certificates (the "Other Certificates" and, collectively with the Public
Certificates and the Private Certificates, the "Certificates"); and (iii) the
sale or other transfer by the Depositor of the Certificates. The Certificates
are being issued pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 12, 2001, by and among the
Depositor, as depositor, Xxxxx Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage ("KeyCorp") and National Consumer Cooperative Bank ("NCB"), as master
servicers (together, the "Master Servicers"), and KeyCorp and NCB, as special
servicers (together, the "Special Servicers"). Capitalized terms used and not
otherwise defined herein have the meanings given to them in the Pooling and
Servicing Agreement.
In rendering the opinions set forth below, I have examined and relied
upon the originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Underwriting Agreement, the Certificate Purchase Agreement,
the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreement
(collectively, the "Agreements"), specimen forms of the Certificates, and such
certificates, corporate records and other documents, agreements, instruments and
opinions, as I have deemed appropriate as a basis for the opinions hereinafter
expressed. In connection with such
A-1
examination, I have assumed the genuineness of all signatures (other than with
respect to the Depositor), the authenticity of all documents, agreements and
instruments submitted to me as originals, the conformity to original documents,
agreements and instruments of all documents, agreements and instruments
submitted to me as copies or specimens and the authenticity of the originals of
such documents, agreements and instruments submitted to me as copies or
specimens, and the accuracy of the matters set forth in the documents,
agreements and instruments I reviewed, to the extent such matters do not
constitute legal conclusions upon which I have been asked to opine. As to any
facts material to such opinions that were not known to me, I have relied upon
statements, certificates and representations of officers and other
representatives of the Depositor, the Mortgage Loan Seller, CSFB and the Trustee
and of public officials.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Depositor is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with requisite power and
authority to execute and deliver the Agreements and to perform its
obligations thereunder.
2. The execution, delivery and performance of the Agreements have
been duly authorized by the Depositor and the Agreements have been duly
executed and delivered by the Depositor.
3. The Certificates have been duly authorized by all necessary
corporate action of the Depositor.
4. The issuance of the Certificates pursuant to the Pooling and
Servicing Agreement, the execution and delivery by the Depositor of the
Agreements, the performance by the Depositor of its obligations under the
Agreements and the consummation by the Depositor of the transactions
therein contemplated, do not conflict with or result in a breach or
violation of the Depositor's organizational documents or, to my knowledge,
conflict with or result in a breach or violation of any material indenture
agreement or instrument to which the Depositor is a party or by which it or
any of its property is bound, or any judgment, decree or order applicable
to the Depositor, of any New York State or federal court, regulatory body,
administrative agency or other governmental authority, other than potential
conflicts, breaches or violations which individually and in the aggregate
are not reasonably expected to have a material adverse effect on the
ability of the Depositor to enter into and perform its obligations under
the Agreements.
5. To my knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against the Depositor (a)
asserting the invalidity of any of the Agreements or the Certificates, (b)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by the Agreements or (c) which could
reasonably be expected to materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or
enforceability (with respect to the Depositor) of, the Agreements or the
Certificates. For purposes of the opinion set forth in this paragraph, I
have not regarded any legal or governmental actions, investigations or
proceedings to be "threatened" unless the potential litigant or
governmental authority has overtly threatened in writing to the Depositor a
present intention to initiate such proceedings.
A-2
I am a member of the Bar of the State of New York and the opinions set
forth above are limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America (in each case without regard to conflicts of laws principles).
I am not licensed to practice law in the State of Delaware, and the opinions in
paragraphs (1), (2) and (3) above as to the Delaware General Corporation Law are
based solely on standard compilations of the official statutes of Delaware. I
express no opinion as to the effect of the laws of any other jurisdiction on
matters addressed in this letter.
This letter is limited to the matters specifically addressed herein,
and I express no opinion as to any other matters relating to, or which may arise
in connection with, the consummation of the transactions contemplated by the
Agreements.
I am furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose.
Very truly yours,
A-3
ANNEX A
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Column Financial, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
XxXxxxxx Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx--00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
National Consumer Cooperative Bank
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage
000 Xxxx Xxxxxx--Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X-0
XXXXXXX X-0
FORM OF OPINION I OF SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE DEPOSITOR
November 13, 2001
Credit Suisse First Boston XxXxxxxx Investments Inc.
Mortgage Securities Corp. 000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxxx Brothers Inc.
Eleven Madison Avenue 101 Xxxxxx
New York, New York 10010 Xxxxxx Xxxx, Xxx Xxxxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
-----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("Column")
and Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor") with
respect to certain matters in connection with the following transactions
(collectively, the "Transactions"):
(i) the filing by the Depositor of a registration statement on form
S-3 (No. 333-53012) (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), for purposes of registering under
the Securities Act of 1933, as amended (the "1933 Act"), certain offerings
of mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor;
(ii) the sale by Column, and the purchase by the Depositor, of a
segregated pool of multifamily and commercial mortgage loans (collectively,
the "Column Mortgage Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of November 1, 2001 (the "Column Mortgage Loan Purchase
Agreement"), between Column as seller and the Depositor as purchaser;
(iii) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a second segregated pool of multifamily and
commercial mortgage loans (collectively, the "KeyBank Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of November 1,
2001 (the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank as
seller and the Depositor as purchaser;
(iv) the sale by National Consumer Cooperative Bank ("NCB"), and the
purchase by the Depositor, of a third segregated pool of multifamily and
commercial mortgage
B-1-1
loans (collectively, the "NCB Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement dated as of November 1, 2001 (the "NCB Mortgage
Loan Purchase Agreement"), between NCB as seller and the Depositor as
purchaser;
(v) the sale by NCB Capital Corporation ("NCBCC"), and the purchase
by the Depositor, of a fourth segregated pool of multifamily and commercial
mortgage loans (collectively, the "NCBCC Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of November 1, 2001 (the "NCBCC
Mortgage Loan Purchase Agreement"), between NCBCC as seller and the
Depositor as purchaser;
(vi) the creation of a commercial mortgage trust (the "Trust"), and
the issuance of an aggregate $1,072,782,114 Certificate Principal Balance
of Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5 (the
"Certificates"), consisting of 23 classes designated Class A-X, Class A-CP,
Class A-Y, Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class R and Class V, pursuant to the
Pooling and Servicing Agreement dated as of November 12, 2001 (the "Pooling
and Servicing Agreement"), among the Depositors as depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage ("KeyCorp") and
NCB, as master servicers, KeyCorp and NCB, as special servicers, and Xxxxx
Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
(vii) the transfer of the Column Mortgage Loans, the KeyBank
Mortgage Loans, the NCB Mortgage Loans and the NCBCC Mortgage Loans
(collectively, the "Mortgage Loans") by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates being issued to or at the direction of the Depositor; and
(viii) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB Corporation"), XxXxxxxx Investments Inc.
and Xxxxxx Brothers Inc. (collectively, in such capacity, the
"Underwriters"), of the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class
B, Class C, Class D and Class E Certificates (collectively, the "Publicly
Offered Certificates"), pursuant to the Underwriting Agreement dated as of
November 1, 2001 (the "Underwriting Agreement"), between the Depositor and
CSFB Corporation, as representative of the Underwriters.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Column Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase
Agreement, the NCB Mortgage Loan Purchase Agreement and the NCBCC Mortgage Loan
Purchase Agreement are collectively referred to herein as the "Agreements".
Capitalized terms not defined herein have the respective meanings set forth in
the Pooling and Servicing Agreement and, to the extent not defined therein, in
the other Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Registration Statement; the Prospectus, dated October 22, 2001, relating to
publicly offered mortgage pass-through certificates evidencing interests in
trust funds established by the Depositor (the "Basic Prospectus"); and the
Prospectus Supplement, dated November 1, 2001, specifically relating to the
Trust and the Publicly Offered Certificates (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"). In addition, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis
B-1-2
for rendering this letter; we have obtained such certificates from and made such
inquiries of officers and representatives of the parties to the Agreements and
public officials as we have deemed relevant or necessary as the basis for
rendering this letter; and we have relied upon, and assumed the accuracy of,
such other documents and records, such certificates and the statements made in
response to such inquiries, with respect to the factual matters upon which the
statements made in this letter are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreements, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of all parties to each of the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the due authorization by all
necessary action, and the due execution and delivery, of the Agreements by the
parties thereto, (viii) the constitution of each of the Agreements as the legal,
valid and binding obligation of each party thereto, enforceable against such
party in accordance with its terms, (ix) compliance with the Agreements by the
parties thereto, (x) the conformity, to the requirements of the Column Mortgage
Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase Agreement, the NCB
Mortgage Loan Purchase Agreement, the NCBCC Mortgage Loan Purchase Agreement and
the Pooling and Servicing Agreement, of the Mortgage Notes, the Mortgages and
the other documents delivered to the Trustee by, on behalf of, or at the
direction of, the Depositor, Column, KeyBank, NCB and NCBCC, (xi) the conformity
of the text of each document filed with the Commission through the Commission's
Electronic Data Gathering, Analysis and Retrieval System to the printed
documents reviewed by us, and (xii) the absence of any other agreement that
supplements or otherwise modifies the intentions and agreements of the parties
to the Agreements, as expressed therein. In making the statements set forth
below, we do not express any view concerning the laws of any jurisdiction other
than the federal laws of the United States of America.
We are delivering this letter in our capacity as special counsel to the
Depositor and Column. In the course of our acting in such capacity, we have
generally reviewed and discussed with certain representatives of the Depositor,
Column, the Underwriters and the other parties to the Agreements and their
respective counsel (in addition to us) the information set forth in the
Registration Statement and the Prospectus, other than any documents or
information included therein solely by incorporation by reference (all such
documents and information so incorporated by reference shall be referred to
herein as the "Excluded Information"), and we have reviewed certain loan
summaries prepared by Column in respect of the Column Mortgage Loans and, in the
case of those Column Mortgage Loans identified in the Prospectus Supplement
under the heading "Description of the Underlying Mortgage Loans--Significant
Mortgage Loans", selected provisions of the related mortgage note, the related
mortgage and certain other related mortgage loan documents. While we have made
no independent check or verification of, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing, nothing
has come to our attention that causes us to believe that (a) the Registration
Statement (exclusive of the Excluded Information therein, as to which we express
no view or belief), as of its effective date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (b) the Prospectus
(exclusive of the Excluded Information therein, as to which we express no view
or belief), as of the date of the Prospectus Supplement or as of the date
hereof, contained or contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except
B-1-3
that we express no view or belief as to (x) any financial statements, schedules
and/or other numerical, financial or statistical data set forth or referred to
therein or omitted therefrom or (y) any information contained in or omitted from
the Prospectus regarding the nature and characteristics of (i) the KeyBank
Mortgage Loans and/or the borrowers and mortgaged properties relating to the
KeyBank Mortgage Loans, (ii) the NCB Mortgage Loans and/or the borrowers and
mortgaged properties relating to the NCB Mortgage Loans or (iii) the NCBCC
Mortgage Loans and/or the borrowers and mortgaged properties relating to the
NCBCC Mortgage Loans. In that connection, we advise you that we have relied, to
the extent that we may properly do so in the discharge of our professional
responsibilities as experienced securities law practitioners, upon the judgment
and statements of officers and representatives of the Depositor, Column and the
Underwriters in connection with the determination of materiality.
When used in this letter, the term "attention" or words of similar
import mean the conscious awareness of facts or other information of the Sidley
Xxxxxx Xxxxx & Xxxx attorneys currently practicing law with this firm who have
been involved in any material respect in representing the Depositor and/or
Column in connection with the Transactions. We call to your attention that, with
your knowledge and consent, except as described above, such Sidley Xxxxxx Xxxxx
& Xxxx attorneys have not examined or otherwise reviewed any of the Mortgage
Files, any particular documents contained in such files or any other documents
with respect to the Mortgage Loans for purposes of delivering this letter.
The statements set forth herein are being made to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the views or beliefs expressed herein. This letter is being delivered
solely for the benefit of the persons to which it is addressed in connection
with the Transactions. It may not be quoted, filed with any governmental
authority or other regulatory agency or otherwise circulated or utilized for any
other purpose without our prior written consent.
Very truly yours,
X-0-0
XXXXXXX X-0
FORM OF OPINION II OF SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE DEPOSITOR
November 13, 2001
Credit Suisse First Boston Xxxxx Fargo Bank Minnesota, N.A.
Mortgage Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
XxXxxxxx Investments Inc. Standard & Poor's Ratings Services,
000 Xxxxxxxx Xxxxxx a division of The XxXxxx-Xxxx
Xxxxxxxxx, Xxxx 00000 Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. National Consumer Cooperative Bank
101 Xxxxxx 0000 Xxx Xxxxxx X.X.
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxxxxxxxxx, X.X. 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor") with respect to certain matters in connection
with the following transactions (collectively, the "Transactions"):
(i) the filing by the Depositor of a registration statement on form
S-3 (No. 333-[53012]) (the "Registration Statement") with the Securities
and Exchange Commission (the "Commission"), for purposes of registering
under the Securities Act of 1933, as amended (the "1933 Act"), certain
offerings of mortgage pass-through certificates evidencing interests in
trust funds established by the Depositor;
(ii) the sale by Column Financial Inc. ("Column"), and the purchase
by the Depositor, of a segregated pool of multifamily and commercial
mortgage loans (collectively, the "Column Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement, dated as of November 1, 2001 (the "Column
Mortgage Loan Purchase Agreement"), between Column as seller and the
Depositor as purchaser;
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(iii) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a second segregated pool of multifamily and
commercial mortgage loans (collectively, the "KeyBank Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of November 1,
2001 (the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank as
seller and the Depositor as purchaser;
(iv) the sale by National Consumer Cooperative Bank ("NCB"), and the
purchase by the Depositor, of a third segregated pool of multifamily and
commercial mortgage loans (collectively, the "NCB Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of November 1,
2001 (the "NCB Mortgage Loan Purchase Agreement"), between NCB as seller
and the Depositor as purchaser;
(v) the sale by NCB Capital Corporation ("NCBCC"), and the purchase
by the Depositor, of a fourth segregated pool of multifamily and commercial
mortgage loans (collectively, the "NCBCC Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of November 1, 2001 (the "NCBCC
Mortgage Loan Purchase Agreement") between NCBCC as seller and the
Depositor as purchaser;
(vi) the creation of a commercial mortgage trust (the "Trust"), and
the issuance of an aggregate $1,072,782,114 Certificate Principal Balance
of Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5 (the
"Certificates"), consisting of 23 classes designated Class A-X, Class A-CP,
Class A-Y, Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class R and Class V, pursuant to the
Pooling and Servicing Agreement dated as of November 12, 2001 (the "Pooling
and Servicing Agreement"), among the Depositor as depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage ("KeyCorp") and
NCB, as master servicers, KeyCorp and NCB as special servicers, and Xxxxx
Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
(vii) the transfer of the Column Mortgage Loans, the KeyBank
Mortgage Loans, the NCB Mortgage Loans and the NCBCC Mortgage Loans
(collectively, the "Mortgage Loans") by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates being issued to or at the direction of the Depositor;
(viii) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB Corporation"), XxXxxxxx Investments Inc.,
and Xxxxxx Brothers Inc. (collectively, in such capacity, the
"Underwriters") of the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class B,
Class C, Class D and Class E Certificates (collectively, the "Publicly
Offered Certificates"), pursuant to the Underwriting Agreement dated as of
November 1, 2001 (the "Underwriting Agreement"), between the Depositor and
CSFB Corporation, as representative of the Underwriters; and
(ix) the sale by the Depositor, and the purchase by CSFB Corporation
(in such capacity, the "Initial Purchaser") of the Class A-X, Class A-CP,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class R and Class V Certificates (collectively, the
"Privately Offered Certificates" and, collectively with the Publicly
Offered Certificates, the "Offered Certificates"), pursuant to the
Certificate Purchase Agreement dated as
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of November 1, 2001 (the "Certificate Purchase Agreement"), between the
Depositor and the Initial Purchaser.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the Column Mortgage Loan Purchase Agreement, the
KeyBank Mortgage Loan Purchase Agreement, the NCB Mortgage Loan Purchase
Agreement and the NCBCC Mortgage Loan Purchase Agreement are collectively
referred to herein as the "Agreements". Capitalized terms used but not defined
herein have the respective meanings set forth in the Pooling and Servicing
Agreement and, to the extent not defined therein, in the other Agreements.
For purposes of this opinion letter, we have reviewed:
(i) the Agreements;
(ii) the Registration Statement;
(iii) the Prospectus, dated October 22, 2001, relating to publicly
offered mortgage pass-through certificates evidencing interests in trust
funds established by the Depositor (the "Basic Prospectus");
(iv) the Prospectus Supplement, dated November 1, 2001, specifically
relating to the Trust and the Publicly Offered Certificates (the
"Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"); and
(v) the Confidential Offering Circular, dated November 1, 2001,
relating to the Trust and certain classes of the Privately Offered
Certificates (including all exhibits and annexes thereto, the "Confidential
Offering Circular").
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreements, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of all parties to each of the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) except as and to the extent
expressly addressed in Opinion Paragraph 7 below, the power and authority of the
parties to each of the Agreements to enter into, perform under and consummate
the transactions contemplated by such Agreement, without any resulting conflict
with or violation of the organizational documents of any such party or with or
of any law, rule, regulation, order, writ or decree applicable to any such party
or its assets, and without any resulting default under or breach of any other
agreement or instrument by which any such party is bound or which is applicable
to
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it or its assets, (viii) the due authorization by all necessary action, and the
due execution and delivery, of the Agreements by each of the parties thereto,
(ix) except as and to the extent expressly addressed in Opinion Paragraph 5
below, the constitution of each of the Agreements as the legal, valid and
binding obligation of each party thereto, enforceable against such party in
accordance with its terms, (x) compliance with the Agreements by all parties
thereto and, in the case of the Pooling and Servicing Agreement, by the
registered holders and beneficial owners of the Certificates, and (xi) the
absence of any other agreement that supplements or otherwise modifies the
intentions and agreements of the parties to the Agreements, as expressed
therein.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
When used in this opinion, the term "knowledge" or words of similar
import mean the actual knowledge of facts or other information of the attorneys
currently practicing law with this firm who have been actively involved in any
material respect in representing the Depositor in connection with the
Transactions. In that regard we have conducted no special or independent
investigation of factual matters in connection with this opinion letter.
In rendering this opinion letter, we do not express any opinion
concerning the laws of any jurisdiction other than the laws of the State of New
York and, where expressly referred to below, the
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federal laws of the United States of America (in each case without regard to
conflicts of law principles). In addition, we do not express any opinion with
respect to (i) the tax, securities or "doing business" laws of any particular
State, including, without limitation, the State of New York, or (ii) any law,
rule or regulation to which the Depositor may be subject as a result of any
other person's or entity's legal or regulatory status or any such other person's
or entity's involvement in the Transactions. Furthermore, we do not express any
opinion with respect to any matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Registration Statement has become effective under the 1933 Act.
2. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or threatened.
3. The Registration Statement, the Basic Prospectus and the Prospectus
Supplement, as of their respective effective or issue dates (other than the
financial statements, schedules and other financial and statistical information
contained therein or omitted therefrom, as to which we express no opinion),
complied as to form in all material respects with the applicable requirements of
the 1933 Act and the rules and regulations thereunder.
4. To our knowledge, there are no material contracts, indentures or
other documents relating to the Publicly Offered Certificates of a character
required to be described or referred to in the Registration Statement or the
Prospectus Supplement or to be filed as exhibits to the Registration Statement,
other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto.
5. Each of the Agreements constitutes a valid, legal and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms.
6. The Certificates, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and, in the
case of the Offered Certificates, paid for in accordance with the Underwriting
Agreement and the Certificate Purchase Agreement, will be entitled to the
benefits of the Pooling and Servicing Agreement.
7. The execution, delivery and performance of the Agreements by the
Depositor will not in any material respect conflict with or result in a
violation of any federal or State of New York statute, rule or regulation of
general applicability in transactions of the type contemplated by the
Agreements.
8. No consent, approval, authorization or order of any federal or State
of New York court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated by the terms of
the Agreements, except such as may be required under the securities laws of the
State of New York and other particular States in connection with the purchase
and the offer and sale of the Offered Certificates by the Underwriters and the
Initial Purchaser, as to which we express no opinion, and except such as have
been obtained.
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9. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended. The Trust is not required to
be registered under the Investment Company Act of 1940, as amended.
10. The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "The Pooling and
Servicing Agreement", in the Basic Prospectus under the headings "Description of
the Certificates" and "Description of the Governing Documents", and in the
Confidential Offering Circular under the heading "Transfer and Exchange;
Restrictions", insofar as such statements purport to summarize certain material
provisions of the Certificates and the Pooling and Servicing Agreement, are
accurate in all material respects.
11. The statements set forth in the Prospectus Supplement under the
headings "ERISA Considerations", "Federal Income Tax Consequences" and "Legal
Investment", in the Basic Prospectus under the headings "ERISA Considerations",
"Federal Income Tax Consequences" and "Legal Investment", and in the
Confidential Offering Circular under the headings "Certain ERISA
Considerations", "Certain Federal Income Tax Consequences" and "Legal
Investment", to the extent that they purport to describe certain matters of
federal law or legal conclusions with respect thereto, while not discussing all
possible consequences of an investment in the Certificates to all investors,
provide in all material respects an accurate summary of such matters and
conclusions set forth under such headings.
12. As described in the Prospectus Supplement and the Confidential
Offering Circular, (A) REMIC I will qualify as a real estate mortgage investment
conduit (a "REMIC") within the meaning of Sections 860A through 860G of the
Internal Revenue Code of 1986 in effect on the date hereof (the "REMIC
Provisions"), and the REMIC I Regular Interests will constitute "regular
interests" (as defined in the REMIC Provisions), and the REMIC I Residual
Interest will constitute the sole "residual interest" (as defined in the REMIC
Provisions), in REMIC I, (B) REMIC II will qualify as a REMIC within the meaning
of the REMIC Provisions, and the REMIC II Regular Interests will constitute
"regular interests", and the REMIC II Residual Interest will constitute the sole
"residual interest", in REMIC II, and (C) REMIC III will qualify as a REMIC
within the meaning of the REMIC Provisions, and the REMIC III Regular Interest
Certificates will constitute "regular interests", and the REMIC III Residual
Interest will constitute the sole "residual interest", in REMIC III.
13. The respective portions of the Trust consisting of Grantor Trust R
and Grantor Trust V will each be classified as a grantor trust under subpart E,
part I of subchapter J of the Internal Revenue Code of 1986.
14. Assuming (a) the accuracy of the respective representations and
warranties of the Initial Purchaser and the Depositor contained in the
Certificate Purchase Agreement, (b) the performance by the Initial Purchaser and
the Depositor of their respective covenants contained in the Certificate
Purchase Agreement, and (c) in the case of each investor that purchases
Privately Offered Certificates from the Initial Purchaser, the accuracy of the
deemed representations and warranties set forth under the caption "Notice to
Investors" in the Confidential Offering Circular, the offer and sale of the
Privately Offered Certificates by the Depositor to the Initial Purchaser, and by
the Initial Purchaser to investors that purchase from it, in the manner
contemplated in the Confidential Offering Circular, the Certificate Purchase
Agreement and the Pooling and Servicing Agreement, are transactions that do not
require registration of the Privately Offered Certificates under the 1933 Act.
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The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
X-0-0
XXXXXXX X-0
FORM OF LETTER OF SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE DEPOSITOR AND COLUMN
November 13, 2001
Credit Suisse First Boston Xxxxx Fargo Bank Minnesota, N.A.
Mortgage Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
XxXxxxxx Investments Inc. Standard & Poor's Ratings Services,
000 Xxxxxxxx Xxxxxx a division of The XxXxxx-Xxxx
Xxxxxxxxx, Xxxx 00000 Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxx
Xxxxxx Xxxx, XX 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"), Column Financial, Inc. ("Column") and Credit
Suisse First Boston Mortgage Capital LLC ("CSFBMC") with respect to certain
matters in connection with the following transactions (collectively, the
"Transactions"):
(i) the sale by CSFBMC, and the purchase by Column, of a segregated
pool of multifamily and commercial mortgage loans (collectively, the
"CSFBMC Mortgage Loans"), pursuant to the Mortgage Loan Purchase Agreement
dated as of November 1, 2001 (the "CSFBMC Mortgage Loan Purchase
Agreement"), between CSFBMC as seller and Column as purchaser (such
Transaction, the "CSFBMC Sale");
(ii) the sale by Column, and the purchase by the Depositor, of the
CSFBMC Mortgage Loans and certain other multifamily and commercial mortgage
loans (the CSFBMC Mortgage Loans and such other mortgage loans,
collectively, the "Column Mortgage Loans"), pursuant to the Mortgage Loan
Purchase Agreement, dated as of November 1, 2001 (the
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"Column Mortgage Loan Purchase Agreement"), between Column as seller and
the Depositor as purchaser (such Transaction, the "Column Sale");
(iii) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a second segregated pool of multifamily and
commercial mortgage loans (collectively, the "KeyBank Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of November 1,
2001 (the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank as
seller and the Depositor as purchaser (such Transaction, the "KeyBank
Sale");
(iv) the sale by National Consumer Cooperative Bank ("NCB"), and the
purchase by the Depositor, of a third segregated pool of multifamily and
commercial mortgage loans (collectively, the "NCB Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of November 1,
2001 (the "NCB Mortgage Loan Purchase Agreement"), between NCB as seller
and the Depositor as purchaser (such Transaction, the "NCB Sale");
(v) the sale by NCB Capital Corporation ("NCBCC"), and the purchase
by the Depositor, of a fourth segregated pool of multifamily and commercial
mortgage loans (collectively, the "NCBCC Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of November 1, 2001 (the "NCBCC
Mortgage Loan Purchase Agreement"), between NCBCC as seller and the
Depositor as purchaser;
(vi) the creation of a commercial mortgage trust (the "Trust"), and
the issuance of an aggregate $1,072,782,114 Certificate Principal Balance
of Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5 (the
"Certificates"), consisting of 23 classes designated Class A-X, Class A-CP,
Class A-Y, Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class A-X, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class R and Class V, pursuant
to the Pooling and Servicing Agreement dated as of November 12, 2001 (the
"Pooling and Servicing Agreement"), among the Depositor as depositor,
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage
("KeyCorp") and NCB, as master servicers, KeyCorp and NCB, as special
servicers, and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the
"Trustee");
(vii) the transfer of the Column Mortgage Loans, the KeyBank
Mortgage Loans, the NCB Mortgage Loans and the NCBCC Mortgage Loans
(collectively, the "Mortgage Loans") by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates being issued to or at the direction of the Depositor (such
Transaction, the "Transfer to the Trust");
(viii) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB Corporation"), XxXxxxxx Investments Inc.
and Xxxxxx Brothers Inc. (collectively, in such capacity, the
"Underwriters") of the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class B,
Class C, Class D and Class E Certificates (collectively, the "Publicly
Offered Certificates"), pursuant to the Underwriting Agreement dated as of
November 1, 2001 (the "Underwriting Agreement"), between the Depositor and
CSFB Corporation, as representative of the Underwriters; and
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(ix) the sale by the Depositor, and the purchase by CSFB Corporation
(in such capacity, the "Initial Purchaser") of the Class A-X, Class A-CP,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class R and Class V Certificates (collectively, the
"Privately Offered Certificates" and, collectively with the Publicly
Offered Certificates, the "Offered Certificates"), pursuant to the
Certificate Purchase Agreement dated as of November 1, 2001 (the
"Certificate Purchase Agreement"), between the Depositor and the Initial
Purchaser.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the CSFBMC Mortgage Loan Purchase Agreement, the
Column Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase
Agreement, the NCB Mortgage Loan Purchase Agreement and the NCBCC Mortgage Loan
Purchase Agreement are collectively referred to herein as the "Agreements".
Capitalized terms not defined herein have the respective meanings set forth in
the Pooling and Servicing Agreement and, to the extent not defined therein, in
the other Agreements.
We have been asked by our clients to provide our opinion to you as to
whether:
(i) in connection with any bankruptcy proceedings instituted by or
on behalf of CSFBMC under the Federal Bankruptcy Code, as amended (Title 11
of the United States Code)(the "Bankruptcy Code"), the CSFBMC Sale would be
treated by a court as a true sale of the CSFBMC Mortgage Loans from CSFBMC
to Column rather than as a loan secured by the CSFBC Mortgage Loans, such
that the CSFBMC Mortgage Loans would not, on such basis, constitute
property of CSFBMC's estate under Section 541(a)(1) of the Bankruptcy Code
or property of CSFBMC subject to the automatic stay provisions of Section
362(a) of the Bankruptcy Code that would be applicable to the property of
CSFBMC in such a proceeding;
(ii) in connection with any bankruptcy proceedings instituted by or
on behalf of Column under the Bankruptcy Code, the Column Sale would be
treated by a court as a true sale of the Column Mortgage Loans from Column
to the Depositor rather than as a loan secured by the Column Mortgage
Loans, such that the Column Mortgage Loans would not, on such basis,
constitute property of Column's estate under Section 541(a)(1) of the
Bankruptcy Code or property of Column subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of Column in such a proceeding; and
(iii) in connection with any bankruptcy proceedings instituted by or
on behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the Mortgage
Loans from the Depositor to the Trust rather than as a loan secured by the
Mortgage Loans, such that the Mortgage Loans would not, on such basis,
constitute property of the Depositor's estate under Section 541(a)(1) of
the Bankruptcy Code or property of the Depositor subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of the Depositor in such a proceeding.
For purposes of this opinion letter, we have reviewed the following
documents and all exhibits thereto (collectively, the "Relevant Documents"):
(i) the Agreements;
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(ii) a certificate of CSFBMC regarding the CSFBMC Sale, a copy of
which is attached hereto;
(iii) a certificate of Column regarding the Column Sale, a copy of
which is attached hereto;
(iv) a certificate of the Depositor regarding the Transfer to the
Trust, a copy of which is attached hereto; and
(v) a certificate of CSFB Corporation regarding its sales of the
Certificates purchased by it, a copy of which is attached hereto.
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters underlying the assumptions set forth below or that are otherwise
factually relevant to the opinions expressed herein and contained in the
Relevant Documents, (ii) the legal capacity of natural persons, (iii) the
genuineness of all signatures, (iv) the authenticity of all documents submitted
to us as originals, (v) the conformity to authentic originals of all documents
submitted to us as certified, conformed or photostatic copies, (vi) the due
organization of all parties to each of the Agreements and the valid existence of
each such party in good standing under the laws of its jurisdiction of
organization, (vii) the power and authority of the parties to each of the
Agreements to enter into, perform under and consummate the transactions
contemplated by such Agreement, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order, writ or decree applicable to any such party or its assets,
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by the parties thereto, (ix) the
constitution of each Agreement as the legal, valid and binding obligation of
each party thereto, enforceable against such party in accordance with its terms,
(x) compliance with the Agreements by all parties thereto, and (xi) the
conformity, to the requirements of the CSFBMC Mortgage Loan Purchase Agreement,
the Column Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase
Agreement, the NCB Mortgage Loan Purchase Agreement, the NCBCC Mortgage Loan
Purchase Agreement and the Pooling and Servicing Agreement, of the Mortgage
Notes, the Mortgages and the other documents delivered to the Trustee by, on
behalf of or at the direction of CSFBMC, Column, KeyBank, NCB, NCBCC and/or the
Depositor.
In addition, we have assumed that the following statements are true and
the following actions (except as otherwise indicated) have occurred on the date
hereof based upon representations or other provisions in the Relevant Documents:
B-3-4
1. CSFB Corporation either has sold, or is actively attempting and
expects to sell (on commercially reasonable terms and within a commercially
reasonable time frame), to third parties unrelated to CSFBMC, Column, the
Depositor or any of their affiliates, substantially all of the Certificates
acquired by CSFB Corporation pursuant to the Underwriting Agreement and the
Certificate Purchase Agreement.
2. The CSFBMC Sale, the Column Sale and the Transfer to the Trust,
the sale of the Offered Certificates by the Depositor to the Underwriters
and the Initial Purchaser and the transfer of the Class A-Y Certificates by
the Depositor, directly or indirectly, to NCB as partial consideration for
the NCB Mortgage Loans, as provided in the Agreements, are contemporaneous
exchanges in which CSFBMC, Column and the Depositor, respectively, receive
new value and consideration constituting at least reasonably equivalent
value and fair consideration.
3. Following the CSFBMC Sale, the Column Sale and the Transfer to
the Trust, none of CSFBMC, Column or the Depositor has the right to
unilaterally modify or alter the terms of such Transactions. The
consideration received by CSFBMC in connection with the CSFBMC Sale, by
Column in connection with the Column Sale and by the Depositor in
connection with its sales of the Offered Certificates to the Underwriters
and the Initial Purchaser are, in each case, fixed and not subject to
adjustment following the Closing Date.
4. No provision exists whereby the terms of the Certificates, the
Pooling and Servicing Agreement, the Column Mortgage Loan Purchase
Agreement or the CSFBMC Mortgage Loan Purchase Agreement may be
unilaterally modified by CSFBMC, Column or the Depositor following the
CSFBMC Sale, the Column Sale and the Transfer to the Trust.
5. Pursuant to the CSFBMC Mortgage Loan Purchase Agreement, it is
the intention of CSFBMC and Column that the CSFBMC Sale constitute a sale
by CSFBMC to Column of all of CSFBMC's right, title and interest in and to
the CSFBMC Mortgage Loans. Pursuant to the Column Mortgage Loan Purchase
Agreement, it is the intention of Column and the Depositor that the Column
Sale constitute a sale by Column to the Depositor of all of Column's right,
title and interest in and to the Column Mortgage Loans. Pursuant to the
Pooling and Servicing Agreement, it is the intention of the Depositor and
the Trustee that the Transfer to the Trust constitute an absolute transfer
by the Depositor to the Trust of all of the Depositor's right, title and
interest in and to the Mortgage Loans. Upon the sale of Certificates
representing at least 10% of the total principal balance of all the
Certificates to third parties that are not affiliated with CSFBMC, Column
or the Depositor: pursuant to the CSFBMC Mortgage Loan Purchase Agreement,
CSFBMC will treat the CSFBMC Sale as a sale (as opposed to a secured loan)
under generally accepted accounting principles in the United States
("GAAP"); pursuant to the Column Mortgage Loan Purchase Agreement, each of
Column and the Depositor will treat the Column Sale as a sale (as opposed
to a secured loan) under GAAP; and pursuant to the Pooling and Servicing
Agreement, the Underwriting Agreement and/or the Certificate Purchase
Agreement, the Depositor will treat the Transfer to the Trust and the sale
of the Offered Certificates by the Depositor to the Underwriters and the
Initial Purchaser and the transfer of the Class A-Y Certificates by the
Depositor, directly or indirectly, to NCB as a sale (as opposed to a
secured loan) under GAAP.
B-3-5
6. After the completion of the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column, the Depositor or any of
their affiliates has (i) the right to repurchase or otherwise to cause the
reconveyance to itself of any Mortgage Loan or (ii) any obligation to
repurchase or otherwise remove any Mortgage Loan from the Trust (other than
(a) in the case of CSFBMC, in connection with a material breach of certain
representations, warranties and covenants made by such party with respect
to each CSFBMC Mortgage Loan in the CSFMBC Mortgage Loan Purchase Agreement
and (b) in the case of Column, in connection with a material breach of
certain representations, warranties and covenants made by such party with
respect to each Column Mortgage Loan, in the Column Mortgage Loan Purchase
Agreement).
7. There is no agreement, arrangement or understanding, written or
otherwise (including, without limitation, with respect to the CSFBMC Sale,
the Column Sale or the Transfer to the Trust), that supplements or
otherwise modifies in any material respect the intentions and agreements of
the parties to the Agreements, as expressed therein.
8. After the completion of the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or the Depositor will take
any action inconsistent with the Trust's ownership of the Mortgage Loans.
9. Immediately before the CSFBMC Sale, CSFBMC owned the CSFBMC
Mortgage Loans free and clear of any adverse claims or other interests.
Immediately before the Column Sale, Column owned the Column Mortgage Loans
(other than the CSFBMC Mortgage Loans) free and clear of any adverse claims
or other interests. Immediately before the KeyBank Sale, KeyBank owned the
KeyBank Mortgage Loans free and clear of any adverse claims or other
interests. Immediately before the NCB Sale, NCB owned the NCB Mortgage
Loans free and clear of any adverse claims or other interests. Immediately
before the NCBCC Sale, NCBCC owned the NCBCC Loans free and clear of any
adverse claims or other interests. In connection with the KeyBank Sale,
KeyBank will have validly and effectively conveyed to the Depositor all
legal and beneficial ownership in and to each KeyBank Mortgage Loan free
and clear of any pledge, lien, charge, security interest or other
encumbrance. In connection with the NCB Sale, NCB will have validly and
effectively conveyed to the Depositor all legal and beneficial ownership in
and to each NCB Mortgage Loan free and clear of any pledge, lien, charge,
security interest or other encumbrance. In connection with the NCBCC Sale,
NCBCC will have validly and effectively conveyed to the Depositor all legal
and beneficial ownership in and to each NCBCC Mortgage Loan free and clear
of any pledge, lien, charge, security interest or other encumbrance. The
Depositor has not transferred and will not transfer its right, title and
interest in and to any Mortgage Loan except to the Trustee as contemplated
by the Pooling and Servicing Agreement (except insofar as the sale of the
Certificates by the Depositor to the Underwriters and the Initial Purchaser
and the transfer of the Class A-Y Certificates by the Depositor, directly
or indirectly, to NCB may be construed as a transfer of beneficial
interests in the Mortgage Loans). No adverse claims or other interests with
respect to any Mortgage Loan were created by or through the Depositor,
except as contemplated by the Agreements.
10. Each of CSFBMC and Column has taken all actions required under
applicable law to effectuate the CSFBMC Sale. Each of Column and the
Depositor has taken all actions required under applicable law to effectuate
the Column Sale. Each of the Depositor and
B-3-6
the Trustee has taken (or the Pooling and Servicing Agreement provides
that, within a reasonable time period following the Closing Date, each of
them will be required to take) all actions required under applicable law to
effectuate the Transfer to the Trust.
11. In connection with the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or the Depositor had any
intent to hinder, delay or defraud its present or future creditors.
12. After giving effect to the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, the value of the assets of each of CSFBMC, Column
and the Depositor, respectively, either taken at their present fair salable
value or at fair valuation, exceeded the amount of the debts and
obligations, including contingent and unliquidated debts and obligations,
of CSFBMC, Column and the Depositor, respectively.
13. After giving effect to the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or the Depositor was left
with unreasonably small assets or capital with which to engage in and
conduct its business.
14. After giving effect to the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or the Depositor intends to,
or believes that it will, incur debts or obligations beyond its ability to
pay such debts and obligations as they mature.
There is limited judicial authority relating to the issue of when a
transaction styled as a sale of assets or an absolute transfer of assets
constitutes a true sale or an absolute transfer, as the case may be, as opposed
to a secured loan, and we have not located any controlling precedent for the
transactions described herein. However, the existing case law indicates that an
analysis of a purported true sale or absolute transfer should examine the intent
of the parties as well as the economic consequences of the transaction to
determine whether they are consistent with characterization as a true sale or
absolute transfer, as the case may be. Some of the most important factors
relevant to this economic analysis include (i) whether the buyer or transferee
has assumed the risks inherent in the ownership of the assets purportedly sold
or transferred (i.e., whether the risk of loss has been borne by the buyer or
transferee), (ii) the presence (or absence) of a fixed consideration that is not
subject to further adjustment, given in connection with the purchase or
transfer, (iii) the level of recourse (if any) that the buyer or transferee has
against the seller or transferor, (iv) whether the buyer's or transferee's
rights in the acquired assets could be extinguished by repayment of a debt owed
by the seller or transferor or by the recovery of the consideration (if any)
given in connection with the purchase or transfer and (v) in what circumstances
(if any) the seller or transferor has the right or the obligation to repurchase
or otherwise reacquire the assets or any interest therein.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the Bankruptcy Code and the law of the State of
New York to the extent that it may be applicable thereunder. We do not express
any opinion on any matter not expressly addressed below.
Based upon and subject to the foregoing, the further qualifications set
forth below, and the reasoned analysis of analogous case law (although there is
no precedent directly on point), it is our opinion that:
B-3-7
1. In connection with any bankruptcy proceedings instituted by or on
behalf of CSFBMC under the Bankruptcy Code, the CSFBMC Sale would be
treated by a court as a true sale of the CSFBMC Mortgage Loans from
CSFBMC to Column, rather than as a loan secured by the CSFBMC Mortgage
Loans, such that the CSFBMC Mortgage Loans would not, on such basis,
constitute property of CSFBMC's estate under Section 541(a)(1) of the
Bankruptcy Code or property of CSFBMC subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of CSFBMC in such a proceeding.
2. In connection with any bankruptcy proceedings instituted by or on
behalf of Column under the Bankruptcy Code, the Column Sale would be
treated by a court as a true sale of the Column Mortgage Loans from
Column to the Depositor, rather than as a loan secured by the Column
Mortgage Loans, such that the Column Mortgage Loans would not, on such
basis, constitute property of Column's estate under Section 541(a)(1)
of the Bankruptcy Code or property of Column subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of Column in such a proceeding.
3. In connection with any bankruptcy proceedings instituted by or on
behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the
Mortgage Loans from the Depositor to the Trust, rather than as a loan
secured by the Mortgage Loans, such that the Mortgage Loans would not,
on such basis, constitute property of the Depositor's estate under
Section 541(a)(1) of the Bankruptcy Code or property of the Depositor
subject to the automatic stay provisions of Section 362(a) of the
Bankruptcy Code that would be applicable to the property of the
Depositor in such a proceeding.
The foregoing opinions are subject to the qualifications that (i) the
assumptions set forth herein are and continue to be true in all respects
relevant to this opinion, (ii) there are no additional facts that would affect
the validity of the assumptions set forth herein or upon which this opinion is
based, (iii) any claim contrary to or inconsistent with any opinion expressed
herein made in any judicial proceeding will be opposed and litigated to a final
resolution by one or more persons or entities with standing to do so, (iv) such
case is properly presented and argued, and (v) the law is properly applied.
The foregoing opinions are not intended to be a guaranty as to what a
particular court would actually hold, but an opinion as to the decision a court
should reach if the issue were properly presented to it and the court followed
what we believe to be the applicable legal principles. In that regard, you
should be aware that bankruptcy opinions are subject to inherent limitations
because of the pervasive equity powers of bankruptcy courts, the overriding goal
of reorganization to which other legal rights and policies may be subordinated,
the potential relevance to the exercise of judicial discretion of future-arising
facts and circumstances and the nature of the bankruptcy process.
B-3-8
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior written consent.
Very truly yours,
B-3-9
EXHIBIT C
FORM OF OPINION OF IN-HOUSE COUNSEL TO COLUMN FINANCIAL, INC.
November 13, 2001
To the Parties Listed on Annex A hereto
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5
---------------------------------------------------------------
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston
Corporation ("CSFB") and have acted as special counsel to Column Financial, Inc.
(the "Mortgage Loan Seller") in connection with certain matters relating to: (i)
the Mortgage Loan Seller's sale to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor") of certain multifamily and commercial
mortgage loans pursuant to the Mortgage Loan Purchase Agreement (the "Mortgage
Loan Purchase Agreement"), dated as of November 1, 2001, by and between the
Depositor and the Mortgage Loan Seller, and (ii) the Mortgage Loan Seller's
providing indemnities to the Depositor, CSFB, XxXxxxxx Investments Inc.
("XxXxxxxx") and Xxxxxx Brothers Inc. ("Xxxxxx"), pursuant to the
Indemnification Agreement (the "Indemnification Agreement"), dated as of
November 1, 2001, by and among the Mortgage Loan Seller, the Depositor and CSFB,
on behalf of itself and as representative of XxXxxxxx and Xxxxxx. Capitalized
terms used and not otherwise defined herein have the meanings given to them in
the Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, I have examined and relied
upon originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Indemnification Agreement and the Mortgage Loan Purchase
Agreement (together, the "Agreements"), and such certificates, corporate records
and other documents, agreements, instruments and opinions, as I have deemed
appropriate as a basis for the opinions hereinafter expressed. In connection
with such examination, I have assumed the genuineness of all signatures (other
than with respect to the Mortgage Loan Seller), the authenticity of all
documents, agreements and instruments submitted to me as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to me as copies or specimens and the
authenticity of the originals of such documents, agreements and instruments
submitted to me as copies or specimens and the accuracy of the matters set forth
in the documents, agreements and instruments I reviewed, to the extent such
matters do not constitute legal conclusions upon which I have been asked to
opine. As to any facts material to such opinions that were not known to me, I
have relied upon statements, certificates and representations of officers and
other representatives of the Depositor and the Mortgage Loan Seller and of
public officials.
Based upon and subject to the foregoing, I am of the opinion that:
C-1
1. The Mortgage Loan Seller is duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, with
requisite power and authority to execute and deliver the Agreements and to
perform its obligations thereunder.
2. The execution, delivery and performance of the Agreements have
been duly authorized by the Mortgage Loan Seller and the Agreements have
been duly executed and delivered by the Mortgage Loan Seller.
3. The execution and delivery by the Mortgage Loan Seller of the
Agreements, the performance by the Mortgage Loan Seller of its obligations
under the Agreements and the consummation by the Mortgage Loan Seller of
the transactions therein contemplated, do not conflict with or result in a
breach or violation of the Mortgage Loan Seller's organizational documents
or, to my knowledge, conflict with or result in a breach or violation of
any material indenture, agreement or instrument to which the Mortgage Loan
Seller is a party or by which it or any of its property is bound, or any
judgment, decree or order applicable to the Mortgage Loan Seller, of any
New York State or federal court, regulatory body, administrative agency or
other governmental authority, other than potential conflicts, breaches or
violations which individually and in the aggregate are not reasonably
expected to have a material adverse effect on the ability of the Mortgage
Loan Seller to enter into and perform its obligations under the Agreements.
4. To my knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against the Mortgage Loan
Seller (a) asserting the invalidity of any of the Agreements, (b) seeking
to prevent the consummation of any of the transactions contemplated by the
Agreements or (c) which could reasonably be expected to materially and
adversely affect the performance by the Mortgage Loan Seller of its
obligations under, or the validity or enforceability (with respect to the
Mortgage Loan Seller) of, the Agreements. For purposes of the opinion set
forth in this paragraph, I have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or governmental authority has overtly threatened in
writing to the Mortgage Loan Seller a present intention to initiate such
proceedings.
I am a member of the Bar of the State of New York and the opinions set
forth above are limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America (in each case without regard to conflicts of laws principles).
I am not licensed to practice law in the State of Delaware, and the opinions in
paragraphs (1) and (2) above as to the Delaware General Corporation Law are
based solely on standard compilations of the official statutes of Delaware. I
express no opinion as to the effect of the laws of any other jurisdiction on
matters addressed in this letter.
This letter is limited to the matters specifically addressed herein,
and I express no opinion as to any other matters relating to, or which may arise
in connection with, the consummation of the transaction contemplated by the
Agreements.
C-2
I am furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose.
Very truly yours,
C-3
ANNEX A
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Column Financial, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
XxXxxxxx Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx--00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
National Consumer Cooperative Bank
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage
000 Xxxx Xxxxxx--Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
C-4
EXHIBIT D
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO COLUMN FINANCIAL, INC.
November 13, 2001
Credit Suisse First Boston Xxxxx Fargo Bank Minnesota, N.A.
Mortgage Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
XxXxxxxx Investments Inc. Standard & Poor's Ratings Services,
000 Xxxxxxxx Xxxxxx a Division of The XxXxxx-Xxxx
Xxxxxxxxx, Xxxx 00000 Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. National Consumer Cooperative Bank
101 Xxxxxx 0000 Xxx Xxxxxx X.X.
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxxxxxxxxx, X.X. 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("Column")
with respect to certain matters in connection with the sale by Column, and the
purchase by Credit Suisse First Boston Mortgage Securities Corp. ("CSFBMSC"), of
a segregated pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement dated as of
November 1, 2001 (the "Agreement"), between Column and CSFBMSC.
This opinion letter is being provided to you pursuant to Section 7(vii)
of the Agreement. Capitalized terms that are used, but not defined, herein have
the respective meanings set forth in, or otherwise assigned to them pursuant to,
the Agreement.
For purposes of this opinion letter, we have reviewed the Agreement. In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained
D-1
in this letter; we have obtained such certificates from and made such inquiries
of officers and representatives of the parties to the Agreement and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreement, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of each of the parties to the
Agreement and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) except to the extent expressly
addressed by our opinions below, the power and authority of all parties to the
Agreement to enter into, perform under and consummate the transactions
contemplated by the Agreement, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order, writ or decree applicable to any such party or its assets,
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreement by the parties thereto, (ix) except to
the extent expressly addressed by our opinions below, the constitution of the
Agreement as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, and (x) the absence
of any other agreement that supplements or otherwise modifies the intentions and
agreements of the parties to the Agreement, as expressed therein.
Our opinions set forth below with respect to the enforceability of the
Agreement or any particular right or obligation under the Agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the
X-0
Xxxxx xx Xxx Xxxx; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of the Agreement that purports or is construed to provide
indemnification with respect to securities law violations.
In rendering this opinion letter, we do not express any opinion
concerning the laws of any jurisdiction other than the laws of the State of New
York and, where expressly referred to below, the federal laws of the United
States of America (without regard to conflicts of law principles). In addition,
we do not express any opinion with respect to (i) the tax, securities or "doing
business" laws of any particular jurisdiction, including, without limitation,
the State of New York, or (ii) any law, rule or regulation to which Column may
be subject as a result of any other person's or entity's legal or regulatory
status or any such other person's or entity's involvement in the transactions
contemplated by the Agreement. Furthermore, we do not express any opinion with
respect to any matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Agreement constitutes a valid, legal and binding agreement of
Column, enforceable against Column in accordance with its terms.
2. No consent, approval, authorization or order of any federal or State
of New York court or governmental agency or body is required for the
consummation by Column of the transactions contemplated by the Agreement, except
for those consents, approvals, authorizations or orders that previously have
been obtained.
3. Column's execution, delivery and performance of the Agreement will
not in any material respect conflict with or result in a material violation of
any federal or State of New York statute or regulation of general applicability
in transactions of the type contemplated by the Agreement.
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the closing of Column's sale of
the Mortgage Loans to CSFBMSC, pursuant to the Agreement, and may not be relied
on in any manner for any other purpose or by any other person or transmitted to
any other person without our prior consent.
Very truly yours,
D-3
EXHIBIT E
FORM OF OPINION OF IN-HOUSE COUNSEL TO KEYBANK AND KRECM
November 13, 2001
Xxxxx'x Investors Service, Inc. Standard & Poor's Ratings Services
00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx.
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000-0000
XxXxxxxx Investments Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxxxx Xxxxxx, 00xx Xxx. 00 Xxxxxxxx, 00xx Xxx.
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Credit Suisse First Boston Credit Suisse First Boston
Corporation Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
000 Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Series 2001-CKN5
---------------------------------------------------------------------
Ladies and Gentlemen:
As Senior Vice President and Associate General Counsel of KeyBank
National Association, a national banking association (the "Bank"), I have acted
as counsel to the Bank and to its affiliate KeyCorp Real Estate Capital Markets,
Inc. (the "Corporation"), in connection with the negotiation, execution and
delivery by the Bank and the Corporation of the agreements listed below.
In that regard, I or attorneys working under my direction have examined
and relied upon originals or copies, certified or otherwise identified to my
satisfaction as being true copies of all such records of the Bank and the
Corporation, all such agreements, certificates and other documents as I have
deemed necessary as a basis for the opinions set forth herein, including the
following agreements executed in connection with the above referenced
securities:
1. The Mortgage Loan Purchase Agreement between the Bank and Credit
Suisse First Boston Mortgage Securities Corp. ("CSFBMSC");
2. The Pooling and Servicing Agreement among the Corporation, as
General Master Servicer and General Special Servicer, National Consumer
Cooperative Bank, as Co-op Master Servicer and Co-op Special Servicer, CSFBMSC,
as Depositor, and Xxxxx Fargo Bank Minnesota, N.A., as Trustee; and
E-1
3. The Mortgage Loan Seller Indemnification Agreement among the Bank,
CSFBMSC and Credit Suisse First Boston Corporation, as Representative of the
Underwriters and Initial Purchaser.
The agreements listed in items 1 through 3 above are collectively
referenced herein as the "Agreements."
In such examination, I or such attorneys working under my direction
have assumed the genuineness of all signatures other than those signatures for
the Bank and the Corporation, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as certified or
photostatic copies. I or such attorneys have investigated such questions of law
for the purpose of rendering these opinions as I have deemed necessary.
Based on the foregoing, and subject to the limitations and
qualifications set forth below, I am of the opinion that:
(a) the Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with corporate power and authority to own its properties
and to conduct its business as now conducted by it and to enter into and
perform its obligations under the Agreements it is a party to;
(b) the Corporation has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Ohio;
(c) the Corporation has the corporate power and authority to own its
properties and to conduct its business as now conducted by it and to enter
into and perform its obligations under the Agreements it is a party to;
(d) the Agreements to which it is a party have been duly and validly
authorized, executed and delivered by each of the Bank and the Corporation;
(e) neither the execution and delivery by the Bank of the Agreements
it is a party to, nor the consummation by the Bank of the transactions
contemplated by such Agreements, nor the performance by the Bank of its
obligations thereunder will result in a material breach or violation of, or
constitute a material default under (i) the Articles of Association or
by-laws, as amended, of the Bank, (ii) the terms of applicable current
provisions of statutory law or regulation, (iii) any existing obligation of
the Bank under any indenture, agreement, or instrument actually known to
me, after reasonable investigation, which breach, violation or default
would reasonably be expected to have a material adverse effect on the
condition of the Bank, financial or otherwise, or adversely affect the
transactions contemplated by, or the Bank's performance of its obligations
under, the Agreements to which the Bank is a party, or (iv) the terms of
any order, writ, judgement or decree actually known to me after reasonable
investigation, issued by a court of competent jurisdiction and specifically
directed to the Bank or its property;
(f) neither the execution and delivery by the Corporation of the
Agreements it is a party to, nor the consummation by the Corporation of the
transactions contemplated by such
E-2
Agreements, nor the performance by the Corporation of its obligations
thereunder will result in a material breach or violation of, or constitute
a material default under (i) the Articles of Incorporation or by-laws, as
amended, of the Corporation, (ii) the terms of applicable current
provisions of statutory law or regulation, (iii) any existing obligation of
the Corporation under any indenture, agreement, or instrument actually
known to me, after reasonable investigation, which breach, violation or
default would reasonably be expected to have a material adverse effect on
the condition of the Corporation, financial or otherwise, or adversely
affect the transactions contemplated by, or the Corporation's performance
of its obligations under, the Agreements to which the Corporation is a
party, or (iv) the terms of any order, writ, judgement or decree actually
known to me after reasonable investigation, issued by a court of competent
jurisdiction and specifically directed to the Corporation or its property;
(g) no consent, approval or authorization of, or filing with, any
governmental agency or body is required of either the Bank or the
Corporation in connection with its execution, delivery and performance of
the Agreements to which it is a party, except such consents, approvals or
authorizations as have been obtained or such filings as have been made; and
(h) to my actual knowledge, after reasonable investigation, there
are no actions, proceedings or investigations pending or threatened against
the Bank or the Corporation before any court, administrative agency, or
tribunal (i) asserting the invalidity of any of the Agreements, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by any of the Agreements, or (iii) that could reasonably be expected to
materially and adversely affect the enforceability of any of the Agreements
against the Bank or the Corporation, as the case may be, or the ability of
the Bank or the Corporation, as the case may be, to perform its obligations
thereunder.
For purposes of this opinion letter, I have assumed that (i) the
Agreements have been duly executed and delivered by all parties thereto (other
than the Bank and/or the Corporation, as the case may be) and are valid and
binding upon and enforceable against such parties (other than the Bank and/or
the Corporation, as the case may be), subject to applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance and other similar laws relating to
or affecting creditors' rights generally and court decisions with respect
thereto and (ii) there has been no mutual mistake of fact or misunderstanding,
fraud, duress, or undue influence.
The opinions expressed above are limited to Federal law and the laws of
the State of Ohio.
E-3
This opinion is rendered solely to the addressees hereof, for their use
in connection with the transactions contemplated herein and may not be relied
upon for any other purpose or by any other person.
Very truly yours,
Xxxxxx X. Xxxxx
Senior Vice President and
Associate General Counsel
E-4
EXHIBIT F-1
FORM OF OPINION OF XXXXXXXXXX, XXXXXXX & XXXXX, P.C.
SPECIAL COUNSEL TO KEYBANK
November 13, 2001
Credit Suisse First Boston Mortgage Xxxxx Fargo Bank Minnesota, N.A.
Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation XxXxxxxx Investments Inc.
00 Xxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Xxxxxx Brothers Xxxxx'x Investors Service, Inc.
101 Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
-----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association
("KEY") in connection with the sale by Key, and the purchase by Credit Suisse
First Boston Mortgage Securities Corp. (the "DEPOSITOR"), of certain multifamily
and commercial mortgage loans (the "KEY LOANS") pursuant to that certain
Mortgage Loan Purchase Agreement ("MORTGAGE LOAN PURCHASE AGREEMENT") dated as
of November 1, 2001, between Key as Seller and the Depositor as Purchaser, and
further in connection with the preparation and review of the sections of the
Prospectus Supplement dated November 1, 2001 ("PROSPECTUS SUPPLEMENT") to the
Depositor's Prospectus dated October 22, 2001 ("BASE PROSPECTUS"; and together
with the Prospectus Supplement, the "PROSPECTUS") titled "Summary of Prospectus
Supplement--Relevant Parties/Entities", "Summary of Prospectus
Supplement--Significant Dates and Periods", "Summary of Prospectus
Supplement--The Underlying Mortgage Loans", "Risk Factors--Risks Related to the
Underlying Mortgage Loans", and "Description of the Underlying Mortgage Loans"
(collectively, the "PROSPECTUS SUPPLEMENT--SPECIFIED SECTIONS"), and further in
connection with the preparation and review of the sections of the Confidential
Offering
F-1-1
Circular dated November 1, 2001 (the "CONFIDENTIAL OFFERING CIRCULAR") titled
"Summary--Relevant Parties", "Summary--Significant Dates and Periods",
"Summary--The Mortgage Loans" (the "CONFIDENTIAL OFFERING CIRCULAR--SPECIFIED
SECTIONS"). Capitalized terms not otherwise defined herein are defined as set
forth in the Mortgage Loan Purchase Agreement.
The purpose of our professional engagement was to advise with respect
to legal matters and not to determine or verify facts. Many of the
determinations involved in the preparation of the Prospectus Supplement and the
Confidential Offering Circular were factual. We have not independently verified,
do not make any representation as to, and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Prospectus Supplement or the Confidential Offering Circular.
In connection with the delivery of this letter, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
the Prospectus, the Confidential Offering Circular, the Mortgage Loan Purchase
Agreement, and other such documents and records as we have deemed relevant or
necessary as the basis for the views expressed in this letter, solely with
respect to the information contained therein relating to the Key Loans. We have
obtained such certificates from and made such inquiries of officers and other
representatives of Key as we have deemed relevant or necessary as the basis of
the views expressed in this letter. We have relied upon and assumed the accuracy
of, such other documents and records, such certificates and the statements made
in response to such inquiries, with respect to the factual matters upon which
the views expressed in this letter are based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the Mortgage
Loan Purchase Agreement and underlying the assumptions set forth below or that
are otherwise factually relevant to the opinions expressed in this letter, (ii)
the legal capacity of natural persons, (iii) the genuineness of all signatures
(except for the signatures of officers of Key) and the authenticity of all
documents submitted to us as originals, (iv) the conformity to the originals of
all documents submitted to us as certified, conformed or photostatic copies, (v)
the due authorization by all necessary action, and the due execution and
delivery, of the Mortgage Loan Purchase Agreement by the parties thereto and the
constitution of the Mortgage Loan Purchase Agreement as the legal, valid and
binding obligations of each party thereto, enforceable against such party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation, and similar laws relating
to or affecting the enforceability of creditors' rights generally, the effect of
general equitable principals (in equity or at law), and the availability of
equitable remedies, (vi) the compliance with the relevant provisions of the
Mortgage Loan Purchase Agreement by the parties thereto, (vii) the conformity,
to the requirements of the Mortgage Loan Purchase Agreement, of the Mortgage
Loan Documents delivered to the Depositor by Key, (viii) the absence of any
agreement that supplements or otherwise modifies the agreements expressed in the
Mortgage Loan Purchase Agreement, and (ix) the conformity of the text of each
document filed with the Securities Exchange Commission through the XXXXX system
to the printed documents reviewed by us. In rendering this letter, we do not
express any view concerning the laws of any jurisdiction other than the federal
laws of the United States of America.
In the course of acting as special counsel to Key we have responded to
inquiries from time to time by Key's closing coordinators, reviewed
securitization questionnaires, title insurance commitments and surveys and
prepared most of the loan documents for a majority of the Key Loans. In
F-1-2
connection with the preparation of the Prospectus Supplement--Specified Sections
and the Confidential Offering Circular--Specified Sections, we met in
conferences and participated in telephone conversations with officers and
employees of Key and counsel, officers and other representatives of the
Depositor, Credit Suisse First Boston Corporation, Xxxxxx Brothers, XxXxxxxx
Investments Inc., Column Financial, Inc., National Consumer Cooperative Bank and
NCB Capital Corporation, during which conferences and telephone conversations
the contents of the Prospectus Supplement--Specified Sections and the
Confidential Offering Circular--Specified Sections were discussed. We have not
independently undertaken any procedures that were intended or likely to elicit
information concerning the accuracy, completeness or fairness of the statements
made in the Prospectus or the Confidential Offering Circular.
On the basis of the foregoing and subject to the limitations set forth
herein, nothing has come to our attention to cause us to believe that either the
Prospectus Supplement--Specified Sections or the Confidential Offering
Circular--Specified Sections, as of their respective dates or as of the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that we have not been requested
to and we do not make any comment in this paragraph with respect to (i)
financial statements, schedules or other accounting, financial, or statistical
data or other information of that nature contained in or omitted from the
Prospectus Supplement--Specified Sections or the Confidential Offering
Circular--Specified Sections, or (ii) information contained in the computer
diskette or the CD-ROM accompanying the Prospectus Supplement which we assume,
but have not verified, does not vary from and is not different in any way from
the information contained in the Prospectus Supplement). In that connection, we
advise you that, as to any facts material to the opinions expressed herein that
we have not independently established or verified, we have relied upon
statements and representations of officers and other representatives of Key and
its affiliates. In addition, in that connection we call to your attention that,
with your knowledge and consent, we have not (except as described above)
examined or otherwise reviewed any of the Mortgage Files in connection with the
transactions contemplated by the Mortgage Loan Purchase Agreement (the
"TRANSACTIONS"), any particular documents contained in such files or any other
documents with respect to the Key Loans.
We note that investors in the certificates marketed and sold pursuant
to the Confidential Offering Circular (the "PRIVATE CERTIFICATES") typically
conduct due diligence on their own behalf, including review and analysis of the
Key Loans and related information to a greater degree than we have done in the
course of our representation of Key. Consequently, they have been and/or may be
provided information regarding the Key Loans that we have not reviewed, and had
we reviewed such information something may have come to our attention that would
have lead us to believe that the Confidential Offering Circular at the date
thereof or at the date of this letter contained or contains an untrue statement
of material fact or that otherwise would have been material in connection with
evaluating an investment in the Private Certificates.
Whenever a statement herein is qualified by the phrase "come to our
attention," it is intended to indicate that, during the course of our
representation of Key, no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of those
attorneys currently in this firm who have been actively involved in representing
Key in connection with the Transactions or in connection with the origination of
any of the Key Loans being sold as part of the Transactions. However, we have
not undertaken any independent investigation to determine the
F-1-3
accuracy of any such statement, and any limited inquiry undertaken by us during
the preparation of this letter should not be regarded as such an investigation;
no inference as to our knowledge of any matters bearing on the accuracy of any
such statement should be drawn from the fact of our representation of Key.
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to the parties involved in the
Transactions and their respective counsel as part of the closing set related to
the Transactions) without our prior written approval. We disclaim any obligation
to update this letter for events occurring or coming to our attention after the
date hereof, notwithstanding that such changes may affect the views or beliefs
expressed in this letter.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
EXHIBIT F-2
FORM OF LETTER FROM XXXXXXXXXX, XXXXXXX & XXXXX, P.C.
SPECIAL COUNSEL TO KEYBANK
November 13, 2001
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Xxxxx'x Investors Service, Inc.
Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Standard & Poor's Rating Services
101 Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000-0000
XxXxxxxx Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association, a
national banking association ("Key"), in connection with the following
transactions (collectively, the "TRANSACTIONS"):
(i) the sale by Key, and the purchase by Credit Suisse First Boston
Mortgage Securities Corp. (the "DEPOSITOR") (such Transaction, the "SALE"),
of certain multifamily and commercial mortgage loans (the "MORTGAGE
LOANS"), pursuant to that certain Mortgage Loan Purchase Agreement dated as
of November 1, 2001 (the "LOAN PURCHASE AGREEMENT"), between Key as seller
and the Depositor as purchaser;
(ii) the creation of a common law trust (the "TRUST") and the
issuance of Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5
(the "CERTIFICATES"), pursuant to that certain Pooling and Servicing
Agreement dated as of November 12, 2001 (the "POOLING AND SERVICING
AGREEMENT"), among the Depositor as Depositor, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage as General Master Servicer and
General
F-2-1
Special Servicer, National Consumer Cooperative Bank as Co-op Master
Servicer and Co-op Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.
as trustee (the "TRUSTEE"); and
(iii) the transfer of the Mortgage Loans by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement in exchange for the
issuance of the Certificates at the direction of the Depositor.
The Loan Purchase Agreement and the Pooling and Servicing Agreement are
collectively referred to herein as the "AGREEMENTS". Capitalized terms not
defined in this letter have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the Loan Purchase
Agreement.
Under the terms of the Loan Purchase Agreement, Key will sell to the
Depositor, without recourse (except to the extent specified therein), all right,
title and interest of Key in and to the Mortgage Loans and the proceeds thereof.
Pursuant to the Pooling and Servicing Agreement, the Depositor will transfer the
Mortgage Loans to the Trustee, and the Trust will issue the Certificates
representing interests in the Trust. The following twenty-three classes of
Certificates representing beneficial interests in the Trust Fund will be issued
pursuant to the Pooling and Servicing Agreement: Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class A-X, Class
A-Y, Class A-CP, Class R, and Class V.
You have requested our opinion whether, in the event that the Federal
Deposit Insurance Corporation (the "FDIC") were appointed as conservator or
receiver for Key pursuant to Section 11(c) of the Federal Deposit Insurance Act
(the "FDIA"), a court, which acted reasonably and correctly applied the law to
the facts set forth herein after full consideration of all relevant factors,
would hold that the Rule (as defined herein) applies to the Sale and the
transfer of the Mortgage Loans by Key to the Depositor pursuant to the Loan
Purchase Agreement would be enforceable against Key notwithstanding the
appointment of the FDIC as conservator or receiver of Key.
ASSUMPTIONS OF FACT
In connection with this opinion, we have reviewed the Agreements and a
certificate, dated the date hereof, of an officer of Key (the "KEY
CERTIFICATE"), which certifies, to the best of such person's knowledge, inter
alia, as to certain of the matters in the immediately succeeding paragraph as of
the date hereof. This opinion is based solely upon our review of the Agreements
and such other documents, and such other investigations of law and fact, as we
have deemed necessary or advisable in connection with this opinion. Our opinion
is limited to the specific issues of federal law addressed and is further
limited in all respects, except as otherwise stated, to the facts assumed. We
express no opinion as to any other matter.
In rendering the opinions set forth herein, we have relied upon, and
assumed, without independent investigation or inquiry, the following to be true
at all relevant times:
(a) All representations and warranties set out in the Agreements, and all
statements in the Key Certificate and the certificates relating to the
Agreements or furnished in connection with the Transactions pertaining
to the transfer of the Mortgage Loans pursuant to the Agreements, are
true and correct.
F-2-2
(b) All signatures are genuine, all natural persons have the legal capacity
to execute and deliver the documents signed by them, all documents
submitted to us as originals are authentic and all documents submitted
to us as certified or photostatic copies conform in all respects to the
original documents.
(c) Each of the Agreements has been duly authorized, executed and delivered
by, and constitutes the legal, valid and binding obligation of all
parties thereto, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, conservatorship, fraudulent
transfer, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (2)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(d) The execution, delivery and performance of the Agreements by the
parties thereto do not violate any applicable law. All notices to,
filings with, and approvals of, all applicable governmental or
regulatory authorities required for the execution and delivery by Key,
the Depositor, and the Trustee of the Agreements and the performance by
Key, the Depositor, and the Trustee thereof have been obtained or made,
and are in full force and effect.
(e) Each of Key and the Depositor has taken all actions required under
applicable law to effectuate the transfer of the Mortgage Loans.
(f) There are no agreements or courses of prior dealing between any of the
parties that would alter the relationships set forth in the Agreements.
(g) The Depositor, Key, and the Trustee will at all times and in all
respects that are material to the opinions expressed in this letter
comply with all material provisions of the Agreements, as applicable.
(h) Key is a national banking association, the deposits of which are
insured by the FDIC pursuant to the provisions of the FDIA.
(i) As of the date of this opinion, Key has not violated any law or
regulation and is not in an unsafe or unsound condition that would
constitute a basis for the appointment of a conservator or receiver
pursuant to the FDIA.
(j) Key received adequate consideration, which may not be modified
subsequent to closing, for the transfer to the Depositor of the
Mortgage Loans pursuant to the Loan Purchase Agreement. Key has no
obligation to repay such consideration or any interest thereon to the
Depositor. The purchase price for the Mortgage Loans reflects the
good-faith determinations of Key and the Depositor of the fair market
value of the Mortgage Loans and is equal to the price that the parties
believe would be paid in a sale of the Mortgage Loans between other
unaffiliated parties.
(k) Each of Key, the Depositor, and the Trustee did not and will not (i)
execute the Agreements or any other agreement to which it is a party in
connection with the
F-2-3
Transactions or (ii) otherwise effectuate or consummate any transfer of
the Mortgage Loans pursuant to the Agreements or any other agreement,
in any case:
(1) in contemplation of Key's or the Depositor's insolvency;
(2) with a view to preferring one creditor of Key or the Depositor
over another or to preventing the application of Key's or the
Depositor's assets in the manner required by applicable law or
regulations;
(3) after Key or the Depositor committed an act of insolvency; or
(4) with any intent to hinder, delay, or defraud Key or the
Depositor or any of their respective creditors, the FDIC or any
other banking agency.
(l) The execution, delivery and performance of each of the Agreements and
the Transactions constitute bona fide and arm's length transactions and
were and are undertaken in the ordinary course of business of the
parties to such Agreements.
(m) Key's assets are now, and are intended to be, sufficient to pay its
ongoing business expenses as they incur and to discharge its
liabilities in the event Key must be liquidated. Key's remaining
property immediately after the Sale is not an unreasonably small amount
of capital for Key's business operations.
(n) The Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class
D, Class E, Class A-CP, Class A-X and Class A-Y Certificates are, as of
the date hereof, each rated in one of the four highest categories
assigned to long-term debt or in an equivalent short-term category by
S&P and Moody's.
(o) It is the intention of Key and the Depositor to treat the transfer of
the Mortgage Loans by Key to the Depositor pursuant to the Loan
Purchase Agreement as a sale (as set forth in Section 11 of the Loan
Purchase Agreement), and not a secured borrowing, including for
accounting purposes, and that the Sale is entered into for the sole
purpose of effectuating the Transactions under the Pooling and
Servicing Agreement.
(p) Key has irrevocably transferred the Mortgage Loans to the Depositor
pursuant to the Loan Purchase Agreement, without recourse, and has
relinquished all rights with respect to the Mortgage Loans. Key has no
obligation to deliver to the Depositor other property, either in
substitution of or in addition to the Mortgage Loans, in the event of a
credit loss or decline in value of the Mortgage Loans. The Depositor
has no right or obligation to transfer the Mortgage Loans back to Key,
and Key has no right or obligation to reacquire any of the Mortgage
Loans subsequent to the Sale.(1)
----------------------
(1) Key makes certain representations and warranties regarding the Mortgage
Loans and, under certain circumstances, may be obligated to repurchase certain
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 substitution of Mortgage Loans pursuant to this obligation would
result from the Mortgage Loans not being of the quality represented, and not
from a decline in the value of or future payment defaults on the Mortgage Loans
and does not give Key a general right to repurchase or otherwise reacquire the
Mortgage Loans or to reclaim any of the benefits of its ownership.
F-2-4
(q) All of the requirements of generally accepted accounting principles for
treating the transfer of the Mortgage Loans as a sale have been
satisfied (other than the "legal isolation" condition).
(r) Key is and shall remain a separate and distinct entity from, and shall
not commingle its assets with those of, the Depositor, the Trustee
and/or the Trust. Key does not control, is not controlled by, and is
not under common control with, directly or indirectly, the Depositor or
the Trustee.
(s) The Depositor is a Delaware corporation and is a "special purpose
entity" (as defined in 12 C.F.R. ss. 360.6(a)(5)) and, as such, is
primarily engaged in acquiring and holding (or transferring to another
"special purpose entity") financial assets, and in activities related
or incidental thereto, in connection with the issuance of beneficial
interests by the Depositor (or by another "special purpose entity" that
acquires financial assets directly or indirectly from the Depositor).
(t) The Depositor, the Trustee or other appropriate party in interest would
actively oppose any attempt to recharacterize the Mortgage Loans as
property of Key's receivership or conservatorship estate under the
FDIA.
OPINION EXPRESSED
Based on the reasoning and subject to the assumptions, qualifications
and limitations set forth in this letter, it is our opinion that in a properly
presented and decided case, a court would hold that the FDIC, if appointed as
receiver or conservator of Key pursuant to Section 11(c) of the FDIA:
(1) could not, in the exercise of its authority under 12 U.S.C. ss.
1821(e), reclaim, recover, or recharacterize as property of Key or the
receivership the Mortgage Loans that have been transferred by Key to
the Depositor pursuant to the Loan Purchase Agreement; and
(2) could not seek to avoid the Loan Purchase Agreement under 12 X.X.X.xx.
1823(e).
We wish to point out that we are giving no opinion (i) as to whether
the transfer of the Mortgage Loans by Key to the Depositor and, in turn, by the
Depositor to the Trust is a true sale or absolute conveyance, (ii) as to the
perfection or priority of any ownership interest or security interest in the
Mortgage Loans, (iii) concerning any law other than the federal laws of the
United States of America, or (iv) concerning any matter not expressly addressed
in this letter.
DISCUSSION
In an insolvency proceeding for Key, the United States Bankruptcy Code
(the "BANKRUPTCY CODE") would not apply.(2) Therefore, neither the provisions of
the Bankruptcy Code that impact the right of a secured creditor to liquidate
collateral nor the provisions of Section 547 of the Bankruptcy Code concerning
"preferential" transfers would apply in the event of the insolvency of Key. The
FDIC is authorized under Sections 11(c)(1) and (2) of the FDIA to accept
appointment as conservator, and is required to be appointed as receiver, for a
federal savings bank such as Key.
---------------------------------------
(2) 11 U.S.C.ss.ss.109(b)(2) and (d).
F-2-5
Our opinions above rely on the FDIC's rule regarding the treatment by
the FDIC, as receiver or conservator of an insured depository institution, of
financial assets transferred by the institution in connection with a
securitization or participation (the "RULE").(3) If the Rule is applicable to
the Sale, the FDIC will not use its authority to disaffirm or repudiate the Loan
Purchase Agreement to reclaim, recover or recharacterize the Mortgage Loans as
property of Key. As of the date of this opinion, the Rule has not been modified
or repealed, and we are not aware of any reported judicial decision that
questions the validity of the Rule.
For the Sale to be covered by the Rule, the Sale must involve the (1)
transfer of financial assets (2) in connection with a securitization or
participation.(4) The first element is satisfied because the Sale is a transfer
of the Mortgage Loans, each of which "conveys to one entity a contractual right
to receive cash" and therefore qualifies as a "financial asset." (5)
The second element requires a determination of whether the Sale is "in
connection with a securitization or participation."(6) In our analysis we are
relying on the Rule's treatment of transfers in connection with a
securitization. We have found no case law that interprets the phrase "in
connection with a securitization" under the Rule. The Rule states that a
"securitization" means the issuance by a special purpose entity of beneficial
interests, the most senior class of which is rated in one of the four highest
rating categories by one or more nationally recognized statistical rating
organizations or which are sold in transactions not involving any public
offering or in transactions exempt from registration pursuant to Regulation S
under the Securities Act.(7)
The Sale is an integral part of the Transactions and is entered into
for the sole purpose of effectuating the Transactions under the Pooling and
Servicing Agreement. In connection with the Transactions, pursuant to the Loan
Purchase Agreement Key will transfer the Mortgage Loans to the Depositor, which
we have assumed to be a "special purpose entity" under the Rule. Pursuant to the
Pooling and Servicing Agreement, the Depositor will then immediately sell the
Mortgage Loans to the Trust, and the Trust will contemporaneously issue
beneficial interests in the form of the Certificates for public and private
sale. Key and the Depositor will engage in the Sale transaction for the sole
purpose of effectuating the creation of the Trust and the issuance of the
Certificates pursuant to the Pooling and Servicing Agreement. For these reasons,
we believe that a court would hold that the Sale is "in connection with" the
Transactions.
For the Transactions to constitute a "securitization" under the Rule,
the Trust must be a "special purpose entity," as defined by the Rule. The Rule
defines "special purpose entity" to mean:
----------------------
(3) See Treatment by the FDIC as Conservator or Receiver of Financial Assets
Transferred by an Insured Depository Institution in Connection With a
Securitization or Participation, 65 Fed. Reg. 49,189 (2000) (codified at 12
C.F.R. ss. 360.6).
(4) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(b)).
(5) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(a)(2)).
(6) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(b)).
(7) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(a)(4)(i)).
F-2-6
a trust . . . or other entity demonstrably distinct from the insured
depository institution that is primarily engaged in acquiring and
holding (or transferring to another special purpose entity) financial
assets, and in activities related or incidental thereto, in connection
with the issuance by such special purpose entity (or by another
special purpose entity that acquires financial assets directly or
indirectly from such special purpose entity) of beneficial
interests.(8)
The Trust is a trust established upon effectuation of the Transactions
under the laws of New York pursuant to the Pooling and Servicing Agreement. Key
does not control, is not controlled by, nor is it under common control with, the
Trustee or the Trust. Although a subsidiary of Key will act as a master servicer
and special servicer of the Trust's assets for the benefit of the Trustee and
the Certificateholders, the ultimate decision-making authority permitted under
the Pooling and Servicing Agreement is vested in the Trustee and the
Certificateholders or is otherwise limited or dictated by the terms of the
Pooling and Servicing Agreement, as set forth in the Pooling and Servicing
Agreement. Key will not share in the ownership of any of the principal assets of
the Trust. Neither Key nor the Trust will commingle any of its assets with the
other. Moreover, the documents evidencing the principal assets of the Trust, the
Mortgage Notes and related Mortgage Files, will be assigned to and physically
delivered into the possession of the Trustee, or a custodian appointed by the
Trustee (which custodian may not, as set forth in the Pooling and Servicing
Agreement, be Key or an affiliate of Key). Although the Rule does not provide
any guidance regarding the circumstances under which a special purpose entity is
"demonstrably distinct" from a depository institution, we believe that the facts
set forth above demonstrate that the Trust is an entity distinct from Key.
The Trust will be primarily engaged in acquiring and holding financial
assets and in activities related or incidental thereto, in connection with the
issuance of beneficial interests, which in this case are the Certificates. The
Certificates fall within the Rule's definition of "beneficial interests" because
they will be issued by the Trust and will entitle the Certificateholders to
receive payments that depend primarily on the cash flow from the Mortgage Loans
owned by the Trust. For the foregoing reasons, the Trust appears to satisfy the
definition of a "special purpose entity" under the Rule.
The other requirement for the Transactions to constitute a
securitization under the Rule is also met because the most senior class of
securities issued in the Transactions are rated in one of the four highest
categories assigned to long-term debt or in an equivalent short-term category by
S&P and Xxxxx'x, which are nationally recognized statistical rating
organizations.(9) Although the Rule does not define the phrase "nationally
recognized statistical rating organizations," this phrase is used by the FDIC,
other bank regulatory agencies and the Securities and Exchange Commission in
several regulations. The Securities and Exchange Commission expressly regards
S&P and Xxxxx'x (the two agencies rating the most senior classes of securities
in the Transactions) as nationally recognized statistical rating
organizations.(10) Although the Rule does not identify particular rating
agencies, we
--------------------
(8) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(a)(5)).
(9) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(a)(4)(i)).
(10) See Securities and Exchange Commission, 62 Fed. Reg. 68,018 (1997) (to be
codified at 17 C.F.R. pt. 240) and 17 C.F.R.ss.240.15c3-1(c)(2)(vi)(F). See also
Government Securities Clearing Corporation, Securities and Exchange Commission,
60 Fed. Reg. 21,014 (1995); Pacific Stock Exchange, Inc., Securities and
Exchange Commission, 59 Fed. Reg. 38,998 (1994); and Proposed Rules, Securities
and Exchange Commission, 53 Fed. Reg. 44,016 (1988) (to be codified at 17 C.F.R.
pt. 230). The Department of Labor and the Federal Reserve System also regard S&P
and Xxxxx'x as nationally recognized statistical rating organizations. See
Prohibited Transaction Exemptions 2000-25, et al., Department of Labor, 65 Fed.
Reg. 35,129 (2000); and Proposed Rules, Federal Reserve System, 53 Fed. Reg.
14,812 (1988) (to be codified at 12 C.F.R. pt. 220).
F-2-7
believe that a court would hold that S&P and Moody's are nationally recognized
statistical rating organizations, either on the basis of the Securities and
Exchange Commission's statements or otherwise.
Furthermore, the Rule is not applicable to the Transactions unless the
Sale meets the criteria of a sale under generally accepted accounting principles
(other than the "legal isolation" condition)(11), Key received adequate
consideration for the transfer of the Mortgage Loans, and the Transaction
documents reflect the intent of Key and the Depositor to treat the Sale as a
sale and not as a secured borrowing.(12) The Loan Purchase Agreement reflects
the intent of parties to treat the Sale as a sale and not as a secured
borrowing, and we have assumed, based on the Key Certificate, that, except for
the "legal isolation" condition, the requirements of generally accepted
accounting principles for treating the Sale as a sale have been satisfied, and
the consideration received by Key at the time of the transfer is adequate.
OTHER QUALIFICATIONS
The foregoing opinion is subject to the following qualifications:
If Key were to become a debtor under the FDIA and the FDIC were to
assert that the beneficial interest in and legal title to the Mortgage Loans
were part of Key's estate, we express no opinion as to how long the Trust would
be denied possession of the Mortgage Loans in Key's possession before the
validity of such an assertion could be finally decided. We also express no
opinion as to whether, if the FDIC were to assert that the beneficial interest
in and legal title to the Mortgage Loans were part of Key's receivership estate,
a court would permit Key to use collections of the Mortgage Loans in Key's
possession without the consent of the Trustee either before deciding the issue
or pending appeal after a decision adverse to the Trust.
We express no opinion as to the availability or effect of a preliminary
injunction, temporary restraining order or other such temporary relief affording
delay pending a determination on the merits; by such reservation, however, we do
not imply that we have undertaken any analysis to determine whether any such
equitable relief would ultimately be available to prevent enforcement of the
transaction.
We express no opinion with respect to the power of the FDIC, as
receiver or conservator, to disaffirm or repudiate any agreement (including, but
not limited to, the Loan Purchase Agreement) to the extent it imposes continuing
obligations or duties upon Key in receivership or conservatorship.
We express no opinion herein as to whether any transfer or obligation
is avoidable as a preference or fraudulent transfer.
--------------------------
(11) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(b)).
(12) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(c)).
F-2-8
The opinions are subject to the effect of general principles of equity,
including (without limitation) concepts of materiality, reasonableness, good
faith and fair dealing, and other similar doctrines affecting the enforceability
of agreements generally (regardless of whether considered in a proceeding in
equity or at law).
We express no opinion as to compliance or the effect of noncompliance
by the Trustee with any state or federal laws or regulations applicable to it in
connection with the transactions described in the Pooling and Servicing
Agreement.
We express no opinion with respect to the enforceability of any
Mortgage Loan or the existence of any claims, rights, defenses, counterclaims or
objections in favor of the mortgagor thereon that can be asserted against or are
effective against Key, the Depositor, the Trustee or the Certificateholders. We
note that unless the mortgagor with respect to a Mortgage Loan has received
notice of the assignment thereof (such notice not being contemplated by the Loan
Purchase Agreement), bona fide payments made by such mortgagor to Key or a
second assignee of such Mortgage Loan shall discharge such mortgagor's
obligations to the extent of such payment, and such payment will only be
recoverable from Key or, in certain cases, from such second assignee, as the
case may be.
We have assumed that there are no agreements (other than the
Agreements) prohibiting, restricting or conditioning the assignment of any
portion of the Mortgage Notes.
We express no opinion as to the ability of the FDIC, as conservator or
receiver, to transfer the Loan Purchase Agreement without any approval or
consent of the parties, pursuant to 12 U.S.C. ss. 1821(d)(2)(G).
The foregoing analysis and its conclusions are premised upon, and
limited to, the law and the structure of the proposed Transactions in effect as
of the date of this letter. We do not assume responsibility for updating this
opinion letter as of any date subsequent to the date of this opinion letter, and
assume no responsibility for advising you of (i) the discovery subsequent to the
date of this opinion letter of factual information not previously known to us
pertaining to the events occurring prior to the date of this opinion letter or
(ii) the amendment or repeal of the Rule after the date of this opinion letter.
Furthermore, we note that a court's decision regarding matters upon which we
opine herein is based on the court's own analysis and interpretation of the
factual evidence before the court, and applicable legal principles.
F-2-9
This opinion is solely for the benefit of the addressees and should not
relied on by any other person. It is rendered solely in connection with the
Transactions. It may not be quoted, in whole or in part, or otherwise referred
to or used by you for any purpose, nor may copies hereof be delivered to any
other person (except to parties involved in the Transactions and their counsel
as part of the closing set related to the Transactions) without our prior
written consent.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
F-2-10
EXHIBIT G
FORM OF OPINION OF PHILLIPS, LYTLE, XXXXXXXXX, XXXXXX & XXXXX,
SPECIAL COUNSEL TO KEYBANK AND KRECM
November 13, 2001
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Xxxxx'x Investors Service, Inc.
Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Standard & Poor's Rating Services
101 Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000-0000
XxXxxxxx Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Pooling and Servicing Agreement among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor ("Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as General Master Servicer and General
Special Servicer, National Consumer Cooperative Bank as Co-op Master
Servicer and Co-op Special Servicer and Xxxxx Fargo Bank Minnesota,
N.A., as Trustee dated as of November 12, 2001 ("PSA")
and
Mortgage Loan Purchase Agreement between KeyBank National Association,
as Seller, and Credit Suisse First Boston Mortgage Securities Corp.,
as Purchaser dated November 1, 2001 ("MLPA" and together with the PSA,
the "Agreements")
Ladies and Gentlemen:
We have acted as special local counsel to KeyCorp Real Estate Capital
Markets, Inc. ("Company"), as General Special Servicer in connection with the
execution and delivery of the PSA, and to KeyBank National Association
("KeyBank"), as Seller in connection with the execution and delivery of the
MLPA.
G-1
In connection with rendering our opinion, we have reviewed the PSA and
the MLPA and have made such investigations of law as we have deemed necessary or
appropriate to enable us to render this opinion. As to facts material to our
opinion we have, when relevant facts were not independently established, relied
upon the representations of the Company and KeyBank in the Agreements.
In rendering the opinions expressed herein, we have assumed (i) the
genuineness of all signatures by each party; (ii) the authenticity of all
documents submitted to us as originals; (iii) the conformity to original
documents of all documents submitted to us as conformed or photostatic copies;
(iv) the conformity in all material respects of the final executed forms of the
Agreements with the versions submitted to us in draft form on November 8, 2001;
(v) the due formation and valid existence of the parties to the Agreements; and
(vi) the due authorization, execution and delivery of the Agreements by the
parties thereto, and their power and authority (including the obtaining of all
necessary permits, licenses and approvals) to execute and perform each of the
Agreements.
Based upon the foregoing assumptions and subject to the qualifications
hereinafter set forth, it is our opinion that, as of the date hereof:
1. The PSA constitutes the legal, valid and binding contract and
agreement of the Company and is enforceable in accordance with its terms.
2. The MLPA constitutes the legal, valid and binding contract and
agreement of KeyBank and is enforceable in accordance with its terms.
Our opinions concerning the enforceability of the Agreements are
subject to the qualification that:
(a) enforceability may be limited by or subject to (i) state and/or
federal bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies; (ii) an implied duty of good
faith; and (iii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable in
whole or in part, although the inclusion of such provisions does not render
any of the Agreements invalid as a whole, and the Agreements contain
legally adequate provisions for enforcing the other obligations of the
parties thereunder and for the practical realization of the principal
rights and benefits purported to be afforded thereby, subject to the
economic consequences of any judicial, administrative, or other procedural
delay in connection with such enforcement and realization.
In connection with servicing by the Company of mortgages on residential
property located in New York State, we point out that Section 6-k of the New
York Banking Law imposes certain obligations on mortgagees with respect to
casualty insurance escrow accounts, and Section 254 of the New York Real
Property Law imposes certain restrictions on the right of the mortgagee to
retain casualty insurance proceeds.
We express no opinion as to the applicability to, or effect on, the
transactions contemplated by either of the Agreements of any federal or state
securities law.
G-2
We are qualified to practice law in the State of New York and we do not
purport to be experts on, or to express any opinion herein concerning, any
matter governed by the laws of any jurisdiction other than the laws of the State
of New York and the federal law of the United States. This letter is furnished
to you solely for your benefit in connection with the transactions contemplated
by the Agreements. This opinion is not to be publicly filed, used, circulated,
quoted or otherwise relied upon by any other person or entity or, for any other
purpose, without our prior written consent.
Very truly yours,
G-3
EXHIBIT H-1
FORM OF OPINION I OF XXXXXXXX XXXXXXXXX XXXXXX XXXXXXXX & XXXXXX LLP,
SPECIAL COUNSEL TO NCB AND NCBCC
November 13, 2001
Fitch, Inc. XxXxxxxx Investments, Inc.
Xxx Xxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Standard and Poor's Ratings Services Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxx Xxxxxx 11000 Broken Xxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
Credit Suisse First Boston Mortgage Xxxxxx Brothers Inc.
Securities Corp. 101 Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Mortgage Loan Purchase Agreement between National Consumer Cooperative
Bank and Credit Suisse First Boston Mortgage Securities Corp. dated as
of November 1, 2001
Dear Sirs:
We have acted as counsel to National Consumer Cooperative Bank ("NCCB"
or the "Bank") with respect to (i) a Mortgage Loan Purchase Agreement (the
"MLPA" or the "Agreement") between NCCB and Credit Suisse First Boston Mortgage
Securities Corp. ("CSFB" or the "Purchaser"), dated as of November 1, 2001 and
(ii) a Pooling and Servicing Agreement (the "Pooling Agreement") between NCCB,
CSFB, KeyCorp Real Estate Capital Markets, Inc., ORIX Real Estate Capital
Markets, LLC and Xxxxx Fargo Bank Minnesota, N.A. dated as of November 12, 2001.
Any capitalized terms which are not expressly defined herein shall have the
meaning ascribed to them in the MLPA or the Pooling Agreement.
Pursuant to the MLPA, NCCB has agreed to sell, and CSFB has agreed to
purchase, certain mortgage loans specified therein (the "Mortgage Loans" or the
"NCCB Loans"). The MLPA provides that upon payment of the purchase price set
forth therein title to the NCCB Loans shall pass to CSFB. The consideration
payable to NCCB for the Mortgage Loans consists of (i) cash and (ii) all of the
Class A-Y Certificates issued pursuant to the Pooling Agreement. The Class A-Y
Certificates bear
H-2-1
interest at a rate, and based upon a notional amount, as more particularly
described in the Pooling Agreement.
Concurrently with the execution of the MLPA and the Pooling Agreement,
CSFB, as depositor, will transfer the NCCB Loans into a trust established under
the Pooling Agreement for the benefit of the holders of a series of pass-through
certificates to be issued pursuant to the Pooling Agreement.
The Pooling Agreement provides that NCCB is to act as master servicer
and special servicer for certain of the NCCB Loans (in these capacities, NCCB
will be referred to herein as the "Coop Master Servicer" and "Coop Special
Servicer"; and the NCCB Loans that are to be serviced by NCCB, either as Coop
Master Servicer or Coop Special Servicer, will be referred to herein,
collectively, as the "NCCB Coop Loans"). NCCB's Servicing Fee as Coop Master
Servicer will be payable monthly on a loan-by-loan basis from interest received,
will accrue at a rate of 0.10% per annum, and will be computed on the same basis
as the related NCCB Coop Loan on the Stated Principal Balance of such NCCB Coop
Loan. Additional servicing compensation in the form of (i) any and all Net
Default Charges accrued with respect to a Performing Mortgage Loan, (ii) 50% of
any and all Net Assumption Application Fees, Net Application Fees, modification
fees, extension fees, consent fees, waiver fees and fees paid in connection with
defeasance, (iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other loan
processing fees, (iv) any and all Prepayment Interest Excesses and (v) other
customary charges, in each case only to the extent actually paid by the related
Borrower, shall be retained by NCCB in its capacity as Coop Master Servicer.
NCCB as Coop Special Servicer shall receive, among other compensation,
a Special Servicing Fee with respect to each Specially Serviced Loan at a rate
of 0.25% per annum computed on the same basis as the related NCCB Coop Loan on
the Stated Principal Balance of such NCCB Coop Loan.
Neither the MLPA nor the Pooling Agreement provides for a termination,
revocation or avoidance of any transfer of the NCCB Loans by NCCB to CSFB or
provides for the retention by NCCB of any interest whatsoever in the NCCB Loans,
except that, in the event that there exists any Material Document Defect or
Material Breach with respect to any NCCB Loan, NCCB is required , pursuant to
the terms of the MLPA and Pooling Agreement, to cure such Material Document
Defect or Material Breach or repurchase such NCCB Loan at the Purchase Price.
You have requested our opinion as to whether, in a case under the
United States Bankruptcy Code (Title 11, U.S.C.) in which the Bank is the
debtor, a court would hold that the transfer of the Mortgage Loans by the Bank
to the Purchaser in the manner set forth in the Agreement would constitute an
absolute transfer of the Mortgage Loans, rather than a borrowing by the Bank
secured by the Mortgage Loans.
We have assumed that the Bank is eligible to be a debtor in a case
under the Bankruptcy Code. This opinion is based solely upon the documents
described in this opinion and our examination of such matters of law as we have
deemed necessary for purposes of rendering the opinions set forth herein.
We have examined copies of the following documents:
H-2-2
1. the MLPA;
2. the Pooling Agreement; and
3. such other documents, records, certificates and papers as we have
deemed necessary and relevant as a basis for this opinion.
To the extent we have deemed necessary and proper regarding matters of
fact not within our knowledge, we have relied without independent investigation
upon representations and warranties contained in the certificate of an officer
of the Bank provided to us, and in the MLPA, the Pooling Agreement and in all
other instruments, certificates, and agreements executed by or on behalf of NCCB
in connection with the subject transaction. The opinions set forth herein are
based solely upon the state of the law and facts existing as of the date hereof.
In rendering the opinions below, we have assumed (i) the due, proper,
authorized and complete execution and delivery of all instruments referred to
above and to the instruments referred to therein (collectively, the "Documents")
by all parties other than NCCB, and that the Documents are valid, binding and
enforceable in accordance with their respective terms against such other
parties; (ii) the genuineness of all signatures on the Documents, except those
on behalf of NCCB; (iii) that all copies of the Documents conform to the
originals thereof; (iv) that all Documents which were to have been recorded were
properly recorded and the title policies issued in connection therewith, if any,
properly reflect all recording information and the correct status of the matters
set forth therein and that all required mortgage taxes and recording charges
have been paid in full; and (v) that you have not received notice of defects,
defenses, claims or other material information which would impact on the below
opinions.
We have not examined the Mortgage Loan Documents, and we express no
opinion concerning the conformity of any of the Mortgage Loan Documents to the
requirements of the MLPA.
Based on the considerations set forth above, we have assumed the
following, without investigation:
A. The Bank will have been the sole owner of the Mortgage Loans with
full right and authority to sell the same, free and clear of any and all
pledges, liens, security interests, claims, participation interests or other
equities or encumbrances of any nature.
B. Each Mortgage Note will have been endorsed in a manner which
satisfies any requirement of endorsement in order to transfer all right, title
and interest of the party so endorsing, as noteholder or assignee thereof, in
and to that Mortgage Note. Each assignment of a Mortgage will be in recordable
form and will be sufficient to effect the assignment of and transfer to the
assignee thereunder the benefits of the assignor, as mortgagee or assignee
thereof, under each Mortgage to which such assignment relates.
C. No Mortgage Loan Document will reflect any interest which is
inconsistent with the sale and transfer of the Mortgage Loans by the Bank to the
Purchaser as provided in the MLPA.
H-2-3
D. The amount of the consideration received by the Bank upon the sale
of the Mortgage Loans to the Purchaser pursuant to the MLPA constituted
reasonably equivalent value and fair consideration for the Mortgage Loans sold,
being fair market value arrived at on an arm's length basis.
E. No fraud, mistake, breach of covenant or illegality on the part of
any party to the MLPA affecting any Mortgage Loan or otherwise in connection
with any transaction contemplated by the MLPA will have occurred.
F. No party to the MLPA has taken or will have taken prior to the
Closing Date any action which is unreasonable, arbitrary or capricious, or which
has not been in good faith or in a commercially reasonable manner, in enforcing
or attempting to enforce or performing or attempting to perform any of its
rights or obligations under any Mortgage Loan or the MLPA or the Pooling
Agreement.
G. The MLPA, the Pooling Agreement and all related documents evidence
the intention by the Bank and the Purchaser to effectuate an absolute transfer
of the Mortgage Loans. There is not, and will not be, any other agreement
between or among the Bank and the Purchaser, that supplements or otherwise
modifies the intention of such parties, as expressed in the MLPA and the Pooling
Agreement, and the agreements specifically referred to therein.
H. The Bank has an appropriate business reason for selling the Mortgage
Loans, as provided in the MLPA and the Pooling Agreement, rather than obtaining
a secured loan with the Mortgage Loans as collateral.
I. The Bank will not have any right to modify or alter the terms of the
sale of the Mortgage Loans to the Purchaser.
J. The price to be paid for the Mortgage Loans by the Purchaser to the
Bank will be paid in full at the time of the sale pursuant to the MLPA, and no
agreement or arrangement will exist which permits the modification of the
consideration for the Mortgage Loans subsequent to the date of the sale. The
Bank will have no right or obligation to repurchase any Mortgage Loan after such
sale, except: (i) in the event of a Material Document Defect or Material Breach
with respect to a Mortgage Loan, the Bank will be required, pursuant to the
terms of the MLPA and the Pooling Agreement, to cure or repurchase such Mortgage
Loan; (ii) in the event that an NCCB Coop Loan becomes a Specially Designated
Defaulted Mortgage Loan, the Bank as Coop Special Servicer will have the right
but not the obligation to purchase such loan; and (iii) the Bank may, at its
option, elect to purchase all of the Loans and each REO Property remaining in
the Trust Fund by giving written notice to the Trustee and the other parties to
the Pooling Agreement within 60 days prior to the anticipated date of purchase
provided that the aggregate Stated Principal Balances of the Mortgage Pool is
less that 1.00% of the Initial Pool Balance.
K. Under generally accepted accounting principles, the Bank will report
its transfer of the Mortgage Loans to the Purchaser, pursuant to the MLPA, as a
sale of all its right, title and interest in and to the Mortgage Loans
(excluding only its right to collect the Master Servicing Fee and the Special
Servicing Fee, if appropriate). The Bank also will so report the transfer in all
filings and reports with any applicable regulatory agencies. For federal income
tax purposes, the Bank will treat the transfer of the Mortgage Loans to the
Purchaser as a sale of all its right, title and interest in and to the
H-2-4
Mortgage Loans (excluding only its right to collect the Master Servicing Fee and
the Special Servicing Fee, if appropriate).
L. The Bank will take no action which is inconsistent with the
Purchaser's ownership of the Mortgage Loans.
M. As reflected in the MLPA and the Pooling Agreement, the Bank intends
to relinquish, in the sale of the Mortgage Loans, all rights to possess, control
and monitor the Mortgage Loans, except to the extent necessary to facilitate the
performance of its obligations in its capacity as Coop Master Servicer or Coop
Special Servicer with respect to the NCCB Coop Loans under the MLPA, and except
with respect to its right to collect the Master Servicing Fee and the Special
Servicing Fee. Promptly after the closing date, there will be filed in the
appropriate recording offices, the assignments of the Mortgages by the Bank to
the Purchaser, as and to the extent required under the MLPA. The respective
obligations of the Bank and the Purchaser under the MLPA will be customary in
the industry for the type of transaction contemplated. The Master Servicing Fee
to be paid to the Coop Master Servicer is substantially equivalent to fees
currently charged for providing comparable services to the industry, and
constitutes adequate compensation which would fairly compensate a substitute
servicer should one be required, including the profit which would be demanded in
the marketplace. Under the Pooling Agreement, the Coop Master Servicer may be
terminated as Coop Master Servicer and a substitute servicer may be appointed
upon the happening of an event of default or certain other specified events.
N. The Bank will have no obligation to the Purchaser with respect to
the Mortgage Loans except for the obligations of the Bank under the MLPA, and as
Coop Master Servicer and Coop Special Servicer under the Pooling Agreement, and
the Purchaser has no other recourse or right of chargeback to the Bank with
respect to the Mortgage Loans.
SALE ANALYSIS
In considering the opinions expressed below, it should be understood
that, to our knowledge, there is no directly controlling statute or regulation
or judicial precedent. In addition, certain judicial decisions which we have
examined may be viewed as inconsistent with those opinions. Furthermore, in
determining whether a sale would be characterized as a sale or a loan, courts
have expressed divergent views on both the nature of the inquiry that a court
should make as well as the significance of a variety of factual elements.
In making a determination of whether the transfer of rights to payment,
such as notes secured by real property, is an absolute sale or a secured
borrowing, courts have examined "all the facts and circumstances surrounding the
transactions at issue." In re Golden Plan, 829 F.2d 705, 709 (9th Cir. 1986).
Accord, Major's Furniture Mart v. Castle Credit Corp., 602 F.2d 538, 544 (3rd
Cir. 1979). The courts which have addressed this issue have weighed a number of
factors in reaching their decisions, including the transfer of the risk of loss,
the transfer of the opportunity for gain, the manner in which the interest rate
received by the transferee is determined, the intent of the parties, the form of
the transaction, whether the transferor continues to service the transferred
loans, and whether the transfer is recorded.
Of these various factors, one of the most important is the transfer of
the risk of loss; that is, whether the credit risk that the notes will not be
paid by the obligors has been shifted from the transferor of the notes to the
transferee. See, e.g., In re The Xxxxxxx Co., 813 F.2d 266, 271-72 (9th
H-2-5
Cir. 1987); Golden Plan, 829 F.2d at 709-10; Major's Furniture Mart, 602 F.2d at
545; XxXxx v. Western Plains Corp., 823 F.2d 1395, 1399 (10th Cir. 1987).
Courts have held that the risk of loss is not shifted to the transferee
if the transferee has full recourse to the transferor in the event the obligors
on the notes fail to make the required payments. E.g., Xxxxxxx Co.; Major's
Furniture Mart; In re Executive Growth Investments, 40 B.R. 417 (Bankr. C.D.
Cal. 1984). In certain circumstances, limited recourse, if such limited recourse
is substantial, has been held to mean that the risk of loss has not been
shifted. E.g., In re S.O.A.W. Enterprises, 32 B.R. 279 (Bankr. W.D. Tex. 1983)
(70% recourse with guaranties); In re Hurricane Elkhorn Coal Corp. II, 19 B.R.
69 (Bankr. W.D. Ky. 1982) (20% recourse), aff'd in part & rev'd in part, 32 B.R.
737 (W.D. Ky. 1983), aff'd, 763 F.2d 188 (6th Cir. 1985).
The MLPA transfers the Bank's interests in the Mortgage Loans to the
Purchaser without recourse to the Bank. As discussed below, if obligors on the
Mortgage Loans fail to make the required payments, any resulting losses will be
borne ultimately by the Certificateholders, not the Bank. In similar
circumstances, the courts have found that the transferor no longer bears the
risk of loss. E.g., Golden Plan.
The Bank does have certain limited obligations with respect to the
Mortgage Loans, but these obligations should not be significant enough to
conclude that the risk of loss remains with the Bank. The Bank is obligated to
repurchase Mortgage Loans which, in breach of the Bank's representations and
warranties, do not have specified attributes. This obligation is designed to
ensure that the Mortgage Loans in fact have the attributes which the Bank, as
seller, represented they have. This obligation does not relate to defaults by
the obligors. Accordingly, the repurchase obligations of the Bank should not be
significant enough to conclude that the risk of loss remains with the Bank. But
see XxXxx, 832 F.2d at 1398-99 (required repurchases of mortgages may in certain
unspecified circumstances indicate that the risk of loss remained with
transferor and that the transaction is not an absolute sale).
In addition, in certain limited circumstances, the Bank, in its
capacity as Coop Master Servicer, is required to advance funds (a) so that the
Certificateholders will not suffer an interruption in anticipated distributions
on the Certificates and (b) to pay certain collection expenses. These advances
will be made only if the Coop Master Servicer believes that it will be
reimbursed from specified future collections on the NCCB Coop Loans. The Coop
Master Servicer's right to reimbursement has priority over payments to the
Certificateholders. These advances do not constitute a form of recourse, but
rather affect merely the timing of distributions to the Certificateholders.
Thus, if there are any losses, they will ultimately be borne by the
Certificateholders, not the Coop Master Servicer. See also Golden Plan, 829 F.2d
at 709-10 (advances consistent with outright sale).
A second important factor considered by the courts is whether the
opportunity for gain or loss, that is, the risk that the value of the
obligations transferred will fluctuate due to changes in the market, has been
shifted from the transferor to the transferee. If the opportunity for gain or
loss has been so shifted, the transaction is more likely to be characterized as
an absolute sale. See, e.g., In re Xxxxxxxx Aircraft Corp. (56 B.R. 339, 374-76
(Bankr. D. Minn. 1985) (aircraft), aff'd on this ground & rev'd on others, 850
F.2d 1975 (8th Cir. 1988).
The Bank has no interest in the Mortgage Loans, except in its role as
Coop Master Servicer and Coop Special Servicer. Furthermore, the Bank has no
right to obtain the return of the
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Mortgage Loans except pursuant to the limited repurchase obligations described
above. Accordingly, any change in the market value of the Mortgage Loans will
not be for the benefit or detriment of the Bank.
A third important consideration is the manner in which the interest
rate received by the transferee is determined. Xxxxxxx, 813 F.2d at 272. In
Xxxxxxx, the court ruled the transfer of mortgage notes was a secured borrowing
because, inter alia, the interest rate received by the transferees varied by
between one and six percent from the rate on the mortgage notes, and the
transferees' interest rate was based on the rate at which the transferor could
borrow funds. 813 F.2d at 272. See also S.O.A.W. Enterprises, 32 B.R. at 282
(secured loan where inter alia transferees received an interest rate higher than
that on transferred mortgage notes). Here, the Certificateholders will receive
all interest payments made on the Mortgage Loans, except that a reasonable
servicing fee will be paid to the Bank as compensation for servicing the NCCB
Coop Loans, as discussed above. (The Bank, as Coop Master Servicer, will also
receive certain additional charges under the NCCB Coop Loans, as additional
servicing compensation.) The interest rates on the Mortgage Loans are based on
the current market rates for comparable mortgage loans at the time of
origination of such Mortgage Loans. The rate of return on each Mortgage Loan is
not based on the rate at which the Bank could obtain a secured loan.
A fourth important factor is the form of the transaction. While
substance is more important than form, Major's Furniture Mart, 602 F.2d at 543,
the courts, particularly in the area of assignment of mortgages, have looked
closely at the form of the transaction. See, e.g., Golden Plan, 829 F.2d at 709;
In re Columbia Pacific Mortgage, 20 B.R. 259 (Bankr. W.D. Wash. 1981); In re
Lemons Associates, Inc., 67 B.R. 198 (Bankr. D. Nev. 1986). See also In re
Xxxxxx, Xxxxxxx & Xxxxxxxx Asset Management Corp., 67 B.R. 557, 596-98 (D.N.J.
1986) (form very important in determining whether repurchase agreement was sale
or secured loan, particularly where parties to agreement were sophisticated).
The MLPA uses the form and language of sales transactions. For
accounting and tax purposes, the Bank will treat the transfer as an absolute
sale. Except for the repurchase obligations (and the limited advance obligations
as Coop Master Servicer discussed above), the Bank has no duty to satisfy the
obligations to the Purchaser using its own funds. Instead, payments will be
received from funds generated by the Mortgage Loans. See In re Evergreen Valley
Resort, 23 B.R. 659, 661 (Bankr. D. Me. 1982) (secured loan if transferor can
use any source of funds to pay transferees rather than expected repayment from
obligors.)
After the sale pursuant to the MLPA, the Bank will have very few rights
with respect to the Mortgage Loans. Except for the repurchase obligations
described above, the Bank has no liability with respect to the Mortgage Loans.
Other than with respect to the Master Servicing Fee and the Special Servicing
Fee, the Bank has no right to payment from collections on the Mortgage Loans.
The rights the Bank retains with respect to the Mortgage Loans relate primarily
to the mechanics of administration: the right to receive notices, certain
control over the enforcement of payment obligations on behalf of the Trustee,
and other similar rights. These types of rights do not carry with them the
economic benefits or burdens of ownership.
A fifth important consideration is the intent of the parties. E.g., In
re Xxxxxxx Xxxxxxx, Inc., 65 B.R. 602, 604-05 (S.D. Fla. 1986); In re Xxxxx Xxxx
Corp., 38 B.R. 571, 575-77 (Bankr. S.D.N.Y. 1984). The MLPA provides that it is
intended that the transfer of the Mortgage Loans by the
H-2-7
Bank to the Trustee be an absolute sale rather than a secured borrowing. The
factors discussed above with respect to the form and structure of the
transaction are further evidence of this intent.
Sixth, some courts have indicated that if the transferor is the
servicer of the transferred loans, or if the transfer is not recorded, then the
transfer is more likely to be characterized as a secured borrowing. E.g., In re
Mid Atlantic Fund, 60 B.R. 604 (Bankr. S.D.N.Y. 1984); In re Xxxx Commercial
Corp., 327 F. Supp. 1315 (S.D.N.Y. 1971). Other courts have rejected this view.
E.g., Xxxxxxx, 813 F.2d at 272 (fact that transferor services mortgage loans is
consistent with absolute sale). Here, the Bank is servicing the NCCB Coop Loans.
However, all assignments of the Mortgages will be recorded, the notes will be
endorsed and the Trustee will maintain possession of the Mortgage Documents on
behalf of the Certificateholders.
Section 541(d) of the Bankruptcy Code provides:
Property in which the debtor holds, as of the commencement of the
case, only legal title and not an equitable interest, such as a
mortgage secured by real property, or an interest in such a mortgage,
sold by the debtor but as to which the debtor retains legal title to
service or supervise the servicing of such mortgage or interest,
becomes property of the estate under subsection (a) (1) or (2) of this
section only to the extent of the debtor's legal title to such
property, but not to the extent of any equitable interest in such
property that the debtor does not hold.
In enacting Section 541(d), Congress stated that its intention was to
"confirm the current status. . . of bona fide secondary mortgage market
transactions as the purchase and sale of assets. Mortgages or interests in
mortgages sold in the secondary market should not be considered as part of the
debtor's estate." S. Rep. No. 989, 95th Cong., 2d Sess. 83-84 (1978) In
particular, Congress wanted to be sure that sales of mortgage loans would not be
challenged by "trustees asserting that a sale of mortgages is a loan from the
purchaser to the seller." 124 Cong. Rec. S17,413 (daily ed. Oct. 6, 1978).
Accordingly, Congress made it clear that several factors were "irrelevant": the
fact that the transferor performed the servicing, the fact that the assignments
of mortgages were not recorded and the notes not endorsed, and the fact that the
transferor retained possession of the notes and mortgages. The transactions
contemplated by the MLPA and the Pooling Agreement are bona fide secondary
mortgage market transactions which should be protected by the principles
underlying Section 541(d), particularly where, as here, in fact the assignments
were recorded, the notes endorsed and possession of the notes and mortgages have
been transferred to the Trustee.
We are aware of the decision in Octagon Gas Systems, Inc. x. Xxxxxx (In
re Meridian Reserve, Inc.), 995 F.2d 948, 957 (10th Cir.), cert. denied, 000 X.
Xx. 000 (X.X. 1993), in which the Tenth Circuit held that "because, under
Article 9 [of the Uniform Commercial Code], a sale of accounts is treated as if
it creates a security interest in the accounts, accounts sold by a debtor prior
to filing for bankruptcy remain property of the debtor's bankruptcy estate." We
do not believe, however, that this case would be controlling with respect to the
sale of the Mortgage Loans. First, the Octagon case involved the sale of
accounts; we do not believe that the court's reasoning, even if correct with
respect to accounts, applies with equal force to the sale of mortgage loans, the
effect and recordation of which is ordinarily governed primarily by state real
property laws and not the UCC. Second, the Octagon decision appears to be at
variance with many of the authorities cited above. Third, the Octagon decision
H-2-8
is not binding on courts outside the Tenth Circuit. We note that the Bank's
principal place of business, and its principal assets, are located outside the
Tenth Circuit.
We are also aware of the decision in In re Xxxx, 24 B.R. 542, 545
(Bankr. D. Idaho 1982), in which the Court relied on Section 541(a)(6) of the
Bankruptcy Code to invalidate an assignment that was absolute under state law.
This statement by the bankruptcy court was arguably dicta, but in any event, the
better-reasoned view is that put forth by the United State Court of Appeals for
the Fifth Circuit in In re Louisiana World Exposition, 832 F.2d 1391, 1401 (5th
Cir. 1987): Section 541(a)(6) "does not give the bankrupt's estate property the
debtor would not own if it were solvent."
Based on and subject to the foregoing, as well as the further
qualification that there is no definitive judicial authority confirming the
correctness of the analysis, we are of the opinion that, should the Bank become
the debtor in a case under the Bankruptcy Code, if the matter were properly
briefed and presented to a court, the court would hold that the transfer of the
interests of the Bank in the Mortgage Loans to the Purchaser in the manner set
forth in the MLPA would constitute a sale of the Mortgage Loans and not a
borrowing by the Bank secured by the Mortgage Loans, so that the Mortgage Loans,
the payments thereunder and proceeds therefrom, would not be property of the
Bank's bankruptcy estate pursuant to Section 541(a) of the Bankruptcy Code, and
the Certificateholders' rights to the Mortgage Loans (and the collections
thereon) would not be impaired by the operation of Section 362(a) of the
Bankruptcy Code.
We note that the Bank's rights to compensation as Coop Master Servicer
and Coop Special Servicer may be property of the Bank's estate should the Bank
become a debtor. The automatic stay of Section 362(a) may apply to prohibit any
acts to obtain possession of or exercise control over such property. We note
also that the court may, on an interim basis, impose a temporary or preliminary
stay with respect to the Mortgage Loans in order to afford itself time to
ascertain the facts and apprise itself of the law. See, e.g., In re Leisure
Dynamics, 33 B.R. 171 (Bankr. D. Minn. 1983) (letter of credit).
[Remainder of this page intentionally left blank]
H-2-9
We do not express any opinion herein as to any matter not governed by
the federal laws of the United States of America and New York State Law. This
opinion is solely for benefit of the addressees and may not be relied upon or
used by, circulated, quoted, or referred to, nor any copies hereof be delivered
to, any other person without our prior written approval, provided, however, that
the opinion may be delivered to any person when required by law or any
regulatory authority. We disclaim any obligation to update this opinion letter
for events occurring or coming to our attention after the date hereof.
Very truly yours,
X-0-00
XXXXXXX X-0
XXXX XX XXXXXXX II OF XXXXXXXX XXXXXXXXX XXXXXX XXXXXXXX & XXXXXX LLP,
SPECIAL COUNSEL TO NCB AND NCBCC
November 13, 2001
Fitch, Inc. XxXxxxxx Investments, Inc.
Xxx Xxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Standard and Poor's Ratings Services Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxx Xxxxxx 11000 Broken Xxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
Credit Suisse First Boston Mortgage Xxxxxx Brothers Inc.
Securities Corp. 101 Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Mortgage Loan Purchase Agreement between
NCB Capital Corporation and Credit Suisse
First Boston Mortgage Securities Corp.
dated as of November 1, 2001
-----------------------------------------
Dear Sirs:
We have acted as counsel to NCB Capital Corporation ("NCBCC" or the
"Bank") with respect to (i) a Mortgage Loan Purchase Agreement (the "MLPA" or
the "Agreement") between NCBCC and Credit Suisse First Boston Mortgage
Securities Corp. ("CSFB" or the "Purchaser"), dated as of November 1, 2001 and
(ii) a Pooling and Servicing Agreement (the "Pooling Agreement") between
National Consumer Cooperative Bank ("NCCB"), CSFB, KeyCorp Real Estate Capital
Markets, Inc., ORIX Real Estate Capital Markets, LLC and Xxxxx Fargo Bank
Minnesota, N.A. dated as of November 12, 2001. NCBCC is a wholly owned
subsidiary of NCCB. Any capitalized terms which are not expressly defined herein
shall have the meaning ascribed to them in the MLPA or the Pooling Agreement.
Pursuant to the MLPA, NCBCC has agreed to sell, and CSFB has agreed to
purchase, certain mortgage loans specified therein (the "Mortgage Loans" or the
"NCBCC Loans"). The MLPA provides that upon payment of the purchase price set
forth therein title to the NCBCC Loans shall pass to CSFB. The consideration
payable to NCBCC for the Mortgage Loans consists of (i) cash and (ii) a portion
of the Class A-Y Certificates issued pursuant to the Pooling Agreement. The
Class A-Y
H-2-1
Certificates bear interest at a rate, and based upon a notional amount, as more
particularly described in the Pooling Agreement.
Concurrently with the execution of the MLPA and the Pooling Agreement,
CSFB, as depositor, will transfer the NCBCC Loans into a trust established under
the Pooling Agreement for the benefit of the holders of a series of pass-through
certificates to be issued pursuant to the Pooling Agreement.
The Pooling Agreement provides that NCCB is to act as master servicer
and special servicer for certain of the NCBCC Loans (in these capacities, NCCB
will be referred to herein as the "Coop Master Servicer" and "Coop Special
Servicer"; and the NCBCC Loans that are to be serviced by NCCB, either as Coop
Master Servicer or Coop Special Servicer, will be referred to herein,
collectively, as the "NCBCC Coop Loans"). NCCB's Servicing Fee as Coop Master
Servicer will be payable monthly on a loan-by-loan basis from interest received,
will accrue at a rate of 0.10% per annum, and will be computed on the same basis
as the related NCBCC Coop Loan on the Stated Principal Balance of such NCBCC
Coop Loan. Additional servicing compensation in the form of (i) any and all Net
Default Charges accrued with respect to a Performing Mortgage Loan, (ii) 50% of
any and all Net Assumption Application Fees, Net Application Fees, modification
fees, extension fees, consent fees, waiver fees and fees paid in connection with
defeasance, (iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other loan
processing fees, (iv) any and all Prepayment Interest Excesses and (v) other
customary charges, in each case only to the extent actually paid by the related
Borrower, shall be retained by NCCB in its capacity as Coop Master Servicer.
NCCB as Coop Special Servicer shall receive, among other compensation,
a Special Servicing Fee with respect to each Specially Serviced Loan at a rate
of 0.25% per annum computed on the same basis as the related NCBCC Coop Loan on
the Stated Principal Balance of such NCBCC Coop Loan.
Neither the MLPA nor the Pooling Agreement provides for a termination,
revocation or avoidance of any transfer of the NCBCC Loans by NCBCC to CSFB or
provides for the retention by NCBCC of any interest whatsoever in the NCBCC
Loans, except that, in the event that there exists any Material Document Defect
or Material Breach with respect to any NCBCC Loan, NCBCC is required , pursuant
to the terms of the MLPA and Pooling Agreement, to cure such Material Document
Defect or Material Breach or repurchase such NCBCC Loan at the Purchase Price.
You have requested our opinion as to whether, in a case under the
United States Bankruptcy Code (Title 11, U.S.C.) in which the Bank is the
debtor, a court would hold that the transfer of the Mortgage Loans by the Bank
to the Purchaser in the manner set forth in the Agreement would constitute an
absolute transfer of the Mortgage Loans, rather than a borrowing by the Bank
secured by the Mortgage Loans.
We have assumed that the Bank is eligible to be a debtor in a case
under the Bankruptcy Code. This opinion is based solely upon the documents
described in this opinion and our examination of such matters of law as we have
deemed necessary for purposes of rendering the opinions set forth herein.
We have examined copies of the following documents:
H-2-2
1. the MLPA;
2. the Pooling Agreement; and
3. such other documents, records, certificates and papers as we have
deemed necessary and relevant as a basis for this opinion.
To the extent we have deemed necessary and proper regarding matters of
fact not within our knowledge, we have relied without independent investigation
upon representations and warranties contained in the certificate of an officer
of the Bank provided to us, and in the MLPA, the Pooling Agreement and in all
other instruments, certificates, and agreements executed by or on behalf of
NCBCC in connection with the subject transaction. The opinions set forth herein
are based solely upon the state of the law and facts existing as of the date
hereof.
In rendering the opinions below, we have assumed (i) the due, proper,
authorized and complete execution and delivery of all instruments referred to
above and to the instruments referred to therein (collectively, the "Documents")
by all parties other than NCBCC, and that the Documents are valid, binding and
enforceable in accordance with their respective terms against such other
parties; (ii) the genuineness of all signatures on the Documents, except those
on behalf of NCBCC; (iii) that all copies of the Documents conform to the
originals thereof; (iv) that all Documents which were to have been recorded were
properly recorded and the title policies issued in connection therewith, if any,
properly reflect all recording information and the correct status of the matters
set forth therein and that all required mortgage taxes and recording charges
have been paid in full; and (v) that you have not received notice of defects,
defenses, claims or other material information which would impact on the below
opinions.
We have not examined the Mortgage Loan Documents, and we express no
opinion concerning the conformity of any of the Mortgage Loan Documents to the
requirements of the MLPA.
Based on the considerations set forth above, we have assumed the
following, without investigation:
A. The Bank will have been the sole owner of the Mortgage Loans with
full right and authority to sell the same, free and clear of any and all
pledges, liens, security interests, claims, participation interests or
other equities or encumbrances of any nature.
B. Each Mortgage Note will have been endorsed in a manner which
satisfies any requirement of endorsement in order to transfer all right,
title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note. Each assignment of a Mortgage will
be in recordable form and will be sufficient to effect the assignment of
and transfer to the assignee thereunder the benefits of the assignor, as
mortgagee or assignee thereof, under each Mortgage to which such assignment
relates.
C. No Mortgage Loan Document will reflect any interest which is
inconsistent with the sale and transfer of the Mortgage Loans by the Bank
to the Purchaser as provided in the MLPA.
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D. The amount of the consideration received by the Bank upon the sale
of the Mortgage Loans to the Purchaser pursuant to the MLPA constituted
reasonably equivalent value and fair consideration for the Mortgage Loans
sold, being fair market value arrived at on an arm's length basis.
E. No fraud, mistake, breach of covenant or illegality on the part of
any party to the MLPA affecting any Mortgage Loan or otherwise in
connection with any transaction contemplated by the MLPA will have
occurred.
F. No party to the MLPA has taken or will have taken prior to the
Closing Date any action which is unreasonable, arbitrary or capricious, or
which has not been in good faith or in a commercially reasonable manner, in
enforcing or attempting to enforce or performing or attempting to perform
any of its rights or obligations under any Mortgage Loan or the MLPA or the
Pooling Agreement.
G. The MLPA, the Pooling Agreement and all related documents evidence
the intention by the Bank and the Purchaser to effectuate an absolute
transfer of the Mortgage Loans. There is not, and will not be, any other
agreement between or among the Bank and the Purchaser, that supplements or
otherwise modifies the intention of such parties, as expressed in the MLPA
and the Pooling Agreement, and the agreements specifically referred to
therein.
H. The Bank has an appropriate business reason for selling the Mortgage
Loans, as provided in the MLPA and the Pooling Agreement, rather than
obtaining a secured loan with the Mortgage Loans as collateral.
I. The Bank will not have any right to modify or alter the terms of the
sale of the Mortgage Loans to the Purchaser.
J. The price to be paid for the Mortgage Loans by the Purchaser to the
Bank will be paid in full at the time of the sale pursuant to the MLPA, and
no agreement or arrangement will exist which permits the modification of
the consideration for the Mortgage Loans subsequent to the date of the
sale. The Bank will have no right or obligation to repurchase any Mortgage
Loan after such sale, except in the event of a Material Document Defect or
Material Breach with respect to a Mortgage Loan, the Bank will be required,
pursuant to the terms of the MLPA, to cure or repurchase such Mortgage
Loan. In addition, pursuant to the Pooling Agreement, NCCB may, at its
option, elect to purchase all of the Loans and each REO Property remaining
in the Trust Fund by giving written notice to the Trustee and the other
parties to the Pooling Agreement within 60 days prior to the anticipated
date of purchase provided that the aggregate Stated Principal Balances of
the Mortgage Pool is less that 1.00% of the Initial Pool Balance.
K. Under generally accepted accounting principles, the Bank will report
its transfer of the Mortgage Loans to the Purchaser, pursuant to the MLPA,
as a sale of all its right, title and interest in and to the Mortgage
Loans. The Bank also will so report the transfer in all filings and reports
with any applicable regulatory agencies. For federal income tax purposes,
the Bank will treat the transfer of the Mortgage Loans to the Purchaser as
a sale of all its right, title and interest in and to the Mortgage Loans.
(excluding only its right to collect the Master Servicing Fee and the
Special Servicing Fee, if appropriate).
H-2-4
L. The Bank will take no action which is inconsistent with the
Purchaser's ownership of the Mortgage Loans.
M. As reflected in the MLPA, the Bank intends to relinquish, in the
sale of the Mortgage Loans, all rights to possess, control and monitor the
Mortgage Loans. Promptly after the closing date, there will be filed in the
appropriate recording offices, the assignments of the Mortgages by the Bank
to the Purchaser, as and to the extent required under the MLPA. The
respective obligations of the Bank and the Purchaser under the MLPA will be
customary in the industry for the type of transaction contemplated.
N. The Bank will have no obligation to the Purchaser with respect to
the Mortgage Loans except for the obligations of the Bank under the MLPA,
and the Purchaser has no other recourse or right of chargeback to the Bank
with respect to the Mortgage Loans.
SALE ANALYSIS
In considering the opinions expressed below, it should be understood
that, to our knowledge, there is no directly controlling statute or regulation
or judicial precedent. In addition, certain judicial decisions which we have
examined may be viewed as inconsistent with those opinions. Furthermore, in
determining whether a sale would be characterized as a sale or a loan, courts
have expressed divergent views on both the nature of the inquiry that a court
should make as well as the significance of a variety of factual elements.
In making a determination of whether the transfer of rights to payment,
such as notes secured by real property, is an absolute sale or a secured
borrowing, courts have examined "all the facts and circumstances surrounding the
transactions at issue." In re Golden Plan, 829 F.2d 705, 709 (9th Cir. 1986).
Accord, Major's Furniture Mart v. Castle Credit Corp., 602 F.2d 538, 544 (3rd
Cir. 1979). The courts which have addressed this issue have weighed a number of
factors in reaching their decisions, including the transfer of the risk of loss,
the transfer of the opportunity for gain, the manner in which the interest rate
received by the transferee is determined, the intent of the parties, the form of
the transaction, whether the transferor continues to service the transferred
loans, and whether the transfer is recorded.
Of these various factors, one of the most important is the transfer of
the risk of loss; that is, whether the credit risk that the notes will not be
paid by the obligors has been shifted from the transferor of the notes to the
transferee. See, e.g., In re The Xxxxxxx Co., 813 X.0x 000, 000-00 (0xx Xxx.
1987); Golden Plan, 829 F.2d at 709-10; Major's Furniture Mart, 602 F.2d at 545;
XxXxx v. Western Plains Corp., 823 F.2d 1395, 1399 (10th Cir. 1987).
Courts have held that the risk of loss is not shifted to the transferee
if the transferee has full recourse to the transferor in the event the obligors
on the notes fail to make the required payments. E.g., Xxxxxxx Co.; Major's
Furniture Mart; In re Executive Growth Investments, 40 B.R. 417 (Bankr. C.D.
Cal. 1984). In certain circumstances, limited recourse, if such limited recourse
is substantial, has been held to mean that the risk of loss has not been
shifted. E.g., In re S.O.A.W. Enterprises, 32 B.R. 279 (Bankr. W.D. Tex. 1983)
(70% recourse with guaranties); In re Hurricane Elkhorn Coal Corp. II, 19 B.R.
69 (Bankr. W.D. Ky. 1982) (20% recourse), aff'd in part & rev'd in part, 32 B.R.
737 (W.D. Ky. 1983), aff'd, 763 F.2d 188 (6th Cir. 1985).
H-2-5
The MLPA transfers the Bank's interests in the Mortgage Loans to the
Purchaser without recourse to the Bank. As discussed below, if obligors on the
Mortgage Loans fail to make the required payments, any resulting losses will be
borne ultimately by the Certificateholders, not the Bank. In similar
circumstances, the courts have found that the transferor no longer bears the
risk of loss. E.g., Golden Plan.
The Bank does have certain limited obligations with respect to the
Mortgage Loans, but these obligations should not be significant enough to
conclude that the risk of loss remains with the Bank. The Bank is obligated to
repurchase Mortgage Loans which, in breach of the Bank's representations and
warranties, do not have specified attributes. This obligation is designed to
ensure that the Mortgage Loans in fact have the attributes which the Bank, as
seller, represented they have. This obligation does not relate to defaults by
the obligors. Accordingly, the repurchase obligations of the Bank should not be
significant enough to conclude that the risk of loss remains with the Bank. But
see XxXxx, 832 F.2d at 1398-99 (required repurchases of mortgages may in certain
unspecified circumstances indicate that the risk of loss remained with
transferor and that the transaction is not an absolute sale).
A second important factor considered by the courts is whether the
opportunity for gain or loss, that is, the risk that the value of the
obligations transferred will fluctuate due to changes in the market, has been
shifted from the transferor to the transferee. If the opportunity for gain or
loss has been so shifted, the transaction is more likely to be characterized as
an absolute sale. See, e.g., In re Xxxxxxxx Aircraft Corp. (56 B.R. 339, 374-76
(Bankr. D. Minn. 1985) (aircraft), aff'd on this ground & rev'd on others, 850
F.2d 1975 (8th Cir. 1988).
The Bank has no interest in the Mortgage Loans. Furthermore, the Bank
has no right to obtain the return of the Mortgage Loans except pursuant to the
limited repurchase obligations described above. Accordingly, any change in the
market value of the Mortgage Loans will not be for the benefit or detriment of
the Bank.
A third important consideration is the manner in which the interest
rate received by the transferee is determined. Xxxxxxx, 813 F.2d at 272. In
Xxxxxxx, the court ruled the transfer of mortgage notes was a secured borrowing
because, inter alia, the interest rate received by the transferees varied by
between one and six percent from the rate on the mortgage notes, and the
transferees' interest rate was based on the rate at which the transferor could
borrow funds. 813 F.2d at 272. See also S.O.A.W. Enterprises, 32 B.R. at 282
(secured loan where inter alia transferees received an interest rate higher than
that on transferred mortgage notes). Here, the Certificateholders will receive
all interest payments made on the Mortgage Loans, except that a reasonable
servicing fee will be paid to NCCB as compensation for servicing the NCBCC Coop
Loans, as discussed above. (NCCB, as Coop Master Servicer, will also receive
certain additional charges under the NCBCC Coop Loans, as additional servicing
compensation.) The interest rates on the Mortgage Loans are based on the current
market rates for comparable mortgage loans at the time of origination of such
Mortgage Loans. The rate of return on each Mortgage Loan is not based on the
rate at which the Bank could obtain a secured loan.
A fourth important factor is the form of the transaction. While
substance is more important than form, Major's Furniture Mart, 602 F.2d at 543,
the courts, particularly in the area of assignment of mortgages, have looked
closely at the form of the transaction. See, e.g., Golden Plan, 829 F.2d at 709;
In re Columbia Pacific Mortgage, 20 B.R. 259 (Bankr. W.D. Wash. 1981); In re
Lemons
H-2-6
Associates, Inc., 67 B.R. 198 (Bankr. D. Nev. 1986). See also In re Xxxxxx,
Xxxxxxx & Xxxxxxxx Asset Management Corp., 67 B.R. 557, 596-98 (D.N.J. 1986)
(form very important in determining whether repurchase agreement was sale or
secured loan, particularly where parties to agreement were sophisticated).
The MLPA uses the form and language of sales transactions. For
accounting and tax purposes, the Bank will treat the transfer as an absolute
sale. Except for the repurchase obligations, the Bank has no duty to satisfy the
obligations to the Purchaser using its own funds. Instead, payments will be
received from funds generated by the Mortgage Loans. See In re Evergreen Valley
Resort, 23 B.R. 659, 661 (Bankr. D. Me. 1982) (secured loan if transferor can
use any source of funds to pay transferees rather than expected repayment from
obligors.)
After the sale pursuant to the MLPA, the Bank will have very few rights
with respect to the Mortgage Loans. Except for the repurchase obligations
described above, the Bank has no liability with respect to the Mortgage Loans.
The Bank has no right to payment from collections on the Mortgage Loans.
A fifth important consideration is the intent of the parties. E.g., In
re Xxxxxxx Xxxxxxx, Inc., 65 B.R. 602, 604-05 (S.D. Fla. 1986); In re Xxxxx Xxxx
Corp., 38 B.R. 571, 575-77 (Bankr. S.D.N.Y. 1984). The MLPA provides that it is
intended that the transfer of the Mortgage Loans by the Bank to the Trustee be
an absolute sale rather than a secured borrowing. The factors discussed above
with respect to the form and structure of the transaction are further evidence
of this intent.
Sixth, some courts have indicated that if the transferor is the
servicer of the transferred loans, or if the transfer is not recorded, then the
transfer is more likely to be characterized as a secured borrowing. E.g., In re
Mid Atlantic Fund, 60 B.R. 604 (Bankr. S.D.N.Y. 1984); In re Xxxx Commercial
Corp., 327 F. Supp. 1315 (S.D.N.Y. 1971). Other courts have rejected this view.
E.g., Xxxxxxx, 813 F.2d at 272 (fact that transferor services mortgage loans is
consistent with absolute sale). Here, NCCB, the parent of the Bank, is servicing
the NCBCC Coop Loans. However, all assignments of the Mortgages will be
recorded, the notes will be endorsed and the Trustee will maintain possession of
the Mortgage Documents on behalf of the Certificateholders.
Section 541(d) of the Bankruptcy Code provides:
Property in which the debtor holds, as of the commencement of the
case, only legal title and not an equitable interest, such as a
mortgage secured by real property, or an interest in such a mortgage,
sold by the debtor but as to which the debtor retains legal title to
service or supervise the servicing of such mortgage or interest,
becomes property of the estate under subsection (a) (1) or (2) of this
section only to the extent of the debtor's legal title to such
property, but not to the extent of any equitable interest in such
property that the debtor does not hold.
In enacting Section 541(d), Congress stated that its intention was to
"confirm the current status. . . of bona fide secondary mortgage market
transactions as the purchase and sale of assets. Mortgages or interests in
mortgages sold in the secondary market should not be considered as part of the
debtor's estate." S. Rep. No. 989, 95th Cong., 2d Sess. 83-84 (1978) In
particular, Congress wanted to be sure that sales of mortgage loans would not be
challenged by "trustees asserting that a sale of
H-2-7
mortgages is a loan from the purchaser to the seller." 124 Cong. Rec. S17,413
(daily ed. Oct. 6, 1978). Accordingly, Congress made it clear that several
factors were "irrelevant": the fact that the transferor performed the servicing,
the fact that the assignments of mortgages were not recorded and the notes not
endorsed, and the fact that the transferor retained possession of the notes and
mortgages. The transactions contemplated by the MLPA and the Pooling Agreement
are bona fide secondary mortgage market transactions which should be protected
by the principles underlying Section 541(d), particularly where, as here, in
fact the assignments were recorded, the notes endorsed and possession of the
notes and mortgages have been transferred to the Trustee.
We are aware of the decision in Octagon Gas Systems, Inc. x. Xxxxxx (In
re Meridian Reserve, Inc.), 995 F.2d 948, 957 (10th Cir.), cert. denied, 000 X.
Xx. 000 (X.X. 1993), in which the Tenth Circuit held that "because, under
Article 9 [of the Uniform Commercial Code], a sale of accounts is treated as if
it creates a security interest in the accounts, accounts sold by a debtor prior
to filing for bankruptcy remain property of the debtor's bankruptcy estate." We
do not believe, however, that this case would be controlling with respect to the
sale of the Mortgage Loans. First, the Octagon case involved the sale of
accounts; we do not believe that the court's reasoning, even if correct with
respect to accounts, applies with equal force to the sale of mortgage loans, the
effect and recordation of which is ordinarily governed primarily by state real
property laws and not the UCC. Second, the Octagon decision appears to be at
variance with many of the authorities cited above. Third, the Octagon decision
is not binding on courts outside the Tenth Circuit. We note that the Bank's
principal place of business, and its principal assets, are located outside the
Tenth Circuit.
We are also aware of the decision in In re Xxxx, 24 B.R. 542, 545
(Bankr. D. Idaho 1982), in which the Court relied on Section 541(a)(6) of the
Bankruptcy Code to invalidate an assignment that was absolute under state law.
This statement by the bankruptcy court was arguably dicta, but in any event, the
better-reasoned view is that put forth by the United State Court of Appeals for
the Fifth Circuit in In re Louisiana World Exposition, 832 F.2d 1391, 1401 (5th
Cir. 1987): Section 541(a)(6) "does not give the bankrupt's estate property the
debtor would not own if it were solvent."
Based on and subject to the foregoing, as well as the further
qualification that there is no definitive judicial authority confirming the
correctness of the analysis, we are of the opinion that, should the Bank become
the debtor in a case under the Bankruptcy Code, if the matter were properly
briefed and presented to a court, the court would hold that the transfer of the
interests of the Bank in the Mortgage Loans to the Purchaser in the manner set
forth in the MLPA would constitute a sale of the Mortgage Loans and not a
borrowing by the Bank secured by the Mortgage Loans, so that the Mortgage Loans,
the payments thereunder and proceeds therefrom, would not be property of the
Bank's bankruptcy estate pursuant to Section 541(a) of the Bankruptcy Code, and
the Certificateholders' rights to the Mortgage Loans (and the collections
thereon) would not be impaired by the operation of Section 362(a) of the
Bankruptcy Code.
[Remainder of this page intentionally left blank]
H-2-8
We do not express any opinion herein as to any matter not governed by
the federal laws of the United States of America and New York State Law. This
opinion is solely for benefit of the addressees and may not be relied upon or
used by, circulated, quoted, or referred to, nor any copies hereof be delivered
to, any other person without our prior written approval, provided, however, that
the opinion may be delivered to any person when required by law or any
regulatory authority. We disclaim any obligation to update this opinion letter
for events occurring or coming to our attention after the date hereof.
Very truly yours,
X-0-0
XXXXXXX X-0
FORM OF LETTER FROM XXXXXXXX XXXXXXXXX XXXXXX ARRONSOHN & XXXXXX LLP,
SPECIAL COUNSEL TO NCB AND NCBCC
November 13, 2001
Credit Suisse First Boston Mortgage Xxxxx Fargo Bank Minnesota, N.A.
Securities Corp. 00000 Xxxxxx Xxxx Xxxxxxx
00 Xxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Standard and Poor's Rating Services
101 Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
XxXxxxxx Investments, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: (I) Mortgage Loan Purchase Agreement (the "MLPA") dated as of November
1, 2001, between National Consumer Cooperative Bank, as seller, and
Credit Suisse First Boston Mortgage Securities Corp., as purchaser,
(II) Pooling and Servicing Agreement (the "PSA"), dated as of November
12, 2001, among Credit Suisse First Boston Mortgage Securities Corp.,
KeyCorp Real Estate Capital Markets, Inc., d/b/a Key Commercial
Mortgage, National Consumer Cooperative Bank and Xxxxx Fargo Bank
Minnesota, N.A., (III) the Guaranty dated as of November 1, 2001,
executed by National Consumer Cooperative Bank (regarding the
guarantee of certain buyback obligations) and (IV) the Guaranty dated
as of November 1, 2001, executed by National Consumer Cooperative Bank
(regarding the guarantee of certain indemnifications obligations)
(documents I-IV, collectively, the "Agreements")
Dear Sirs:
We have acted as counsel to National Consumer Cooperative Bank ("NCCB")
in connection with its execution and delivery of the Agreements. Capitalized
terms not otherwise defined herein shall have the respective meanings ascribed
thereto in the PSA.
We have examined copies of the following documents:
1. the Agreements;
H-5-1
2. the National Consumer Cooperative Bank Act (12 U.S.C. 3001 et
seq., Pub. L. 95-351), as amended (the "Act");
3. the officer's certificate delivered pursuant to the MLPA (the
"NCCB Certificate");
4. Mortgage Loan Seller Indemnification Agreement (the
"Indemnification Agreement"), dated as of November 1, 2001between National
Consumer Cooperative Bank, Credit Suisse First Boston Mortgage Securities
Corp., and Credit Suisse First Boston Corporation; and
5. such other documents, records, certificates and papers as we have
deemed necessary and relevant as a basis for this opinion.
To the extent we have deemed necessary and proper regarding matters of
fact, we have, with your approval, relied upon the Act, the certificate of NCCB
delivered to us in connection with this opinion and on the representations and
warranties of NCCB contained therein, in the Agreements, in the Indemnification
Agreement, in the NCCB Certificate and in all other instruments, certificates,
and agreements executed by or on behalf of NCCB in connection with the subject
transaction, and we have, with your approval, assumed the accuracy of such
representations and warranties set forth, an assumption which we have not
independently verified. The opinions set forth herein are based solely upon the
state of the law and facts existing as of the date hereof.
In rendering the opinions below, we have assumed with your permission
(i) the due, proper, authorized and complete execution and delivery of all
instruments referred to above and to the instruments referred to therein
(collectively, the "Documents") by all parties other than NCCB, and that the
Documents are valid, binding and enforceable in accordance with their respective
terms against such other parties, (ii) the authenticity of all documents
submitted to us as originals, (iii) the conformity to original documents of all
documents submitted to us as copies, (iv) the authenticity of the original of
each document submitted to us as a copy, (v) that all documents submitted to us
are complete and the signatures thereon (other than with respect to NCCB) are
genuine, (vi) that there are no other agreements or understandings among the
parties that modify the terms of the Documents or the respective rights or
obligations of the parties to the Documents, (vii) that there has been no mutual
mistake of fact with respect to the Documents or the transactions contemplated
thereunder, and (viii) that you have not received notice of defects, defenses,
claims or other material information which would impact on the below opinions.
Based upon and subject to the foregoing, we are of the opinion that:
(1) NCCB is a corporation chartered by an act of the United States
Congress, is duly organized, validly existing and in good standing under the
laws of the United States and is qualified to transact business in, and is in
good standing under the laws of, the State of New York or is otherwise exempt
from such qualification.
(2) NCCB has the corporate power and authority to engage in the
transactions contemplated by the Agreements and the Indemnification Agreement,
and all requisite corporate power and authority to execute and deliver the
Agreements and the Indemnification Agreement and to perform and observe the
terms and conditions thereof.
H-5-2
(3) The Agreements and the Indemnification Agreement and the
consummation by NCCB of the transactions contemplated by the Agreements and the
Indemnification Agreement have been duly authorized by NCCB, and the Agreements
and the Indemnification Agreement have been duly executed and delivered by NCCB.
(4) The Agreements are legal, valid and binding agreements enforceable
against NCCB in accordance with their respective terms. This opinion regarding
the legality, validity, binding effect and enforceability of the Agreements
means that (a) the Agreements constitute effective contracts under applicable
law and (b) the Agreements are not invalid in their entirety because of a
specific statutory prohibition or public policy, nor are the Agreements subject
in their entirety to contractual defenses arising out of the terms of the
Agreements. However, this opinion does not mean that any particular remedy for
which provision is made in the Agreements will be available upon a material
default, or that every provision of the Agreements will be upheld or enforced in
any particular circumstance by a court, but, subject to the qualifications and
assumptions set forth herein, such unavailability or unenforceability will not
substantially interfere with realization of the practical benefits and/or
security provided thereby. Furthermore, the validity, binding effect and
enforceability of the Agreements may be limited or otherwise affected by the
matters described below.
(5) The Agreements and the Indemnification Agreement and the
consummation by NCCB of the transactions contemplated by the Agreements and the
Indemnification Agreement do not conflict with or result in a breach or
violation of any material term or provision of, or constitute a default under,
the organizational documents of NCCB or any New York state or federal statute or
federal law or regulation applicable to NCCB. To the best of our knowledge,
without independent inquiry, the Agreements and the Indemnification Agreement
and the consummation by NCCB of the transactions contemplated by the Agreements
and the Indemnification Agreement do not conflict with or result in a breach or
violation of any material term or provision of, or constitute a default under,
any indenture or other agreement or instrument to which NCCB is a party or by
which it is bound, or any order of any state or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over NCCB
(6) To the best of our knowledge, no consent, approval, authorization
or order of any New York state or federal court or governmental agency or body
is required for the consummation by NCCB of the transactions contemplated by the
terms of the Agreements or the Indemnification Agreement.
(7) To the best of our knowledge, without independent inquiry, there
are no actions, suits, proceedings or investigations pending or threatened
against or affecting NCCB which, if adversely determined, individually or in the
aggregate, would materially adversely affect NCCB's ability to perform its
obligations under the Agreements or the Indemnification Agreement.
Without limiting the qualifications set forth herein, we express no
opinion as to (i) title to the real or personal property described in and
encumbered by the respective Mortgage Loan Documents relating to the Mortgage
Loans, and this opinion in no way relates to the title of the mortgagors
thereunder or to the perfection or priority of the lien attempted to be granted
by the Mortgage Loan Documents or the effect of the due recording of such
Mortgage Loan Documents or the failure to cause such Mortgage Loan Documents to
be recorded, (ii) the perfection or priority of any lien or security interest,
(iii) compliance or non-compliance by NCCB or any other person or entity with
federal or state
H-5-3
securities laws (including, without limitation, the Securities Act of 1933, the
Trust Indenture Act of 1939 and the Investment Company Act of 1940) or (iv) the
classification and treatment of the Mortgage Loans and any proceeds therefrom
for purposes of federal and state income tax matters.
The opinions expressed above are subject to the following
qualifications in addition to those set forth herein:
A. the enforceability of the Agreements in accordance with their
respective terms is subject to applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors'
rights generally; the enforceability of the Agreements in accordance with
their terms is subject to general principles of equity (whether or not such
enforceability is considered in a proceeding in equity or at law);
B. the enforceability of the Agreements in accordance with their
respective terms may be limited by the effect of standards of good faith,
fair dealing and reasonableness which may be applied by a court to the
exercise of certain rights and remedies;
C. our opinions, as they relate to the enforceability of rights to
indemnify, may be limited by state or federal laws or the public policy
underlying such laws;
D. we express no opinion as to the enforceability of any provisions
in the Agreements purporting to restrict access to legal or equitable
remedies, to establish evidentiary standards, to waive defenses, to waive
or modify service of process requirements under applicable laws, or to
control the determination of venue for any legal or equitable proceedings
that may arise in connection therewith; and
E. we express no opinion as to the validity or binding effect or the
enforceability of any provision in the Agreements which purports to require
payment of interest after default at a rate in excess of a rate which a
court would determine under applicable law to be commercially reasonable
and not a penalty.
We are members of the Bar of the State of New York. The foregoing
opinion is limited to the laws of the State of New York and, as to matters of
federal jurisprudence, the laws of the United States of America. In rendering
our opinion, we have not considered, and hereby disclaim any opinion as to, the
application or impact of any other laws, cases, decisions, rules or regulations
of any other jurisdiction, court or administrative agency, and the opinions
expressed herein do not encompass any matters related to or implicated by, or
the enforcement of any remedies in, any other country or jurisdiction.
[Remainder of this page intentionally left blank]
H-5-4
This opinion letter is furnished to you solely for your benefit and for
the benefit of your successors and assigns, and may not be relied upon by, nor
may copies be delivered to, any other person or entity without our prior written
consent. Finally, we do not undertake to advise you of any changes in the
opinions expressed herein resulting from matters that might hereafter come or be
brought to our attention.
Very truly yours,
X-0-0
XXXXXXX X-0
FORM OF LETTER FROM XXXXXXXX XXXXXXXXX XXXXXX XXXXXXXX & XXXXXX LLP,
SPECIAL COUNSEL TO NCB AND NCBCC
November 13, 2001
Credit Suisse First Boston Mortgage Xxxxxx Brothers Inc.
Securities Corp. 101 Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00000 Xxxxxx Xxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
XxXxxxxx Investments, Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Standard and Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Mortgage Loan Purchase Agreement dated as of November 1, 2001, between
NCB Capital Corporation, as seller, and Credit Suisse First Boston
Mortgage Securities Corp., as purchaser (the "Agreement")
Dear Sirs:
We have acted as counsel to NCB Capital Corporation ("NCBCC") in
connection with its execution and delivery of the Agreement. Capitalized terms
not otherwise defined herein shall have the respective meanings ascribed thereto
in the Agreement.
We have examined copies of the following documents:
1. the Agreement;
2. the Articles of Incorporation and By-Laws of NCBCC;
3. the officer's certificate delivered pursuant to the Agreement
(the "NCBCC Certificate");
4. Mortgage Loan Seller Indemnification Agreement (the
"Indemnification Agreement"), dated as of November 1, 2001 between NCBCC,
Credit Suisse First Boston Mortgage Securities Corp., and Credit Suisse
First Boston Corporation; and
H-5-1
5. such other documents, records, certificates and papers as we have
deemed necessary and relevant as a basis for this opinion.
To the extent we have deemed necessary and proper regarding matters of
fact, we have, with your approval, relied upon the certificate of NCBCC
delivered to us in connection with this opinion and on the representations and
warranties of NCBCC contained therein, in the Agreement, in the NCBCC
Certificate and in all other instruments, certificates, and agreements executed
by or on behalf of NCBCC in connection with the subject transaction, and we
have, with your approval, assumed the accuracy of such representations and
warranties set forth, an assumption which we have not independently verified.
The opinions set forth herein are based solely upon the state of the law and
facts existing as of the date hereof.
In rendering the opinions below, we have assumed with your permission
(i) the due, proper, authorized and complete execution and delivery of all
instruments referred to above and to the instruments referred to therein
(collectively, the "Documents") by all parties other than NCBCC, and that the
Documents are valid, binding and enforceable in accordance with their respective
terms against such other parties, (ii) the authenticity of all documents
submitted to us as originals, (iii) the conformity to original documents of all
documents submitted to us as copies, (iv) the authenticity of the original of
each document submitted to us as a copy, (v) that all documents submitted to us
are complete and the signatures thereon (other than with respect to NCBCC) are
genuine, (vi) that there are no other agreements or understandings among the
parties that modify the terms of the Documents or the respective rights or
obligations of the parties to the Documents, (vii) that there has been no mutual
mistake of fact with respect to the Documents or the transactions contemplated
thereunder, and (viii) that you have not received notice of defects, defenses,
claims or other material information which would impact on the below opinions.
Based upon and subject to the foregoing, we are of the opinion that:
(1) NCBCC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is qualified to
transact business in, and is in good standing under the laws of, the State
of New York.
(2) NCBCC has the corporate power and authority to engage in the
transactions contemplated by the Agreement and the Indemnification
Agreement, and all requisite corporate power and authority to execute and
deliver the Agreement and the Indemnification Agreement and to perform and
observe the terms and conditions thereof.
(3) The Agreement and the Indemnification Agreement and the
consummation by NCBCC of the transactions contemplated by the Agreement and
the Indemnification Agreement have been duly authorized by NCBCC, and the
Agreement and the Indemnification Agreement have been duly executed and
delivered by NCBCC.
(4) The Agreement is a legal, valid and binding agreement
enforceable against NCBCC in accordance with its terms. This opinion
regarding the legality, validity, binding effect and enforceability of the
Agreement means that (a) the Agreement constitutes an effective contract
under applicable law and (b) the Agreement is not invalid in its entirety
because of a specific statutory prohibition or public policy, nor is the
Agreement subject in its entirety to contractual defenses arising out of
the terms of the Agreement. However, this opinion does not
H-5-2
mean that any particular remedy for which provision is made in the
Agreement will be available upon a material default, or that every
provision of the Agreement will be upheld or enforced in any particular
circumstance by a court, but, subject to the qualifications and assumptions
set forth herein, such unavailability or unenforceability will not
substantially interfere with realization of the practical benefits and/or
security provided thereby. Furthermore, the validity, binding effect and
enforceability of the Agreement may be limited or otherwise affected by the
matters described below.
(5) The Agreement and the Indemnification Agreement and the
consummation by NCBCC of the transactions contemplated by the Agreement and
the Indemnification Agreement do not conflict with or result in a breach or
violation of any material term or provision of, or constitute a default
under, the organizational documents of NCBCC or any New York or Delaware
state or federal statute or federal law or regulation applicable to NCBCC.
To the best of our knowledge, without independent inquiry, the Agreement
and the Indemnification Agreement and the consummation by NCBCC of the
transactions contemplated by the Agreement and the Indemnification
Agreement do not conflict with or result in a breach or violation of any
material term or provision of, or constitute a default under, any indenture
or other agreement or instrument to which NCBCC is a party or by which it
is bound, or any order of any state or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over NCBCC.
(6) To the best of our knowledge, no consent, approval,
authorization or order of any state or federal court or governmental agency
or body is required for the consummation by NCBCC of the transactions
contemplated by the terms of the Agreement or the Indemnification
Agreement.
(7) To the best of our knowledge, without independent inquiry, there
are no actions, suits, proceedings or investigations pending or threatened
against or affecting NCBCC which, if adversely determined, individually or
in the aggregate, would materially adversely affect NCBCC's ability to
perform its obligations under the Agreement or the Indemnification
Agreement.
Without limiting the qualifications set forth herein, we express no
opinion as to (i) title to the real or personal property described in and
encumbered by the respective Mortgage Loan Documents relating to the Mortgage
Loans, and this opinion in no way relates to such title of the mortgagors
thereunder or to the perfection or priority of the lien attempted to be granted
by the Mortgage Loan Documents or the effect of the due recording of such
Mortgage Loan Documents or the failure to cause such Mortgage Loan Documents to
be recorded, (ii) the perfection or priority of any lien or security interest,
(iii) compliance or non-compliance by NCBCC or any other person or entity with
federal or state securities laws (including, without limitation, the Securities
Act of 1933, the Trust Indenture Act of 1939 and the Investment Company Act of
1940) or (iv) the classification and treatment of the Mortgage Loans and any
proceeds therefrom for purposes of federal and state income tax matters.
The opinions expressed above are subject to the following
qualifications in addition to those set forth herein:
H-5-3
A. the enforceability of the Agreement in accordance with its terms
is subject to applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights generally;
B. the enforceability of the Agreement in accordance with its terms
is subject to general principles of equity (whether or not such
enforceability is considered in a proceeding in equity or at law);
C. the enforceability of the Agreement in accordance with its
respective terms may be limited by the effect of standards of good faith,
fair dealing and reasonableness which may be applied by a court to the
exercise of certain rights and remedies;
D. our opinions, as they relate to the enforceability of rights to
indemnify, may be limited by state or federal laws or the public policy
underlying such laws;
E. we express no opinion as to the enforceability of any provisions
in the Agreement purporting to restrict access to legal or equitable
remedies, to establish evidentiary standards, to waive defenses, to waive
or modify service of process requirements under applicable laws, or to
control the determination of venue for any legal or equitable proceedings
that may arise in connection therewith; and
F. we express no opinion as to the validity or binding effect or the
enforceability of any provision in the Agreement which purports to require
payment of interest after default at a rate in excess of a rate which a
court would determine under applicable law to be commercially reasonable
and not a penalty.
We are members of the Bar of the State of New York. The foregoing
opinion is limited to the laws of the State of New York and the corporate laws
of the State of Delaware and, as to matters of federal jurisprudence, the laws
of the United States of America. In rendering our opinion, we have not
considered, and hereby disclaim any opinion as to, the application or impact of
any other laws, cases, decisions, rules or regulations of any other
jurisdiction, court or administrative agency, and the opinions expressed herein
do not encompass any matters related to or implicated by, or the enforcement of
any remedies in, any other country or jurisdiction.
[Remainder of this page intentionally left blank]
H-5-4
This opinion letter is furnished to you solely for your benefit and for
the benefit of your successors and assigns, and may not be relied upon by, nor
may copies be delivered to, any other person or entity without our prior written
consent. Finally, we do not undertake to advise you of any changes in the
opinions expressed herein resulting from matters that might hereafter come or be
brought to our attention.
Very truly yours,
X-0-0
XXXXXXX X-0
FORM OF LETTER FROM XXXXXXXX XXXXXXXXX XXXXXX XXXXXXXX & XXXXXX LLP,
SPECIAL COUNSEL TO NCB AND NCBCC
November 13, 2001
Credit Suisse First Boston Mortgage Xxxxxx Brothers, Inc.
Securities Corp. 000 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation XxXxxxxx Investments, Inc.
00 Xxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
Ladies and Gentlemen:
We have acted as special counsel to National Consumer Cooperative Bank
("NCCB") in connection with the Pooling and Servicing Agreement ("POOLING AND
SERVICING AGREEMENT") dated as of November 12, 2001, among Credit Suisse First
Boston Mortgage Securities Corp., as Depositor (the "DEPOSITOR"), KeyCorp Real
Estate Capital Markets, Inc., d/b/a Key Commercial Mortgage, as General Master
Servicer, ORIX Real Estate Capital Markets, LLC, as General Special Servicer,
NCCB, as Coop Master Servicer and Coop Special Servicer, and Xxxxx Fargo Bank
Minnesota, N.A., as Trustee, and in connection with the Mortgage Loan Purchase
Agreement (the "NCCB MLPA") dated as of November 1, 2001, between NCCB, as
Seller, and the Depositor, as Purchaser. We have also acted as special counsel
to and NCB Capital Corporation ("NCBCC") in connection with the Mortgage Loan
Purchase Agreement (the "NCBCC MLPA") dated as of November 1, 2001, between
NCBCC, as Seller, and the Depositor, as Purchaser. The NCCB MLPA and the NCBCC
MLPA are referred to herein, collectively, as the "LOAN PURCHASE AGREEMENTS."
This letter is delivered to you at the request of NCCB and NCBCC pursuant to the
Loan Purchase Agreements.
We understand that the Certificates to be issued by the Depositor
pursuant to the Pooling and Servicing Agreement are divided into classes. The
Certificates of Classes X-0, X-0, X-0, X-0, X, X, X and E (collectively, the
"PUBLICLY OFFERED CERTIFICATES") will be sold to the Depositor, Credit Suisse
First Boston Corporation ("CSFB"), Xxxxxx Brothers, and XxXxxxxx Investments as
Underwriters (in such capacity, collectively, the "UNDERWRITERS") pursuant to an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") dated November 1, 2001,
and pursuant to the Certificate Purchase Agreement ("CERTIFICATE PURCHASE
AGREEMENT") dated November 1, 2001, between the Depositor and CSFB. The Publicly
Offered Certificates will be offered for sale to the public pursuant to a
prospectus dated October 22, 2001 ("BASE PROSPECTUS"), as supplemented by a
prospectus supplement
H-5-1
dated November 1, 2001 ("PROSPECTUS SUPPLEMENT" and along with the Base
Prospectus, the "PROSPECTUS"). The Certificates of Classes F, G, H, J, K, L, M,
N, O, A-X and A-CP (collectively, the "PRIVATELY OFFERED CERTIFICATES" and,
along with the Publicly Offered Certificates, the "Certificates") will be sold
to CSFB pursuant to the Certificate Purchase Agreement. CSFB will offer the
Privately Offered Certificates pursuant to a confidential offering circular
dated November 1, 2001 (the "CONFIDENTIAL OFFERING CIRCULAR"). Capitalized terms
not otherwise defined herein are defined as set forth in the Underwriting
Agreement or the Pooling and Servicing Agreement, as applicable.
The purpose of our professional engagement was to advise with respect
to legal matters and not to determine or verify facts. Many of the
determinations involved in the preparation of the Prospectus Supplement and the
Confidential Offering Circular were factual. We have not independently verified,
do not make any representation as to, and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Prospectus Supplement or the Confidential Offering Circular.
In connection with the delivery of this letter, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
the Prospectus, the Confidential Offering Circular, the Loan Purchase
Agreements, the Pooling and Servicing Agreement, and other such documents and
records as we have deemed relevant or necessary as the basis for the views
expressed in this letter. We have obtained such certificates from and made such
inquiries of officers and other representatives of NCCB and NCBCC as we have
deemed relevant or necessary as the basis of the views expressed in this letter.
We have relied upon and assumed the accuracy of, such other documents and
records, such certificates and the statements made in response to such
inquiries, with respect to the factual matters upon which the views expressed in
this letter are based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the Loan
Purchase Agreements and the Pooling and Servicing Agreement and underlying the
assumptions set forth below or that are otherwise factually relevant to the
opinions expressed in this letter, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures (except for the signatures of officers
of NCCB and NCBCC) and the authenticity of all documents submitted to us as
originals, (iv) the conformity to the originals of all documents submitted to us
as certified conformed or photostatic copies, (v) the due authorization by all
necessary action, and the due execution and delivery, of each of the Loan
Purchase Agreements and the Pooling and Servicing Agreement by the parties
thereto and the constitution of each of the Loan Purchase Agreements and the
Pooling and Servicing Agreement as the legal, valid and binding obligations of
each party thereto, enforceable against such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, and similar laws relating to or affecting the
enforceability of creditors' rights generally, the effect of general equitable
principals (in equity or at law), and the availability of equitable remedies,
(vi) the compliance with the relevant provisions of each of the Loan Purchase
Agreements and the Pooling and Servicing Agreement by the parties thereto, (vii)
the conformity, to the requirements of each of the Loan Purchase Agreements and
the Pooling and Servicing Agreement, of the Mortgage Loan Documents delivered to
the Depositor by NCCB and NCBCC, as the case may be, (viii) the absence of any
agreement that supplements or otherwise modifies the agreements expressed in
each of the Loan Purchase Agreements and the Pooling and Servicing Agreement,
and (ix) the conformity of the text of each document filed with the Securities
Exchange Commission through the XXXXX system to the printed documents
H-5-2
reviewed by us. In rendering this letter, we do not express any view concerning
the laws of any jurisdiction other than the federal laws of the United States of
America.
In the course of acting as special counsel to NCCB and NCBCC we have
responded to inquiries from time to time by their respective closing
coordinators, reviewed title insurance commitments and surveys and prepared most
of the loan documents for a majority of the Mortgage Loans (as defined in the
Loan Purchase Agreements) originated by NCCB and NCBCC. In addition, we have
participated in the preparation of the Prospectus Supplement and the
Confidential Offering Circular and, although we assume no responsibility for the
accuracy and completeness of the Prospectus Supplement or the Confidential
Offering Circular, based upon such participation but without independent review
or verification, nothing has come to our attention which causes us to believe
that, as of their respective dates or as of the Closing Date, either the
Prospectus Supplement or the Confidential Offering Circular contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that we express
no opinion as to (i) the financial statements and related notes, financial,
statistical and accounting data and supporting schedules included therein or
other information of that nature contained in or omitted from the Prospectus
Supplement or the Confidential Offering Circular, or (ii) information contained
in the computer diskette or the CD-ROM accompanying the Prospectus Supplement
which we assume, but have not verified, does not vary from and is not different
in any way from the information contained in the Prospectus Supplement. In that
connection, we advise you that we have, as to materiality, relied to the extent
we deemed appropriate on the judgment of officers and other representatives of
NCCB and NCBCC and their affiliates. In addition, in that connection we call to
your attention that, with your knowledge and consent, we have not (except as
described above) examined or otherwise reviewed any of the Mortgage Files in
connection with the transactions contemplated by the Pooling and Servicing
Agreement and the Loan Purchase Agreements, any particular documents contained
in such files or any other documents with respect to the Mortgage Loans.
In basing our opinions and other matters set forth herein "to our
knowledge," or words of similar import, the words "to our knowledge," or such
words of similar import signify that, in the course of our representation of
NCCB and NCBCC in the transactions contemplated by the Loan Purchase Agreements,
the Prospectus Supplement and the Confidential Offering Circular and inquiry of
the lawyers within our firm familiar with the transactions contemplated by such
documents, no information has come to our attention that would give us actual
knowledge or actual notice that any such opinions or other matters set forth
herein are not accurate. Except as otherwise stated herein, we have undertaken
no independent investigation or verification of such matters. All opinions set
forth herein are subject to, and may be limited by, future changes in the
factual matters set forth herein, and we undertake no duty to advise you of the
same.
[Remainder of this page intentionally left blank]
H-5-3
This letter is solely for the benefit of the addressees and may not be relied
upon or used by, circulated, filed with any governmental authority or other
regulatory agency, quoted or referred to, nor may copies hereof be delivered to,
any other person (except to the parties involved in the Transactions and their
respective counsel as part of the closing set related to the Transactions)
without our prior written approval. We disclaim any obligation to update this
letter for events occurring or coming to our attention after the date hereof,
notwithstanding that such changes may affect the views or beliefs expressed in
this letter.
Very truly yours,
X-0-0
XXXXXXX X-0
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE TRUSTEE
November 13, 2001
Credit Suisse First Boston Mortgage KeyCorp Real Estate Capital Markets, Inc.
Securities Corp. D/b/a/ Key Commercial Mortgage
00 Xxxxxxx Xxxxxx 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
National Consumer Cooperative Bank Xxxxx'x Investors Service, Inc.
0000 Xxx Xxxxxx, X.X. 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, X.X. 00000 Xxx Xxxx, Xxx Xxxx 00000
XxXxxxxx Investments Inc. Standard & Poor's Ratings Services
000 Xxxxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Credit Suisse First Boston Corporation
000 Xxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates Series 2001-CKN5
Ladies and Gentlemen:
I am Senior Counsel of Xxxxx Fargo & Company, the parent corporation of
Xxxxx Fargo Bank Minnesota, N.A., a national banking association ("Xxxxx
Fargo"), and have been requested by Xxxxx Fargo to give this opinion in
connection with the Pooling and Servicing Agreement dated as of November 12,
2001 (the "Agreement"), 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 general special servicer, National
Consumer Cooperative Bank, as co-op master servicer and co-op special servicer,
and Xxxxx Fargo as trustee, relating to the issuance of the above-referenced
certificates (the "Certificates"). Capitalized terms used herein but not defined
herein have the meanings given to them in the Agreement.
In rendering the opinions set forth below, I have examined and relied
upon the originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Agreement and such certificates, corporate and public
records, agreements and instruments and other documents, including, among other
things, the documents delivered on the Closing Date, as I have deemed
appropriate as a basis for the opinions expressed below. In such examination, I
have assumed the genuineness of all signatures (other than Xxxxx Fargo), the
authenticity of all documents, agreements and instruments
I-1-1
submitted to me as originals, the conformity to original documents, agreements
and instruments of all documents, agreements and instruments submitted to me as
copies or specimens, the authenticity of the originals of all documents,
agreements and instruments submitted to me as copies or specimens, and the
accuracy of the matters set forth in the documents, agreements and instruments I
reviewed. As to any facts material to such opinions that were not known to me, I
have relied upon statements and representations of officers and other
representatives of Xxxxx Fargo.
Based upon the foregoing, I am of the opinion that:
1. Xxxxx Fargo has been duly incorporated and is validly existing as
a national banking association and is duly qualified to do business and in
good standing under the laws of each jurisdiction in which the performance
of its duties under the Agreement would require such qualification and has
the requisite power and authority to execute, deliver and perform its
obligations under the Agreement.
2. The Agreement has been duly authorized, executed and delivered by
Xxxxx Fargo and, assuming valid execution and delivery thereof by the other
parties thereto, the Agreement constitutes a valid and legally binding
agreement of Xxxxx Fargo, enforceable against Xxxxx Fargo in accordance
with its terms, subject to bankruptcy, insolvency, reorganization or other
laws of general applicability relating to or affecting creditors' rights
generally and to general equity principles regardless of whether such
enforcement is considered in a proceeding at law or in equity.
3. No consent, approval, authorization or order of any Minnesota or
federal court or governmental agency or body is required for the
consummation by Xxxxx Fargo of the transactions contemplated by the terms
of the Agreement except any such as may be required under the blue sky laws
of any jurisdiction in connection with the offering, sale or acquisition of
the Certificates, any recordations of the assignments of the mortgage loans
evidenced by the Certificates pursuant to the Agreement that have not yet
been completed and any approvals as have been obtained.
4. The consummation of the transactions contemplated by the terms of
the Agreement does not conflict with or result in a breach or violation of
any material term or provision of, or constitute a default under, (i) the
articles of incorporation or bylaws of Xxxxx Fargo, (ii) to my knowledge,
any indenture or other agreement or instrument to which Xxxxx Fargo is a
party or by which it is bound, (iii) any Minnesota or federal statute or
regulation applicable to Xxxxx Fargo or (iv) any order known to me of any
Minnesota or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over Xxxxx Fargo.
5. To the best of my knowledge after due inquiry, there are no legal
or governmental actions, investigations or proceedings pending to which
Xxxxx Fargo is a party, or threatened against Xxxxx Fargo (a) asserting the
invalidity of the Agreement or (b) which might materially and adversely
affect the performance by Xxxxx Fargo of its obligations under, or the
validity or enforceability of, the Agreement. For purposes of the
foregoing, I have not regarded any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential
litigant or governmental authority has manifested to a member of the law
department of Xxxxx Fargo & Company a present intention to initiate such
proceedings.
I-1-2
I am admitted to practice law in the State of Minnesota. The opinions
expressed herein are limited to the present laws of the State of Minnesota and
the Federal laws of the United States. For purposes of the opinion expressed in
numbered paragraph 2 above with respect to the enforceability of the Agreement,
I have assumed that the laws of the State of New York are the same as the laws
of the State of Minnesota.
This letter is delivered to, and for the use of, the above addressees
in connection with the Agreement. This letter may not be delivered to any other
party for any purpose, and the opinions expressed herein may not be relied on by
any other party except upon my written consent.
Very truly yours,
Xxxxxxx X. Xxxxxx
Senior Counsel
I-1-3
EXHIBIT I-2
FORM OF OPINION OF XXXXX XXXXX & XXXXX,
SPECIAL COUNSEL TO THE TRUSTEE
November 13, 2001
Credit Suisse First Boston KeyCorp Real Estate Capital Markets, Inc.
Mortgage Securities Corp. d/b/a/ Key Commercial Mortgage
00 Xxxxxxx Xxxxxx 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
National Consumer Cooperative Bank Xxxxx'x Investors Service, Inc.
0000 Xxx Xxxxxx, X.X. 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, X.X. 00000 Xxx Xxxx, Xxx Xxxx 00000
XxXxxxxx Investments Inc. Standard & Poor's Ratings Services
000 Xxxxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers, Inc. Credit Suisse First Boston Corporation
101 Xxxxxx 00 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
Ladies and Gentlemen:
We have acted as special counsel to Xxxxx Fargo Bank Minnesota, N. A.,
a national banking association, in its role as trustee (the "Trustee") in
connection with the issuance of the above referenced Certificates (the
"Certificates") pursuant to the Pooling and Servicing Agreement, dated as of
November 12, 2001, among Credit Suisse First Boston Mortgage Securities Corp.,
as depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage, as general master servicer and general special servicer, National
Consumer Cooperative Bank, as co-op master servicer and co-op special servicer,
and the Trustee (the "Agreement"). All capitalized terms used herein and not
defined shall have the meanings assigned to them in the Agreement.
In connection with rendering this opinion letter, we have examined the
Agreement and such other documents as we have deemed necessary. As to certain
factual matters, we have relied, to the extent we have deemed proper, on
statements in the Agreement and certificates of, or other documents obtained
from, officers or representatives of the Trustee or other parties to the
Agreement or public officials. In rendering this opinion letter, we have also
assumed, without independent investigation (i) the authenticity of all documents
submitted to us as originals, the genuineness of signatures on all original
documents, the legal capacity of natural persons and the conformity to the
originals of all
I-2-1
documents submitted to us as certified, conformed, photographic or telecopied
copies; (ii) the conformity to the requirements of the Agreement, of the
Mortgage Notes, the Mortgages and other documents delivered or caused to be
delivered to the Trustee by or on behalf of the Depositor; (iii) the performance
by all parties to the Agreement in accordance with their covenants and
agreements made therein; (iv) that the representations and warranties set forth
in the Agreement are true and correct, as to factual matters; (v) that the
Trustee has been duly organized and is validly existing under the laws of the
United States of America; (vi) that the execution, delivery and performance of
the Agreement by the Trustee do not conflict with or violate any of the
Trustee's organizational documents or by-laws or any provision of any order,
writ, judgment, injunction, decree, agreement, determination or award applicable
to the Trustee, do not violate any statute, law or regulation of the United
States of America and do not require any authorization, approval or other action
by, or notice to or filings with, any governmental authority or regulatory body
of the United States of America, other than those that have been duly obtained
or made and are in full force and effect; (vii) that the Agreement has been duly
authorized, executed and delivered by, and constitutes the legal, valid and
binding obligations of the parties thereto (other than the Trustee); (viii) that
the Agreement is duly authorized, executed and delivered by the Trustee; (ix)
that the Agreement is executed and delivered in the form examined by us; and (x)
that there is not any agreement that materially supplements or otherwise
modifies the agreements expressed in the Agreement.
Certain attorneys of this Firm are members of the bar of the State of
New York. In rendering this opinion letter, we do not express any opinion
concerning any law other than the law of the State of New York, nor do we
express any opinion concerning the application of the "doing business" laws of
any jurisdiction (including New York) or the obligation of the Trustee to obtain
any authorization, consent, approval or license of, give notice to, or register
with, or take any other action with respect to any governmental or regulatory
authority or agency. We have made no independent investigations as to, or passed
on, the operation of the Trust or the sale of the Certificates in New York or in
any other state or the characterization of the Certificates or the Trust for
federal or state tax law purposes. We do not express any opinion on any issue
not expressly addressed below.
Based upon the foregoing and subject to the assumptions, limitations
and qualifications herein, it is our opinion that the Agreement constitutes a
valid, legal and binding agreement of the Trustee, enforceable against the
Trustee in accordance with its terms.
However, we express no opinion as to any of the following: (i) the
effect on enforceability of (a) any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting the
rights of creditors generally as they may be applied in the context of a
national banking association, or (b) general principles of equity, including
(without limitation) concepts of materiality, reasonableness, public policy,
good faith, fair dealing and the possible unavailability of specific performance
or injunctive relief (regardless of whether such enforceability is considered in
a proceeding in equity or at law); (ii) any federal or state securities law;
(iii) the enforceability of any indemnity, contribution, set off or judgment
currency provisions; (iv) any law, rule, regulation, ordinance, code, guideline
or similar provision of law of any county, municipality or similar political
subdivision or any agency or instrumentality thereof; (v) any law, rule or
regulation (a) the violation of which would not have a material adverse effect
on the Trustee or (b) to which the Trustee may be subject as a result of any
other person's legal or regulatory status or any such other person's involvement
in the transactions contemplated by the Agreement; (vi) clauses relating to
severability or similar clauses; (vii) any clause stating that rights and
remedies of any party are
I-2-2
cumulative and may be enforced in addition to any other right or remedy and that
the election of a particular remedy does not preclude recourse to one or more
remedies; (viii) the availability of the defense of inconvenient forum in any
action or proceeding in any court sitting in the State of New York arising out
of or relating to any matter under the Agreement; (ix) the effectiveness of any
waiver of venue or waiver of jury trial; (x) any agreement to the sole
jurisdiction of any court or to the jurisdiction of a Federal court to the
extent of the lack of subject matter or diversity jurisdiction, or to the
exclusive jurisdiction of any court; (xi) any provision of the Agreement (a)
restricting access to legal or equitable remedies, (b) providing that the
Agreement may only be amended, modified or waived in writing, or (c) waiving
rights or remedies which, as a matter of law, cannot be waived; or (xii) usury.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document.
Very truly yours,
XXXXX, XXXXX & XXXXX
I-2-3
EXHIBIT J-1
FORM OF CERTIFICATE OF THE DEPOSITOR
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CKN5
CERTIFICATE OF THE DEPOSITOR
In connection with the issuance of the Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5 (the "Certificates"), pursuant to a Pooling and Servicing Agreement
dated as of November 12, 2001 (the "Pooling and Servicing Agreement"), between
Credit Suisse First Boston Mortgage Securities Corp. as depositor (the
"Depositor"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as general master servicer and as general special servicer, National
Consumer Cooperative Bank as co-op master servicer and co-op special servicer
and Xxxxx Fargo Bank Minnesota, N.A. as trustee, and the sale of the
Certificates (other than the Class A-Y Certificates) pursuant to the
Underwriting Agreement dated as of November 1, 2001 (the "Underwriting
Agreement"), between the Depositor and Credit Suisse First Boston Corporation
("CSFB Corporation"), as representative of the underwriters, and the Certificate
Purchase Agreement dated as of November 1, 2001 (the "Certificate Purchase
Agreement"), between the Depositor and CSFB Corporation (together, the Pooling
and Servicing Agreement, the Underwriting Agreement and the Certificate Purchase
Agreement are referred to as the "Agreements"), the Depositor does hereby
certify that (A) the representations and warranties of the Depositor 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 (B) the Depositor
has complied with all the agreements and satisfied all the conditions on its
part required under the Agreements to be performed or satisfied at or prior to
the date hereof. Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to such terms in the Agreements.
Certified November , 2001
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By:
-------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF SECRETARY OF THE DEPOSITOR
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CKN5
CERTIFICATE OF ASSISTANT SECRETARY OF
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
I, _________________, hereby certify that I am a duly appointed
Assistant Secretary of Credit Suisse First Boston Mortgage Securities Corp. (the
"Company"), and further certify as follows:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware.
2. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated.
3. Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Company and his genuine
signature is set forth opposite his name:
NAME OFFICE SIGNATURE
---- ------ ---------
----------------------- ------------------------ ---------------------------
----------------------- ------------------------ ---------------------------
4. Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Company, which Certificate of
Incorporation and By-Laws are, on the date hereof, and have been at all times
since the formation of the Company, in full force and effect.
5. Attached hereto as Exhibit II is a certificate of good standing of
the Company issued by the Secretary of State of the State of Delaware within ten
(10) days of the date hereof and no event (including, without limitation, any
act or omission on the part of the Company) has occurred since the date thereof
which has affected the good standing of the Company under the laws of the State
of Delaware.
6. The Board of Directors authorized all actions necessary to
accomplish the issuance and sale of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2001-CKN5 (the "Resolutions"). The Resolutions are attached hereto as Exhibit
III. The Resolutions have not been amended, modified, annulled or revoked since
they were
J-2-1
adopted, and are in full force and effect as of the date hereof, and the
instruments authorized in the Resolutions were executed pursuant thereto and in
compliance therewith.
Capitalized terms used but not defined herein have the respective
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
November 12, 2001, between Credit Suisse First Boston Mortgage Securities Corp.,
as depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as general master servicer and general special servicer, National
Consumer Cooperative Bank as co-op master servicer and co-op special servicer
and Xxxxx Fargo Bank Minnesota, N.A. as trustee
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
November , 2001.
By:
------------------------------------
Name:
Title: Assistant Secretary
J-2-2
EXHIBIT I
CERTIFICATE OF INCORPORATION AND BY-LAWS OF
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
J-2-3
EXHIBIT II
GOOD STANDING CERTIFICATE OF CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
J-2-4
EXHIBIT III
RESOLUTION OF CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
J-2-5
EXHIBIT K-1
FORM OF CERTIFICATE OF KEYBANK
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CKN5
CERTIFICATE OF KEYBANK NATIONAL ASSOCIATION
In connection with the execution and delivery by KeyBank National
Association ("KeyBank") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
November 1, 2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse
First Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and KeyBank,
as seller, and that certain Indemnification Agreement dated as of November 1,
2001 (the "Indemnification Agreement and, together with the Mortgage Loan
Purchase Agreement, the "Agreements"), between KeyBank, CSFBMSC and Credit
Suisse First Boston Corporation, as representative of the Underwriters and as
initial purchaser of the Privately Offered Certificates, the undersigned hereby
certifies that (i) the representations and warranties of KeyBank in the
Agreements are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) KeyBank has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Mortgage Loan Purchase Agreement to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified this day of November, 2001.
KEYBANK NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
K-1-1
EXHIBIT K-2
FORM OF CERTIFICATE OF ASSISTANT SECRETARY OF KEYBANK
KEYBANK NATIONAL ASSOCIATION
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxx X. Xxxxxxx, hereby certify that I am a duly appointed
Assistant Secretary of KeyBank National Association, a national banking
association (the "Bank"), and further certify as follows:
1. Attached hereto as Attachment A are true, correct and complete
copies of the Articles of Association and the By-Laws of the Bank, which are in
full force and effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of the Bank authorizing and approving the Bank's execution, delivery
and performance of (a) the Mortgage Loan Purchase Agreement, dated as of
November 1, 2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse
First Boston Mortgage Securities Corp., as purchaser and the Bank, as seller,
and (b) the corresponding Indemnification Agreement referred to in the Mortgage
Loan Purchase Agreement (the "Indemnification Agreement"). Such resolutions are
in full force and effect on the date hereof and do not conflict with any other
resolutions of the board of directors of the Bank in effect on the date hereof.
3. Attached hereto as Attachment C is a certificate of good standing
with respect to the Bank issued by the Comptroller of the Currency within 30
days of the date hereof and no event (including, without limitation, any act or
omission on the part of the Bank) has occurred since the date thereof that has
affected the good standing of the Bank under the laws of the United States of
America.
4. Each person who, as an officer or representative of the Bank, signed
the Mortgage Loan Purchase Agreement, the Indemnification Agreement or any other
document or certificate delivered by or on behalf of the Bank prior hereto or on
the date hereof in connection with the transactions contemplated in the Mortgage
Loan Purchase Agreement and/or the Indemnification Agreement, was, at the
respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of each such person appearing on any such
documents is his or her genuine signature.
K-2-1
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
November __, 2001.
By:
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
K-2-2
ATTACHMENT A
ARTICLES OF ASSOCIATION AND BY-LAWS OF THE BANK
K-2-3
ATTACHMENT B
RESOLUTIONS OF THE BANK
K-2-4
ATTACHMENT C
OCC CERTIFICATE OF GOOD STANDING
K-2-5
EXHIBIT L-1
FORM OF CERTIFICATE OF NCB
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2001-CKN5
NATIONAL CONSUMER COOPERATIVE BANK
OFFICER'S CERTIFICATE
I, Xxxxxx X. Xxxxxxxx, hereby certify that I am a duly elected Managing
Director/Vice-President of National Consumer Cooperative Bank, a corporation
chartered by an act of the United States Congress (the "NCCB"), and further as
follows:
1. Attached hereto is a true and correct copy of each of the charter
and bylaws of NCCB, both of which are in full force and effect on the date
hereof.
2. Each person who, as an officer or representative of NCCB, signed the
(i) Pooling and Servicing Agreement (the "POOLING AGREEMENT"), dated as of
November 12, 2001, between Credit Suisse First Boston Mortgage Securities Corp.,
as depositor, KeyCorp Real Estate Capital Markets, Inc., d/b/a Key Commercial
Mortgage, as general master servicer, National Consumer Cooperative Bank, as
coop master servicer and coop special servicer, and Xxxxx Fargo Bank Minnesota,
N.A., as trustee, (ii) Mortgage Loan Purchase Agreement (the "MLPA"), dated as
of November 1, 2001, between Credit Suisse First Boston Mortgage Securities
Corp., as purchaser, and NCCB, as seller, (iii) Mortgage Loan Seller
Indemnification Agreement (the "INDEMNIFICATION AGREEMENT"), dated as of
November 1, 2001 between NCCB, Credit Suisse First Boston Mortgage Securities
Corp. and Credit Suisse First Boston Corporation and (iv) the two (2) Guaranty
agreements (collectively, the "GUARANTY") dated as of November 1, 2001, each
entered into in connection with the issuance of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates Series
2001-CKN5 (the Pooling Agreement, MLPA, Indemnification Agreement and Guaranty
are referred to herein, collectively, as the "AGREEMENTS"), and any other
document delivered prior hereto or on the date hereof in connection with the
Agreements, 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.
3. Attached hereto is a true copy of resolutions of the Board of
Directors of NCCB which has not been amended or rescinded but remain in full
force and effect on the date hereof.
L-1-1
IN WITNESS WHEREOF, I have hereunto signed my name this 13th day of
November, 2001.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director/Vice-President
I, ______________________________, a[n] [Assistant] Secretary of NCCB,
hereby certify that Xxxxxx X. Xxxxxxxx is a duly elected, qualified and acting
Managing Director/Vice-President of NCCB and that the signature appearing above
is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name this 13th day of
November, 2001.
-------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF OFFICER OF NCB
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CKN5
CERTIFICATE OF NATIONAL CONSUMER COOPERATIVE BANK
In connection with the execution and delivery by National Consumer
Cooperative Bank ("NCB") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
November 1, 2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse
First Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and NCB, as
seller, and that certain Indemnification Agreement dated as of November 1, 2001
(the "Indemnification Agreement" and, together with the Mortgage Loan Purchase
Agreement, the "Agreements"), between NCB, CSFBMSC and Credit Suisse First
Boston Corporation, as representative of the Underwriters and as initial
purchaser of the Privately Offered Certificates, the undersigned hereby
certifies that (i) the representations and warranties of NCB 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) NCB has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part required under the Mortgage Loan Purchase Agreement to be performed or
satisfied at or prior to the date hereof. Capitalized terms used but not defined
herein shall have the respective meanings assigned to them in the Mortgage Loan
Purchase Agreement.
Certified this day of November, 2001.
NATIONAL CONSUMER COOPERATIVE BANK
By:
--------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF NCBCC
NCB CAPITAL CORPORATION
SECRETARY'S CERTIFICATE
The undersigned does hereby certify that, as of the date hereof, [s]he
is the duly elected and acting secretary of NCB Capital Corporation (the
"Company"), and does hereby further certify as follows:
1. Attached hereto as Exhibit A is a true, correct and complete copy of
the Certificate of Incorporation of the Company, certified by the Secretary of
State of the State of Delaware and as in effect as of the date hereof.
2. Attached hereto as Exhibit B is a true, correct and complete copy of
the Bylaws of the Company as in effect as of the date hereof.
3. Attached hereto as Exhibit C is a true, correct, and complete copy
of certain resolutions adopted by the Board of Directors of the Company at a
meeting of the Board of Directors. Such resolutions are in full force and effect
and unmodified.
4. Attached hereto as Exhibit D is a true, correct and complete copy of
the Certificate of Good Standing of the Company issued by the Secretary of State
of the State of Delaware on November 1, 2001 and no event (including, without
limitation, any act or omission on the part of the Company) has occurred since
the date thereof which has affected the good standing of the Company under the
laws of the State of Delaware.
5. Each person who, as an officer of the Company, signed that certain
Mortgage Loan Purchase Agreement dated as of November 1, 2001, or any other
document delivered in connection therewith, was duly elected, qualified and
acting as such officer at the respective times of the signing and delivery
thereof and was duly authorized to execute such document on behalf of the
Company, and the signature on each such document is his or her genuine
signature.
IN WITNESS WHEREOF, the undersigned has signed this Certificate as of
November 13, 2001.
-----------------------------
Secretary
M-1-1
EXHIBIT A
CERTIFICATE OF INCORPORATION
M-1-2
EXHIBIT B
BYLAWS
M-1-3
EXHIBIT C
RESOLUTIONS
M-1-4
EXHIBIT D
GOOD STANDING CERTIFICATE
M-1-5
RESOLUTION OF THE BOARD OF DIRECTORS
OF
NCB CAPITAL CORPORATION
WHEREAS, this organization is a Delaware corporation which is seeking
to sell approximately 41 mortgage loans to Credit Suisse First Boston Mortgage
Securities Corp. pursuant to a Mortgage Loan Purchase Agreement to be dated on
or about November 13, 2001:
NOW, THEREFORE, BE IT RESOLVED THAT
The persons officially holding the positions of President, Vice President,
Treasurer and Secretary in this organization are hereby empowered
collectively and individually to represent this organization for the
purpose of selling approximately 41 mortgage loans (the "Loan Sale") to
Credit Suisse First Boston Mortgage Securities Corp. pursuant to the terms
and conditions of a Mortgage Loan Purchase Agreement (the "MLPA") to be
dated on or about November 13, 2001 . The officials of this organization
designated above are hereby authorized:
(1) to complete all forms, procedures, and documents which may be required
in connection with the Loan Sale;
(2) to obligate this organization in such amounts, and on such other terms
and conditions as the designated officials believe are proper under
this resolution; and
(3) to exercise such authority of this organization as may be necessary or
convenient to accomplish the purpose of this resolution.
BE IT FURTHER RESOLVED THAT
all prior acts by the officials of this organization to accomplish the
purposes of these resolutions are hereby approved, and that the provisions
of these resolutions shall remain in full force and effect until a
certified copy of any duly adopted resolution amending or rescinding these
resolutions is adopted.
M-1-6
CERTIFICATION
The undersigned, as Secretary of this organization, hereby certifies
that the Board of Directors duly adopted the foregoing resolutions at a meeting
held on October 30, 2001 which was properly called, noticed and convened, with a
quorum present, and that these resolutions have not been amended or rescinded in
any way.
------------------------------------
Secretary
Date Signed: November 13, 2001
M-1-7
EXHIBIT M-2
FORM OF CERTIFICATE OF OFFICER OF NCBCC
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CKN5
CERTIFICATE OF NCB CAPITAL CORPORATION
In connection with the execution and delivery by NCB Capital
Corporation ("NCBCC") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
November 1, 2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse
First Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and NCBCC, as
seller, and that certain Indemnification Agreement dated as of November 1, 2001
(the "Indemnification Agreement" and, together with the Mortgage Loan Purchase
Agreement, the "Agreements"), between NCBCC, CSFBMSC and Credit Suisse First
Boston Corporation, as representative of the Underwriters and as initial
purchaser of the Privately Offered Certificates, the undersigned hereby
certifies that (i) the representations and warranties of NCBCC 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) NCBCC has, in all
material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Mortgage Loan Purchase Agreement to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified this day of November, 2001.
NCB CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
M-2-1
EXHIBIT N
FORM OF CERTIFICATE OF TRUSTEE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CKN5
CERTIFICATE OF TRUSTEE
I, Xxxxxxx X. Xxxxx, a Vice President of Xxxxx Fargo Bank Minnesota,
N.A. ("Xxxxx Fargo"), the trustee under the Pooling and Servicing Agreement,
dated as of November 12, 2001 (the "Agreement"), among Credit Suisse First
Boston Mortgage Securities Corporation, as Depositor, KeyCorp Real Estate
Capital Markets, Inc. (d/b/a Key Commercial Mortgage), as General Master
Servicer and General Special Servicer, National Consumer Cooperative Bank, as
Co-op Master Servicer and Co-op Special Servicer, and Xxxxx Fargo, as Trustee
(the "Trustee"), hereby certify the following information. Capitalized terms
used but not defined herein shall have the meanings set forth in the Agreement.
(a) Xxxxx Fargo is the Trustee under the Agreement.
(b) The Agreement has been duly executed and acknowledged on behalf
of the Trustee by Xxx Xxxxx, Assistant Vice President, its authorized
signatory, and the Agreement has been duly delivered on behalf of the
Trustee.
(c) Attached hereto as Exhibits A, B, and C respectively, are true
and correct copies of the Organization Certificate, amended By-Laws and
Resolutions of the Board of Directors of Xxxxx Fargo, each of which is in
full force and effect on the date hereof.
(d) The signature set forth below, opposite the name and title of
the above-mentioned officer of the Trustee, is her authentic and genuine
signature.
OFFICE NAME SIGNATURE
Assistant Vice President Xxx Xxxxx ____________________
(e) The officer named in paragraph (d) above was at the time of the
acts referred to in paragraph (b) above and (f) below, and is at the date
hereof, duly appointed, qualified and acting as an officer of the Trustee,
and is duly authorized to perform such acts, and the signature on the
Agreement is her true signature.
(f) The Certificates dated the date hereof and provided for by the
Agreement have been authenticated, on behalf of the trust created by the
Agreement, by authorized officers of Xxxxx Fargo, as authenticating agent.
N-1
(g) The Certificates have on or before this date been delivered, by
the Trustee, to or on the order of the Depositor.
[SIGNATURE COMMENCES ON FOLLOWING PAGE]
N-2
Dated: November __, 2001
Xxxxx Fargo BANK MINNESOTA, N.A.,
as Trustee
By:
-----------------------------
Xxxxxxx X. Xxxxx
N-3
EXHIBIT O
FORM OF CERTIFICATE OF KRECM
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
OFFICER'S CERTIFICATE
The undersigned, an authorized officer of KeyCorp Real Estate Capital
Markets, Inc. (the "CORPORATION"), in connection with the Pooling and Servicing
Agreement dated as of November 12, 2001 (the "POOLING AND SERVICING Agreement"),
by and among the Corporation, Credit Suisse First Boston Mortgage Securities
Corp., National Consumer Cooperative Bank and Xxxxx Fargo Bank Minnesota, N.A.,
as Trustee (unless otherwise indicated, defined terms used herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement), hereby
certifies that, to the best of his knowledge, after reasonable investigation:
1. The undersigned has carefully examined the Prospectus Supplement
and nothing has come to the attention of the undersigned that would lead
the undersigned to believe that the statements in the Prospectus Supplement
relating to the Corporation and its operations contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
2. The representations and warranties made by the Corporation in the
Pooling and Servicing Agreement were true and correct in all material
respects as of the date of the Pooling and Servicing Agreement and are true
and correct in all material respects as of the date hereof.
3. The Corporation has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied under
the Pooling and Servicing Agreement on or prior to the Closing Date.
[SIGNATURE PAGE FOLLOWS]
O-1
IN WITNESS WHEREOF, the below named officer has hereunto signed his
name.
Dated: November ____, 2001
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
By:
----------------------------------
Xxxx X. Xxxxxxx
Senior Vice President
O-2
EXHIBIT P
FORM OF COMPUTATIONAL MATERIAL/ABS TERM SHEET LEGEND
Under no circumstances shall the information presented hereby
constitute an offer to sell or the solicitation of an offer to buy any security,
nor shall there be any sale of securities in any jurisdiction in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification for an exemption from such registration under the securities laws
of such jurisdiction. You have requested that Credit Suisse First Boston
Corporation, Xxxxxx Brothers Inc. and XxXxxxxx Investments Inc. (the
"Underwriters") provide to you information in connection with your considering
the purchase of certain securities described herein. The attached information is
being provided to you for informative purposes only in response to your specific
request. The information contained herein has been compiled by the Underwriters
from sources that they believe to be reasonably reliable. However, the
Underwriters make no representation or warranty as to the accuracy or
completeness of such information and you must make your own determination as to
whether the information is appropriate and responsive to your request. Any
investment decision with respect to the securities described herein should be
made solely on the results of your own due diligence with respect to the
securities referred to herein and only upon your review of the prospectus and
prospectus supplement. This information may not be delivered by you to solicit
investment banking business from any company named in the information herein.
The Underwriters and/or their employees may from time to time have a long or
short position in any security discussed herein.
P-1
