Exhibit 99.2
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "AGREEMENT"), is dated
and effective as of May 2, 2002, between Column Financial, Inc., a Delaware
corporation ("Column"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "SELLER"), and Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB MORTGAGE
SECURITIES"), as purchaser (in such capacity, together with its successors and
permitted assigns hereunder, the "PURCHASER").
RECITALS
Column desires to sell, assign, transfer, set over and otherwise
convey to CSFB Mortgage Securities, without recourse, and CSFB Mortgage
Securities desires to purchase, subject to the terms and conditions set forth
herein, the multifamily and commercial mortgage loans (collectively, the
"MORTGAGE LOANS") identified on the schedule annexed hereto as EXHIBIT A (the
"MORTGAGE LOAN SCHEDULE"), as such schedule may be amended from time to time
pursuant to the terms hereof.
CSFB Mortgage Securities intends to create a trust (the "TRUST"),
the primary assets of which will be a segregated pool of multifamily and
commercial mortgage loans that includes the Mortgage Loans. Beneficial ownership
of the assets of the Trust (such assets collectively, the "TRUST FUND") will be
evidenced by a series of mortgage pass-through certificates (the
"CERTIFICATES"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and
Xxxxx'x Investors Service, Inc. (together, the "RATING AGENCIES"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement dated as of May 13, 2002 (the "POOLING AND SERVICING
AGREEMENT"), among CSFB Mortgage Securities as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage and ARCap Special Servicing,
Inc., as master servicer and special servicer, respectively, of mortgage loans
that are not residential cooperative mortgage loans, NCB, FSB and National
Consumer Cooperative Bank, as master servicer and special servicer,
respectively, of residential cooperative mortgage loans, and Xxxxx Fargo Bank
Minnesota, N.A., as trustee. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
in SECTION 1 hereof). It is anticipated that CSFB Mortgage Securities will
transfer the Mortgage Loans to the Trust contemporaneously with its purchase of
the Mortgage Loans hereunder.
CSFB Mortgage Securities intends to sell certain classes of the
Certificates (collectively, the "PUBLICLY OFFERED CERTIFICATES") to Credit
Suisse First Boston Corporation ("CSFB CORPORATION") and the other underwriters
named in the Underwriting Agreement (as defined below) (collectively in such
capacity, the "UNDERWRITERS"), pursuant to an underwriting agreement dated as of
May 2, 2002 (the "UNDERWRITING AGREEMENT"), between CSFB Mortgage Securities and
CSFB Corporation as representative of the Underwriters, and CSFB Mortgage
Securities intends to sell certain classes of the remaining Certificates (the
"PRIVATELY OFFERED CERTIFICATES") to CSFB Corporation, pursuant to a certificate
purchase agreement dated as of May 2, 2002 (the "CERTIFICATE PURCHASE
AGREEMENT"), between CSFB Mortgage Securities and the CSFB Corporation. The
Publicly Offered Certificates are more fully described in a prospectus dated May
2, 2002 (the "BASIC PROSPECTUS"), and the supplement to the Basic Prospectus
dated May 2, 2002 (the "PROSPECTUS SUPPLEMENT" and, together with the Basic
Prospectus, the "PROSPECTUS"), as each may be amended or supplemented at any
time hereafter. The Privately Offered Certificates are more fully described in a
confidential offering circular dated May 2,
2002 (the "CONFIDENTIAL OFFERING CIRCULAR"), as it may be amended or
supplemented at any time hereafter.
Column will indemnify CSFB Mortgage Securities, CSFB Corporation,
the other Underwriters and certain related parties with respect to the
disclosure regarding the Mortgage Loans contained in the Prospectus, the
Confidential Offering Circular and certain other disclosure documents and
offering materials relating to the Certificates, pursuant to an indemnification
agreement dated as of May 2, 2002 (the "INDEMNIFICATION AGREEMENT"), among
Column, CSFB Mortgage Securities and CSFB Corporation, both as a representative
of the Underwriters and as initial purchaser of the Privately Offered
Certificates.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT TO PURCHASE. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on May 16, 2002 or such other date as shall be
mutually acceptable to the parties hereto (the "CLOSING DATE"). As of the close
of business on the respective Due Dates for the Mortgage Loans in May 2002
(individually and collectively, the "CUT-OFF DATE"), the Mortgage Loans will
have an aggregate principal balance, after application of all payments of
principal due on the Mortgage Loans on or before the Cut-off Date, whether or
not received, of $635,147,735, subject to a variance of plus or minus 5%. The
consideration for the Mortgage Loans shall consist of cash in the amount
specified in the Settlement Statement (as defined in SECTION 8 hereof), which
cash amount includes accrued interest on the Mortgage Loans at their respective
Net Mortgage Rates from and including May 1, 2002 to but not including the
Closing Date, and which cash amount the Purchaser shall pay to the Seller on the
Closing Date by wire transfer in immediately available funds or by such other
method as shall be mutually acceptable to the parties hereto.
SECTION 2. CONVEYANCE OF THE MORTGAGE LOANS.
(a) Effective as of the Closing Date, subject only to receipt of the
consideration referred to in SECTION 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Mortgage Loans, including all interest and principal received on or with respect
to the Mortgage Loans after the Cut-off Date (other than scheduled payments of
interest and principal due on or before the Cut-off Date), together with all of
the right, title and interest of the Seller in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to SECTION 18, deliver to and deposit with, or cause to be delivered to
and deposited with, the Purchaser or
-2-
its designee the Mortgage File and any Additional Collateral (other than reserve
funds and escrow payments) with respect to each Mortgage Loan. In addition, with
respect to each Mortgage Loan, as to which any Additional Collateral is in the
form of a Letter of Credit as of the Closing Date, the Seller shall cause to be
prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are required under such Letter
of Credit to assign, without recourse, to, and vest in, the Trustee the Seller's
rights as the beneficiary thereof and drawing party thereunder. The designated
recipient of the items described in the second preceding sentence, and the
designated beneficiary under each Letter of Credit referred to in the preceding
sentence, shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original or
certified recorded document or original policy of title insurance which is to be
delivered as part of the related Mortgage File for any Mortgage Loan solely
because the Seller is delayed in making such delivery by reason of the fact that
such original or certified recorded document has not been returned by the
appropriate recording office or such original policy of title insurance has not
yet been issued, then the Seller shall deliver such documents to the Purchaser
or its designee, promptly upon the Seller's receipt thereof.
In addition, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, on or before the Closing Date, the following items (except to the
extent that any of the following items are to be retained by a subservicer that
will continue to act on behalf of the Purchaser or its designee): (i) originals
or copies of all financial statements, appraisals, environmental/engineering
reports, leases, rent rolls (or, in the case of any Mortgage Loans secured by
residential cooperative properties, maintenance schedules), third-party
underwriting reports, insurance policies, legal opinions, tenant estoppels and
any other documents that the Purchaser or its servicing agent reasonably deems
necessary to service the subject Mortgage Loan in the possession or under the
control of the Seller that relate to the Mortgage Loans and, to the extent they
are not required to be a part of a Mortgage File for any Mortgage Loan,
originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans (PROVIDED that the Seller shall not be required to deliver any
attorney-client privileged communication or any documents or materials prepared
by the Seller or its affiliates solely for internal uses); and (ii) all
unapplied reserve funds and escrow payments in the possession or under the
control of the Seller that relate to the Mortgage Loans; and (iii) the Paradise
Island Letter of Credit (PROVIDED that such letter of credit (or any funds drawn
thereon and deposited in a reserve fund) shall be released to the Seller at such
time and in such amount as is provided in SECTION 3.19(i) of the Pooling and
Servicing Agreement as in full force and effect on the Closing Date. The
designated recipient of the items described in CLAUSES (i) and (ii) of the
preceding sentence shall be the applicable Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to deliver
any Letter of Credit constituting Additional Collateral for any Mortgage Loan,
then the Seller may, in lieu thereof, deliver on behalf of the related Borrower,
to be used for the same purposes as such missing Letter of Credit either: (i) a
substitute letter of credit substantially comparable to, but in all cases in the
same amount and with the same draw conditions and renewal rights as, that Letter
of Credit and issued by an obligor that meets any criteria in the related
Mortgage Loan Documents applicable to the issuer of that Letter of Credit; or
(ii) a cash reserve in an amount equal to the amount of that Letter of Credit.
For purposes of the delivery requirements of this SECTION 2(c), any such
substitute letter of credit shall be deemed to be Additional Collateral of the
type covered by the first paragraph of this SECTION 2(c) and any such cash
-3-
reserve shall be deemed to be reserve funds of the type covered by the third
paragraph of this SECTION 2(c).
In connection with the foregoing paragraphs of this SECTION 2(c),
the Seller is a designated recipient, or shall otherwise be the beneficiary, of
all certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to SECTION 2.02(a) and SECTION 2.02(b) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable fees and
out-of-pocket costs and expenses associated with recording and/or filing any and
all assignments and other instruments of transfer with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; PROVIDED that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer. If the Seller receives written notice that any such
assignment or other instrument of transfer is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
prepare or cause the preparation of a substitute therefor or cure such defect,
as the case may be; PROVIDED that the cost of such preparation shall be borne by
the Purchaser if the loss or return is caused by the Purchaser's negligence. The
Seller shall provide the Purchaser or its designee with a power of attorney to
enable it or them to record any loan documents that the Purchaser has been
unable to record. Unless the Purchaser notifies the Seller in writing to the
contrary, the designated recipients of the power of attorney referred to in the
preceding sentence shall be the Trustee.
(e) Upon sale of Certificates representing at least 10% of the total
principal balance of all the Certificates to unaffiliated third parties, the
Seller shall, under generally accepted accounting principles ("GAAP"), report
its transfer of the Mortgage Loans to the Purchaser, as provided herein, as a
sale of the Mortgage Loans to the Purchaser in exchange for the consideration
specified in SECTION 1 hereof. In connection with the foregoing, upon sale of
Certificates representing at least 10% of the total principal balance of all the
Certificates to unaffiliated third parties, the Seller shall cause all of its
financial and accounting records to reflect such transfer as a sale (as opposed
to a secured loan). Regardless of its treatment of the transfer of the Mortgage
Loans to the Purchaser under GAAP, the Seller shall at all times following the
Closing Date cause all of its records and financial statements and any relevant
consolidated financial statements of any direct or indirect parent to clearly
reflect that the Mortgage Loans have been transferred to the Purchaser and are
no longer available to satisfy claims of the Seller's creditors.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
-4-
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
(h) The Purchaser shall make draws on the Paradise Islands Letter of
Credit (or, if established, withdrawals from the Paradise Islands Special
Account) only as and to the extent provided in SECTION 3.19(i) of the Pooling
and Servicing Agreement as in full force and effect on the Closing Date and
shall release the Paradise Islands Reserve Fund to the Seller at such time and
in such amount as provided in SECTION 3.19(i) of the Pooling and Servicing
Agreement as in full force and effect on the Closing Date.
SECTION 3. EXAMINATION OF MORTGAGE LOAN FILES AND DUE DILIGENCE
REVIEW. The Seller shall reasonably cooperate with any examination of the
Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser. The
fact that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to SECTION 4
(subject, however, to SECTION 5(d)).
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER AND THE
PURCHASER.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser, each of the representations and warranties set forth
in EXHIBIT B-1. The Purchaser hereby makes, as of the Closing Date, to and for
the benefit of the Seller, each of the representations and warranties set forth
in EXHIBIT B-2.
(b) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, with respect to each Mortgage Loan,
each of the representations and warranties set forth in EXHIBIT C.
(c) The Seller hereby represents and warrants, as of the Closing
Date, to and for the benefit of CSFB Mortgage Securities only, that the Seller
has not dealt with any broker, investment banker, agent or other person (other
than the CSFB Mortgage Securities, CSFB Corporation and the other Underwriters)
who may be entitled to any commission or compensation in connection with the
sale to the Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Purchaser, with respect
to any replacement mortgage loan (a "REPLACEMENT MORTGAGE LOAN") that is
substituted for a Defective Mortgage Loan (as defined in SECTION 5(a) hereof),
pursuant to SECTION 5(a) of this Agreement, each of the representations and
warranties set forth in EXHIBIT C (references therein to "Closing Date" being
deemed to be references to the "date of substitution", references therein to
"Cut-off Date" being deemed to be references to the "most recent Due Date for
the subject Replacement Mortgage Loan on or before the date of substitution"
-5-
and references to "May 2002" and "April 2002" being deemed to be references to
the "month of substitution" and the "month preceding the month of substitution",
respectively). From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
(e) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this SECTION 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser for so long as any of the Mortgage
Loans remains outstanding, notwithstanding any restrictive or qualified
endorsement or assignment.
SECTION 5. NOTICE OF BREACH; CURE, REPURCHASE AND SUBSTITUTION.
(a) The Purchaser or its designee shall provide the Seller with
written notice of any Material Breach or Material Document Defect with respect
to any Mortgage Loan. Within 90 days of the earlier of discovery or receipt
(including, without limitation, from any party to the Pooling and Servicing
Agreement) of written notice by the Seller that there has been a Material Breach
or Material Document Defect with respect to any Mortgage Loan (or, if such
Material Breach or Material Document Defect, as the case may be, relates to
whether such Mortgage Loan is or, as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the related date of substitution), was a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (a
"QUALIFIED MORTGAGE"), and provided that the Seller received prompt written
notice thereof, within 90 days after any earlier discovery by any party to the
Pooling and Servicing Agreement of such Material Breach or Material Document
Defect, as the case may be) (such 90-day period, in any case, the "INITIAL
RESOLUTION PERIOD"), the Seller shall, subject to SECTION 5(b) and SECTION 5(c)
below, (i) correct or cure such Material Breach or Material Document Defect, as
the case may be, in all material respects or (ii) repurchase the Mortgage Loan
affected by such Material Breach or Material Document Defect, as the case may be
(such Mortgage Loan, a "DEFECTIVE MORTGAGE LOAN"), at the related Purchase
Price, with payment to be made in accordance with the reasonable directions of
the Purchaser; PROVIDED that if the Seller shall have delivered to the Purchaser
a certification executed on behalf of the Seller by an officer thereof stating
(i) that such Material Breach or Material Document Defect, as the case may be,
does not relate to whether the Defective Mortgage Loan is or, as of the Closing
Date (or, in the case of a Replacement Mortgage Loan, as of the related date of
substitution), was a Qualified Mortgage, (ii) that such Material Breach or
Material Document Defect, as the case may be, is capable of being cured but not
within the applicable Initial Resolution Period, (iii) that the Seller has
commenced and is diligently proceeding with the cure of such Material Breach or
Material Document Defect, as the case may be, within the applicable Initial
Resolution Period, (iv) what actions the Seller is pursuing in connection with
the cure thereof and (v) that the Seller anticipates that such Material Breach
or Material Document Defect, as the case may be, will be cured within an
additional period not to exceed 90 more days, then the Seller shall have an
additional 90 days following the end of the Initial Resolution Period (such
additional 90-day period, the "RESOLUTION EXTENSION PERIOD") to complete such
cure or, failing such, to repurchase the Defective Mortgage Loan; and PROVIDED,
FURTHER, that, if the Seller's obligation to repurchase any Defective Mortgage
Loan as a result of a Material Breach or Material Document Defect arises within
the three-month period commencing on the Closing Date (or within the two-year
period commencing on the Closing Date if the Defective Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury regulation section 1.860G-2(f)), and if the Defective Mortgage
Loan is still subject to the Pooling and Servicing Agreement, then the Seller
may, at its option, subject to the terms, conditions and limitations set forth
in the Pooling and Servicing Agreement, in lieu
-6-
of repurchasing such Defective Mortgage Loan (but, in any event, no later than
such repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Material
Breach or Material Document Defect, but if the Seller discovers a Material
Breach or Material Document Defect with respect to any Mortgage Loan, it will
notify the Purchaser. The Seller acknowledges the rights of the applicable
Master Servicer and Special Servicer under Section 2.03 of the Pooling and
Servicing Agreement to enforce the repurchase/substitution obligations of the
Seller under this SECTION 5(a), on behalf of the Trustee for the benefit of the
Certificateholders.
Whenever one or more mortgage loans are substituted by the Seller
for a Defective Mortgage Loan as contemplated by this SECTION 5(a), the Seller
shall (i) deliver the related Mortgage File for each such substitute mortgage
loan to the Purchaser or its designee (which designee, unless otherwise stated,
is the Trustee), (ii) certify that such substitute mortgage loan satisfies or
such substitute mortgage loans satisfy, as the case may be, all of the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this SECTION 5(a) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure in all material respects of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the related date of
repurchase or replacement, shall belong to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this SECTION 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
The remedies provided for in this SECTION 5(a) with respect to any
Material Breach or Material Document Defect as to any Mortgage Loan shall also
apply to any related REO Property.
(b) If one or more (but not all) of the Mortgage Loans constituting
a Cross-Collateralized Group (as defined in SECTION 18) are to be repurchased or
replaced by the Seller as contemplated by SECTION 5(a), then, prior to the
subject repurchase or substitution, the Purchaser or its designee shall use its
reasonable efforts, subject to the terms of such Mortgage Loans, to prepare and,
to the extent necessary and appropriate, have executed by the related Borrower
and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loans
-7-
in such Cross-Collateralized Group that are to be repurchased or replaced, on
the one hand, and the remaining Mortgage Loans therein, on the other hand, such
that those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto (as to each such group, the "PRIMARY REAL PROPERTY COLLATERAL");
PROVIDED that no such termination shall be effected unless the Mortgage Loans
from such Cross-Collateralized Group that are to remain with the Purchaser have
a loan-to-value ratio of no more than 75% and a debt service coverage ratio of
no less than 1.25x; and PROVIDED, FURTHER, that, if the affected
Cross-Collateralized Group is then subject to the Pooling and Servicing
Agreement, then no such termination shall be affected unless and until the
Trustee and the applicable Master Servicer shall have received from the Seller
(i) an Opinion of Counsel from independent counsel addressed to the Trustee and
the applicable Master Servicer to the effect that such termination will not
cause an Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool and (ii)
written confirmation from each Rating Agency that such termination will not
cause an Adverse Rating Event to occur with respect to any Class of Rated
Certificates; and PROVIDED, FURTHER, that the Seller may, at its option,
purchase the entire subject Cross-Collateralized Group in lieu of terminating
the cross-collateralization. All costs and expenses incurred by the Purchaser
and its servicing agents pursuant to this paragraph shall be included in the
calculation of Purchase Price for the Mortgage Loan(s) to be repurchased or
replaced.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the prior paragraph for
any reason (including, but not limited to, the Seller's failure to satisfy any
of the conditions set forth in the provisos to the first sentence of the prior
paragraph), and if the Seller has not elected to purchase the entire affected
Cross-Collateralized Group, then, for purposes of this SECTION 5, including for
purposes of (i) determining whether the particular Breach or Document Defect
that gave rise to the repurchase/substitution obligation for such
Cross-Collateralized Group is a Material Breach or Material Document Defect, as
the case may be, and (ii) the application of remedies, such Cross-Collateralized
Group shall be treated as a single Mortgage Loan.
(c) It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to SECTION 5(a) that the
Purchaser (which shall include the Trustee) shall have executed and delivered
such instruments of transfer or assignment then presented to it by the Seller,
in each case without recourse, as shall be necessary to vest in the Seller the
legal and beneficial ownership of such Defective Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto), to the extent that such ownership interest was transferred to
the Purchaser hereunder.
(d) It is understood and agreed that the obligations of the Seller
set forth in this SECTION 5 to cure a Material Breach or a Material Document
Defect, or to repurchase or replace the related Defective Mortgage Loan(s),
constitute the sole remedies available to the Purchaser, the Certificateholders
or the Trustee on behalf of the Certificateholders with respect to a Breach or
Document Defect in respect of any Mortgage Loan; PROVIDED that there is no
limitation on the part of the Purchaser, the Certificateholders or the Trustee
on behalf of the Certificateholders, or any person or entity acting on its or
their behalf, with regard to enforcing such repurchase or replacement
obligations or suing for damages in the event of a breach of such repurchase or
replacement obligations.
-8-
SECTION 6. CLOSING. The closing of the sale of the Mortgage Loans
(the "CLOSING") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on
the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Seller
made pursuant to SECTION 4 of this Agreement shall be true and correct in
all material respects as of the Closing Date;
(ii) all documents specified in SECTION 7 of this Agreement
(the "CLOSING DOCUMENTS"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the
Purchaser or its designee, all documents, funds and other assets required
to be delivered thereto pursuant to SECTION 2 of this Agreement;
(iv) the result of any examination of the Mortgage Files for,
and any other documents and records relating to, the Mortgage Loans
performed by or on behalf of the Purchaser pursuant to SECTION 3 hereof
shall be satisfactory to the Purchaser in its reasonable determination;
(v) all other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been complied
with in all material respects, and the Seller shall have the ability to
comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing
Date;
(vi) the Seller shall have received the consideration for the
Mortgage Loans, as contemplated by SECTION 1;
(vii) the Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this Agreement; and
(viii) neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. CLOSING DOCUMENTS. The Closing Documents shall consist of
the following:
(i) this Agreement, duly executed by the Purchaser and the
Seller;
-9-
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) an Officer's Certificate substantially in the form of
EXHIBIT D-1A hereto, executed by the Secretary or an assistant secretary
of the Seller, in his or her individual capacity, and dated the Closing
Date, and upon which CSFB Mortgage Securities, CSFB Corporation, the other
Underwriters and the Rating Agencies (collectively, for purposes of this
SECTION 7, the "INTERESTED PARTIES") may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Seller
authorizing the Seller's entering into the transactions contemplated by
this Agreement, and (B) the organizational documents of the Seller;
(iv) a certificate of good standing with respect to the Seller
issued by the Secretary of State of the State of Delaware not earlier than
30 days prior to the Closing Date, and upon which the Interested Parties
may rely;
(v) a Certificate of the Seller substantially in the form of
EXHIBIT D-1B hereto, executed by an executive officer of the Seller on the
Seller's behalf and dated the Closing Date, and upon which the Interested
Parties may rely;
(vi) a written opinion of in-house counsel for the Seller,
dated the Closing Date and addressed to the Interested Parties and the
respective parties to the Pooling and Servicing Agreement, which opinion
shall be substantially in the form of EXHIBIT D-2A hereto;
(vii) a written opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP,
special counsel for the Seller, dated the Closing Date and addressed to
the Interested Parties and the respective parties to the Pooling and
Servicing Agreement, which opinion shall be substantially in the form of
EXHIBIT D-2B hereto;
(viii) copies of all other opinions rendered by counsel for
the Seller to the Rating Agencies in connection with the transactions
contemplated by this Agreement, with each such opinion to be addressed to
CSFB Mortgage Securities, CSFB Corporation, the other Underwriters and the
Trustee or accompanied by a letter signed by such counsel stating that
CSFB Mortgage Securities, CSFB Corporation, the other Underwriters and the
Trustee may rely on such opinion as if it were addressed to them as of
date thereof;
(ix) a letter from Sidley Xxxxxx Xxxxx & Xxxx LLP, special
counsel for the Seller, dated the Closing Date and addressed to CSFB
Mortgage Securities, CSFB Corporation and the other Underwriters, which
letter shall be substantially in the form of EXHIBIT D-2C hereto;
(x) one or more comfort letters from PricewaterhouseCoopers
LLP, certified public accountants, dated the date of any preliminary
Prospectus Supplement and of the Prospectus Supplement, respectively, and
addressed to, and in form and substance acceptable to, CSFB Mortgage
Securities, CSFB Corporation, the other Underwriters and their respective
counsel, stating in effect that, using the assumptions and methodology
used by CSFB Mortgage Securities, all of which shall be described in such
letters, they have recalculated such numbers and percentages relating to
the Mortgage Loans set forth in any preliminary Prospectus Supplement and
the Prospectus Supplement, compared the results of their calculations to
the
-10-
corresponding items in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, and found each such number and
percentage set forth in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, to be in agreement with the results
of such calculations; and
(xi) such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date or any Rating
Agency may require and in a form reasonably acceptable to the Purchaser
and the Seller.
SECTION 8. COSTS. Whether or not this Agreement is terminated, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated pursuant to the terms of a settlement statement
dated the Closing Date (the "Settlement Statement").
In addition, it is hereby acknowledged that CSFB Mortgage Securities
has acquired from NCB, NCB Capital Corporation ("NCBCC") and NCB, FSB other
mortgage loans for transfer to the Trust. The Seller agrees that the costs and
expenses associated with such transactions will be allocated as follows: (i) all
out-of-pocket and/or internally allocated costs and expenses incurred by NCB,
NCBCC and/or NCB, FSB in connection with such transactions, including, without
limitation, the fees and disbursements of counsel for NCB, NCBCC and/or NCB,
FSB, together with all other due diligence and accounting costs and expenses
relating to the mortgage loans so acquired from NCB, NCBCC and/or NCB, FSB,
shall be borne by NCB, NCBCC, NCB, FSB and their affiliates; and (ii) all other
costs and expenses incurred in connection with such transactions shall be
allocated in accordance with the Settlement Statement.
SECTION 9. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, by
overnight mail or courier service, or transmitted by facsimile and confirmed by
similar mailed writing, if to the Purchaser, addressed to the Purchaser at 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx,
or such other address as may be designated by the Purchaser to the Seller in
writing, or, if to the Seller, addressed to the Seller at 0000 Xxxxxxxxx Xxxx,
X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxx, or such
other address as may be designated by the Seller to the Purchaser in writing.
SECTION 10. MISCELLANEOUS. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
together constitute but one and the same instrument. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. CHARACTERIZATION. The parties hereto agree that it is
their express intent that the conveyance contemplated by this Agreement be, and
be treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
-11-
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by CSFB Mortgage Securities to the Trustee of its
interests in the Mortgage Loans as contemplated by SECTION 16 hereof shall be
deemed to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser of the related Mortgage Notes and such other items
of property as constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest under applicable law; and (e) notifications to,
and acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents (as applicable)
of the Purchaser for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement. In connection with the
foregoing, the Seller authorizes the Purchaser to execute and file such UCC
financing statements as the Purchaser may deem necessary or appropriate to
accomplish the foregoing.
SECTION 12. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller delivered pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser, notwithstanding any restrictive or qualified
endorsement or assignment in respect of any Mortgage Loan.
SECTION 13. SEVERABILITY OF PROVISIONS. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT
-12-
PERMITTED UNDER APPLICABLE LAW, THE SELLER AND THE PURCHASER EACH HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL
COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR
RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. FURTHER ASSURANCES. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. SUCCESSORS AND ASSIGNS. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates. To the extent of
any such assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and Servicing Agreement, the Trustee, for the
benefit of the registered holders and beneficial owners of the Certificates, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be the Purchaser hereunder (but
solely with respect to such Mortgage Loan that was transferred to it). Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. INFORMATION. The Seller shall provide the Purchaser with
such information about the Seller, the Mortgage Loans and the Seller's
underwriting and servicing procedures as is (i) customary in commercial mortgage
loan securitization transactions, (ii) required by a Rating Agency or a
governmental agency or body or (iii) reasonably requested by the Purchaser for
use in a public or private disclosure document.
SECTION 18. CROSS-COLLATERALIZED MORTGAGE LOANS. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans are, in the case of each such particular group of Mortgage
Loans (each, a "CROSS-COLLATERALIZED GROUP"), by their terms, cross-defaulted
and cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this SECTION
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation,
-13-
each of the representations and warranties set forth in EXHIBIT C hereto and
each of the capitalized terms used herein but defined in the Pooling and
Servicing Agreement, shall be interpreted in a manner consistent with this
SECTION 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 19. ENTIRE AGREEMENT. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein, and
this Agreement supersedes any prior agreements and/or understandings, written or
oral, with respect to such matters.
* * *
[SIGNATURE PAGE FOLLOWS]
-14-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
COLUMN FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2002-CKN2
COLUMN COLLATERAL
[SEE EXHIBIT B-1A OF THE POOLING AND SERVICING AGREEMENT]
X-0
XXXXXXX X-0
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing
Date:
1. The Seller is a corporation duly organized, validly existing and
in good standing under the laws of Delaware.
2. The execution and delivery by the Seller of, and the performance
by the Seller under, this Agreement, the execution (including, without
limitation, by facsimile or machine signature) and delivery of any and all
documents contemplated by this Agreement, including, without limitation,
endorsements of Mortgage Notes, and the consummation by the Seller of the
transactions herein contemplated, will not: (a) violate the Seller's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound or which is applicable to it or any of
its assets, which default or breach, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
3. The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the event that
the related transaction is deemed to constitute a loan secured by all or part of
the Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under
the conditions set forth in, this Agreement.
5. Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (b)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
6. The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance under and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
7. There are no actions, suits or proceedings pending or, to the
best of the Seller's knowledge, threatened against the Seller which, if
determined adversely to the Seller, would prohibit the Seller from entering into
this Agreement or, in the Seller's good faith and reasonable judgment, would
B-1-1
be likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
8. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
9. The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
10. The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
11. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
12. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
13. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
14. The Seller does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
15. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
16. In connection with its transfer of the Mortgage Loans to the
Purchaser as contemplated herein, the Seller is receiving new value and
consideration constituting at least reasonably equivalent value and fair
consideration.
17. The Paradise Island Letter of Credit shall be in the amount of
$3.5 million and shall provide that draws thereon are to be made solely as
contemplated under SECTION 3.19( ) of the Pooling and Servicing Agreement as in
full force and effect on the Closing Date.
X-0-0
XXXXXXX X-0
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing
Date:
1. The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Purchaser of, and the
performance by the Purchaser under, this Agreement, and the consummation by the
Purchaser of transactions herein contemplated, will not: (a) violate the
Purchaser's organizational documents; or (b) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Purchaser is a party or by which it is bound or which is applicable to
it or any of its assets, which default or breach, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
3. The Purchaser has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (a) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
5. The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance under and compliance with the
terms hereof will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
6. There are no actions, suits or proceedings pending or, to the
best of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, would be likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations hereunder or the financial condition
of the Purchaser.
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been
B-2-1
completed, and except for those filings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
B-2-2
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE SELLER'S KNOWLEDGE"
AND OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN, EXCEPT WHERE OTHERWISE
EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE OF THE SELLER (AND, AS
TO ANY MORTGAGE LOAN, WITH RESPECT TO THE PERIOD SUBSEQUENT TO ORIGINATION, ANY
SERVICER ACTING ON BEHALF OF THE SELLER WITH RESPECT TO THAT MORTGAGE LOAN)
REGARDING THE MATTERS REFERRED TO, IN EACH CASE WITHOUT HAVING CONDUCTED ANY
INDEPENDENT INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO
(EXCEPT AS EXPRESSLY SET FORTH HEREIN); PROVIDED THAT THE SELLER SHALL BE DEEMED
TO HAVE KNOWLEDGE OF THE INFORMATION CONTAINED IN THE MORTGAGE LOAN DOCUMENTS
RELATING TO THE MORTGAGE LOANS. FOR PURPOSES OF THIS EXHIBIT C, THE "VALUE" OF A
MORTGAGED PROPERTY SHALL MEAN THE VALUE OF SUCH MORTGAGED PROPERTY AS DETERMINED
BY THE APPRAISAL (AND SUBJECT TO THE ASSUMPTIONS SET FORTH IN THE APPRAISAL)
PERFORMED IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN.
The Seller hereby represents and warrants with respect to the
respective Mortgage Loans that, as of the date hereinbelow specified or, if no
such date is specified, as of the Closing Date and subject to SECTION 18 of this
Agreement:
1. MORTGAGE LOAN SCHEDULE. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (consistent
with the definition of Mortgage Loan Schedule in the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the respective Due Dates for the Mortgage Loans in May 2002.
2. OWNERSHIP OF MORTGAGE LOANS. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights identified on SCHEDULE C-2). The Seller has
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights identified on SCHEDULE C-2); PROVIDED that recording and/or filing of
various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Note is, or shall be as of the Closing Date, properly endorsed to
the Purchaser or its designee and each such endorsement is genuine.
3. PAYMENT RECORD. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in May 2002 without giving effect to any applicable grace period,
nor was any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in May 2002, without
giving effect to any applicable grace period.
C-1
4. LIEN; VALID ASSIGNMENT. Except as otherwise set forth on Schedule
C-4, the Mortgage related to and delivered in connection with each Mortgage Loan
constitutes a valid and, subject to the limitations and exceptions set forth in
PARAGRAPH 13 below, enforceable first priority lien upon the related Mortgaged
Property, prior to all other liens and encumbrances, and there are no liens
and/or encumbrances that are PARI PASSU with the lien of such Mortgage, in any
event subject to the following (collectively, the "Permitted Encumbrances"): (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a PRO FORMA title policy or a "marked-up"
commitment binding upon the title insurer), none of which materially interferes
with the security intended to be provided by such Mortgage, the current
principal use of the related Mortgaged Property, the Value of the Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service such Mortgage Loan; (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy (or, if not yet
issued, referred to in a PRO FORMA title policy or "marked-up" commitment
binding upon the title insurer), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan; (d) other matters to which like properties are
commonly subject, none of which materially interferes with the security intended
to be provided by such Mortgage, the current principal use of the related
Mortgaged Property or the current ability of the related Mortgaged Property to
generate income sufficient to service such Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property, which rights do not materially interfere with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service the related Mortgage Loan; (f)
if such Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien
of the Mortgage for another Mortgage Loan contained in the same
Cross-Collateralized Group; and (g) if the related Mortgaged Property consists
of one or more units in a condominium, the related condominium declaration, the
terms of which condominium declaration do not materially interfere with the
security intended to be provided by such Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form (but for insertion
of the name and address of the assignee and any related recording information
which is not yet available to the Seller) and constitutes a legal, valid,
binding and, subject to the limitations and exceptions set forth in PARAGRAPH 13
below, enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. ASSIGNMENT OF LEASES AND RENTS. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in PARAGRAPH 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Borrower
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Borrower to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of
C-2
Leases not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name of the assignee and
any related recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in PARAGRAPH 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. The related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession to collect the rents or provides for rents to
be paid directly to the related mortgagee, if there is an event of default. No
person other than the related Borrower owns any interest in any payments due
under the related leases on which the Borrower is the landlord, covered by the
related Assignment of Leases.
6. MORTGAGE STATUS; WAIVERS AND MODIFICATIONS. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part.
7. CONDITION OF PROPERTY; CONDEMNATION. In the case of each Mortgage
Loan, except as set forth on SCHEDULE C-7A or in an engineering report prepared
by an independent engineering consultant in connection with the origination of
such Mortgage Loan, the related Mortgaged Property is, to the Seller's
knowledge, in good repair and free and clear of any damage that would materially
and adversely affect its value as security for such Mortgage Loan (except in any
such case where an escrow of funds or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. The Seller has not
received notice and has no knowledge of any proceeding pending for the
condemnation of all or any material portion of the Mortgaged Property securing
any Mortgage Loan. Except as otherwise set forth on SCHEDULE C-7B, as of the
date of origination of each Mortgage Loan and, to the Seller's knowledge, as of
the Closing Date (a) all of the material improvements on the related Mortgaged
Property lay wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in PARAGRAPH 8 below or that do
not materially and adversely affect the Value or current use of such Mortgaged
Property and (b) no improvements on adjoining properties encroached upon such
Mortgaged Property so as to materially and adversely affect the Value of such
Mortgaged Property, except those encroachments that are insured against by the
lender's title insurance policy referred to in PARAGRAPH 8 below.
8. TITLE INSURANCE. Except as otherwise set forth on Schedule C-8,
each Mortgaged Property securing a Mortgage Loan is covered by an American Land
Title Association (or an equivalent form of) lender's title insurance policy
(the "TITLE POLICY") (or, if such policy is yet to be issued, by a PRO FORMA
policy or a "marked up" commitment binding on the title insurer) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the Permitted Encumbrances. Such Title Policy (or, if
it has yet to be issued, the coverage to be provided thereby) is in full force
and effect, all
C-3
premiums thereon have been paid and, to the Seller's knowledge, no material
claims have been made thereunder and no claims have been paid thereunder. To the
Seller's knowledge, no holder of the related Mortgage has done, by act or
omission, anything that would materially impair the coverage under such Title
Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. Such Title Policy contains no
exclusion for whether, or it affirmatively insures (unless the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is not
available) that, (a) the related Mortgaged Property has access to a public road,
and (b) the area shown on the survey, if any, reviewed or prepared in connection
with the origination of the related Mortgage Loan is the same as the property
legally described in the related Mortgage.
9. NO HOLDBACK. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan Documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. MORTGAGE PROVISIONS. The Mortgage Loan Documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in PARAGRAPH 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, foreclosure or similar proceedings (as
applicable for the jurisdiction where the related Mortgaged Property is
located). None of the Mortgage Loan Documents contain any provision that
expressly excuses the related Borrower from obtaining and maintaining insurance
coverage for acts of terrorism.
11. TRUSTEE UNDER DEED OF TRUST. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. ENVIRONMENTAL CONDITIONS. Except in the case of the Mortgaged
Properties identified on Schedule C-12A (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment or an environmental site assessment
update, in each case meeting ASTM standards and covering all environmental
hazards typically assessed for similar properties including use, type and
tenants of the related Mortgaged Property, or a transaction screen meeting ASTM
standards, was performed by an independent third-party environmental consultant
(licensed to the extent required by applicable state law) with respect to each
Mortgaged Property securing a Mortgage Loan in connection with the origination
of such Mortgage Loan, (b) except with respect to the Mortgaged Properties
identified on SCHEDULE C-12B, the report of each such assessment, update or
screen, if any (an "ENVIRONMENTAL Report"), is dated no earlier than (or,
C-4
alternatively, has been updated within) twelve (12) months prior to the Closing
Date, (c) a copy of each such Environmental Report has been delivered to the
Purchaser, and (d) either: (i) no such Environmental Report, if any, reveals
that as of the date of the report there is a material violation of applicable
environmental laws with respect to any known circumstances or conditions
relating to the related Mortgaged Property; or (ii) if any such Environmental
Report does reveal any such circumstances or conditions with respect to the
related Mortgaged Property and the same have not been subsequently remediated in
all material respects, then one or more of the following are true--(A) one or
more parties not related to the related Borrower and collectively having
financial resources reasonably estimated to be adequate to cure the violation
was identified as the responsible party or parties for such conditions or
circumstance, and such conditions or circumstances do not materially impair the
Value of the related Mortgaged Property, (B) the related Borrower was required
to provide additional security reasonably estimated to be adequate to cure the
violations and/or to obtain and, for the period contemplated by the related
Mortgage Loan Documents, maintain an operations and maintenance plan, (C) the
related Borrower, or other responsible party, provided a "no further action"
letter or other evidence that would be acceptable to a reasonably prudent
commercial mortgage lender, that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not requiring
any action, in respect of such condition or circumstance, (D) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation, (E) the expenditure of funds reasonably estimated
to be necessary to effect such remediation is not greater than 2% of the
outstanding principal balance of the related Mortgage Loan, (F) there exists an
escrow of funds reasonably estimated to be sufficient for purposes of effecting
such remediation, (G) the related Borrower or other responsible party is
currently taking such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority, (H) the related Mortgaged Property is insured under a policy of
insurance, subject to certain per occurrence and aggregate limits and a
deductible, against certain losses arising from such circumstances and
conditions or (I) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation and, as of the date of origination of the related
Mortgage Loan, such responsible party had financial resources reasonably
estimated to be adequate to cure the subject violation in all material respects.
To the Seller's knowledge, there are no significant or material circumstances or
conditions with respect to such Mortgaged Property not revealed in any such
Environmental Report, where obtained, or in any Borrower questionnaire delivered
to the Seller in connection with the issue of any related environmental
insurance policy, if applicable, that would require investigation or remediation
by the related Borrower under, or otherwise be a material violation of, any
applicable environmental law. The Mortgage Loan Documents for each Mortgage Loan
require the related Borrower to comply in all material respects with all
applicable federal, state and local environmental laws and regulations. Each of
the Mortgage Loans identified on SCHEDULE C-12A are covered by environmental
insurance policies and each such policy is in the amount at least equal to 125%
of the principal balance of the Mortgage Loan, has a term ending no sooner than
the date which is five years after the maturity date of the Mortgage Loan to
which it relates and either do not provide for a deductible or the deductible
amount is held in escrow. Each Borrower represents and warrants in the related
Mortgage Loan Documents that except as set forth in certain environmental
reports and to its actual knowledge it has not used, caused or permitted to
exist and will not use, cause or permit to exist on the related Mortgaged
Property any hazardous materials in any manner which violates federal, state or
local laws, ordinances, regulations, orders, directives or policies governing
the use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. Unless the related Mortgaged
Property is identified on SCHEDULE C-12C, the related Borrower (or
C-5
affiliate thereof) has agreed to indemnify, defend and hold the Seller and its
successors and assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, expenses and claims of any
kind whatsoever (including attorneys' fees and costs) paid, incurred or suffered
by or asserted against, any such party resulting from a breach of environmental
representations, warranties or covenants given by the Borrower in connection
with such Mortgage Loan.
13. LOAN DOCUMENT STATUS. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent transfer and conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and except that certain provisions in such loan documents may be
further limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing CLAUSES (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. INSURANCE. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, and except as set forth on
SCHEDULE C-14A, all improvements upon each Mortgaged Property securing a
Mortgage Loan are insured under a fire and extended perils insurance (or the
equivalent) policy, in an amount at least equal to the lesser of the outstanding
principal balance of such Mortgage Loan and 100% of the full insurable
replacement cost of the improvements located on the related Mortgaged Property,
and if applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Each Mortgaged Property is
also covered by comprehensive general liability insurance in amounts customarily
required by prudent commercial lenders for properties of similar types. Except
for Mortgaged Properties disclosed on SCHEDULE C-14B, each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least twelve (12) months (or a
specified dollar amount which is reasonably estimated to cover no less than
twelve (12) months of rental income), unless such Mortgaged Property constitutes
a manufactured housing community. If any portion of the improvements on a
Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH AREA"), and flood insurance was available, a flood insurance
policy meeting the requirements of the then current guidelines of the Federal
Insurance Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of (1) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement basis, (2) the outstanding principal balance of
such Mortgage Loan, and (3) the maximum amount of insurance
C-6
available under the applicable National Flood Insurance Administration Program.
Each Mortgaged Property located in California or seismic zones 3 and 4 is
covered by seismic insurance to the extent such Mortgaged Property has a
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in the same area or earthquake zone. All such hazard and flood insurance
policies contain a standard mortgagee clause for the benefit of the holder of
the related Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be reduced)
without ten (10) days' prior written notice to the mortgagee; and no such notice
has been received, including any notice of nonpayment of premiums, that has not
been cured. Additionally, for any Mortgage Loan having a Cut-off Date Principal
Balance equal to or greater than $20,000,000, the insurer for all of the
required coverages set forth herein has a claims paying ability or financial
strength rating from S&P or Xxxxx'x of not less than A-minus (or the
equivalent), or from A.M. Best Company of not less than "A:V" (or the
equivalent). With respect to each Mortgage Loan, the related Mortgage Loan
Documents require that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permit the related mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent institutional commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan Documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; PROVIDED that the related
Mortgage Loan Documents may entitle the related Borrower to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and PROVIDED,
FURTHER, that, if the related Borrower holds a leasehold interest in the related
Mortgaged Property, the application of such proceeds will be subject to the
terms of the related Ground Lease (as defined in PARAGRAPH 18 below).
Except as set forth on SCHEDULE C-14C, each Mortgaged Property is
insured by an "all-risk" casualty insurance policy that does not contain an
express exclusion for (or, alternatively, is covered by a separate policy that
insures against property damage resulting from) acts of terrorism.
15. TAXES AND ASSESSMENTS. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments shall not
be considered delinquent until the date on which interest and/or penalties would
be payable thereon.
16. BORROWER BANKRUPTCY. No Borrower under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding, and
no Mortgaged Property is the subject of any such proceeding in which any
affiliate of the related Borrower is a debtor.
17. LOCAL LAW COMPLIANCE. Except as otherwise set forth on Schedule
C-17A, to the Seller's knowledge, based upon a letter from governmental
authorities, a legal opinion, a zoning consultant's report or an endorsement to
the related Title Policy, or based on such other due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
subject Mortgaged Property is located (including, without limitation, when
commercially reasonable, a
C-7
representation of the related Borrower at the time of origination of the subject
Mortgage Loan), the improvements located on or forming part of each Mortgaged
Property securing a Mortgage Loan are in material compliance with applicable
zoning laws and ordinances or constitute a legal non-conforming use or structure
(or, if any such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, except as set forth on
Schedule C-17B, the related Mortgaged Property may be restored or repaired to
the full extent of the use or structure at the time of such casualty or law and
ordinance coverage has been obtained in an amount that would be required by
prudent commercial mortgage lenders (or, if the related Mortgaged Property may
not be restored or repaired to the full extent of the use or structure at the
time of such casualty and law and ordinance coverage has not been obtained in an
amount that would be required by prudent commercial mortgage lenders, such fact
does not materially and adversely affect the Value of the related Mortgaged
Property).
18. LEASEHOLD ESTATE ONLY. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "GROUND LEASE"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "FEE
INTEREST"), then, except as otherwise set forth on SCHEDULE C-18:
(i) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes reflected in written instruments
which are a part of the related Mortgage File; and if required by such
Ground Lease, the lessor thereunder has received notice of the lien of the
related Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) the Borrower's interest in such Ground Lease is
assignable to, is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); PROVIDED that such Ground
Lease has not been terminated and all amounts owed thereunder have been
paid;
(iv) such Ground Lease is in full force and effect, and, to
the Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under
such Mortgage Loan unless a copy has been delivered to such mortgagee in
the manner described in such Ground Lease;
C-8
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date of
such Mortgage Loan, or (ii) has an original term which does not end prior
to the 5th anniversary of the Stated Maturity Date of such Mortgage Loan
and has extension options that are exercisable by the lender upon its
taking possession of the Borrower's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a
new lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Borrower unless the mortgagee
under such Mortgage Loan fails to cure a default of the lessee under such
Ground Lease following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage, taken together, any related casualty insurance proceeds (other
than DE MINIMIS amounts for minor casualties) with respect to the
leasehold interest will be applied either (i) to the repair or restoration
of all or part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (ii) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued interest
thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
and
(xi) such Ground Lease provides that it may not be amended or
modified without the prior written consent of the mortgagee under such
Mortgage Loan, and any such action without such consent is not binding on
such mortgagee, its successors or assigns.
19. QUALIFIED MORTGAGE. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) (but without regard to the rule in Treasury regulation
section 1.860G-2(f)(2)).
20. ADVANCEMENT OF FUNDS. In the case of each Mortgage Loan, except
as otherwise set forth on SCHEDULE C-20, neither the Seller nor, to the Seller's
knowledge, any prior holder of such Mortgage Loan has advanced funds or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property (other than amounts paid by the tenant
as specifically provided under related lease or by the property manager), for
the payment of any
C-9
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. NO EQUITY INTEREST, EQUITY PARTICIPATION OR CONTINGENT INTEREST.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. LEGAL PROCEEDINGS. To the Seller's knowledge, except as
otherwise set forth on Schedule C-22, there are no pending actions, suits,
proceedings or governmental investigations by or before any court or
governmental authority against or affecting the Borrower under any Mortgage Loan
or the related Mortgaged Property that, if determined adversely to such Borrower
or Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. OTHER MORTGAGE LIENS. Except as otherwise set forth on Schedule
C-23 and except for Mortgage Loans secured by residential cooperative
properties, none of the Mortgage Loans permits the related Mortgaged Property to
be encumbered by any mortgage lien junior to or of equal priority with the lien
of the related Mortgage without the prior written consent of the holder thereof
or the satisfaction of debt service coverage or similar criteria specified
therein. To the Seller's knowledge, except as otherwise set forth on SCHEDULE
C-23, and except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage Loans is encumbered by any mortgage liens
junior to or of equal priority with the liens of the related Mortgage. The
related Mortgage Loan Documents require the Borrower under each Mortgage Loan to
pay all reasonable costs and expenses related to any required consent to an
encumbrance, including any applicable Rating Agency fees, or would permit the
related mortgagee to withhold such consent if such costs and expenses are not
paid by a party other than such mortgagee.
24. NO MECHANICS' LIENS. To the Seller's knowledge: (i) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (ii) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. COMPLIANCE. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
C-10
26. LICENSES AND PERMITS. Except as otherwise set forth on Schedule
C-26, to the Seller's knowledge, as of the date of origination of each Mortgage
Loan and based on any of: (i) a letter from governmental authorities, (ii) a
legal opinion, (iii) an endorsement to the related Title Policy, (iv) a
representation of the related Borrower at the time of origination of such
Mortgage Loan, (v) a zoning report from a zoning consultant, or (vi) other due
diligence that a commercially reasonable originator of similar mortgage loans in
the jurisdiction where the related Mortgaged Property is located, customarily
performs in the origination of comparable mortgage loans, the related Borrower
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated or such material licenses, permits and franchises have
otherwise been issued.
27. CROSS-COLLATERALIZATION. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. RELEASES OF MORTGAGED PROPERTIES. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Treasury regulation section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
PROVIDED that the Mortgage Loans that are Cross-Collateralized Mortgage Loans,
and the other individual Mortgage Loans secured by multiple parcels, may require
the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (i) the satisfaction of certain legal and underwriting requirements or (ii)
the payment of a release price in connection therewith; and PROVIDED, FURTHER,
that certain Cross-Collateralized Groups of Mortgage Loans or individual
Mortgage Loans secured by multiple parcels may permit the related Borrower to
obtain the release of one or more of the related Mortgaged Properties by
substituting comparable real estate property, subject to, among other conditions
precedent, receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and PROVIDED, FURTHER, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan. No release or partial release of any Mortgaged
Property, or any portion thereof, expressly permitted by the related Mortgage
Loan Documents, will constitute a significant modification of the related
Mortgage Loan under Treasury regulation section 1.860G-2(b)(2).
29. DEFEASANCE. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treasury regulation
section 1.860G-2(a)(8)(i). To the Seller's knowledge, defeasance under each such
Mortgage Loan is only for the purpose of facilitating the disposition of a
Mortgaged Property and not as part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
30. DEFEASANCE COSTS. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan Documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee, including Rating Agency fees.
C-11
31. FIXED RATE LOANS. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. INSPECTION. Except as set forth on Schedule C-32, the Seller or
an affiliate thereof inspected, or caused the inspection of, the related
Mortgaged Property within twelve (12) months preceding the Closing Date.
33. NO MATERIAL DEFAULT. Except as otherwise set forth on Schedule
C-33, to the Seller's knowledge, there exists no material default, breach,
violation or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan (other than payments due but not yet 30 days or more delinquent);
PROVIDED, HOWEVER, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that pertains to or arises
out of the subject matter otherwise covered by any other representation and
warranty made by the Seller in this EXHIBIT C.
34. DUE-ON-SALE. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Borrower, is
transferred or sold, other than by reason of: (i) if the related Mortgaged
Property is a residential cooperative property, transfers of stock of the
Borrower in connection with the assignment of a proprietary lease for a unit in
the related Mortgaged Property by a tenant-shareholder of the Borrower to other
persons who by virtue of such transfers become tenant-shareholders in the
Borrower; and (ii) in the case of other types of Mortgaged Properties, family
and estate planning transfers, transfers of less than a controlling interest in
the Borrower, transfers of shares in public companies, issuance of
non-controlling new equity interests, transfers to an affiliate meeting the
requirements of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Borrower, transfers among affiliated Borrowers with respect
to cross-collateralized Mortgage Loans or multi-property Mortgage Loans,
transfers among co-Borrowers or transfers of a similar nature to the foregoing
meeting the requirements of the Mortgage Loan.
35. SINGLE PURPOSE ENTITY. Except in cases where the related
Mortgaged Property is a residential cooperative property, and further except as
otherwise described on SCHEDULE C-35, the Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $5,000,000 or more, was, as of the origination
of the Mortgage Loan, a Single Purpose Entity. For this purpose, a "SINGLE
PURPOSE ENTITY" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan Documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
Documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
C-12
36. WHOLE LOAN. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. TAX PARCELS. Except as otherwise described on Schedule C-37 of
this Agreement, each Mortgaged Property constitutes one or more complete
separate tax lots or is subject to an endorsement under the related Title Policy
insuring same, or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. ARD LOANS. Except as otherwise described on Schedule C-38, as of
the Closing Date, each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Borrower is required to enter into a lockbox arrangement on
the ARD Loan whereby all revenue from the related Mortgaged Property shall be
deposited directly into a designated account controlled by the applicable Master
Servicer.
39. SECURITY INTERESTS. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording, in all places
necessary to perfect (to the extent that the filing of such a UCC financing
statement can perfect such a security interest), a valid security interest in
the personal property of the related Borrower granted under the related
Mortgage. If any Mortgaged Property securing a Mortgage Loan is operated as a
hospitality property, then (a) the security agreements, financing statements or
other instruments, if any, related to the Mortgage Loan secured by such
Mortgaged Property establish and create a valid security interest in all items
of personal property owned by the related Borrower which are material to the
conduct in the ordinary course of the Borrower's business on the related
Mortgaged Property, subject only to purchase money security interests, personal
property leases and security interests to secure revolving lines of credit and
similar financing; and (b) one or more Uniform Commercial Code financing
statements covering such personal property have been filed or recorded (or have
been sent for filing or recording) wherever necessary to perfect under
applicable law such security interests (to the extent a security interest in
such personal property can be perfected by the filing of a Uniform Commercial
Code financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and binding assignment thereof
from the relevant assignor to the Trustee.
40. PREPAYMENT PREMIUMS AND YIELD MAINTENANCE CHARGES. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury regulation section 1.860G-1(b)(2).
41. COMMENCEMENT OF AMORTIZATION. Except as otherwise set forth on
Schedule C-41, each Mortgage Loan begins to amortize prior to its stated
maturity date or, in the case of an ARD Loan, prior to its Anticipated Repayment
Date.
42. SERVICING RIGHTS. Except for the primary servicers set forth on
Schedule C-42 or as otherwise contemplated in this Agreement or the Pooling and
Servicing Agreement, no Person has been granted or conveyed the right to service
any Mortgage Loan or receive any consideration in connection therewith.
C-13
43. RECOURSE. Unless the related Mortgaged Property is a residential
cooperative property, the related Mortgage Loan Documents contain provisions
providing for recourse against the related Borrower, a principal of such
Borrower, or an entity controlled by a principal of such Borrower for damages,
liabilities, expenses or claims sustained in connection with the Borrower's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after an
event of default), insurance proceeds or condemnation proceeds. The related
Mortgage Loan Documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower, has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
44. ASSIGNMENT OF COLLATERAL. There is no material collateral
securing any Mortgage Loan that has not been assigned to the Purchaser.
45. FEE SIMPLE OR LEASEHOLD INTERESTS. Except as set forth on
Schedule C-45, the interest of the related Borrower in the Mortgaged Property
securing each Mortgage Loan is a fee simple interest in real property and the
improvements thereon.
46. ESCROWS. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are conveyed hereunder to the Purchaser. Any and all material requirements under
each Mortgage Loan as to completion of any improvements and as to disbursement
of any funds escrowed for such purpose, which requirements were to have been
complied with on or before the Closing Date, have been complied with in all
material respects or, if and to the extent not so complied with, the escrowed
funds (or an allocable portion thereof) have not been released except in
accordance with the terms of the related loan documents.
47. OPERATING STATEMENTS. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan with at least quarterly
operating statements and rent rolls (if there is more than one tenant) (except
in cases where the related Mortgaged Property is a residential cooperative
property) for the related Mortgaged Property and annual financial statements of
the related Borrower, and with such other information as may be required
therein.
48. GRACE PERIOD. With respect to each Mortgage Loan, the related
Mortgage or Mortgage Note provides a grace period for delinquent Monthly
Payments no longer than fifteen (15) days from the applicable Due Date (or, in
the case of Mortgage Loans identified on SCHEDULE C-48, five (5) days from
notice to the related Borrower of the default).
49. DISCLOSURE TO ENVIRONMENTAL INSURER. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed,
in the application for such policy or otherwise to the insurer under such
policy the "pollution conditions" (as defined in such policy) identified
in any environmental reports related to such Mortgaged Property which are
in the Seller's possession or are otherwise known to the Seller; and
C-14
(ii) has delivered or caused to be delivered to the insurer
under such policy copies of all environmental reports in the Seller's
possession related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. NO FRAUD. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection with
the origination of any Mortgage Loan.
51. SERVICING. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. APPRAISAL. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Borrower or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. LOANS TO ONE BORROWER. As of the Closing Date, not more than
$55,000,000 of the Mortgage Loans have the same Borrower or, to the Seller's
KNOWLEDGE, have Mortgagors that are affiliates of each other.
C-15
SCHEDULE C-2
The Mortgage Loans secured by the Mortgaged Properties identified as 700 KMS
Building, Xxxxxxx Office Building, Xxxxxxx Retail Center and Xxxxx Office
Building, respectively, are subject to primary servicing rights.
X-00
XXXXXXXX X-0
X/X
X-00
XXXXXXXX X-0X
X/X
X-00
XXXXXXXX X-0X
X/X
C-19
SCHEDULE C-8
N/A
C-20
SCHEDULE C-12A
In the case of the Mortgage Loans secured by the Mortgaged
Properties identified as 000 Xxxxxxx Xxxxxx; 309; 315 and 000 Xxx Xxxx Xxxx; 325
(331) Old York Road; 0000 Xxxxxxxx Xxxxxx Xxxxxxxx; 000 00xx Xxxxxx; 00
Xxxxxxxxxx Xxxxxx; 000 0xx Xxxxxx; 000-000 Xxxx Xxxxxx; Xxx Street; Xxxxxx Trail
Mobile Home Park; Caribbean Mobile Home Estates; Carriage House Apartments; Casa
Xxxxxx; Casa View / Xxxxx Manor Apartments; Castle Cove Apartments; City Gate
Apartments; Country Village Apartments; Edgehill Apartments; Fiddlers Green
Apartments; Grand Oak Villas; InSite Ottawa (XxXxxxxx); InSite White Lake;
Xxxxxxx Apartments; Xxxxxx Street Place; New Orleans Apartments; Northtown
Village Shopping Center; Oakland Square Apartments; Oldham Building; Palm Villa
Apartments; Xxxxxxx Street Building; Springwood Apts; Times Square Shopping
Center; Versailles Apartments; Xxxxxxxxx Village I; Wainscott Village II; and
Xxxxxx & Xxxxxx Warehouse, the only environmental investigation conducted in
connection with the origination of the related Mortgage Loan related to
asbestos-containing materials and lead-based paint; however, in each instance,
environmental insurance policies each in an amount at least equal to 125% of the
principal balance of the related Mortgage Loan was obtained.
C-21
SCHEDULE C-12B
In the case of the Mortgage Loans identified as 309, 315 and 000 Xxx
Xxxx Xxxx (5/3/2001), 000 (000) Xxx Xxxx Xxxx (5/3/2001), 000-000 Xxxx Xxxxxx
(5/3/2001), Avis Farms Commerce Park (5/2/2001), Crystal River Mall (10/9/2000),
Grand Oak Villas (3/28/2001), Xxxxxxxxx Village I (3/30/2001), Wainscott Village
II (3/30/2001), WestCoast Grand Hotel at the Park (5/14/2001), Wood Forest Xxxx
Apartments (5/7/2001), the report of such assessment is dated earlier than
twelve months prior to the Closing Date.
X-00
XXXXXXXX X-00X
X/X
X-00
XXXXXXXX X-00X
X/X
X-00
XXXXXXXX X-00X
X/X
C-25
SCHEDULE C-14C
Xxxxxx Trail Mobile Home Park, Xxxxxxx Retail Center, Xxxxxxx Office
Building, Xxxxx Office Building, Xxxxxxx Apartments, Aventura Corporate Center,
and Xxxxxx Square Apartments.
C-26
SCHEDULE X-00X
X/X
X-00
XXXXXXXX X-00X
N/A
C-28
SCHEDULE C-18
In the case of the Mortgage Loan secured by the Mortgaged Property
identified as Wrigley Market Place, with respect to item (b), the Borrower's
interest is a subleasehold interest which is subject to the leasehold interest
of the tenant under the ground lease as well as to the related Fee Interest and
Permitted Encumbrances, however, a non-disturbance agreement is in place; and,
with respect to item (c), the assignment of the subground lease or a subletting
or all or substantially all of the property requires the landlord's consent, not
to be unreasonably withheld.
C-29
SCHEDULE C-20
With respect to the Mortgaged Properties identified as WestCoast Grand Hotel at
the Park and WestCoast Olympia Hotel, Column advanced the cost of certain
insurance relating to terrorist acts.
C-30
SCHEDULE C-22
In the case of one Mortgage Loan secured by the Mortgaged Property
identified as North Oaks Village Center, the borrower is involved in an
arbitration with North Oaks Company (an unrelated adjoining landowner) regarding
breach of an recorded declaration of restrictive covenants and easements for
failure to complete certain common area amenities pursuant to a Master
Development Plan and correction of pond encroachments. Borrower's counsel in the
dispute estimates the outside cost for settlement to be $35,000 plus attorneys'
fees and is a carve-out guaranteed by the sponsor from the non-recourse
provisions of the Loan Documents.
C-31
SCHEDULE C-23
In the case of one Mortgage Loan secured by the Mortgaged Property
identified as King City Center, the borrower incurred subordinate secured
financing to the City of King, California for a road assessment for adjacent
road work improvements servicing the mortgaged property which had an outstanding
principal balance upon origination of the Mortgage Loan of approximately
$70,000. The holder of the additional debt executed a standard subordination and
standstill agreement in favor of the holder of the subject mortgage loan whereby
the holder of the subject mortgage loan was granted notice and cure rights, and
the holder of the additional debt agreed to take no action to enforce or collect
such indebtedness until the subject mortgage loan (or any refinancing thereof)
is repaid in full.
C-32
SCHEDULE X-00
X/X
X-00
XXXXXXXX X-00
X/X
C-34
SCHEDULE C-33
N/A
C-35
SCHEDULE C-35
In the case of the Mortgage Loans secured by the Mortgaged Property
identified as Crystal River Mall, the Borrower (Simon Property Group) was not,
as of the origination of the respective Mortgage Loan a Single Purpose Entity.
C-36
SCHEDULE C-37
In the case of the Mortgage Loan secured by the Mortgaged Property
identified as Aventura Corporate Center, the Borrower has one year from loan
origination to constitute the Mortgaged Property as a separate tax lot. A letter
of credit in the amount of $58,736 was deposited with the lender upon loan
origination as security to be used, if necessary, for the payment of ad valorem
taxes for adjacent real property from which the Mortgaged Property was
subdivided creating the need for the separate tax lot.
C-37
SCHEDULE X-00
X/X
X-00
XXXXXXXX X-00
X/X
C-39
SCHEDULE C-42
Capstone Realty Advisors, LLC (Xxxxxxx Office Building, Xxxxxxx Retail Center
and Xxxxx Office Building) and Xxxxxxx Financial Group (700 KMS Building).
C-40
SCHEDULE C-45
In the case of the Mortgage Loan secured by the Mortgaged Property
identified as Fairfield Inn, the interest of the related Borrower is a leasehold
estate, and in the case of the Mortgage Loan identified as Wrigley Market Place,
the interest of the related Borrower is a subleasehold estate.
C-41
SCHEDULE X-00
X/X
X-00
XXXXXXX X-0X
FORM OF CERTIFICATE OF THE SECRETARY
OR AN ASSISTANT SECRETARY OF THE SELLER
I, Xxxx X. Xxxxx, hereby certify that I am a duly appointed
Assistant Secretary of Column Financial, Inc. (the "Corporation"), a Delaware
corporation, and further certify as follows:
1. Attached hereto as Exhibit A are true and correct copies of the
Certificate of Incorporation and By-Laws of the Corporation, which
Certificate of Incorporation and By-Laws are, on the date hereof, and have
been at all times since the formation of the Corporation, in full force
and effect.
2. Attached hereto as Exhibit B is a certificate of good standing of
the Corporation 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 Corporation) has
occurred since the date thereof which has affected the good standing of
the Corporation under the laws of the State of Delaware.
3. The Board of Directors of the Corporation, by unanimous written
consent dated April 20, 2001 (the "Resolutions"), authorized, among other
things, all actions necessary to consummate transactions of the type
contemplated by the Mortgage Loan Purchase Agreement dated as of May 2,
2002 (the "Mortgage Loan Purchase Agreement"), between the Corporation and
Credit Suisse First Boston Mortgage Securities Corp., and to execute and
deliver documents and/or instruments such as the Mortgage Loan Purchase
Agreement and the Indemnification Agreement referred to therein. Attached
hereto as Exhibit C is a true and correct copy of such Resolutions. The
Resolutions have not been amended, modified, annulled or revoked since
they were 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.
4. Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Corporation and his
genuine signature is set forth opposite his name.
NAME OFFICE SIGNATURE
---- ------ ---------
Xxxxxxx X. Xxxxxxx Vice President _____________________________
Xxxxx Xxxxx Vice President _____________________________
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the
Mortgage Loan Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
D-1A-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of May ___, 2002.
By:
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Secretary
D-1A-2
EXHIBIT A
CERTIFICATE OF INCORPORATION AND BY-LAWS OF COLUMN FINANCIAL, INC.
[See attached.]
D-1A-3
EXHIBIT B
CERTIFICATE OF GOOD STANDING OF COLUMN FINANCIAL, INC.
[See attached.]
D-1A-4
EXHIBIT C
UNANIMOUS WRITTEN CONSENT OF BOARD OF DIRECTORS OF COLUMN FINANCIAL, INC.
[See attached.]
D-1A-5
EXHIBIT D-1B
FORM OF CERTIFICATE OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-CKN2
CERTIFICATE OF COLUMN FINANCIAL, INC.
In connection with the execution and delivery by Column Financial,
Inc. ("Column") of, and the consummation of the various transactions
contemplated by, that certain
Mortgage Loan Purchase Agreement dated as of May
2, 2002 (the "
MORTGAGE LOAN PURCHASE AGREEMENT"), between
Credit Suisse First
Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and Column, as
seller, and that certain Indemnification Agreement dated as of May 2, 2002 (the
"Indemnification Agreement and, together with the
Mortgage Loan Purchase
Agreement, the "AGREEMENTS"), between Column, 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 Column 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) Column has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part required under the
Mortgage Loan Purchase Agreement to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified this ___ day of May, 2002.
COLUMN FINANCIAL, INC.
By:
----------------------------------------
Name:
Title:
D-1B-1
EXHIBIT D-2A
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE SELLER,
PURSUANT TO SECTION 7(vi)
May 16, 2002
To the Parties Listed on Annex A hereto
Re:
Credit Suisse First Boston Mortgage Securities Corp.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2002-CKN2
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 May 2, 2002, by and between the Depositor
and the Mortgage Loan Seller, and (ii) the Mortgage Loan Seller's providing
indemnities to the Depositor, CSFB and Xxxxxx Brothers Inc. ("XXXXXX"), pursuant
to the Indemnification Agreement (the "INDEMNIFICATION AGREEMENT"), dated May 2,
2002, by and among the Mortgage Loan Seller, the Depositor and CSFB, on behalf
of itself and as representative of 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:
D-2A-1
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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 General Corporation Law of the State of
Delaware 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.
D-2A-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,
D-2A-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
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
ARCap Special Servicing, Inc.
0000 X. XxxXxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
NCB, FSB
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
National Consumer Cooperative Bank
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 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
D-2A-4
EXHIBIT D-2B
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX LLP, SPECIAL COUNSEL TO THE
SELLER,
PURSUANT TO SECTION 7(vii)
May 16, 2002
To the Parties Listed on Annex A:
Re:
Credit Suisse First Boston Mortgage Securities Corp.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2002-CKN2
Ladies and Gentlemen:
We have acted as special counsel to 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 May 2, 2002 (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 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
D-2B-1
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 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
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.
D-2B-2
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-2B-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
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
D-2B-4
EXHIBIT D-2C
FORM OF LETTER OF SIDLEY XXXXXX XXXXX & XXXX LLP, SPECIAL COUNSEL TO THE
SELLER,
PURSUANT TO SECTION 7(ix)
May 16, 2002
To the Parties Listed on Annex A hereto:
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-CKN2
Ladies and Gentlemen:
We have acted as special counsel to 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 "SECURITIES
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 May 2, 2002 (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 May 2, 2002 (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 May
2, 2002 (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
D-2C-1
Agreement dated as of May 2, 2002 (the "NCBCC MORTGAGE LOAN PURCHASE
AGREEMENT"), between NCBCC as seller and the Depositor as purchaser;
(vi) the sale by NCB, FSB ("NCBFSB"), and the purchase by the
Depositor, of a fifth segregated pool of multifamily AND commercial
mortgage loans (collectively, the "NCBFSB MORTGAGE LOANS"), pursuant to
the Mortgage Loan Purchase Agreement dated as of May 2, 2002 (the "NCBFSB
MORTGAGE LOAN PURCHASE AGREEMENT"), between NCBFSB as seller and the
Depositor as purchaser;
(vii) the creation of a commercial mortgage trust (the
"TRUST"), and the issuance of an aggregate $918,137,952 Certificate
Principal Balance of Commercial Mortgage Pass-Through Certificates, Series
2002-CKN2 (the "CERTIFICATES"), consisting of 22 classes designated Class
A-X, Class A-Y, Class A-SP, Class A-1, Class A-2, Class A-3, Class B,
Class C-1, Class C-2, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class R and Class V,
pursuant to the Pooling and Servicing Agreement dated as of May 13, 2002
(the "POOLING AND SERVICING AGREEMENT"), among the Depositor as depositor,
Key Corp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage
as general master servicer, ARCap Special Servicing, Inc. as general
special servicer, NCBFSB as co-op master servicer, NCB as co-op special
servicer and Xxxxx Fargo Bank Minnesota, N.A. as trustee (the "TRUSTEE");
(viii) the transfer of the Column Mortgage Loans, the KeyBank
Mortgage Loans, the NCB Mortgage Loans, the NCBCC Mortgage Loans and the
NCBFSB 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
(ix) the sale by the Depositor, and the purchase by Credit
Suisse First Boston Corporation ("CSFB CORPORATION") and Xxxxxx Brothers
Inc. (collectively, in such capacity, the "UNDERWRITERS") of the Class
A-1, Class A-2, Class A-3, Class B, Class C-1, Class C-2 and Class D
Certificates (collectively, the "PUBLICLY OFFERED CERTIFICATES"), pursuant
to the Underwriting Agreement dated as of May 2, 2002 (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, the NCBCC Mortgage Loan
Purchase Agreement and the NCBFSB 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 the purposes of this letter, we have reviewed: the Agreements;
the Registration Statement; the Prospectus, dated May 2, 2002, 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 May 2, 2002, 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 for rendering this letter; we have obtained such certificates from and
made such inquiries of officers and
D-2C-2
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, the NCBFSB Mortgage Loan Purchase
Agreement, 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, NCBCC and NCBFSB, (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 or an affiliate of Column in respect of the Column
Mortgage Loans. 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 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, (y) any information contained in or omitted from the
Prospectus regarding the nature and characteristics of the KeyBank Mortgage
Loans, the NCB Mortgage Loans, the NCBCC Mortgage Loans or the NCBFSB
D-2C-3
Mortgage Loans and/or the Borrowers and Mortgaged Properties relating to such
Mortgage Loans or (z) any information contained in or omitted from the computer
diskette that accompanies the Prospectus. 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 and
Column 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 LLP 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 LLP 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,
D-2C-4
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
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 000000
D-2C-5
