CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
UNDERWRITING AGREEMENT
March 5, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MCDONALD INVESTMENTS INC.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED
4 World Financial Center, 26th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
XXXXXXX XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation (the "Depositor"), proposes to form a commercial mortgage
trust (the "Trust"), which will issue securities entitled Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 2001-CK1, certain classes of which securities the Depositor proposes to
sell to you hereunder (such classes of such securities to be sold hereunder,
collectively, the "Certificates"). Each Certificate will evidence a fractional
undivided, percentage interest or beneficial interest in the Trust. The terms on
which the Trust will issue the Certificates will be specified in the Prospectus
(as defined herein). The property of the Trust will consist of a pool of 142
mortgage loans, secured by 157 multifamily and commercial properties
(collectively, the "Mortgage Loans") that will be purchased by the Depositor
from Column Financial, Inc. ("Column") and KeyBank National Association
("KeyBank" and, together with Column, the "Mortgage Loan Sellers") pursuant to
separate Mortgage Loan Purchase Agreements (each, a "Mortgage Loan Purchase
Agreement"). The assets of the Trust are collectively referred to herein as the
"Trust Fund". The Mortgage Loans will be transferred to the Trust, and the
Certificates will be issued, pursuant to a Pooling and Servicing Agreement,
dated as of March 1, 2001 (the "Pooling and Servicing Agreement"), among the
Depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage, as master servicer (the "Master Servicer"), ORIX Real Estate Capital
Markets, LLC,
as special servicer (the "Special Servicer"), and Xxxxx Fargo Bank Minnesota,
N.A., as trustee (the "Trustee").
The offering of the Certificates made pursuant to the Registration
Statement (as defined herein) will be made through you as underwriters. This
Agreement provides for the sale of such Certificates to, and the purchase and
offering thereof by, you, as underwriters (the "Underwriters" and, individually,
an "Underwriter"). Schedule I shall specify the principal balance of each class
of the Certificates to be issued and any terms thereof not otherwise specified
in the Pooling and Servicing Agreement, the classes of Certificates subject to
this Agreement, the price at which such Certificates are to be purchased by the
Underwriters from the Depositor, the aggregate amount of Certificates to be
purchased by you and the initial public offering price or the method by which
the price at which such Certificates are to be sold will be determined. The
offering of the Certificates will be governed by this Agreement.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to you as of the date hereof as follows:
(a) a registration statement on Form S-3, including a prospectus and such
amendments thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "Act"), in the form
heretofore delivered to you, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective; such registration
statement, as amended (excluding any related Computational Materials and ABS
Term Sheets (each as defined in Section 8(a) below) previously filed or to be
filed and any Computational Materials and ABS Term Sheets relating to securities
other than the Certificates), and the prospectus relating to the sale of the
Certificates offered thereby by the Depositor and constituting a part of such
registration statement, as such prospectus is from time to time amended or
supplemented (including any prospectus filed with the Commission pursuant to
Rule 424(b) of the rules and regulations of the Commission (the "Rules and
Regulations") under the Act), are respectively referred to herein as the
"Registration Statement" and the "Base Prospectus"; the conditions to the use of
a registration statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the Act have been
satisfied with respect to the Registration Statement; and no other amendment to
the Registration Statement (other than any amendment thereof by reason of Rule
429) will be filed which shall be reasonably disapproved by you promptly after
reasonable notice thereof;
(b) there is no request by the Commission for any further amendment of the
Registration Statement or the Prospectus or for any additional information; the
Commission has not issued any stop order suspending the effectiveness of the
Registration Statement and the Depositor is not aware of any proceeding for that
purpose having been instituted or threatened; and there has been no notification
with respect to the suspension of the qualification for sale of the Certificates
for sale in any jurisdiction or any proceeding for such purpose having been
instituted or threatened;
(c) the Registration Statement (i) on its effective date and on the date of
the then most recently filed Prospectus Supplement conformed in all respects to
the requirements of the Act and the Rules and Regulations thereunder and did not
include any untrue statement of a material
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fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (ii) on the date
hereof will conform in all respects to the requirements of the Act and the Rules
and Regulations thereunder and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; the Base Prospectus
and the supplement to the Base Prospectus prepared pursuant to Section 5(a)
below (the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus"), on the date hereof and on the Specified Delivery Date will
conform in all respects to the requirements of the Act and the Rules and
Regulations thereunder and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
foregoing does not apply to (A) the information contained in or omitted from the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto, in reliance upon and in conformity with written or electronic
information furnished to the Depositor by any Underwriter specifically for use
therein, (B) the information contained in or omitted from the Prospectus, or any
amendment thereof or supplement thereto, in reliance upon and conformity with
(1) the Master Tape (it being acknowledged that the Master Tape was used to
prepare the Prospectus Supplement, including, without limitation, Exhibit A-1
and Exhibit A-2 to the Prospectus Supplement and the accompanying diskette), (2)
the representations and warranties of any Mortgage Loan Seller set forth in or
made pursuant to the related Mortgage Loan Purchase Agreement, or (3) any other
information concerning the characteristics of the Mortgage Loans, the related
obligors on the Mortgage Loans (the "Borrowers") or the related mortgaged real
properties securing the Mortgage Loans (the "Mortgaged Properties") furnished to
the Depositor or the Underwriters by any Mortgage Loan Seller, (C) the
information regarding the Mortgage Loans, the Borrowers, the Mortgaged
Properties and/or the Mortgage Loan Sellers contained in or omitted from the
Prospectus Supplement, or any amendment thereof or supplement thereto, under the
headings "Summary of Prospectus Supplement--The Underlying Mortgage Loans",
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and "Description
of the Underlying Mortgage Loans", on Exhibit A-1 or Exhibit A-2 thereto or on
the accompanying diskette, or (D) the information contained in or omitted from
any Computational Materials and/or ABS Term Sheets (each as defined in Section
8(a) hereof), or any amendment thereof or supplement thereto, incorporated by
reference in the Registration Statement or the Prospectus (or any amendment
thereof or supplement thereto). The "Master Tape" consists of the compilation of
underlying information and data regarding the Mortgage Loans covered by the
Independent Accountants Report on Applying Agreed Upon Procedures dated March 5,
2001, as supplemented to the Closing Date, and rendered by Xxxxxx Xxxxxxxx LLP.;
(d) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as
described in the Prospectus, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Depositor, and is conducting its business so as to comply in all material
respects with the applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business;
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(e) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the Specified
Delivery Date (as defined herein), to the description thereof contained in the
Registration Statement and the Prospectus; and the Certificates, on the date
hereof, will have been duly and validly authorized and, when such Certificates
are duly and validly executed by the Depositor or the Trustee, authenticated by
the Trustee and delivered in accordance with the Pooling and Servicing Agreement
and delivered and paid for as provided herein, will be validly issued and
outstanding and entitled to the benefits and security afforded by the Pooling
and Servicing Agreement;
(f) the issue and sale of the Certificates and the compliance by the
Depositor with all of the provisions of the Certificates, this Agreement and the
Pooling and Servicing Agreement, the execution and delivery by the Depositor of
this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreements are within the corporate power of the Depositor and have
been, or will have been, duly authorized by all necessary corporate action on
the part of the Depositor; and neither the execution and delivery by the
Depositor of such instruments, nor the consummation by the Depositor of the
transactions herein or therein contemplated, nor the compliance by the Depositor
with the provisions hereof or thereof, will (A) conflict with or result in a
breach of, or constitute a default under, any of the provisions of the
certificate of incorporation or by-laws of the Depositor, (B) conflict with any
of the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Depositor or its properties, (C) conflict with any of the
provisions of any indenture, mortgage, contract or other instrument to which the
Depositor is a party or by which it is bound or (D) except as contemplated by
the Pooling and Servicing Agreement, result in the creation or imposition of any
lien, charge or encumbrance upon any of its property or assets pursuant to the
terms of any such indenture, mortgage, contract or other instrument;
(g) there are no actions or proceedings against, or investigations of, the
Depositor pending, or, to the knowledge of the Depositor, threatened, before any
court, administrative agency or other tribunal (i) asserting the invalidity of
this Agreement, the Pooling and Servicing Agreement, either of the Mortgage Loan
Purchase Agreements or the Certificates, (ii) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Pooling and Servicing Agreement or either of the Mortgage
Loan Purchase Agreements, (iii) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability against the Depositor of this Agreement, the Pooling and
Servicing Agreement, either of the Mortgage Loan Purchase Agreements or the
Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Certificates described in the Prospectus;
(h) there has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Depositor since the
date of its latest audited financial statements which would have a material
adverse effect on the ability of the Depositor to perform its obligations under
this Agreement, the Pooling and Servicing Agreement or either of the Mortgage
Loan Purchase Agreements;
(i) there are no contracts, indentures or other documents of a character
required by the Act or by the rules and regulations thereunder to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement
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which have not been so described or referred to therein or so filed or
incorporated by reference as exhibits thereto;
(j) the Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Depositor has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Depositor;
(k) this Agreement has been duly authorized, executed and delivered by the
Depositor;
(l) on the Specified Delivery Date, the Pooling and Servicing Agreement and
the Mortgage Loan Purchase Agreements will have been duly authorized, executed
and delivered by the Depositor and will be valid and binding agreements of the
Depositor, enforceable against the Depositor in accordance with its terms,
except to the extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (2) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity);
(m) all approvals, authorizations, consents, orders or other actions of any
person, corporation or other organizations, or of any court, governmental agency
or body or official (except with respect to the state securities or "blue sky"
laws of various jurisdictions) required in connection with the valid and proper
authorization, issuance and sale of the Certificates pursuant to this Agreement
and the Pooling and Servicing Agreement have been or will be taken or obtained
on or prior to the Specified Delivery Date;
(n) at the Specified Delivery Date, each of the Mortgage Loans will meet
the criteria for selection described in the Prospectus Supplement;
(o) the characteristics of the Trust Fund will not subject the Trust to
registration as an investment company under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), and the Pooling and Servicing
Agreement is not required to be qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act");
(p) at the time of the execution and delivery of the Pooling and Servicing
Agreement, the Depositor (A) except as disclosed in the Prospectus, will convey
to the Trustee, or cause to be conveyed to the Trustee, all of the Depositor's
right, title and interest in and to the Mortgage Loans being transferred to the
Trustee pursuant to the Pooling and Servicing Agreement, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively "Liens") granted by or imposed upon the Depositor, (B)
will not have assigned to any other person any of its right, title or interest
in the Mortgage Loans or in the Pooling and Servicing Agreement or the
Certificates, and (C) will have the power and authority to transfer or cause the
transfer of the Mortgage Loans to the Trustee and to sell the Certificates to
the Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by
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the Trustee, the Trustee will have acquired ownership of all of the Depositor's
right, title and interest in and to the Mortgage Loans except to the extent
disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor;
(q) under generally accepted accounting principles and for federal income
tax purposes, the Depositor will report the transfer of the Mortgage Loans to
the Trustee in exchange for the Certificates and the sale of the Certificates to
the Underwriters pursuant to this Agreement as a sale of the interest in the
Mortgage Loans evidenced by the Certificates;
(r) the consideration received by the Depositor upon the sale of the
Certificates to the Underwriters will constitute at least reasonably equivalent
value and fair consideration for the Certificates;
(s) the Depositor will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Certificates to the Underwriters;
(t) the Depositor is not selling the Certificates to the Underwriters with
any intent to hinder, delay or defraud any of the creditors of the Depositor;
(u) at the Specified Delivery Date, the respective Classes of Certificates
shall have been assigned ratings no lower than those set forth in Schedule I
hereto by the nationally recognized statistical rating organizations identified
in Schedule I hereto (the "Rating Agencies"); and
(v) any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and Servicing
Agreement and the Certificates payable by the Depositor (other than income
taxes) have been paid or will be paid at or prior to the Specified Delivery
Date.
3. Purchase, Sale and Delivery of Certificates. The closing for the
purchase and sale of the Certificates contemplated hereby (the "Closing"), shall
be made at the date, location and time of delivery set forth in Schedule I
hereto, or such later date as shall be mutually acceptable to the Underwriters
and the Depositor (such date and time of purchase and sale of the Certificates
being herein called the "Specified Delivery Date"). Delivery of the Certificates
will be made in book-entry form through the facilities of The Depository Trust
Company ("DTC"). Each class of Certificates will be represented by one or more
definitive global certificates to be deposited by or on behalf of the Depositor
with DTC. Delivery of the Certificates shall be made to the several Underwriters
against payment by the several Underwriters of the purchase price for the
Certificates to or upon the order of the Depositor by wire transfer of
immediately available funds or by such other method as may be acceptable to the
Depositor.
The Depositor agrees to have the Certificates available for inspection by
the Underwriters in New York, New York, not later than 1:00 p.m. on the business
day prior to the Specified Delivery Date.
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4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Prospectus. It is further understood that the Depositor in reliance upon Policy
Statement 105, has not filed and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Certificates. As required by Policy Statement 105, each Underwriter
therefore covenants and agrees with the Depositor that sales of the Certificates
made by such Underwriter in the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
5. Covenants of the Depositor. The Depositor covenants and agrees with you
that:
(a) the Depositor has prepared and/or shall prepare a Prospectus Supplement
setting forth the amount of Certificates covered thereby and the terms thereof
not otherwise specified in the Base Prospectus, the price at which such
Certificates are to be purchased by the Underwriters from the Depositor, either
the initial public offering price or the method by which the price at which such
Certificates are to be sold will be determined, the selling concessions and
reallowances, if any, and such other information as you and the Depositor deem
appropriate in connection with the offering of such Certificates, but the
Depositor shall not file any amendments to the Registration Statement as in
effect with respect to the Certificates (other than an amendment by reason of
Rule 429 under the Act), or any amendments or supplements to the Prospectus,
unless it has first delivered copies of such amendments or supplements to you
and given you a reasonable opportunity to review the same, or if you have
reasonably objected thereto promptly after receipt thereof; the Depositor shall
immediately advise you or your counsel (i) when notice is received from the
Commission that any post-effective amendment to the Registration Statement
(other than an amendment by reason of Rule 429 under the Act) has been filed or
has become or will become effective or any supplement to the Prospectus or any
amended Prospectus, in each case relating to the Certificates specified in
Schedule I has been filed and will furnish you with copies thereof, (ii) of any
request by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information relating to the Certificates and
(iii) of any order or communication suspending or preventing, or threatening to
suspend or prevent, the offer and sale of the Certificates or of any proceedings
or examinations that may lead to such an order or communication, whether by or
of the Commission or any authority administering any state securities or "blue
sky" law, as soon as the Depositor is advised thereof, and shall use its best
efforts to prevent the issuance of any such order or communication and to obtain
as soon as possible its lifting, if issued. Subject to the Underwriters'
compliance with their obligations set forth in Section 8 below and receipt by
the Depositor of a letter from Xxxxxx Xxxxxxxx, satisfactory in form and
substance to the Depositor, to the effect that such accountants have performed
certain specified procedures, all of which have been agreed to by the Depositor,
as a result of which they have determined that the information included in the
Computational Materials and ABS Term Sheets provided by such Underwriter to the
Depositor for filing on Form 8-K pursuant to Section 8 and this subsection (a),
and that the accountants have examined in accordance with such agreed upon
procedures, is accurate except as to such matters that are not deemed by the
Depositor to be material, the Depositor shall file with the Commission a Current
Report on Form 8-K including any Computational Materials and ABS Term Sheets
provided to it by any Underwriter pursuant to Section 8 below not later than the
date on which such Current Report is required to be filed with the Commission;
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(b) if, at any time when the Prospectus is required to be delivered under
the Act, any event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the
Depositor shall prepare and file with the Commission, an amendment or supplement
that will correct such statement or omission or an amendment that will effect
such compliance;
(c) the Depositor shall make generally available to the holders of the
Certificates (the "Certificateholders"), in each case as soon as practicable,
earning statements covering (i) a period of 12 months beginning not later than
the first day of the Trust's fiscal quarter next following the effective date of
the Registration Statement and (ii) a period of 12 months beginning no later
than the first day of the Trust's fiscal quarter next following the date hereof,
which will satisfy the provisions of Section 11(a) of the Act and Rule 158 of
the Commission with respect to the Certificates. The Depositor shall cause the
Pooling and Servicing Agreement to require the Trustee to furnish or make
available, within a reasonable time after the end of each calendar year, to each
holder of a Certificate at any time during such year, such information as the
Depositor deems necessary or desirable to assist Certificateholders in preparing
their federal income tax returns;
(d) the Depositor shall furnish to you copies of the Registration
Statement, the Prospectus, and all amendments and supplements to such documents
relating to the Certificates, in each case as soon as available and in such
quantities as you reasonably request;
(e) the Depositor shall arrange for the qualification of the Certificates
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as you designate and shall continue such
qualifications in effect so long as required for the distribution; provided,
however, that neither the Depositor nor the Trust shall be required to qualify
to do business in any jurisdiction where it is now not qualified or to take any
action which would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process;
(f) the costs and expenses incurred in connection with the transactions
herein contemplated shall be allocated pursuant to the terms of the Term Sheet
for the Joint Conduit Securitizations between Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, Prudential Securities Incorporated, Prudential Mortgage
Capital Company, LLC, Column and KeyBank, as supplemented and modified by the
Term Sheet for the Joint Securitizations among Column, Credit Suisse First
Boston Corporation and KeyBank for Calendar Year 2001.
(g) during the period when a prospectus is required by law to be delivered
in connection with the sale of the Certificates pursuant to this Agreement, the
Depositor shall file, or cause the Trustee to file on behalf of the Trust, on a
timely and complete basis, all documents that are required to be filed by the
related Trust with the Commission pursuant to Sections 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Certificates subject to this
Agreement will be subject to
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the accuracy of the representations and warranties on the part of the Depositor
as of the date hereof and the Specified Delivery Date, to the accuracy of the
statements of the Depositor made pursuant to the provisions thereof, to the
performance by the Depositor in all material respects of its obligations
hereunder and to the following additional conditions precedent:
(a) You shall have received from Xxxxxx Xxxxxxxx LLP, certified public
accountants, letters dated the date of the Prospectus Supplement and the date of
any preliminary version of the Prospectus Supplement delivered to prospective
investors in the Certificates (a "Preliminary Prospectus Supplement" and,
together with the accompanying form of the Base Prospectus, a "Preliminary
Prospectus"), respectively, and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, stating in effect that, using the
assumptions and methodology used by the Depositor, all of which shall be
described in such letters, they have recalculated such numbers and percentages
set forth in the Prospectus Supplement and any Preliminary Prospectus Supplement
as the Underwriters may reasonably request and as are agreed to by Xxxxxx
Xxxxxxxx LLP, compared the results of their calculations to the corresponding
items in the Prospectus Supplement and any Preliminary Prospectus Supplement,
respectively, and found each such number and percentage set forth in the
Prospectus Supplement and any Preliminary Prospectus Supplement, respectively,
to be in agreement with the results of such calculations.
(b) all actions required to be taken and all filings required to be made by
the Depositor under the Act prior to the Specified Delivery Date shall have been
duly taken or made; and prior to the Specified Delivery Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or to the
knowledge of the Depositor or any Underwriter, shall be contemplated by the
Commission;
(c) unless otherwise specified in Schedule I, the Certificates subject to
this Agreement and offered by means of the Registration Statement shall be rated
the ratings specified in Schedule I, and shall not have been lowered or placed
on any credit watch with a negative implication for downgrade;
(d) you shall have received an opinion of in-house counsel to the
Depositor, dated the Specified Delivery Date, in substantially the same form as
Exhibit A attached hereto;
(e) you shall have received opinions and a letter of Sidley & Austin,
special counsel to the Depositor, dated the Specified Delivery Date, in
substantially the same forms as Exhibit B-1, Exhibit B-2 and Exhibit B-3,
respectively, attached hereto;
(f) you shall have received an opinion of Long, Alderidge & Xxxxxx, special
counsel to Column, dated the Specified Delivery Date, in substantially the same
form as Exhibit C attached hereto;
(g) you shall have received an opinion of Sidley & Austin, special counsel
to Column, dated the Specified Delivery Date, in substantially the same form as
Exhibit D attached hereto;
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(h) you shall have received an opinion of in-house counsel to KeyBank and
the Master Servicer, dated the Specified Delivery Date, in substantially the
same form as Exhibit E attached hereto;
(i) you shall have received an opinion and a letter of Xxxxxxxxxx, Xxxxxxx
& Xxxxx, P.C., special counsel to KeyBank, dated the Specified Delivery Date, in
substantially the same forms as Exhibit F-1 and Exhibit F-2, respectively,
attached hereto;
(j) you shall have received an opinion of Phillips, Lytle, Xxxxxxxxx,
Xxxxxx & Xxxxx, special counsel to KeyBank and the Master Servicer, dated the
Specified Delivery Date, in substantially the same form as Exhibit G attached
hereto;
(k) you shall have received opinions of counsel to the trustee, dated the
Specified Delivery Date, in substantially the same forms as Exhibit H-1 and
Exhibit H-2, respectively, attached hereto;
(l) you shall have received an opinion of counsel to the Special Servicer,
dated the Specified Delivery Date, in substantially the same form as Exhibit I
attached hereto;
(m) you shall have received a certificate or certificates signed by one or
more duly authorized officers of the Depositor, dated the Specified Delivery
Date, in substantially the same forms as Exhibit J-1 and Exhibit J-2;
(n) you shall have received a certificate of the Trustee, signed by one or
more duly authorized officers of the Trustee, dated the Specified Delivery Date,
in substantially the same form as Exhibit K;
(o) you shall have received a certificate of the Master Servicer, signed by
one or more duly authorized officers of the Master Servicer, dated the Specified
Delivery Date, in substantially the same form as Exhibit L;
(p) you shall have received a certificate of the Special Servicer, signed
by one or more duly authorized officers of the Special Servicer, dated the
Specified Delivery Date, in substantially the same form as Exhibit M; and
(q) Column and KeyBank shall have sold the Mortgage Loans to the Depositor
pursuant to the Mortgage Loan Purchase Agreements.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter, each
of its officers and each of its directors and each person, if any, that controls
any Underwriter within the meaning of the Act against any expenses, losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject, under the Act or otherwise, insofar
as such expenses, losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement or
any amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or
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necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of any material fact contained in any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and the Depositor
shall reimburse, as incurred, each Underwriter and each such controlling person
for any legal or other expenses reasonably incurred by such Underwriter and each
such controlling person in connection with investigating or defending any such
expense, loss, claim, damage, liability or action; provided, however, that the
Depositor shall not be liable in any such case to the extent that any such
expense, loss, claim, damage or liability (A) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus Supplement or the Prospectus Supplement (or
any amendment thereof or supplement thereto) in reliance upon and in conformity
with written or electronic information furnished to the Depositor by any
Underwriter specifically for use therein (the "Underwriters' Information"), (B)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with (1) the Master Tape (it being acknowledged
that the Master Tape was used to prepare any Preliminary Prospectus Supplement
and the Prospectus Supplement, including, without limitation, Exhibit A-1 and
Exhibit A-2 thereto and the accompanying diskette), (2) the representations and
warranties of either Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement or (3) any other information concerning
the characteristics of the Mortgage Loans, the Mortgaged Properties or the
Borrowers furnished to the Depositor or the Underwriters by either Mortgage Loan
Seller, or (C) arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission (other than a Depositor
Mathematical Error (as defined below)) made in any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment thereof or supplement
thereto) with respect to the Mortgage Loans, the Mortgaged Properties, the
Borrowers and/or the Mortgage Loan Sellers under the headings "Summary of
Prospectus Supplement--The Underlying Mortgage Loans", "Risk Factors--Risks
Related to the Underlying Mortgage Loans" and "Description of the Underlying
Mortgage Loans" therein, on Exhibit A-1 or Exhibit A-2 thereto or on the
accompanying diskette, or (D) arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
Computational Materials or ABS Term Sheets (or any amendments thereof or
supplements thereto) furnished to prospective investors and made a part of, or
incorporated by reference into, the Registration Statement or in any Preliminary
Prospectus or the Prospectus (or any amendment thereof or supplement thereto);
and provided, further, that such indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling any Underwriter) from whom the person asserting any such expense,
loss, claim, damage or liability purchased the Certificates which are the
subject thereof if such Underwriter did not deliver to such person a copy of the
Prospectus (or the Prospectus as most recently amended or supplemented) at or
prior to the confirmation of the sale of such Certificates to such person in any
case where such delivery is required by the Act, the Depositor has previously
furnished to such Underwriter copies thereof in sufficient quantity and the
untrue statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the
11
Prospectus as most recently amended or supplemented) and such correction would
have cured the defect giving rise to any such expense, loss, claim, damage,
liability or action.
The Depositor and the Underwriters acknowledge that the following
statements constitute the only Underwriters' Information furnished in writing by
or on behalf of the Underwriters for inclusion in the Prospectus: the second
sentence of the second paragraph, and the only sentence of the sixth paragraph,
on the cover of each of the Prospectus Supplement and any Preliminary Prospectus
Supplement; the entire subsection entitled "Summary of Prospectus
Supplement--Relevant Parties--Underwriters" in each of the Prospectus and any
Prospectus Supplement; and the first sentence of the fourth paragraph, and the
second sentence of the fifth paragraph, under the heading "Underwriting" in each
of the Prospectus Supplement and any Preliminary Prospectus Supplement.
A "Depositor Mathematical Error" consists of any untrue statement or
omission made in the Prospectus Supplement or any Preliminary Prospectus
Supplement as a result of an error in the manipulation of, or any calculations
based upon, or any aggregation (other than an aggregation made in the Master
Tape) of, the numerical, financial and/or statistical information regarding the
Mortgage Loans, the Mortgaged Properties, the Borrowers and/or the Mortgage Loan
Sellers contained in the Master Tape or otherwise provided to the Depositor by
either Mortgage Loan Seller.
(b) Each Underwriter shall severally, and not jointly, indemnify and hold
harmless the Depositor, each of its directors, each of its officers who has
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of the Act or the Exchange Act against any
expenses, losses, claims, damages or liabilities to which the Depositor or any
such director, officer or controlling person may become subject under the Act,
the Exchange Act or otherwise, and shall reimburse any legal or other expenses
reasonably incurred by the Depositor or any such director, officer or
controlling person in connection with investigating or defending any such
expense, loss, claim, damage, liability or action, in each case insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of any material fact contained in any Preliminary Prospectus
Supplement, the Prospectus Supplement or any amendment or supplement thereto or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (iii)(A) any untrue
statement or alleged untrue statement of any material fact contained in the
Computational Materials or ABS Term Sheets, as applicable, that such Underwriter
provides to its respective potential investors, or (B) the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that no Underwriter shall be liable for any such loss, claim, damage, liability,
cost or expense that arises out of an untrue statement or alleged untrue
statement or omission or alleged omission in the Registration Statement, any
Preliminary Prospectus Supplement or the Prospectus Supplement (or any amendment
thereof or supplement thereto), except to the extent that such untrue statement
or alleged untrue statement or omission
12
or alleged omission was made in reliance upon and in conformity with written or
electronic information relating to such Underwriter furnished to the Depositor
by such Underwriter specifically for use in such document; and provided,
further, that no Underwriter shall be liable to the extent that any expense,
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in any
Computational Materials or ABS Term Sheets (or any amendment thereof or
supplement thereto) made in reliance upon and in conformity with (A) the Master
Tape (it being acknowledged that the Master Tape was used to prepare any
Computational Materials and ABS Term Sheets), (B) the representations and
warranties of either Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement or (C) any other information concerning
the characteristics of the Mortgage Loans, the Mortgaged Properties or the
Borrowers furnished to the Underwriters by the Depositor or either Mortgage Loan
Seller (the error in the Master Tape or any such other information concerning
the characteristics of the Mortgage Loans, the Mortgaged Properties or the
Borrowers or the breach in such representations and warranties that gave rise to
such untrue statement or omission, a "Collateral Error"), except to the extent
that a Mortgage Loan Seller or the Depositor notified such Underwriter in
writing of such Collateral Error or provided in written or electronic form
information superseding or correcting such Collateral Error (in any case, a
"Corrected Collateral Error") prior to the time of confirmation of sale to the
person that purchased the Certificates that are the subject of any such loss,
claim, damage, liability, cost or expense, or action in respect thereof, and
such Underwriter failed to deliver to such person corrected Computational
Materials or ABS Term Sheets (or, if the superseding or correcting information
was contained in the Prospectus, failed to deliver to such person the Prospectus
as amended or supplemented) at or prior to confirmation of such sale to such
person. This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. Any Computational Materials or ABS Term Sheets
(or amendments thereof or supplements thereto) so furnished to the Depositor by
a particular Underwriter shall relate exclusively to and be, to the extent
provided herein, the several responsibility of such Underwriter and no other
Underwriter.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than in this
Section 7. In case any such action is brought against any indemnified party,
after such indemnifying party has been notified of the commencement thereof,
such indemnifying party shall be entitled to participate therein, and, to the
extent that it may wish, shall be entitled to assume the defense thereof
(jointly with any other indemnifying party similarly notified) with counsel
satisfactory to such indemnified party (which shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election to
so assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In any such proceeding,
any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
agreed to the retention of such counsel, (ii) the named parties to any such
proceeding
13
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to designate within a reasonable
period of time counsel reasonably satisfactory to the indemnified party (in
which case the fees and expenses shall be paid as incurred by the indemnifying
party). In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. An indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent. However, if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing two sentences, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under this subsection, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 60
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. If an
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if such
settlement provides for an unconditional release of the indemnified party in
connection with all matters relating to the proceeding that have been asserted
against the indemnified party in such proceeding by the other parties to such
settlement without the consent of the indemnified party.
(d) If recovery is not available under Section 7(a) or Section 7(b) for any
reason other than as specified therein, the parties entitled to indemnification
by the terms thereof shall be entitled to contribution from the Depositor (in
the case of Section 7(a)) or one or more Underwriters (in the case of Section
7(b)), as applicable, for the expenses, losses, claims, damages and/or
liabilities intended to be covered under the relevant Section, except to the
extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by the
Depositor on the one hand and each Underwriter on the other from the offering of
the Certificates subject to this Agreement (taking into account the portion of
the proceeds of the offering realized by each). In the event contribution
according to the foregoing sentence is not permitted by law, in determining the
amount of contribution to which the respective parties are entitled, there shall
be considered the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission and any other
equitable considerations appropriate under the circumstances. The Depositor and
the Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter in connection with the
offering of the Certificates exceeds the amount of damages that such Underwriter
has otherwise been required to pay by
14
reason of any untrue or alleged untrue statement or omission or alleged
omission. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The amount paid or payable by an indemnified party as a result of the
expenses, losses, claims, damages or other liabilities referred to in this
Section 7 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, any
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or any Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Depositor and to each
person, if any, who controls the Depositor within the meaning of the Act.
8. Computational Materials.
(a) The Underwriters agree to provide to the Depositor not later than 10:30
a.m., New York time, on the Business Day before the date on which a Current
Report on Form 8-K is required to be filed by the Depositor with the Commission
pursuant to the No-Action Letters (as defined below) (each, a "Current Report")
five complete copies of all materials that have been provided by the
Underwriters to prospective investors in the Certificates and that constitute
(i) "Computational Materials" within the meaning of the no-action letter dated
May 20, 1994 and issued by the Division of Corporation Finance of the Commission
to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated
and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994 and issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters") and (ii) "ABS
Term Sheets" within the meaning of the no-action letter dated February 17, 1995
and issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together with the Xxxxxx Letters, the "No-Action
Letters"), and the Underwriters acknowledge that the filing of such materials is
a condition of relief granted in such letter (such materials, the "Computational
Materials" and the "ABS Term Sheets,"
15
respectively); provided, however, that any ABS Term Sheets are subject to the
review and approval of the Depositor prior to their distribution to any
prospective investors, and a copy of all such ABS Term Sheets and Computational
Materials as are delivered to prospective investors shall, in addition to the
foregoing delivery requirements, be delivered to the Depositor simultaneously
with delivery thereof to prospective investors. Each delivery of Computational
Materials and ABS Term Sheets to the Depositor pursuant to this Section 8(a)
shall be effected by delivering four copies of such materials to counsel for the
Depositor on behalf of the Depositor and one copy of such materials to the
Depositor. No Underwriter shall provide to any investor or prospective investor
in the Certificates any Computational Materials or ABS Term Sheets on or after
the day on which Computational Materials or ABS Term Sheets are required to be
provided to the Depositor pursuant to this subsection (a) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to the Depositor
in accordance with this subsection (a)) for filing pursuant to Section 5(a),
unless such Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or prospective
investor.
(b) As of the date of this Agreement and as of the Specified Delivery Date,
each of the Underwriters represents and warrants to, and agrees with, the
Depositor and with each other Underwriter that: (i) the Computational Materials
and ABS Term Sheets furnished to the Depositor pursuant to Section 8(a) above,
if any, constitute (either in original, aggregated or consolidated form) all of
the materials furnished to prospective investors by such Underwriter that is
required to be filed with the Commission with respect to the Certificates in
accordance with the No-Action Letters, and such Computational Materials and ABS
Term Sheets comply with the requirements of the No-Action Letters; (ii) on the
date any such Computational Materials and ABS Term Sheets with respect to such
Certificates (or any written or electronic materials furnished to prospective
investors on which such Computational Materials and ABS Term Sheets are based)
were last furnished to each prospective investor and on the date of delivery
thereof to the Depositor pursuant to Section 8(a) above and on such Specified
Delivery Date, such Computational Materials and ABS Term Sheets (or materials)
were accurate in all material respects when read in conjunction with the
Prospectus (taking into account the assumptions explicitly set forth in the
Computational Materials), except to the extent of any errors therein that are
caused by Collateral Errors (other than Corrected Collateral Errors); (iii) such
Underwriter will not represent to potential investors that any Computational
Materials and ABS Term Sheets were prepared or disseminated on behalf of the
Depositor; and (iv) all Computational Materials and ABS Term Sheets (or
underlying materials distributed to prospective investors on which the
Computational Materials and ABS Term Sheets were based) shall bear a legend
substantially in the form of Exhibit N. Notwithstanding the foregoing, the
Underwriters make no representation or warranty as to whether any Computational
Materials and ABS Term Sheets (or any written or electronic materials furnished
to prospective investors on which the Computational Materials and ABS Term
Sheets are based), if any, included or will include any inaccurate statement
resulting directly from any Collateral Errors (other than Corrected Collateral
Errors).
(c) All information included in the Computational Materials and ABS Term
Sheets shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on
16
alternative methodologies or assumptions if specified therein. In the event that
any Computational Materials and ABS Term Sheets that are required to be filed
were based on assumptions with respect to the Mortgage Loans that are incorrect
or that differ from the Master Tape in any material respect prior to the
printing of the Prospectus, the Underwriters shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the information in
the Master Tape and the final Certificate structuring assumptions, shall
circulate such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated orally to the
Underwriters they would purchase all or any portion of the Certificates, and
shall include such revised Computational Materials or ABS Term Sheets (marked
"as revised") in the materials delivered to the Depositor pursuant to Section
8(a) above.
(d) If, within the period during which a prospectus relating to the
Certificates is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of the
Depositor or the related Underwriter, to contain a material error or omission,
such Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected Computational
Materials or ABS Term Sheets to all recipients of the prior versions thereof
that either indicated orally to such Underwriter they would purchase all or any
portion of the Certificates, or actually purchased all or any portion thereof,
and shall deliver copies of such corrected Computational Materials or ABS Term
Sheets (marked, "as corrected") to the Depositor for filing with the Commission
in a subsequent Form 8-K submission (subject to the Depositor's obtaining an
accountant's comfort letter in respect of such corrected Computational Materials
and ABS Term Sheets, which the parties acknowledge shall be at the expense of
the Mortgage Loan Sellers). As of the date that either Underwriter disseminates
any Computational Materials or ABS Term Sheets, such Underwriter shall not have
any knowledge or reason to believe that such Computational Materials or ABS Term
Sheets contained any material error or omission and each Underwriter agrees to
promptly notify the Depositor of any such material error or omission of which
such Underwriter becomes aware. Notwithstanding the foregoing, the Underwriters
make no representation or warranty as to whether any Computational Materials or
ABS Term Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials or ABS Term Sheets are based)
included or will include any inaccurate statement resulting directly from any
Collateral Error (other than a Corrected Collateral Error).
(e) Each Underwriter shall be deemed to have represented, as of the
Specified Delivery Date, that, except for Computational Materials and ABS Term
Sheets provided to the Depositor pursuant to subsection (a) above, such
Underwriter did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Certificates
that is required to be filed with the Commission in accordance with the
No-Action Letters, and each Underwriter shall separately provide the Depositor
with a certification to that effect on the Specified Delivery Date.
(f) In the event of any delay in the delivery by either Underwriter to the
Depositor of Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (a) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 5(a), the
Depositor shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Specified Delivery Date and to
take other appropriate actions in each case as necessary in order to allow the
Depositor to comply with its
17
agreement set forth in Section 5(a) to file the Computational Materials and ABS
Term Sheets by the time specified therein.
(g) Each Underwriter further represents and warrants that, if and to the
extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in clauses (a),
(c), (d) and (f) above have been satisfied with respect thereto.
9. Default of Underwriters. If any Underwriter defaults in its obligations
to purchase Certificates hereunder and the aggregate principal amount of
Certificates that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total principal amount of Certificates to
be purchased hereunder, Credit Suisse First Boston Corporation may make
arrangements satisfactory to the Depositor for the purchase of such Certificates
by other persons, but if no such arrangements are made by the Specified Delivery
Date, Credit Suisse First Boston Corporation shall be obligated to purchase the
Certificates that such defaulting Underwriter agreed but failed to purchase
hereunder. If any Underwriter so defaults and the aggregate principal amount of
Certificates with respect to which such default occurs exceeds 10% of the total
principal amount of Certificates to be purchased hereunder and arrangements
satisfactory to the non-defaulting Underwriters and the Depositor for the
purchase of such Certificates by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Depositor, except as provided in
Section 5(f) and Section 7. As used in this Agreement, the term "Underwriter"
includes any person substituted for a Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
10. Termination of the Obligations of the Underwriters. (a) Any Underwriter
may terminate its obligations under this Agreement by notice to the Depositor,
at any time at or prior to the Specified Delivery Date if the sale of the
Certificates provided for herein is not consummated because of any failure or
refusal on the part of the Depositor to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Depositor shall be
unable to perform its obligations under this Agreement.
(b) The obligations of any Underwriter to purchase on the Specified
Delivery Date its allocation of the Certificates described in Schedule I shall
be terminable by such Underwriter if (i) at any time on or prior to the
Specified Delivery Date (A) trading in securities generally on the New York
Stock Exchange shall have been suspended or materially limited, or there shall
have been any setting of minimum prices for trading on such exchange, (B) a
general moratorium on commercial banking activities in New York shall have been
declared by any Federal or New York State authorities, (C) there shall have
occurred any material outbreak or escalation of hostilities or other calamity or
crisis, the effect of which on the financial markets of the United States is
such as to make it, in your judgment as representative of such Underwriters,
impracticable to consummate the transactions contemplated herein or is such as
would materially and adversely affect the marketability of or the market price
for such Certificates or (D) any change or any development involving a
prospective change occurs, materially and adversely affecting (1) the Trust Fund
taken as a whole or (2) the business or properties of the Depositor, which, in
the reasonable judgment of such Underwriter, in the case of either (1) or (2),
materially
18
impairs the investment quality of the Certificates or (ii) any representation or
warranty of another party shall be incorrect in any material respect.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Depositor and of the several Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
or statement as to the results thereof made by or on behalf of such
Underwriters, the Depositor or any of its officers or directors or any
controlling person, and shall survive delivery of and payment of the related
Certificates.
If this Agreement is terminated pursuant to Section 10 above or if for any
reason the purchase by the Underwriters of the Certificates described Schedule I
is not consummated, the obligations of the Depositor and the Underwriters
pursuant to Section 7 above shall remain in effect.
12. Notices. All communications hereunder shall be in writing and, if sent
to Credit Suisse First Boston Corporation, shall be mailed, delivered or
telecopied to it at Credit Suisse First Boston Corporation, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx, Telecopy No.: (212)
325-6800; if sent to McDonald Investments, Inc., shall be mailed, delivered or
telecopied to it at McDonald Investments Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxx 00000, Attention: Xxxxxx Xxxxxxxx, Telecopy No.: (000) 000-0000 (with a
copy to Xxxxxx X. Xxxxx at KeyBank National Association, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Telecopy No.: (000) 000-0000); if sent to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx, Incorporated, shall be mailed, delivered or telecopied
to it at 4 World Financial Center, 26th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Xxxx Xxxxxxx, Telecopy No.: (000) 000-0000; if sent
to Xxxxxxx Xxxxx Barney Inc., shall be mailed, delivered or telecopied to it at
Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx, Telecopy No.: (000) 000-0000; or, if sent to
the Depositor, shall be mailed, delivered or telecopied to it at Credit Suisse
First Boston Mortgage Securities Corp., Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxxx, Telecopy No.: (000) 000-0000; or, in the
case of any of the foregoing parties, to such other address as may be furnished
by such party to the other parties.
13. Successors. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 7 above, and their
successors and assigns, and no other person shall have any right or obligation
hereunder. No purchaser of any Certificates from any Underwriter shall be deemed
a successor or assign by reason merely of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
19
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon it will become a
binding agreement among the Depositor and the several Underwriters in accordance
with its terms. Alternatively, the execution of this Agreement by the Depositor
and its acceptance by or on behalf of the Underwriters may be evidenced by an
exchange of telegraphic or other written communications.
Very truly yours,
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:
--------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Underwriter
By:
-------------------------------------
Name:
Title:
McDONALD INVESTMENTS INC.,
as Underwriter
By:
-------------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED,
as Underwriter
By:
-------------------------------------
Name:
Title:
20
XXXXXXX XXXXX BARNEY INC.,
as Underwriter
By:
-----------------------------------
Name:
Title:
21
SCHEDULE I
----------
Certificates: Commercial Mortgage Pass-Through certificates, Series 2001-CK1,
Class X-0, X-0, X-0, X, X and D.
Closing: 10:00 A.M., March 16, 2001, at the offices of Sidley & Austin, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Prospectus: Prospectus Supplement dated March 5, 2001 and Base Prospectus dated
March 5, 2001 (Registration Statement No.: 333-53012)
Total Principal Amount of Certificates: $854,414,000 (approximate)
Total Principal Amount:
-----------------------
Class A-1 $106,000,000
Class A-2 $149,000,000
Class A-3 $498,435,000
Class B $ 42,917,000
Class C $ 45,441,000
Class D $ 12,621,000
Ratings (Moody's/Fitch):
------------------------
Class A-1 Aaa/AAA
Class A-2 Aaa/AAA
Class A-3 Aaa/AAA
Class B Aa2/AA
Class C A2/A
Class D A3/A-
Initial
Pass-Through Rates:
------------------------
Class A-1 5.9000%
Class A-2 6.2500%
Class A-3 6.3800%
Class B 6.5600%
I-1
Class C 6.7300%
Class D 6.8400%
Price
(Expressed as a Percentage of Par):
Class A-1 %
Class A-2 %
Class A-3 %
Class B %
Class C %
Class D %
I-2
Certificates Purchased
CLASS A-1 CLASS A-2 CLASS A-3
UNDERWRITER PRINCIPAL AMOUNT PRINCIPAL AMOUNT PRINCIPAL AMOUNT
----------- ---------------- ---------------- ----------------
Credit Suisse First Boston
Corporation $81,000,000 $124,000,000 $423,435,000
McDonald Investments Inc. $25,000,000 $25,000,000 $25,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx, Incorporated $0 $0 $0
Xxxxxxx Xxxxx Barney Inc. $0 $0 $25,000,000
Total $106,000,000 $149,000,000 $498,435,000
CLASS B CLASS C CLASS D
UNDERWRITER PRINCIPAL AMOUNT PRINCIPAL AMOUNT PRINCIPAL AMOUNT
----------- ---------------- ---------------- ----------------
Credit Suisse First Boston
Corporation $42,917,000 $45,441,000 $12,621,000
McDonald Investments Inc. $0 $0 $0
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx, Incorporated $25,000,000 $0 $0
Xxxxxxx Xxxxx Barney Inc. $0 $0 $0
Total $42,917,000 $45,441,000 $12,621,000
I-3
EXHIBIT A
---------
Form of Opinion of In-house Counsel to the Depositor
March __, 2001
To the Parties Listed on Annex A hereto
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston Corporation
("CSFB") and have acted as special counsel to Credit Suisse First Boston
Mortgage Securities Corp., a Delaware corporation (the "Depositor"), in
connection with certain matters relating to: (i) its purchase from Column
Financial, Inc. ("Column") of various mortgage assets, including without
limitation, certain multifamily and commercial mortgage loans, pursuant to the
Mortgage Loan Purchase Agreement, dated as of March 5, 2001 (the "Column
Mortgage Loan Purchase Agreement"), between the Depositor and Column; (ii) its
purchase from KeyBank National Association (the "KeyBank") of certain other
mortgage assets, including without limitation, certain multifamily and
commercial mortgage loans, pursuant to the Mortgage Loan Purchase Agreement,
dated as of March 5, 2001 (the "KeyBank Mortgage Loan Purchase Agreement"),
between the Depositor and KeyBank, (iii) the issuance of the Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2001-CK1, consisting of 21 classes designated Class A-1, Class A-2, Class
A-3, Class B, Class C, Class D, Class A-X, Class A-CP, Class A-Y, 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 (the "Certificates"); (iv) the sale by the Depositor of the Class
A-1, Class A-2, Class A-3, Class B, Class C and Class D Certificates, pursuant
to the Underwriting Agreement, dated as of March 5, 2001 (the "Underwriting
Agreement"), between the Depositor, CSFB, McDonald Investments, Inc., Xxxxxxx
Lynch, Pierce, Xxxxxx and Xxxxx Incorporated and Xxxxxxx Xxxxx Barney Inc., and
(v) the sale by the Depositor of the Class A-X, Class A-CP, Class A-Y, 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 Certificates, pursuant to the Certificate Purchase
Agreement, dated as of March 5, 2001 (the "Certificate Purchase Agreement"),
between the Depositor and CSFB. The Certificates are being issued pursuant to
the Pooling and Servicing Agreement, dated as of March 1, 2001 ("Pooling and
Servicing Agreement"), by and among the Depositor, as depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer,
ORIX Real Estate Capital Markets, LLC, as special servicer, and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"). Capitalized terms used and not
otherwise defined herein have the meanings given to them in the Pooling and
Servicing Agreement.
In rendering the opinions set forth below, I have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Underwriting
A-1
Agreement, the Certificate Purchase Agreement, the Pooling and Servicing
Agreement, Column Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan
Purchase Agreement (collectively, the "Agreements"), specimen forms of the
Certificates, and such certificates, corporate records and other documents,
agreements, instruments and opinions, as I have deemed appropriate as a basis
for the opinions hereinafter expressed. In connection with such examination, I
have assumed the genuineness of all signatures (other than with respect to the
Depositor), the authenticity of all documents, agreements and instruments
submitted to me as originals, the conformity to original documents, agreements
and instruments of all documents, agreements and instruments submitted to me as
copies or specimens and the authenticity of the originals of such documents,
agreements and instruments submitted to me as copies or specimens, and the
accuracy of the matters set forth in the documents, agreements and instruments I
reviewed, to the extent such matters do not constitute legal conclusions. As to
any facts materials 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, Column, KeyBank, CSFB, the Trustee and public
officials.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Depositor is incorporated, validly existing and in good
standing under the laws of the State of Delaware, with requisite power and
authority to execute and deliver the Agreements, and to perform its
obligations thereunder.
2. The execution, delivery and performance of the Agreements have been
duly authorized by the Depositor, and the Agreements have been duly
executed and delivered by the Depositor.
3. The Certificates have been duly authorized by all necessary
corporate action of the Depositor.
4. The issuance of the Certificates pursuant to the Pooling and
Servicing Agreement, the execution and delivery by the Depositor of the
Agreements, the performance by the Depositor of its obligations under the
Agreements and the consummation by the Depositor of the transactions
therein contemplated, do not conflict with or result in a breach or
violation of the Depositor's certificate of incorporation or bylaws or, to
my knowledge, conflict with or result in a breach or violation of any
material indenture, agreement or instrument to which the Depositor is a
party or by which it or any of its property is bound, or any judgement,
decree or order applicable to the Depositor, of any New York State or
federal court, regulatory body, administrative agency or other governmental
authority, other than potential conflicts, breaches or violations, which
individually and in the aggregate are not reasonably expected to have a
material adverse effect on the ability of the Depositor to perform its
obligations under the Agreements.
5. To my knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against the Depositor (a)
asserting the invalidity of any of the Agreements or the Certificates, (b)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by the Agreements, or (c) which would
materially and adversely affect the performance by the Depositor of its
obligations under, or the
A-2
validity or enforceability (with respect to the Depositor) of, the
Agreements or the Certificates. For purposes of the opinion set forth in
this paragraph, I have not regarded any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential
litigant or governmental authority has manifested to the Depositor a
present intention to initiate such proceedings.
I am a member of the Bar of the State of New York and this opinion is
limited by 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 opinion in paragraph (1) above as
to Delaware General Corporation Law is 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 opinion.
This opinion is limited to the matters specifically addressed herein, and I
express no opinion as to any other matters relating to, or which may arise in
connection with, the consummation of the transactions contemplated by the
Agreements.
I am furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose.
Very truly yours,
A-3
Annex A
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
X-0
XXXXXXX X-0
Form of Opinion I of Sidley & Austin, Special Counsel to the Depositor
March 16, 2001
Credit Suisse First Boston Xxxxxxx Xxxxx Xxxxxx Inc.
Mortgage Securities Corp. 000 Xxxxxxxxx Xxxxxx, 00xx Floor
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, XX 00000
Xxxxxxx, Lynch, Pierce, Xxxxxx Xxxxx, Inc.
& Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Center -00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor") with respect to certain matters in connection
with the following transactions (collectively, the "Transactions"):
(i) the filing by the Depositor of a registration statement on form
S-3 (No. 333-53012) (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), for purposes of registering under
the Securities Act of 1933, as amended (the "1933 Act"), certain offerings
of mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor;
(ii) the sale by Column Financial Inc. ("Column"), and the purchase by
the Depositor, of a segregated pool of multifamily and commercial mortgage
loans (collectively, the "Column Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement, dated as of
X-0-0
Xxxxx 0, 0000 (xxx "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 Depositor, of a segregated pool of multifamily and commercial
mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement dated as of March 5, 2001 (the "KeyBank Mortgage
Loan Purchase Agreement"), between KeyBank as seller and the Depositor as
purchaser;
(iv) the creation of a commercial mortgage trust (the "Trust"), and
the issuance of an aggregate $997,140,787 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1 (the
"Certificates"), consisting of 21 classes designated Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class A-X, Class, Class A-CP, Class
A-Y, 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 March 1, 2001 (the "Pooling and Servicing
Agreement"), among the Depositor as depositor, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer, ORIX Real
Estate Capital Markets, LLC, as special servicer, and Xxxxx Fargo Bank
Minnesota, N. A., as trustee (the "Trustee");
(v) the transfer of the Column Mortgage Loans and the KeyBank 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;
(vi) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB"), McDonald Investments Inc. ("McDonald"),
Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and
Xxxxxxx Xxxxx Barney Inc. ("SSBI"; and, collectively with CSFB, McDonald
and Xxxxxxx Xxxxx, in such capacity, the "Underwriters") of the Class A-1,
Class A-2, Class A-3, Class B, Class C and Class D Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement dated as of March 5, 2001 (the "Underwriting
Agreement"), between the Depositor and the Underwriters; and
(vii) the sale by the Depositor, and the purchase by CSFB (in such
capacity the "Initial Purchaser") of the Class A-X, Class A-CP, Class A-Y,
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 Certificates (collectively, the
"Privately Offered Certificates"), pursuant to the Certificate Purchase
Agreement dated as of March 5, 2001 (the "Certificate Purchase Agreement"),
between the Depositor and the Initial Purchaser.
The Pooling and Servicing Agreement, the Underwriting
Agreement, the Certificate Purchase Agreement, the Column Mortgage Loan Purchase
Agreement and the KeyBank 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.
B-1-2
For purposes of this opinion letter, we have reviewed:
(i) the Agreements;
(ii) the Registration Statement;
(iii) the Prospectus, dated March 5, 2001, relating to publicly
offered mortgage pass-through certificates evidencing interests in trust
funds established by the Depositor (the "Basic Prospectus");
(iv) the Prospectus Supplement, dated March 5, 2001, specifically
relating to the Trust and the Publicly Offered Certificates (the
"Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"); and
(v) the Confidential Offering Circular, dated March 5, 2001, relating
to the Trust and certain classes of the Privately Offered Certificates
(including all exhibits and annexes thereto, the "Confidential Offering
Circular").
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreements, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of all parties to each of the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) except as and to the extent
expressly addressed in Opinion Paragraph 7 below, the power and authority of the
parties to each of the Agreements to enter into, perform under and consummate
the transactions contemplated by such Agreement, without any resulting conflict
with or violation of the organizational documents of any such party or with or
of any law, rule, regulation, order or decree applicable to any such party or
its assets, and without any resulting default under or breach of any other
agreement or instrument by which any such party is bound or which is applicable
to it or its assets, (viii) the due authorization by all necessary action, and
the due execution and delivery, of the Agreements by each of the parties
thereto, (ix) except as and to the extent expressly addressed in Opinion
Paragraph 5 below, the constitution of each of the Agreements as the legal,
valid and binding obligation of each party thereto, enforceable against such
party in accordance with its terms, (x) compliance with the Agreements by all
parties thereto and, in the case of the Pooling and Servicing Agreement, by the
registered holders and beneficial owners of the Certificates, and (xi) the
absence of any other agreement that
B-1-3
supplements or otherwise modifies the intentions and agreements of the parties
to the Agreements, as expressed therein.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
When used in this opinion, the term "knowledge" or words of similar import
mean the actual knowledge of facts or other information of the Sidley & Austin
attorneys currently practicing law with this firm who have been actively
involved in any material respect in representing the Depositor in connection
with the Transactions. In that regard we have conducted no special or
independent investigation of factual matters in connection with this opinion
letter.
In rendering this opinion letter, we do not express any opinion concerning
the laws of any jurisdiction other than the laws of the State of New York and,
where expressly referred to below, the federal laws of the United States of
America (in each case without regard to conflicts of law principles). In
addition, we do not express any opinion with respect to (i) the tax, securities
or "doing business" laws of any particular State, including, without limitation,
the
B-1-4
State of New York, or (ii) any law, rule or regulation to which the Depositor
may be subject as a result of any other person's or entity's legal or regulatory
status or any such other person's or entity's involvement in the Transactions.
Furthermore, we do not express any opinion with respect to any matter not
expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Registration Statement has become effective under the 1933 Act.
2. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that purpose
have been instituted or threatened.
3. The Registration Statement, the Basic Prospectus and the Prospectus
Supplement, as of their respective effective or issue dates (other than the
financial statements, schedules and other financial and statistical
information contained therein or omitted therefrom, as to which we express
no opinion), complied as to form in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations
thereunder.
4. To our knowledge, there are no material contracts, indentures or
other documents relating to the Publicly Offered Certificates of a
character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto.
5. Each of the Agreements constitutes a valid, legal and binding
agreement of the Depositor, enforceable against the Depositor in accordance
with its terms.
6. The Certificates, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and paid
for in accordance with the Underwriting Agreement and the Certificate
Purchase Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
7. The execution, delivery and performance of the Agreements by the
Depositor will not conflict with or result in a material breach or
violation of any federal or State of New York statute, rule or regulation
of general applicability in transactions of the type contemplated by the
Agreements.
8. No consent, approval, authorization or order of any federal or
State of New York court, agency or other governmental body is required for
the consummation by the Depositor of the transactions contemplated by the
terms of the Agreements, except such as may be required under the
securities laws of the State of New York and other particular States in
connection with the purchase and the offer and sale of the Certificates by
the Underwriters and the Initial Purchaser, as to which we express no
opinion, and except such as have been obtained.
9. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended. The Trust is not
required to be registered under the Investment Company Act of 1940, as
amended.
B-1-5
10. The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "The Pooling and
Servicing Agreement", and in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing
Documents", and in the Confidential Offering Circular under the heading
"Transfer and Exchange; Restrictions", insofar as such statements purport
to summarize certain material provisions of the Certificates and the
Pooling and Servicing Agreement, are accurate in all material respects.
11. The statements set forth in the Prospectus Supplement under the
headings "ERISA Considerations", "Federal Income Tax Consequences" and
"Legal Investment", in the Basic Prospectus under the headings "ERISA
Considerations", "Federal Income Tax Consequences" and "Legal Investment",
and in the Confidential Offering Circular under the headings "Certain ERISA
Considerations", "Certain Federal Income Tax Consequences" and "Legal
Investment", to the extent that they purport to describe certain matters of
federal law or legal conclusions with respect thereto, while not discussing
all possible consequences of an investment in the Certificates to all
investors, provide in all material respects an accurate summary of such
matters and conclusions set forth under such headings.
12. As described in the Prospectus Supplement and the Confidential
Offering Circular, (A) REMIC I will qualify as a real estate mortgage
investment conduit (a "REMIC") within the meaning of Sections 860A through
860G of the Internal Revenue Code of 1986 in effect on the date hereof (the
"REMIC Provisions") and the REMIC I Regular Interests will be "regular
interests" (as defined in the REMIC Provisions), and the REMIC I Residual
Interest will constitute the sole "residual interest" (as defined in the
REMIC Provisions), in REMIC I, (B) REMIC II will qualify as a REMIC within
the meaning of the REMIC Provisions, and the REMIC II Regular Interests
will be "regular interests", and the REMIC II Residual Interest will
constitute the sole "residual interest", in REMIC II, and (C) REMIC III
will qualify as a REMIC within the meaning of the REMIC Provisions, and the
REMIC III Regular Interest Certificates will evidence "regular interests",
and the REMIC III Residual Interest will constitute the sole "residual
interest", in REMIC III.
13. The respective portions of the Trust consisting of Grantor Trust R
and Grantor Trust V will each be classified as a grantor trust under
subpart E, part I of subchapter J of the Internal Revenue Code of 1986.
14. Assuming (a) the accuracy of the respective representations and
warranties of the Initial Purchaser and the Depositor contained in the
Certificate Purchase Agreement, (b) the performance by the Initial
Purchaser and the Depositor of their respective covenants contained in the
Certificate Purchase Agreement, and (c) in the case of each investor that
purchases Privately Offered Certificates from the Initial Purchaser, the
accuracy of the deemed representations and warranties set forth under the
caption "Notice to Investors" in the Confidential Offering Circular, the
offer and sale of the Privately Offered Certificates by the Depositor to
the Initial Purchaser, and by the Initial Purchaser to investors who
purchase from it, in the manner contemplated in the Confidential Offering
Circular, the Certificate Purchase Agreement and the Pooling and Servicing
Agreement, are transactions that do not require registration of the
Privately Offered Certificates under the 1933 Act.
B-1-6
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
X-0-0
XXXXXXX X-0
Form of Opinion II of Sidley & Austin, Special Counsel to the Depositor
March 16, 2001
Credit Suisse First Boston Xxxxxxx Xxxxx Xxxxxx Inc.
Mortgage Securities Corp. 000 Xxxxxxxxx Xxxxxx, 00xx Floor
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, XX 00000
Xxxxxxx, Lynch, Pierce, Xxxxxx Xxxxx, Inc.
& Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Center -00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor") and Column Financial, Inc. ("Column") with
respect to certain matters in connection with the following transactions
(collectively the "Transactions"):
1. 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 March 5, 2001 (the "Column Mortgage Loan Purchase
Agreement"), between Column as seller and the Depositor as purchaser (such
Transaction, the "Column Sale");
2. the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of March 5, 2001 (the "KeyBank
Mortgage Loan Purchase Agreement"), between KeyBank as seller and the
Depositor as purchaser (such Transaction, the "KeyBank Sale");
3. the creation of a commercial mortgage trust (the "Trust"), and the
issuance of an aggregate $997,140,787 Certificate Principal Balance of
Commercial Mortgage Pass-Through
B-2-1
Certificates, Series 2001-CK1 (the "Certificates"), consisting of 21
classes designated Class A-1, Class A-2, Class A-3, Class B, Class C, Class
D, Class A-X. Class A-CP, Class A-Y, 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 March 1, 2001
(the "Pooling and Servicing Agreement"), among the Depositor as depositor,
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage, as
master servicer, ORIX Real Estate Capital Markets, LLC, as special
servicer, and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
4. the transfer of the Column Mortgage Loans and the KeyBank Mortgage
Loans (collectively, the "Mortgage Loans") by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates being issued to or at the direction of the Depositor (such
Transaction, the "Transfer to the Trust");
5. the sale by the Depositor, and the purchase by Credit Suisse First
Boston Corporation ("CSFB"), McDonald Investments Inc. ("McDonald"),
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and
Xxxxxxx Xxxxx Barney Inc. ("SSBI"; and, collectively with CSFB, McDonald
and Xxxxxxx Xxxxx, in such capacity, the "Underwriters") of the Class A-1,
Class A-2, Class A-3, Class B, Class C and Class D Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement dated as of March 5, 2001 (the "Underwriting
Agreement"), between the Depositor and the Underwriters; and
6. the sale by the Depositor, and the purchase by CSFB (in such
capacity, the "Initial Purchaser") of the Class A-X, Class A-CP, Class A-Y,
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 Certificates (collectively, the
"Privately Offered Certificates"), pursuant to the Certificate Purchase
Agreement dated as of March 5, 2001 (the "Certificate Purchase Agreement"),
between the Depositor and the Initial Purchaser.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the Column Mortgage Loan Purchase Agreement and
the KeyBank Mortgage Loan Purchase Agreement are collectively referred to herein
as the "Agreements". Capitalized terms not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement and, to the extent not
defined therein, in the other Agreements.
We have been asked by our clients to provide our opinion to you as to
whether:
(i) in connection with any bankruptcy proceedings instituted by or on
behalf of Column under the Federal Bankruptcy Code, as amended (Title 11 of
the United States Code)(the "Bankruptcy Code"), the Column Sale would be
treated by a court as a true sale of the Column Mortgage Loans from Column
to the Depositor rather than as a loan secured by the Column Mortgage
Loans, such that the Column Mortgage Loans would not, on such basis,
constitute property of Column's estate under Section 541(a)(1) of the
Bankruptcy Code or property of Column subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of Column in such a proceeding; and
B-2-2
(ii) in connection with any bankruptcy proceedings instituted by or on
behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the Mortgage
Loans from the Depositor to the Trust rather than as a loan secured by the
Mortgage Loans, such that the Mortgage Loans would not, on such basis,
constitute property of the Depositor's estate under Section 541(a)(1) of
the Bankruptcy Code or property of the Depositor subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of the Depositor in such a proceeding.
For purposes of this opinion letter, we have reviewed the
following documents and all exhibits thereto (collectively, the "Relevant
Documents"):
(i) the Agreements;
(ii) a certificate of Column regarding the Column Sale, a copy of
which is attached hereto;
(iii) a certificate of the Depositor regarding the Transfer to the
Trust, a copy of which is attached hereto; and
(iv) a certificate of CSFB regarding its sales of the Certificates
purchased by it, a copy of which is attached hereto.
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters underlying the assumptions set forth below or that are otherwise
factually relevant to the opinions expressed herein and contained in the
Relevant Documents, (ii) the legal capacity of natural persons, (iii) the
genuineness of all signatures, (iv) the authenticity of all documents submitted
to us as originals, (v) the conformity to authentic originals of all documents
submitted to us as certified, conformed or photostatic copies, (vi) the due
organization of all parties to each of the Agreements and the valid existence of
each such party in good standing under the laws of its jurisdiction of
organization, (vii) the power and authority of the parties to each of the
Agreements to enter into, perform under and consummate the transactions
contemplated by such Agreement, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order or decree applicable to any such party or its assets, and
without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by the parties thereto, (ix) the
constitution of each Agreement as the legal, valid and binding
B-2-3
obligation of each party thereto, enforceable against such party in accordance
with its terms, (x) compliance with the Agreements by all parties thereto, and
(xi) the conformity, to the requirements of the Column Mortgage Loan Purchase
Agreement, the KeyBank Mortgage Loan Purchase Agreement and the Pooling and
Servicing Agreement, of the Mortgage Notes, the Mortgages and the other
documents delivered to the Trustee by, on behalf of or at the direction of
Column, KeyBank and/or the Depositor.
In addition, we have assumed that the following statements are true and the
following actions (except as otherwise indicated) have occurred on the date
hereof based upon representations or other provisions in the Relevant Documents:
(i) CSFB either has sold, or is actively attempting and expects to
sell, to third parties unrelated to Column, the Depositor or any of their
affiliates, substantially all of the Certificates acquired by CSFB pursuant
to the Underwriting Agreement and the Certificate Purchase Agreement.
(ii) The transfer of the Column Mortgage Loans by Column to the
Depositor, the transfer of the Mortgage Loans by the Depositor to the Trust
and the sale of the Certificates by the Depositor to the Underwriters and
the Initial Purchaser, as provided in the Agreements, are contemporaneous
exchanges in which Column and the Depositor, respectively, receive new
value and consideration constituting reasonably equivalent value and fair
consideration.
(iii) Following the Column Sale and the Transfer to the Trust, neither
Column nor the Depositor has the right to unilaterally modify or alter the
terms of such Transactions. The consideration received by Column in
connection with its sale of the Column Mortgage Loans to the Depositor, and
by the Depositor in connection with its sales of the Certificates to the
Underwriters and the Initial Purchaser, are, in each case, fixed and not
subject to adjustment following the Closing Date.
(iv) No provision exists whereby the terms of the Certificates, the
Pooling and Servicing Agreement or the Column Mortgage Loan Purchase
Agreement may be unilaterally modified by Column or the Depositor following
the Column Sale and the Transfer to the Trust.
(v) Pursuant to the Column Mortgage Loan Purchase Agreement, it is the
intention of Column and the Depositor that the Column Sale constitute a
sale by Column to the Depositor of all of Column's right, title and
interest in and to the Column Mortgage Loans. Pursuant to the Pooling and
Servicing Agreement, it is the intention of the Depositor and the Trustee
that the Transfer to the Trust constitute an absolute transfer by the
Depositor to the Trust of all of the Depositor's right, title and interest
in and to the Mortgage Loans. Pursuant to the Column Mortgage Loan Purchase
Agreement and/or the Pooling and Servicing Agreement, each of Column and
the Depositor will treat the Column Sale as a sale (as opposed to a secured
loan) under generally accepted accounting principles in the United States
("GAAP"), and pursuant to the Pooling and Servicing Agreement, the
Underwriting Agreement and/or the Certificate Purchase Agreement, the
Depositor will treat the Transfer to the Trust and the sale of the
Certificates by the Depositor to the Underwriters and the Placement Agents
as a sale (as opposed to a secured loan) under GAAP.
B-2-4
(vi) After the completion of the Column Sale and the Transfer to the
Trust, none of Column, the Depositor or any of their affiliates has (i) the
right to repurchase or otherwise to cause the reconveyance to itself of any
Mortgage Loan or (ii) any obligation to repurchase or otherwise remove any
Mortgage Loan from the Trust (other than, in the case of Column, in
connection with a material breach of certain representations, warranties
and covenants made by such party with respect to each Column Mortgage Loan,
in the Column Mortgage Loan Purchase Agreement, and other than, in the case
of Credit Suisse First Boston Mortgage Capital LLC ("CSFBMC"), an affiliate
of Column and the Depositor, in connection with a material breach of
certain representations, warranties and covenants made by such party with
respect to each Column Mortgage Loan acquired from CSFBMC, in a Sellers
Warranty Certificate dated as of March 2, 2001, from CSFBMC in favor of
Column).
(vii) There is no other agreement, arrangement or understanding,
written or otherwise (including, without limitation, with respect to the
Column Sale or the Transfer to the Trust), that supplements or otherwise
modifies the intentions and agreements of the parties to the Agreements, as
expressed therein.
(viii) After the completion of the Column Sale and the Transfer to the
Trust, neither Column nor the Depositor will take any action inconsistent
with the Trust's ownership of the Mortgage Loans.
(ix) Immediately before the Column Sale, Column owned the Column
Mortgage Loans free and clear of any adverse claims or other interests.
Immediately before the KeyBank Sale, KeyBank owned the KeyBank Mortgage
Loans free and clear of any adverse claims or other interests. In
connection with the KeyBank Sale, KeyBank will have validly and effectively
conveyed to the Depositor all legal and beneficial ownership in and to each
KeyBank Mortgage Loan free and clear of any pledge, lien, charge, security
interest or other encumbrance. The Depositor has not transferred and will
not transfer its right, title and interest in and to any Mortgage Loan
except to the Trustee as contemplated by the Pooling and Servicing
Agreement. No adverse claims or other interests with respect to any
Mortgage Loan were created by or through the Depositor, except as
contemplated by the Agreements.
(x) Each of Column and the Depositor has taken all actions required
under applicable law to effectuate the Column Sale. Each of the Depositor
and the Trustee has taken (or the Pooling and Servicing Agreement provides
that, within a reasonable time period following the Closing Date, each of
them will be required to take) all actions required under applicable law to
effectuate the Transfer to the Trust.
(xi) In connection with the Column Sale and the Transfer to the Trust,
neither Column nor the Depositor had any intent to hinder, delay or defraud
its present or future creditors.
(xii) After giving effect to the Column Sale and the Transfer to the
Trust, the value of the assets of each of Column and the Depositor,
respectively, either taken at their present fair salable value or at fair
valuation, exceeded the amount of the debts and obligations, including
contingent and unliquidated debts and obligations, of Column and the
Depositor, respectively.
B-2-5
(xiii) After giving effect to the Column Sale and the Transfer to the
Trust, neither Column nor the Depositor was left with unreasonably small
assets or capital with which to engage in and conduct its business.
(xiv) After giving effect to the Column Sale and the Transfer to the
Trust, neither Column nor the Depositor intends to, or believes that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
There is limited judicial authority relating to the issue of when a
transaction styled as a sale of assets or an absolute transfer of assets
constitutes a true sale or an absolute transfer, as the case may be, as opposed
to a secured loan, and we have not located any controlling precedent for the
transactions described herein. However, the existing case law indicates that an
analysis of a purported true sale or absolute transfer should examine the intent
of the parties as well as the economic consequences of the transaction to
determine whether they are consistent with characterization as a true sale or
absolute transfer, as the case may be. Some of the most important factors
relevant to this economic analysis include (i) whether the buyer or transferee
has assumed the risks inherent in the ownership of the assets purportedly sold
or transferred (i.e., whether the risk of loss has been borne by the buyer or
transferee), (ii) the presence (or absence) of a fixed consideration that is not
subject to further adjustment, given in connection with the purchase or
transfer, (iii) the level of recourse (if any) that the buyer or transferee has
against the seller or transferor, (iv) whether the buyer's or transferee's
rights in the acquired assets could be extinguished by repayment of a debt owed
by the seller or transferor or by the recovery of the consideration (if any)
given in connection with the purchase or transfer and (v) in what circumstances
(if any) the seller or transferor has the right or the obligation to repurchase
or otherwise reacquire the assets or any interest therein.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the Bankruptcy Code and the law of the State of New York to
the extent that it may be applicable thereunder. We do not express any opinion
on any matter not expressly addressed below.
Based upon and subject to the foregoing, the further qualifications set
forth below, and the reasoned analysis of analogous case law (although there is
no precedent directly on point), it is our opinion that:
1. In connection with any bankruptcy proceedings instituted by or on
behalf of Column under the Bankruptcy Code, the Column Sale would be
treated by a court as a true sale of the Column Mortgage Loans from Column
to the Depositor, rather than as a loan secured by the Column Mortgage
Loans, such that the Column Mortgage Loans would not, on such basis,
constitute property of Column's estate under Section 541(a)(1) of the
Bankruptcy Code or property of Column subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of Column in such a proceeding.
2. In connection with any bankruptcy proceedings instituted by or on
behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the Mortgage
Loans from the Depositor to the Trust, rather than as a loan secured by the
Mortgage Loans, such that the Mortgage Loans would not, on such
B-2-6
basis, constitute property of the Depositor's estate under section
541(a)(1) of the Bankruptcy Code or property of the Depositor subject to
the automatic stay provisions of Section 362(a) of the Bankruptcy Code that
would be applicable to the property of the Depositor in such a proceeding.
The foregoing opinions are subject to the qualifications that (i) the
assumptions set forth herein are and continue to be true in all respects
relevant to this opinion, (ii) there are no additional facts that would affect
the validity of the assumptions set forth herein or upon which this opinion is
based, (iii) any claim contrary to or inconsistent with any opinion expressed
herein made in any judicial proceeding will be opposed and litigated to a final
resolution by one or more persons or entities with standing to do so, (iv) such
case is properly presented and argued, and (v) the law is properly applied.
The foregoing opinions are not intended to be a guaranty as to what a
particular court would actually hold, but an opinion as to the decision a court
should reach if the issue were properly presented to it and the court followed
what we believe to be the applicable legal principles. In that regard, you
should be aware that bankruptcy opinions are subject to inherent limitations
because of the pervasive equity powers of bankruptcy courts, the overriding goal
of reorganization to which other legal rights and policies may be subordinated,
the potential relevance to the exercise of judicial discretion of future-arising
facts and circumstances and the nature of the bankruptcy process.(1)
----------
(1) In that regard, we note the Memorandum Opinion dated February 5, 2001,
issued by the bankruptcy court in In re: LTV Steel Company, Inc., et al.,
U.S. Bankr. Ct., Northern District of Ohio, Case No. 00-43866 (the "LTV
Memorandum Opinion"). The LTV Memorandum Opinion arose in a case in which
the debtor, LTV Steel Company ("LTV" or the "Debtor"), had entered into
securitization arrangements with respect both to its inventory and its
accounts receivable, selling its inventory to one special purpose
subsidiary and its accounts receivable to another special purpose entity.
(Neither special purpose entity was made a debtor in the jointly
administered Chapter 11 filings of LTV and its subsidiaries). The Debtor
filed a motion seeking use of the cash collections from the securitized
assets on the basis that the sales were nothing more than disguised
financings and the debtor and the agent for the financial institutions that
invested in the two securitizations agreed to an interim order for the use
of such cash collateral (the "Interim Order"). The Interim Order, among
other things, (i) required the securitization investors, on an interim
basis until the true sale issue could be decided, to turn over to LTV the
cash proceeds of the securitized inventory and accounts receivable and (ii)
purported to provide "adequate protection" to the securitization investors
(treating them, in effect, as secured creditors) in the form of liens on
LTV's accounts receivable and inventory and weekly interest payments at the
non-default contract rate.
The LTV Memorandum Opinion was issued in response to the motion of one of
the investors in the accounts receivable securitization to modify the
Interim Order, in part on the basis that the receivables transferred in the
accounts receivable securitization were not property of the Debtor's
estate. The bankruptcy court, while not determining the "fact-intensive
issue" as to whether the inventory and receivables transferred were
property of the estate (which determination required further discovery and
an evidentiary hearing), did find that LTV "...has at least some equitable
interest in the inventory and receivables, and that this interest is
property of the Debtor's estate ... sufficient to support the entry of the
interim cash collateral order." (LTV Memorandum Opinion at p. 14). The
court based its decision in large part on its view of the equities of the
case. The court noted in particular that failure to enter the interim cash
collateral order "...would put an immediate end to Debtor's business, would
put thousands of people out of work, would deprive 100,000 retirees of
needed medical benefits, and would have more far reaching economic effects
on the geographic areas where Debtor does business" (LTV Memorandum
Opinion, pp. 14 - 15), while the Interim Order protected the securitization
financing parties by its adequate protection provisions.
The Debtor and the securitization investors subsequently settled their
dispute over the terms of the Interim Order and the bankruptcy court
therefore never made a final determination as to whether the assets
transferred in the two securitizations were property of LTV's estate. The
bankruptcy court did not cite case law or other support for
B-2-7
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
----------
the proposition that a party that has sold accounts receivable, inventory or
other property, retains an equitable interest in that property, and the
bankruptcy court's finding that LTV retained such an interest could be read
narrowly as one court's attempt to maintain the status quo pending a
determination of the issue on the merits. Nonetheless, the LTV Memorandum
Opinion serves as an example of the pervasive equity powers of bankruptcy
courts, and the importance that such courts may ascribe to the goal of
reorganization when faced with a dispute as to whether a transfer of assets
integral to the ongoing operation of the debtor's business constitutes a true
sale or a secured loan, particularly where the transfer is documented in a
transaction deemed significant and complex by the court.
X-0-0
XXXXXXX X-0
Form of Letter of Sidley & Austin, Special Counsel to the Depositor
March 16, 2001
Credit Suisse First Boston Mortgage Credit Suisse First Boston Corporation
Securities Corp. Eleven Madison Avenue
Eleven Madison Avenue New York, NY 10010
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"), Column Financial, Inc. ("Column"), and
Credit Suisse First Boston Corporation ("CSFB") in connection with the following
transactions (collectively, the "Transactions"):
(i) 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 March 5, 2001 (the "Column Mortgage Loan Purchase
Agreement"), between Column as seller and the Depositor as purchaser;
(ii) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement dated as of March 5, 2001 (the "KeyBank
Mortgage Loan Purchase Agreement"), between KeyBank as seller and the
Depositor as purchaser;
(iii) the creation of a commercial mortgage trust (the "Trust"), and
the issuance of an aggregate $997,140,787 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1 (the
"Certificates"), consisting of 21 classes designated Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class A-X, Class A-CP, Class A-Y,
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 March 1, 2001 (the "Pooling and Servicing
Agreement"), among the Depositor as depositor, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer, ORIX Real
Estate Capital Markets, LLC, as special servicer, and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (the "Trustee");
(iv) the transfer of the Column Mortgage Loans and the KeyBank
Mortgage Loans (collectively, the "Mortgage Loans") by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement, in exchange for the
Certificates; and
B-3-1
(v) the sale by the Depositor, and the purchase by CSFB of the Class
A-X, Class A-CP, Class A-Y, 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
Certificates (collectively, the "Privately Offered Certificates"), pursuant
to the Certificate Purchase Agreement dated as of March 5, 2001 (the
"Certificate Purchase Agreement"), between the Depositor and CSFB.
The Pooling and Servicing Agreement, the Certificate Purchase Agreement,
the Column Mortgage Loan Purchase Agreement and the KeyBank 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 following documents
and all exhibits thereto (collectively, the "Relevant Documents"):
(i) the Agreements, and
(ii) the Confidential Offering Circular, dated March 5, 2001, relating
to the Trust and the Class A-X, Class A-CP, Class A-Y, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates (including all exhibits and annexes thereto, the "Confidential
Offering Circular").
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for rendering this letter; we have
obtained such certificates from and made such inquiries of officers and
representatives of the parties to the Agreements and public officials as we have
deemed relevant or necessary as the basis for rendering this letter; and we have
relied upon, and assumed the accuracy of, such other documents and records, such
certificates and the statements made in response to such inquiries, with respect
to the factual matters upon which the statements made in this letter are based.
In making the statements set forth below, 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 and the
Pooling and Servicing Agreement, of the Mortgage Notes, the Mortgages and the
other documents delivered to the Trustee by, on behalf of, or at the direction
of, the Depositor and Column, and (xi) the absence of any other agreement that
supplements or otherwise modifies the intentions and agreements of the parties
to the Agreements, as expressed
B-3-2
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.
In the course of acting as special counsel to the Depositor, Column and
CSFB, we have generally reviewed and discussed with certain representatives of
the Depositor, Column, CSFB and the other parties to the Agreements and their
respective counsel (in addition to us) the information set forth in the
Confidential Offering Circular 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"). 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 Confidential Offering Circular, on the basis of
the foregoing, nothing has come to our attention that causes us to believe that
the Confidential Offering Circular (exclusive of the Excluded Information
therein, as to which we express no view or belief), as of the date of the
Confidential Offering Circular 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 (i) any financial statements, schedules and other
numerical, financial or statistical data set forth or referred to in or omitted
from the Confidential Offering Circular, or (ii) any information contained in or
omitted from the Confidential Offering Circular regarding the nature and
characteristics of the Mortgage Loans, the Mortgaged Properties or the
Borrowers. In that connection, we advise you that we have relied, to the extent
that we may properly do so in the discharge of our professional responsibilities
as experienced securities law practitioners, upon the judgment and statements of
officers and representatives of the Depositor, Column and CSFB with respect to
facts necessary to 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 & Austin attorneys currently practicing
law with this firm who have been actively involved in any material respect in
representing any of the Depositor, Column or CSFB in connection with the
Transactions. We call to your attention that, with your knowledge and consent,
such Sidley & Austin 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 belief 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,
B-3-3
EXHIBIT C
Form of Opinion of Long, Alderidge & Xxxxxx,
Special Counsel to Column Financial, Inc.
March 16, 2001
Credit Suisse First Boston Xxxxx'x Investors Service, Inc.
Mortgage Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Fitch, Inc.
00 Xxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments, Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center, 26th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
We have acted as counsel to Column Financial, Inc. (the "Company") in
connection with the sale of certain mortgage loans (collectively, the "Mortgage
Loans") by the Company to Credit Suisse First Boston Mortgage Securities Corp.
("CSFB Mortgage Securities") pursuant to a Mortgage Loan Purchase Agreement,
dated as of March 5, 2001 (the "Agreement"), between the Company and CSFB
Mortgage Securities and in connection with the delivery by the Company of that
certain Indemnification Agreement, dated as of March 5, 2001 (the "Indemnity")
among the Company, CSFB Mortgage Securities, Credit Suisse First Boston
C-1
Corporation, McDonald Investments, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxxx Xxxxx Barney, Inc. This opinion is being delivered to
you pursuant to the Agreement. Capitalized terms not defined herein have the
meanings set forth in the Agreement.
In rendering this opinion letter, we have examined the Agreement, the
Indemnity and such other documents as we have deemed necessary. As to matters of
fact, we have examined and relied upon, without any independent investigation,
representations of the Company contained in the Agreement and in the Certificate
of an Officer of the Seller attached hereto and, where we have deemed
appropriate, representations or certifications of parties to the Agreement or
public officials. We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of
natural persons and the conformity to the originals of all documents submitted
to us as copies. We have assumed that all parties to the Agreement and the
Indemnity other than the Company had the corporate power and authority to enter
into and perform all obligations thereunder. As to such parties, other than the
Company, we also have assumed the due authorization by all requisite corporate
action, and the due execution and delivery and the enforceability of such
documents. We have further assumed the conformity of the Mortgage Loans and
related documents to the requirements of the Agreement and have assumed that the
Company is the owner of the Mortgage Loans.
Based upon and subject to the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing
and in good standing under the laws of the State of Delaware and has the
requisite corporate power to own its properties, to conduct its business as
presently conducted by it, to own and to transfer and convey to CSFB
Mortgage Securities the Mortgage Loans and to enter into and perform its
obligations under the Agreement and Indemnity.
2. The Agreement and Indemnity each has been duly and validly
authorized, executed and delivered by the Company and each constitutes the
valid, legal and binding agreement of the Company.
3. No consent, approval, authorization or order of any State of
Georgia or federal court or State of Georgia or federal governmental agency
or body is required for the consummation by the Company of the transactions
contemplated by the Agreement and Indemnity, except for those consents,
approvals, authorizations or orders that previously have been obtained.
4. Neither the transfer of the Mortgage Loans as provided in the
Agreement, nor the fulfillment of the terms of or the consummation of any
other of the transactions contemplated by the Agreement and Indemnity, will
result in a breach of any term or provision of the certificate of
incorporation or by-laws of the Company or any State of Georgia or federal
statute or regulation applicable to the Company, or to our knowledge, will
conflict with, result in a breach, violation or acceleration of or
constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound, or
any order of any State of Georgia or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company.
C-2
5. To our knowledge, there are no actions, proceedings, or
investigations pending or threatened against the Company before any State
of Georgia, State of Delaware or federal court, administrative agency or
other tribunal (a) asserting the invalidity of the Agreement or Indemnity,
(b) seeking to prevent the consummation of any of the transactions
contemplated in the Agreement or Indemnity, or (c) that might materially
and adversely affect the performance by the Company of its obligations
under, or the validity of, the Agreement or Indemnity.
Where we have rendered our opinion concerning matters "known to us" or this
letter otherwise refers to our knowledge or our attention, such reference shall
mean only the knowledge of Xxxxxxx X. Xxxxxxx, Xxxxxxx X. XxXxxxxx, X. Xxxxxxx
Null, Xxxxx X. Xxxxxx or Xxxxxx X. Xxxxx, who are the attorneys in our firm
primarily responsible for our services relating to the Company, and shall not
refer to the knowledge of any other person in any way associated with this firm.
You are advised that we have made no independent investigation or verification
of such matters and have not searched or reviewed the files and records of or
relating to Company or such matters in our office, in the public records, in the
possession of Company, or elsewhere.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of Georgia, the corporate law of the
State of Delaware and the federal law of the United States. We do not express
any opinion concerning the enforceability of the Agreement or the Indemnity.
Any and all opinions rendered by this firm in this opinion letter are
limited to the matters expressly set forth herein; and no opinion is implied or
to be inferred beyond the matters expressly so stated. This opinion is given as
of the date hereof, and we expressly decline any undertaking to revise or update
this opinion subsequent to the date hereof or to advise you of any matter
arising subsequent to the date hereof, which would cause us to modify the
opinion, in whole or in part.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person is entitled to rely hereon. Copies of this letter
may not be furnished to any other person, nor may any portion of this letter be
quoted, circulated or referred to in any other document.
Very truly yours,
LONG XXXXXXXX & XXXXXX LLP
C-3
EXHIBIT D
Form of Opinion of Sidley & Austin,
Special Counsel to Column Financial, Inc.
March 16, 2001
Credit Suisse First Boston Xxxxxxx Xxxxx Xxxxxx Inc.
Mortgage Securities Corp. 000 Xxxxxxxxx Xxxxxx, 00xx Floor
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, XX 00000
Xxxxxxx, Lynch, Pierce, Xxxxxx Xxxxx, Inc.
& Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Center -00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
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
March 5, 2001 (the "Agreement"), between Column and CSFBMSC.
This opinion letter is being provided to you pursuant to Section 7(vii) of
the Agreement. Capitalized terms that are used, but not defined, herein have the
respective meanings set forth in, or otherwise assigned to them pursuant to, the
Agreement.
For purposes of this opinion letter, we have reviewed the Agreement. In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries
D-1
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) 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 or decree applicable to any such party or its assets, and
without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreement by the parties thereto, (ix) except to
the extent expressly addressed 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 any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any
D-2
agreement, to appoint any person or entity as the attorney-in-fact of any other
person or entity or to provide that any agreement or any particular provision
thereof is to be governed by or construed in accordance with the laws of any
jurisdiction other than the State of New York; (4) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, fraudulent
conveyance and transfer, moratorium and other similar laws affecting the rights
of creditors or secured parties generally; and (5) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of any provision of any agreement that
purports or is construed to provide indemnification with respect to securities
law violations.
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
(without regard to conflicts of law principles). In addition, we do not express
any opinion with respect to (i) the tax, securities or "doing business" laws of
any particular jurisdiction, including, without limitation, the State of New
York, or (ii) any law, rule or regulation to which Column may be subject as a
result of any other person's or entity's legal or regulatory status or any such
other person's or entity's involvement in the transactions contemplated by the
Agreement. Furthermore, we do not express any opinion with respect to any matter
not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that the
Agreement constitutes a valid, legal and binding agreement of Column,
enforceable against Column in accordance with its terms.
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the closing of Column's sale of
the Mortgage Loans to CSFBMSC, pursuant to the Agreement, and may not be relied
on in any manner for any other purpose or by any other person or transmitted to
any other person without our prior consent.
Very truly yours,
D-3
EXHIBIT E
Form of Opinion of In-house Counsel to KeyBank National Association
and the Master Servicer
March 16, 2001
Xxxxx'x Investors Service, Inc. Fitch, Inc.
00 Xxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxx.
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
McDonald Investments Inc. Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxxxx Xxxxxx, 00xx Xxx. 00 Xxxxxxxx, 00xx Xxx.
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Credit Suisse First Boston Credit Suisse First Boston
Corporation Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Incorporated 000 Xxxxxxxxx Xxxxxx, 00xx Xxx.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxx. Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Series 2001-CK1
Ladies and Gentlemen:
As Senior Vice President and Associate General Counsel of KeyBank National
Association, a national banking association (the "Bank"), I have acted as
counsel to the Bank and to its affiliate KeyCorp Real Estate Capital Markets,
Inc. (the "Corporation"), in connection with the negotiation, execution and
delivery by the Bank and the Corporation of the agreements listed below.
In that regard, I or attorneys working under my direction have examined and
relied upon originals or copies, certified or otherwise identified to my
satisfaction as being true copies of all such records of the Bank and the
Corporation, all such agreements, certificates and other documents as I have
deemed necessary as a basis for the opinions set forth herein, including the
following:
E-1
1. The Mortgage Loan Purchase Agreement between the Bank and Credit
Suisse First Boston Mortgage Securities Corp. ("CSFBMSC");
2. The Pooling and Servicing Agreement among the Corporation, as
Master Servicer, CSFBMSC, ORIX Real Estate Capital Markets, LLC, as Special
Servicer, and Xxxxx Fargo Bank Minnesota, N.A., as Trustee; and
3. The Indemnification Agreement among the Bank, CSFBMSC, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc.,
McDonald Investments Inc. and Credit Suisse First Boston Corporation.
The agreements listed in items 1 through 3 above are collectively
referenced herein as the "Agreements."
In such examination, I or such attorneys working under my direction have
assumed the genuineness of all signatures other than those signatures for the
Bank and the Corporation, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as certified or
photostatic copies. I or such attorneys have investigated such questions of law
for the purpose of rendering these opinions as I have deemed necessary.
Based on the foregoing, and subject to the limitations and qualifications
set forth below, I am of the opinion that:
(a) the Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with corporate power and authority to own its properties
and to conduct its business as now conducted by it and to enter into and
perform its obligations under the Agreements it is a party to;
(b) the Corporation has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Ohio;
(c) the Corporation has the corporate power and authority to own its
properties and to conduct its business as now conducted by it and to enter
into and perform its obligations under the Agreements it is a party to;
(d) the Agreements to which it is a party have been duly and validly
authorized, executed and delivered by each of the Bank and the Corporation;
(e) neither the execution and delivery by the Bank of the Agreements
it is a party to, nor the consummation by the Bank of the transactions
contemplated by such Agreements, nor the performance by the Bank of its
obligations thereunder will result in a material breach or violation of, or
constitute a material default under (i) the Articles of Association or
by-laws, as amended, of the Bank, (ii) the terms of applicable current
provisions
E-2
of statutory law or regulation, (iii) any existing obligation of the Bank
under any indenture, agreement, or instrument actually known to me, after
reasonable investigation, which breach, violation or default would
reasonably be expected to have a material adverse effect on the condition
of the Bank, financial or otherwise, or adversely affect the transactions
contemplated by, or the Bank's performance of its obligations under, the
Agreements to which the Bank is a party, or (iv) the terms of any order,
writ, judgement or decree actually known to me after reasonable
investigation, issued by a court of competent jurisdiction and specifically
directed to the Bank or its property;
(f) neither the execution and delivery by the Corporation of the
Agreements it is a party to, nor the consummation by the Corporation of the
transactions contemplated by such Agreements, nor the performance by the
Corporation of its obligations thereunder will result in a material breach
or violation of, or constitute a material default under (i) the Articles of
Incorporation or by-laws, as amended, of the Corporation, (ii) the terms of
applicable current provisions of statutory law or regulation, (iii) any
existing obligation of the Corporation under any indenture, agreement, or
instrument actually known to me, after reasonable investigation, which
breach, violation or default would reasonably be expected to have a
material adverse effect on the condition of the Corporation, financial or
otherwise, or adversely affect the transactions contemplated by, or the
Corporation's performance of its obligations under, the Agreements to which
the Corporation is a party, or (iv) the terms of any order, writ, judgement
or decree actually known to me
(g) after reasonable investigation, issued by a court of competent
(h) jurisdiction and specifically directed to the Corporation or its
property;
(i) no consent, approval or authorization of, or filing with, any
governmental agency or body is required of either the Bank or the
Corporation in connection with its execution, delivery and performance of
the Agreements to which it is a party, except such consents, approvals or
authorizations as have been obtained or such filings as have been made; and
(j) to my actual knowledge, after reasonable investigation, there are
no actions, proceedings or investigations pending or threatened against the
Bank or the Corporation before any court, administrative agency, or
tribunal (i) asserting the invalidity of any of the Agreements, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by any of the Agreements, or (iii) that could reasonably be expected to
materially and adversely affect the enforceability of any of the Agreements
against the Bank or the Corporation, as the case may be, or the ability of
the Bank or the Corporation, as the case may be, to perform its obligations
thereunder.
For purposes of this opinion letter, I have assumed that (i) the
Agreements have been duly executed and delivered by all parties thereto (other
than the Bank and/or the Corporation, as the case may be) and are valid and
binding upon and enforceable against such parties (other than the Bank and/or
the Corporation, as the case may be), subject to applicable bankruptcy,
E-3
insolvency, moratorium, fraudulent conveyance and other similar laws relating to
or affecting creditors' rights generally and court decisions with respect
thereto and (ii) there has been no mutual mistake of fact or misunderstanding,
fraud, duress, or undue influence.
The opinions expressed above are limited to Federal law and the laws of the
State of Ohio.
This opinion is rendered solely to the addressees hereof, for their use in
connection with the transactions contemplated herein and may not be relied upon
for any other purpose or by any other person.
Very truly yours,
Xxxxxx X. Xxxxx
Senior Vice President and
Associate General Counsel
E-4
EXHIBIT F-1
Form of Opinion of Xxxxxxxxxx, Xxxxxxx & Xxxxx, P.C.,
Special Counsel to KeyBank National Association
March 16, 2001
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Xxxxx'x Investors Service, Inc.
Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Fitch, Inc.
Xxxxxx & Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx Inc. McDonald Investment Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association, a
national banking association ("Key"), in connection with the following
transactions (collectively, the "Transactions"):
(i) the sale by Key, and the purchase by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor") (such Transaction, the "Sale"),
of certain multifamily and commercial mortgage loans (the "Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of March 5, 2001 (the "Loan Purchase Agreement"), between Key as seller
and the Depositor as purchaser;
(ii) the creation of a common law trust (the "Trust") and the issuance
of Commercial Mortgage Pass-Through Certificates, Series 2001-CK1 (the
"Certificates"), pursuant to that certain Pooling and Servicing Agreement,
dated as of March 1, 2001 (the "Pooling and Servicing Agreement"), among
the Depositor as depositor, KeyCorp Real Estate Capital
F-1-1
Markets, Inc. as master servicer, ORIX Real Estate Capital Markets, LLC as
special servicer, and Xxxxx Fargo Bank Minnesota, N.A. as trustee (the
"Trustee"); and
(iii) the transfer of the Mortgage Loans by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement in exchange for the
issuance of the Certificates at the direction of the Depositor.
The Loan Purchase Agreement and the Pooling and Servicing Agreement are
collectively referred to herein as the "Agreements". Capitalized terms not
defined in this letter have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the Loan Purchase
Agreement.
Under the terms of the Loan Purchase Agreement, Key will sell to the
Depositor, without recourse (except to the extent specified therein), all right,
title and interest of Key in and to the Mortgage Loans and the proceeds thereof.
Pursuant to the Pooling and Servicing Agreement, the Depositor will transfer the
Mortgage Loans to the Trustee, and the Trust will issue the Certificates
representing interests in the Trust. The following twenty-one classes of
Certificates representing beneficial interests in the Trust Fund will be issued
pursuant to the Pooling and Servicing Agreement: The Class A-1, Class A-2, Class
A-3, Class B, Class C, and Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class A-X, Class A-CP, Class A-Y,
Class R, and Class V Certificates.
You have requested our opinion whether, in the event that the Federal
Deposit Insurance Corporation (the "FDIC") were appointed as conservator or
receiver for Key pursuant to Section 11(c) of the Federal Deposit Insurance Act
(the "FDIA"), the transfer of the Mortgage Loans by Key to the Depositor
pursuant to the Loan Purchase Agreement would be enforceable against Key
notwithstanding the appointment of the FDIC as conservator or receiver of Key.
ASSUMPTIONS OF FACT
In connection with this opinion, we have reviewed the Agreements and a
certificate, dated the date hereof, of an officer of Key, which certifies, to
the best of such person's knowledge, inter alia, as to certain of the matters in
the immediately succeeding paragraph as of the date hereof. This opinion is
based solely upon our review of the Agreements and such other documents, and
such other investigations of law and fact, as we have deemed necessary or
advisable in connection with this opinion. Our opinion is limited to the
specific issues of federal law addressed and is further limited in all respects,
except as otherwise stated, to the facts assumed. We express no opinion as to
any other matter.
In rendering the opinions set forth herein, we have relied upon, and
assumed, without independent investigation or inquiry, the following to be true
at all relevant times:
(a) All representations and warranties set out in the Agreements, and
all statements in Key Certificate and the certificates relating to the
Agreements or furnished in connection with the Transactions, are true and
correct.
(b) All signatures are genuine, all natural persons have the legal
capacity to execute and deliver the documents signed by them, all documents
submitted to us as originals are
F-1-2
authentic and all documents submitted to us as certified or photostatic
copies conform in all respects to the original documents.
(c) Each of the Agreements has been duly authorized, executed and
delivered by, and constitutes the legal, valid and binding obligation of
all parties thereto, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (2) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity).
(d) The execution, delivery and performance of the Agreements by the
parties thereto do not violate any applicable law. All notices to, filings
with, and approvals of, all applicable governmental or regulatory
authorities required for the execution and delivery by Key, the Depositor,
and the Trustee of the Agreements and the performance by Key, the
Depositor, and the Trustee thereof shall have been obtained or made, and
are in full force and effect.
(e) Each of Key and the Depositor has taken all actions required under
applicable law to effectuate the Sale of the Mortgage Loans.
(f) There are no agreements or courses of prior dealing between any of
the parties that would alter the relationships set forth in the Agreements.
(g) The Depositor, Key, and the Trustee will at all times and in all
respects that are material to the opinions expressed in this letter comply
with all material provisions of the Agreements, as applicable.
(h) Key is a national banking association, the deposits of which are
insured by the FDIC pursuant to the provisions of the FDIA.
(i) As of the date of this opinion, Key has not violated any law or
regulation and is not in an unsafe or unsound condition that would
constitute a basis for the appointment of a conservator or receiver
pursuant to the FDIA.
(j) Key received adequate consideration for the transfer to the
Depositor of the Mortgage Loans pursuant to the Loan Purchase Agreement.
(k) Each of Key, the Depositor, nor the Trustee did not and will not
(i) execute either of the Agreements or any other agreement to which it is
a party in connection with the Transactions or (ii) otherwise effectuate or
consummate any transfer of the Mortgage Loans pursuant to the Agreements or
any other agreement, in each case:
(1) in contemplation of Key's or the Depositor's insolvency;
(2) with a view to preferring one creditor of Key or the
Depositor over another or to preventing the application of Key's or
the Depositor's assets in the manner required by applicable law or
regulations;
(3) after Key or the Depositor committed an act of insolvency; or
F-1-3
(4) with any intent to hinder, delay, or defraud Key or the
Depositor or any of their respective creditors.
(l) The execution, delivery and performance of each of the Agreements
and the Transactions constitute bona fide and arm's length transactions and
were and are undertaken in the ordinary course of business.
(m) The Class A-1, Class A-2, Class A-3, Class B, Class C, Class D,
Class A-X, Class A-CP, and Class A-Y Certificates are, as of the date
hereof, each rated in one of the four highest categories assigned to
long-term debt or in an equivalent short-term category by Fitch and
Xxxxx'x, which are nationally recognized statistical rating organizations.
(n) It is the stated intention of Key and the Depositor, as set forth
in Section 11 of the Loan Purchase Agreement, to treat the transfer of the
Mortgage Loans by Key to the Depositor pursuant to the Loan Purchase
Agreement as a sale, and not a secured borrowing, including for accounting
purposes.
(o) All of the requirements of generally accepted accounting
principles for treating the transfer of the Mortgage Loans as a sale have
been satisfied (other than the "legal isolation" condition).
(p) Key is and shall remain a separate and distinct entity from the
Depositor, the Trustee and the Trust. Key does not control, is not
controlled by, and is not under common control with, the Depositor or the
Trustee.
(q) The Depositor is a Delaware corporation and is primarily engaged
in acquiring and holding or transferring to another special purpose entity,
financial assets, and in activities related or incidental thereto, in
connection with the issuance of beneficial interests, which in this case
are in the form of the Certificates.
OPINION EXPRESSED
Based on the reasoning and subject to the assumptions, qualifications and
limitations set forth in this letter, it is our opinion that in a properly
presented and decided case, a court would hold that the FDIC, if appointed as
receiver or conservator of Key pursuant to Section 11(c) of the FDIA:
1. Could not, in the exercise of its authority under 12
U.S.C.ss.1821(e), reclaim, recover, or recharacterize as property of Key or
the receivership the Mortgage Loans that have been transferred by Key to
the Depositor pursuant to the Loan Purchase Agreement; and
2. Could not seek to avoid the Loan Purchase Agreement under 12
U.S.C.ss.1823(e).
We wish to point out that we are giving no opinion (i) as to
whether the transfer of the Mortgage Loans by Key to the Depositor and, in turn,
by the Depositor to the Trust is a true sale or absolute conveyance, (ii) as to
the perfection or priority of any ownership interest or
F-1-4
security interest in the Mortgage Loans, (iii) concerning any law other than the
federal laws of the United States of America, or (iv) concerning any matter not
expressly addressed in this letter.
DISCUSSION
In an insolvency proceeding for Key, the United States Bankruptcy Code (the
"Bankruptcy Code") would not apply. Therefore, neither the provisions of the
Bankruptcy Code that impact the right of a secured creditor to liquidate
collateral nor the provisions of Section 547 of the Bankruptcy Code concerning
"preferential" transfers would apply in the event of the insolvency of Key. The
FDIC is authorized under Sections 11(c)(1) and (2) of the FDIA to accept
appointment as conservator, and is required to be appointed as receiver, for a
federal savings bank such as Key.
Our opinions above rely on the FDIC's rule regarding the treatment by the
FDIC, as receiver or conservator of an insured depository institution, of
financial assets transferred by the institution in connection with a
securitization or participation. As of the date of this opinion, the Rule has
not been modified or repealed, and we are not aware of any reported judicial
decision that questions the validity of the Rule.
For the Transactions to be covered by the Rule, the Transactions must
involve the (1) transfer of financial assets (2) in connection with a
securitization or participation. The first element is satisfied because each of
the Mortgage Loans "conveys to one entity a contractual right to receive cash,"
and therefore qualifies as a "financial asset."
The second element requires a determination of whether the transfer of the
Mortgage Loans pursuant to the Loan Purchase Agreement is "in connection with a
securitization or participation." In our analysis we are relying on the Rule's
treatment of transfers in connection with a securitization. For the Transactions
to constitute a securitization that is covered by the Rule, the Transactions
must involve the issuance by a special purpose entity of beneficial interests
the most senior class of which is rated in one of the four highest rating
categories by one or more nationally recognized statistical rating organizations
or which are sold in transactions not involving any public offering or in
transactions exempt from registration pursuant to Regulation S under the
Securities Act.
In this case, the Trust will issue beneficial interests in the form of the
Certificates. To fall within the scope of the Rule, the Trust must be a "special
purpose entity," as defined by the Rule. Under the Rule the term "special
purpose entity" means the following:
a trust, corporation, or other entity demonstrably distinct from the
insured depository institution that is primarily engaged in acquiring and
holding (or transferring to another special purpose entity) financial
assets, and in activities related or incidental thereto, in connection with
the issuance by such special purpose entity (or by another special purpose
entity that acquires financial assets directly or indirectly from such
special purpose entity) of beneficial interests.
The Trust will be primarily engaged in acquiring and holding financial
assets and in activities related or incidental thereto, in connection with the
issuance of the Certificates. The Trust is a trust established under the laws of
New York. The permitted activities of the Trust are
F-1-5
specifically set forth in, and are strictly limited by, the Pooling and
Servicing Agreement. Key does not control, is not controlled by, nor is it under
common control with, the Trustee or the Trust; rather, the limited
decision-making authority permitted under the Pooling and Servicing Agreement is
vested in the Trustee and the Certificateholders, as set forth in the Pooling
and Servicing Agreement. Moreover, the documents evidencing the principal assets
of the Trust, the Mortgage Notes and related Mortgage Files, will be assigned to
and physically delivered into the possession of the Trustee, or a custodian
appointed by the Trustee (which custodian may not, as set forth in the Pooling
and Servicing Agreement, be Key). Although the Rule does not provide any
guidance regarding the circumstances under which a special purpose entity is
"demonstrably distinct" from a depository institution, we believe that the facts
set forth above demonstrate that the Trust is an entity distinct from Key.
Therefore, the Trust appears to satisfy the definition of a "special purpose
entity" under the Rule.
The other requirement for the Transactions to be covered by the Rule is met
because the most senior class of securities issued in the Transactions are rated
in one of the four highest categories assigned to long-term debt or in an
equivalent short-term category by Fitch and Xxxxx'x, which are nationally
recognized statistical rating organizations. Although the Rule does not define
the phrase "nationally recognized statistical rating organizations," this phrase
is used by the FDIC, other bank regulatory agencies and the Securities and
Exchange Commission in several regulations, is defined by the Securities and
Exchange Commission in several regulations and is defined by the Securities and
Exchange Commission at 17 C.F.R. ss. 240.150c3-1(c)(2)(vi)(F) as including Fitch
and Moody's, the two agencies rating the most senior classes of securities in
the Transactions. Although the Rule does not expressly adopt that definition, we
believe that a court would hold that Fitch and Xxxxx'x are nationally recognized
statistical rating organizations, either on the basis of the Securities and
Exchange Commission's rule or otherwise.
OTHER QUALIFICATIONS
The foregoing opinion is subject to the following qualifications:
1. If Key were to become a debtor under the FDIA and asserted that the
beneficial interest in and legal title to the Mortgage Loans were part of
Key's estate, we express no opinion as to how long the Trust would be
denied possession of the Mortgage Loans in Key's possession before the
validity of such an assertion could be finally decided. We also express no
opinion as to whether, if the FDIC were to assert that the beneficial
interest in and legal title to the Mortgage Loans were part of Key's
receivership estate, a court would permit Key to use collections of the
Mortgage Loans in Key's possession without the consent of the Trustee
either before deciding the issue or pending appeal after a decision adverse
to the Trust.
2. We express no opinion as to the availability or effect of a
preliminary injunction, temporary restraining order or other such temporary
relief affording delay pending a determination on the merits; by such
reservation, however, we do not imply that we have undertaken any analysis
to determine whether any such equitable relief would ultimately be
available to prevent enforcement of the transaction.
F-1-6
3. We express no opinion with respect to the power of the FDIC, as
receiver or conservator, to disaffirm or repudiate any agreement
(including, but not limited to, the Loan Purchase Agreement) to the extent
it imposes continuing obligations or duties upon Key in receivership or
conservatorship.
4. We express no opinion herein as to whether any transfer or
obligation is avoidable as a preference or fraudulent transfer.
5. The opinions are subject to the effect of general principles of
equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing, and other similar doctrines
affecting the enforceability of agreements generally (regardless of whether
considered in a proceeding in equity or at law).
6. We express no opinion as to compliance or the effect of
noncompliance by the Trustee with any state or federal laws or regulations
applicable to it in connection with the transactions described in the
Pooling and Servicing Agreement.
7. We express no opinion with respect to the enforceability of any
Mortgage Loan or the existence of any claims, rights, defenses,
counterclaims or objections in favor of the mortgagor thereon that can be
asserted against or are effective against Key, the Depositor, the Trustee
or the Certificateholders. We note that unless the mortgagor with respect
to a Mortgage Loan has received notice of the assignment thereof (such
notice not being contemplated by the Loan Purchase Agreement), bona fide
payments made by such mortgagor to Key or a second assignee of such
Mortgage Loan shall discharge such mortgagor's obligations to the extent of
such payment, and such payment will only be recoverable from Key or, in
certain cases, from such second assignee, as the case may be.
8. We have assumed that there are no agreements (other than the
Agreements) prohibiting, restricting or conditioning the assignment of any
portion of the Mortgage Notes.
9. We express no opinion as to the ability of the FDIC, as conservator
or receiver, to transfer the Loan Purchase Agreement without any approval
or consent of the parties, pursuant to 12 U.S.C.ss.1821(d)(2)(G).
The foregoing analysis and its conclusions are premised upon, and limited
to, the law and the structure of the proposed transaction in effect as of the
date of this letter. We do not assume responsibility for updating this opinion
letter as of any date subsequent to the date of this opinion letter, and assume
no responsibility for advising you of (i) the discovery subsequent to the date
of this opinion letter of factual information not previously known to us
pertaining to the events occurring prior to the date of this opinion letter or
(ii) the amendment or repeal of the Rule by the FDIC after the date of this
opinion letter. Furthermore, we note that a court's decision regarding matters
upon which we opine herein is based on the court's own analysis and
interpretation of the factual evidence before the court, and applicable legal
principles.
F-1-7
This opinion is solely for the benefit of the addressees and should not
relied on by any other person. It is rendered solely in connection with the
Transactions. It may not be quoted, in whole or in part, or otherwise referred
to or used by you for any purpose, nor may copies hereof be delivered to any
other person (except to parties involved in the Transactions and their counsel
as part of the closing set related to the Transactions) without our prior
written consent.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
F-1-8
EXHIBIT F-2
Form of Letter of Xxxxxxxxxx, Xxxxxxx & Xxxxx, P.C.
Special Counsel to KeyBank National Association
March 16, 2001
Credit Suisse First Boston Mortgage Xxxxx Fargo Bank Minnesota, N.A.
Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Fitch, Inc.
Xxxxxx & Xxxxx Incorporated Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
0 World Financial Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx Xxxxxx Inc. McDonald Investment Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association
("KEYBANK") and KeyBank Real Estate Capital Markets, Inc. ("KRECM"), in
connection with the Pooling and Servicing Agreement ("POOLING AND SERVICING
AGREEMENT") dated as of March 1, 2001, among Credit Suisse First Boston Mortgage
Securities Corp. as Depositor (the "DEPOSITOR"), KRECM as Master Servicer, ORIX
Real Estate Capital Markets, LLC as Special Servicer, and Xxxxx Fargo Bank
Minnesota, N.A. as Trustee, and in connection with the Mortgage Loan Purchase
Agreement ("LOAN PURCHASE AGREEMENT") dated as of March 5, 2001, among KeyBank
as Seller and the Depositor as Purchaser.
This letter is delivered to you at the request of KeyBank pursuant to the
Loan Purchase Agreement, the Underwriting Agreement ("UNDERWRITING AGREEMENT")
dated March 5, 2001, among the Depositor, Credit Suisse First Boston Corporation
("CSFB"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc., Xxxxxxx Xxxxx Barney
Inc., and McDonald Investments Inc. as
F-2-1
Underwriters (in such capacity, collectively, the "UNDERWRITERS") and pursuant
to the Certificate Purchase Agreement ("CERTIFICATE PURCHASE AGREEMENT") dated
March 5, 2001, between the Depositor and CSFB.
The Certificates to be issued by the Depositor pursuant to the Pooling and
Servicing Agreement are divided into classes. The Certificates of Classes X-0,
X-0, X-0, X, X and D (collectively, the "PUBLICLY OFFERED CERTIFICATES") will be
sold to the Underwriters pursuant to the Underwriting Agreement and offered for
sale to the public pursuant to a prospectus dated March 5, 2001 ("BASE
PROSPECTUS"), as supplemented by a prospectus supplement dated March 5, 2001
("PROSPECTUS SUPPLEMENT" and along with the Base Prospectus, the "PROSPECTUS").
The Certificates of Classes E, F, G, H, J, K, L, M, N, O, A-X, A-CP, A-Y, R and
V (the "PRIVATELY OFFERED CERTIFICATES" and along with the Publicly Offered
Certificates, the "CERTIFICATES") will be sold to CSFB pursuant to the
Certificate Purchase Agreement. CSFB will offer the Privately Offered
Certificates pursuant to a confidential offering circular dated March 5, 2001
(the "CONFIDENTIAL OFFERING CIRCULAR"). Capitalized terms not otherwise defined
herein are defined as set forth in the Underwriting Agreement or the Pooling and
Servicing Agreement, as applicable.
The purpose of our professional engagement was to advise with respect to
legal matters and not to determine or verify facts. Many of the determinations
involved in the preparation of the Prospectus Supplement and the Confidential
Offering Circular were factual. We have not independently verified, do not make
any representation as to, and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus
Supplement or the Confidential Offering Circular.
In connection with the delivery of this letter, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of the
Prospectus, the Confidential Offering Circular, the Loan Purchase Agreement, the
Pooling and Servicing Agreement, and other such documents and records as we have
deemed relevant or necessary as the basis for the views expressed in this
letter. We have obtained such certificates from and made such inquiries of
officers and other representatives of KeyBank and KRECM as we have deemed
relevant or necessary as the basis of the views expressed in this letter. We
have relied upon and assumed the accuracy of, such other documents and records,
such certificates and the statements made in response to such inquiries, with
respect to the factual matters upon which the views expressed in this letter are
based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the Loan
Purchase Agreement and the Pooling and Servicing Agreement and underlying the
assumptions set forth below or that are otherwise factually relevant to the
opinions expressed in this letter, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures (except for the signatures of officers
of KRECM and KeyBank) and the authenticity of all documents submitted to us as
originals, (iv) the conformity to the originals of all documents submitted to us
as certified conformed or photostatic copies, (v) the due authorization by all
necessary action, and the due execution and delivery, of each of the Loan
Purchase Agreement and the Pooling and Servicing Agreement by the parties
thereto and the constitution of each of the Loan Purchase Agreement and the
Pooling and Servicing Agreement as the legal, valid and binding obligations of
each party thereto,
F-2-2
enforceable against such party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, and similar laws relating to or affecting the
enforceability of creditors' rights generally, the effect of general equitable
principals (in equity or at law), and the availability of equitable remedies,
(vi) the compliance with the relevant provisions of each of the Loan Purchase
Agreement and the Pooling and Servicing Agreement by the parties thereto, (vii)
the conformity, to the requirements of each of the Loan Purchase Agreement and
the Pooling and Servicing Agreement, of the Mortgage Loan Documents delivered to
the Depositor by KeyBank, (viii) the absence of any agreement that supplements
or otherwise modifies the agreements expressed in each of the Loan Purchase
Agreement and the Pooling and Servicing Agreement, and (ix) the conformity of
the text of each document filed with the Securities Exchange Commission through
the XXXXX system to the printed documents reviewed by us. In rendering this
letter, we do not express any view concerning the laws of any jurisdiction other
than the federal laws of the United States of America.
In the course of acting as special counsel to KeyBank and KRECM we have
responded to inquiries from time to time by KeyBank's closing coordinators,
reviewed title insurance commitments and surveys and prepared most of the loan
documents for a majority of the Mortgage Loans (as defined in the Loan Purchase
Agreement) originated by KeyBank. In connection with the preparation of the
Prospectus Supplement and the Confidential Offering Circular, we met in
conferences and participated in telephone conversations with officers and
employees of KeyBank and KRECM and counsel, officers and other representatives
of the Depositor, the Underwriters, CSFB and the other Mortgage Loan Seller,
during which conferences and telephone conversations the contents of the
Prospectus Supplement and the Confidential Offering Circular were discussed. We
have not independently undertaken any procedures that were intended or likely to
elicit information concerning the accuracy, completeness or fairness of the
statements made in the Prospectus Supplement or the Confidential Offering
Circular. On the basis of the foregoing and subject to the limitations set forth
herein, nothing has come to our attention to cause us to believe that either the
Prospectus Supplement or the Confidential Offering Circular, as of their
respective dates or as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that we have not been requested to and we do not make any
comment in this paragraph with respect to (i) financial statements, schedules or
other accounting, financial, or statistical data or other information of that
nature contained in or omitted from the Prospectus Supplement or the
Confidential Offering Circular, or (ii) information contained in the computer
diskette or the CD-ROM accompanying the Prospectus Supplement which we assume,
but have not verified, does not vary from and is not different in any way from
the information contained in the Prospectus Supplement). In that connection, we
advise you that we have, as to materiality, relied to the extent we deemed
appropriate on the judgment of officers and other representatives of KeyBank,
KRECM and their affiliates. In addition, in that connection we call to your
attention that, with your knowledge and consent, we have not (except as
described above) examined or otherwise reviewed any of the Mortgage Files in
connection with the transactions contemplated by the Pooling and Servicing
Agreement and the Loan Purchase Agreement (collectively, the "Transactions"),
any particular documents contained in such files or any other documents with
respect to the Mortgage Loans.
F-2-3
Whenever a statement herein is qualified by the phrase "come to our
attention," it is intended to indicate that, during the course of our
representation of KeyBank or KRECM, no information that would give us current
actual knowledge of the inaccuracy of such statement has come to the attention
of those attorneys currently in this firm who have been actively involved in
representing KRECM or KeyBank in connection with the Transactions or in
connection with the origination of any of the Mortgage Loans being sold as part
of the Transactions. However, we have not undertaken any independent
investigation to determine the accuracy of any such statement, and any limited
inquiry undertaken by us during the preparation of this letter should not be
regarded as such an investigation; no inference as to our knowledge of any
matters bearing on the accuracy of any such statement should be drawn from the
fact of our representation of KRECM or KeyBank.
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to the parties involved in the
Transactions and their respective counsel as part of the closing set related to
the Transactions) without our prior written approval. We disclaim any obligation
to update this letter for events occurring or coming to our attention after the
date hereof, notwithstanding that such changes may affect the views or beliefs
expressed in this letter.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
F-2-4
EXHIBIT G
Form of Opinion of Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx,
Special Counsel to KeyBank National Association and the Master Servicer
March 16, 2001
Credit Suisse First Boston Corporation Xxxxx'x Investors Service, Inc.
00 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
Credit Suisse First Boston Mortgage 00 Xxxxxxxx, 00xx Xxxxx
Securities Corp. Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Debt Capital Markets
Commercial Real Estate Debt. McDonald Investments Inc.
4 World Financial Center 00xx Xxxxx 000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxxxxx, XX 00000
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor ("Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as Master Servicer, ORIX Real Estate
Capital Markets, LLC, as Special Servicer and Xxxxx Fargo Bank
Minnesota, N.A., as Trustee dated as of Xxxxx 0, 0000 ("XXX") and
Mortgage Loan Purchase Agreement between KeyBank National Association,
as Seller and Depositor, as Purchaser dated Xxxxx 0, 0000 ("XXXX" and
together with the PSA, the "Agreements")
Ladies and Gentlemen:
We have acted as special local counsel to KeyCorp Real Estate Capital
Markets, Inc. ("Company"), as Master Servicer in connection with the execution
and delivery of the PSA, and to KeyBank National Association ("KeyBank"), as
Seller in connection with the execution and delivery of the MLPA.
In connection with rendering our opinion, we have reviewed the PSA and the
MLPA and have made such investigations of law as we have deemed necessary or
appropriate to enable us to render this opinion. As to facts material to our
opinion we have, when relevant facts
G-1
were not independently established, relied upon the representations of the
Company and KeyBank in the Agreements.
In rendering the opinions expressed herein, we have assumed (i) the
genuineness of all signatures by each party; (ii) the authenticity of all
documents submitted to us as originals; (iii) the conformity to original
documents of all documents submitted to us as conformed or photostatic copies;
(iv) the conformity in all material respects of the final executed forms of the
Agreements with the versions submitted to us in draft form on March 12, 2001 and
March 13 respectively; (v) the due formation and valid existence of the parties
to the Agreements; and (vi) the due authorization, execution and delivery of the
Agreements by the parties thereto, and their power and authority (including the
obtaining of all necessary permits, licenses and approvals) to execute and
perform each of the Agreements.
Based upon the foregoing assumptions and subject to the qualifications
hereinafter set forth, it is our opinion that, as of the date hereof:
1. The PSA constitutes the legal, valid and binding contract and
agreement of the Company and is enforceable in accordance with its terms.
2. The MLPA constitutes the legal, valid and binding contract and
agreement of KeyBank and is enforceable in accordance with its terms.
Our opinions concerning the enforceability of the Agreements are subject to
the qualification that:
(a) enforceability may be limited by or subject to (i) state and/or
federal bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies; (ii) an implied duty of good
faith; and (iii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable in whole
or in part, although the inclusion of such provisions does not render any
of the Agreements invalid as a whole, and the Agreements contain legally
adequate provisions for enforcing the other obligations of the parties
thereunder and for the practical realization of the principal rights and
benefits purported to be afforded thereby, subject to the economic
consequences of any judicial, administrative, or other procedural delay in
connection with such enforcement and realization.
G-2
In connection with servicing by the Company of mortgages on residential
property located in New York State, we point out that Section 6-k of the New
York Banking Law imposes certain obligations on mortgagees with respect to
casualty insurance escrow accounts, and Section 254 of the New York Real
Property Law imposes certain restrictions on the right of the mortgagee to
retain casualty insurance proceeds.
We express no opinion as to the applicability to, or effect on, the
transactions contemplated by either of the Agreements of any federal or state
securities law.
We are qualified to practice law in the State of New York and we do not
purport to be experts on, or to express any opinion herein concerning, any
matter governed by the laws of any jurisdiction other than the laws of the State
of New York and the federal law of the United States. This letter is furnished
to you solely for your benefit in connection with the transactions contemplated
by the Agreements. This opinion is not to be publicly filed, used, circulated,
quoted or otherwise relied upon by any other person or entity or, for any other
purpose, without our prior written consent.
Very truly yours,
G-3
EXHIBIT H-1
Form of Opinion I of Counsel to the Trustee
H-1-1
[Xxxxx Fargo Logo]
LAW DEPARTMENT
XXXXX FARGO & COMPANY
MAC X0000-000
XXXXX XXX XXXXXXXXX
XXXXXXXXXXX, XX 00000
March 16, 2001
Credit Suisse First Boston Mortgage KeyCorp Real Estate Capital
Securities Corp. Markets, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
Fitch, Inc. Moody's Investors Services, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
ORIX Real Estate Capital Markets, LLC McDonald Investments Inc.
0000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000 Xxxxxxxxx, Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Credit Suisse First Boston
Incorporated Corporation
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx 00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10080 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
I am Senior Counsel of Xxxxx Fargo & Company, the parent corporation of Xxxxx
Fargo Bank Minnesota, N.A., a national banking association ("Xxxxx Fargo"). and
have been requested by Xxxxx Fargo to give this opinion in connection with the
Pooling and Servicing Agreement dated as of March 1, 2001 (the "Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
KeyCorp Real Estate Capital Markets, Inc., as master servicer, ORIX Real Estate
Capital Markets, LLC, as special servicer, and the Trustee relating to the
issuance
March 16, 2001
Page 2
of the above-referenced certificates (the "Certificates") representing interests
in a trust created under the Agreement. Capitalized terms used herein but not
defined herein have the meanings given to them in the Agreement.
In rendering the opinions set forth below, I have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Agreement and such certificates, corporate and public
records, agreements and instruments and other documents, including, among other
things, the documents delivered on the Closing Date, as I have deemed
appropriate as a basis for the opinions expressed below. In such examination, I
have assumed the genuineness of all signatures (other than Xxxxx Fargo), the
authenticity of all documents, agreements and instruments submitted to me as
originals, the conformity to original documents, agreements and instruments of
all documents, agreements and instruments submitted to me as copies or
specimens, the authenticity of the originals of all documents, agreements and
instruments submitted to me as copies or specimens, and the accuracy of the
matters set forth in the documents, agreements and instruments I reviewed. As to
any facts material to such opinions that were not known to me, I have relied
upon statements and representations of officers and other representatives of
Xxxxx Fargo.
Based upon the foregoing, I am of the opinion that:
1. Xxxxx Fargo has been duly incorporated and is validly existing as a
national banking association and is duly qualified to do business and in
good standing under the laws of each jurisdiction in which the performance
of its duties under the Agreement would require such qualification and has
the requisite power and authority to execute, deliver and perform its
obligations under the Agreement.
2. The Agreement has been duly authorized, executed and delivered by
Xxxxx Fargo and, assuming valid execution and delivery thereof by the other
parties thereto, the Agreement constitutes a valid and legally binding
agreement of Xxxxx Fargo, enforceable against Xxxxx Fargo in accordance
with its terms, subject to bankruptcy, insolvency, reorganization or other
laws of general applicability relating to or affecting creditors' rights
generally and to general equity principles regardless of whether such
enforcement is considered in a proceeding at law or in equity.
3. No consent, approval, authorization or order of any Minnesota or
federal court or governmental agency or body is required for the
consummation by Xxxxx Fargo of the transactions contemplated by the terms
of the Agreement except any such as may be required under the blue sky laws
of any jurisdiction in connection with the offering, sale or acquisition of
the Certificates, any recordations of the assignments of the mortgage loans
evidenced by the Certificates pursuant to the Agreement that have not yet
been completed and any approvals as have been obtained.
4. The consummation of the transactions contemplated by the terms of
the Agreement does not conflict with or result in a breach or violation of
any material term or provision of, or constitute a default under, (i) the
articles of incorporation or bylaws of Xxxxx Fargo, (ii) to my knowledge,
any indenture or other agreement or instrument to which Xxxxx Fargo is a
party or by
March 16, 2001
Page 3
which it is bound, (iii) any Minnesota or federal statute or regulation
applicable to Xxxxx Fargo or (iv) any order known to me of any Minnesota or
federal court, regulatory body, administrative agency or governmental body
having jurisdiction over Xxxxx Fargo.
5. To the best of my knowledge after due inquiry, there are no legal
or governmental actions, investigations or proceedings pending to which
Xxxxx Fargo is a party, or threatened against Xxxxx Fargo (a) asserting the
invalidity of the Agreement or (b) which might materially and adversely
affect the performance by Xxxxx Fargo of its obligations under, or the
validity or enforceability of, the Agreement. For purposes of the
foregoing, I have not regarded any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential
litigant or governmental authority has manifested to a member of the law
department of Xxxxx Fargo & Company a present intention to initiate such
proceedings.
I am admitted to practice law in the State of Minnesota. The opinions
expressed herein are limited to the present laws of the State of Minnesota and
the Federal laws of the United States. For purposes of the opinion expressed in
numbered paragraph 2 above with respect to the enforceability of the Agreement,
I have assumed that the laws of the State of New York are the same as the laws
of the State of Minnesota.
This letter is delivered to, and for the use of, the above addressees in
connection with the Agreement. This letter may not be delivered to any other
party for any purpose, and the opinions expressed herein may not be relied on by
any other party except upon my written consent.
Very truly yours,
Xxxxxxx X. Xxxxxx
Senior Counsel
EXHIBIT H-2
Form of Opinion II of Counsel to the Trustee
H-2-1
MAIN TELEPHONE
000-000-0000
MAIN FAX
000-000-0000
March 16, 2001
Credit Suisse First Boston KeyCorp Real Estate
Mortgage Securities Corp. Capital Markets, Inc.
00 Xxxxxxx Xxxxxx 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
Fitch, Inc. Xxxxx'x Investors Service, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
ORIX Real Estate Capital Markets, LLC McDonald Investments Inc.
0000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000 Xxxxxxxxx, Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx Credit Suisse First Boston Corporation
& Xxxxx Incorporated 11 Madison Avenue
Debt Capital Markets - Commercial Xxx Xxxx, Xxx Xxxx 00000
Real Estate Debt
4 World Financial Center - 26th Flr. Xxxxxxx Xxxxx Barney, Inc.
000 Xxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
We have acted as special counsel to Xxxxx Fargo Bank Minnesota, N. A., a
national banking association, in its role as trustee (the "Trustee") in
connection with the issuance of the above referenced Certificates (the
"Certificates") pursuant to the Pooling and Servicing Agreement, dated as of
March 1, 2001, among Credit Suisse First Boston Mortgage Securities Corp., as
depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage, as master servicer, ORIX Real Estate Capital Markets, LLC, as special
servicer, and the Trustee (the "Agreement"). All capitalized terms used herein
and not defined shall have the meanings assigned to them in the Agreement.
In connection with rendering this opinion letter, we have examined the
Agreement and such other documents as we have deemed necessary. As to certain
factual matters, we have relied, to the extent we have deemed proper, on
statements in the Agreement and certificates of, or other documents obtained
from, officers or representatives of the Trustee or other parties to the
Agreement or public officials. In rendering this opinion letter, we have also
assumed, without independent investigation (i) the authenticity of all documents
submitted to us as originals, the genuineness of signatures on all original
documents, the legal capacity of natural persons and the conformity to the
originals of all documents submitted to us as certified, conformed, photographic
or telecopied copies; (ii) the conformity to the requirements of the Agreement,
of the Mortgage Notes, the Mortgages and other documents delivered or caused to
be delivered to the Trustee by or on behalf of the Depositor; (iii) the
performance by all parties to the Agreement in accordance with their covenants
and agreements made therein; (iv) that the representations and warranties set
forth in the Agreement are true and correct, as to factual matters; (v) that the
Trustee has been duly organized and is validly existing under the laws of the
United States of America; (vi) that the execution, delivery and performance of
the Agreement by the Trustee do not conflict with or violate any of the
Trustee's organizational documents or by-laws or any provision of any order,
writ, judgment, injunction, decree, agreement, determination or award applicable
to the Trustee, do not violate any statute, law or regulation of the United
States of America and do not require any authorization, approval or other action
by, or notice to or filings with, any governmental authority or regulatory body
of the United States of America, other than those that have been duly obtained
or made and are in full force and effect; (vii) that the Agreement has been duly
authorized, executed and delivered by, and constitutes the legal, valid and
binding obligations of the parties thereto (other than the Trustee); (viii) that
the Agreement is duly authorized, executed and delivered by the Trustee; (ix)
that the Agreement is executed and delivered in the form examined by us; and (x)
that there is not any agreement that materially supplements or otherwise
modifies the agreements expressed in the Agreement.
Certain attorneys of this Firm are members of the bar of the State of New
York. In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of New York, nor do we express any
opinion concerning the application of the "doing business" laws of any
jurisdiction (including New York) or the obligation of the Trustee to obtain any
authorization, consent, approval or license of, give notice to, or register
with, or
take any other action with respect to any governmental or regulatory authority
or agency. We have made no independent investigations as to, or passed on, the
operation of the Trust or the sale of the Certificates in New York or in any
other state or the characterization of the Certificates or the Trust for federal
or state tax law purposes. We do not express any opinion on any issue not
expressly addressed below.
Based upon the foregoing and subject to the assumptions, limitations and
qualifications herein, it is our opinion that the Agreement constitutes a valid,
legal and binding agreement of the Trustee, enforceable against the Trustee in
accordance with its terms.
However, we express no opinion as to any of the following: (i) the effect
on enforceability of (a) any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting the rights of
creditors generally as they may be applied in the context of a national banking
association, or (b) general principles of equity, including (without limitation)
concepts of materiality, reasonableness, public policy, good faith, fair dealing
and the possible unavailability of specific performance or injunctive relief
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); (ii) any federal or state securities law; (iii) the
enforceability of any indemnity, contribution, set off or judgment currency
provisions; (iv) any law, rule, regulation, ordinance, code, guideline or
similar provision of law of any county, municipality or similar political
subdivision or any agency or instrumentality thereof; (v) any law, rule or
regulation (a) the violation of which would not have a material adverse effect
on the Trustee or (b) to which the Trustee may be subject as a result of any
other person's legal or regulatory status or any such other person's involvement
in the transactions contemplated by the Agreement; (vi) clauses relating to
severability or similar clauses; (vii) any clause stating that rights and
remedies of any party are cumulative and may be enforced in addition to any
other right or remedy and that the election of a particular remedy does not
preclude recourse to one or more remedies; (viii) the availability of the
defense of inconvenient forum in any action or proceeding in any court sitting
in the State of New York arising out of or relating to any matter under the
Agreement; (ix) the effectiveness of any waiver of venue or waiver of jury
trial; (x) any agreement to the sole jurisdiction of any court or to the
jurisdiction of a Federal court to the extent of the lack of subject matter or
diversity jurisdiction, or to the exclusive jurisdiction of any court; (xi) any
provision of the Agreement (a) restricting access to legal or equitable
remedies, (b) providing that the Agreement may only be amended, modified or
waived in writing, or (c) waiving rights or remedies which, as a matter of law,
cannot be waived; or (xii) usury.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document.
Very truly yours,
XXXXX, XXXXX & XXXXX
EXHIBIT I
Form of Opinion of Counsel to the Special Servicer
March 16, 2001
Credit Suisse First Boston Mortgage KeyCorp Real Estate Capital
Securities Corp. Markets, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx Xxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank Minnesota, N.A. Credit Suisse First Boston Corporation
00000 Xxxxxx Xxxx Xxxxxxx 00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000 Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx
Xxxxxxxxx, Xxxx 00000 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Barney Inc. Xxxxx'x Investors Services, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Floor 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
Ladies and Gentlemen:
We have acted as special counsel for ORIX Real Estate Capital Markets, LLC
with respect to that certain Pooling and Servicing Agreement dated as of March
1, 2001, among Credit Suisse First Boston Mortgage Securities Corp., as
Depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage, as Master Servicer, ORIX Real Estate Capital Markets, LLC, as Special
Servicer, and Xxxxx Fargo Bank Minnesota, N.A., as Trustee, relating to Credit
Suisse First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2001-CK1 (the "Agreement"). Capitalized terms used herein
and not otherwise defined shall have the meanings specified in the Agreement.
This opinion letter is furnished pursuant to your request.
In our examination, we have assumed the genuineness of all
signatures (other than that of ORIX Real Estate Capital Markets, LLC), the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals
I-1
of such copies. In making our examination of the documents executed by the
parties thereto, we have assumed that such parties (other than ORIX Real Estate
Capital Markets, LLC) had the power, corporate or otherwise, to enter into and
perform all of their respective obligations thereunder and have also assumed the
due authorization by all requisite action, corporate or other, and the execution
and delivery by such parties (other than ORIX Real Estate Capital Markets, LLC)
of such documents and the validity and binding effect thereof against such
parties (other than ORIX Real Estate Capital Markets, LLC). As to any facts
material to this opinion which we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of ORIX Real Estate Capital Markets, LLC. In addition, we have
assumed that no provision of the Agreement violates any banking or securities
laws or regulations governing the activities of the parties other than ORIX Real
Estate Capital Markets, LLC.
For the purpose of rendering the opinions expressed in this opinion letter,
our review has been limited solely to originals or copies of the following
documents, and we have made no other investigation or inquiry:
(a) The Certificate of Formation of Banc One Mortgage Capital Markets,
LLC dated March 13, 1997; the Certificate of Correction to Certificate of
Formation of Banc One Mortgage Capital Markets, LLC dated as of March 14,
1997; the State of Delaware Certificate of Amendment of Banc One Mortgage
Capital Markets, LLC dated as of July 1, 1999, effective as of July 12,
1999, changing the name of the Company to ORIX Real Estate Capital Markets,
LLC, with the company continuing as a Delaware limited liability company
under its existing charter; and the Amended and Restated Limited Liability
Company Agreement of ORIX Real Estate Capital Markets, LLC dated as of July
12, 1999 (amending and restating that certain Amended and Restated Limited
Liability Company Agreement of Banc One Mortgage Capital Markets, LLC dated
as of March 31, 1997), all of which are filed with the Secretary of State
of Delaware (the "Constituent Documents");
(b) The Certificate of Officer of ORIX Real Estate Capital Markets,
LLC dated as of March 16, 2001, attached hereto;
(c) A copy of the Agreement executed on behalf of ORIX Real Estate
Capital Markets, LLC, which copy we have assumed conforms to the original
executed by the other parties to the Agreement;
(d) A Certificate of Good Standing and Existence of the Office of the
Secretary of State of the State of Delaware, dated March 1, 2001; a
Certificate of Authority of the Secretary of State of the State of Texas,
dated March 2, 2001; and a Certificate of Account Status from the Texas
Comptroller of Public Accounts, dated March 2, 2001, each relating to ORIX
Real Estate Capital Markets, LLC (the "Public Authority Documents").
We express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York, the laws of the State of Texas with respect to
the opinions expressed in paragraphs (6) and (7)(i) below, the limited liability
company law of the State of Delaware, and the federal laws of the United States
of America.
I-2
We have not conducted any search of any public records nor made any other
inquiry concerning the existence of or state of title to any property referenced
in the Agreement. We express no opinion as to matters of title or priority of
liens.
We have made no independent examination of the business, assets or
properties of ORIX Real Estate Capital Markets, LLC or corporate, limited
liability company or partnership records thereof (except with respect to copies
of the Constituent Documents).
We have not been asked to render, and do not render, any opinion with
respect to the characterization of the nature of the transaction evidenced by
the Agreement.
We have assumed that all right, title and interest in, to and under the
Mortgage Loans (as defined in the Agreement) will be validly transferred to and
vested in Xxxxx Fargo Bank Minnesota, N.A., as Trustee, as contemplated by the
terms of the Agreement.
We express no opinion as to the applicability of, or compliance with, any
provisions of the Internal Revenue Code of 1986, as amended.
Based upon and subject to the foregoing and the qualifications herein set
forth, we are of the opinion that:
1. ORIX Real Estate Capital Markets, LLC is a limited liability
company duly organized, validly existing and in good standing under the
laws of the State of Delaware and is authorized to transact business in,
and is in good standing in, the State of Texas. In rendering this opinion,
we have relied exclusively on the Public Authority Documents and the
Constituent Documents.
2. ORIX Real Estate Capital Markets, LLC has full limited liability
company power and authority to own its properties and conduct its business
as presently being conducted by it and to execute, deliver, perform and
enter into, and to consummate all transactions and obligations contemplated
by, the Agreement.
3. ORIX Real Estate Capital Markets, LLC has duly authorized by all
necessary limited liability company action the execution, delivery and
performance of the Agreement.
4. The Agreement has been duly and validly executed and delivered by
ORIX Real Estate Capital Markets, LLC and constitutes the legal, valid and
binding obligation of ORIX Real Estate Capital Markets, LLC enforceable in
accordance with its respective terms, subject to (a) bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5. Execution and delivery by ORIX Real Estate Capital Markets, LLC of,
and performance of its agreements in, the Agreement do not violate ORIX
Real Estate Capital Markets, LLC's Constituent Documents.
6. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by ORIX Real Estate Capital Markets,
I-3
LLC of or compliance by ORIX Real Estate Capital Markets, LLC with the
terms of the Agreement, or the consummation of the transactions
contemplated by the Agreement.
7. Neither the consummation of the transactions contemplated by, nor
the execution, delivery and performance by ORIX Real Estate Capital
Markets, LLC or compliance by ORIX Real Estate Capital Markets, LLC with
the terms of the Agreement, conflicts or will conflict with or results or
will result in a breach of or constitutes or will constitute a default
under: (i) any statute, rule or regulation; (ii) to our knowledge, the
terms of any indenture or other agreement or instrument to which ORIX Real
Estate Capital Markets, LLC is a party or by which it is bound or to which
it is subject, or (iii) any writ, injunction or decree, known to us, of any
court, governmental authority or regulatory body to which ORIX Real Estate
Capital Markets, LLC is subject or by which it is bound.
8. To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened which may result in any material
adverse change in the business, operations, financial conditions,
properties or assets of ORIX Real Estate Capital Markets, LLC or in any
material impairment of the right or ability of ORIX Real Estate Capital
Markets, LLC to carry on its business substantially as now conducted or in
any material liability on the part of ORIX Real Estate Capital Markets, LLC
or which would draw into question the validity of the Agreement or of any
action taken or to be taken in connection with the transactions
contemplated thereby, or which would be likely to impair materially the
ability of ORIX Real Estate Capital Markets, LLC to perform under the terms
of the Agreement.
Solely for matters of fact, for purposes of the opinions expressed in
paragraphs (6), (7)(ii) and (iii) and (8) we have made inquiry of, and received
the Certificate of Officer of ORIX Real Estate Capital Markets, LLC from the
Chief Operating Officer and are relying on the Certificate of Officer of ORIX
Real Estate Capital Markets, LLC as to matters of fact. Our opinions expressed
in paragraphs (1) and (2) are based solely on the provisions of the Limited
Liability Company Act, Title 6, Chapter 18 of the Delaware Code, as amended, and
the Texas Limited Liability Company Act, Article 1528n of the Texas Revised
Civil Statutes, to the extent such act is applicable to ORIX Real Estate Capital
Markets, LLC as a foreign limited liability company, and are not based on the
review of any case law or judicial precedent of the State of Delaware, the State
of Texas or elsewhere.
All portions of this opinion letter which are limited to the extent of our
knowledge or to matters "known to us" or by words of similar import (i) are
limited to the actual knowledge of the pertinent facts possessed by the
attorneys in this firm who have given substantive legal attention to the
representation of ORIX Real Estate Capital Markets, LLC in connection with the
transactions contemplated by the Agreement, or have represented ORIX Real Estate
Capital Market LLC in the past year, and, with your consent, we have made no
independent investigation or review of any such matter for purposes of this
opinion letter except to obtain the Certificate of Officer of ORIX Real Estate
Capital Markets, LLC, (ii) do not include constructive knowledge or inquiry
knowledge, and (iii) do not require or imply any examination of the firm's files
or that any inquiry be made of ORIX Real Estate Capital Markets, LLC, any lawyer
(other than the lawyers in this firm who have rendered substantive attention to
the transaction contemplated by the Agreement), or any other person.
I-4
The foregoing opinions, insofar as they relate to the legality, validity,
binding nature and enforceability of the Agreement are qualified to the extent
that (a) no opinion is expressed as to the enforceability of any indemnification
provisions of the Agreement to the extent that any such provisions provide for
indemnification against, or contribution in respect of, securities law
liabilities and (b) certain remedial, waiver and similar provisions of the
Agreement may be further limited or rendered unenforceable by applicable laws,
rules, regulations, statutes, administrative interpretations and judicial
decisions (collectively, the "Laws"), but in our opinion such Laws do not,
subject to the other qualifications contained herein, make the remedies
generally afforded by the Agreement inadequate for the practical realization of
the material benefits purported to be provided by the Agreement, except for the
economic consequences of procedural or other delays. In addition, we have
assumed that, to the extent that any party to the Agreement exercises its rights
or enforces any remedies under the Agreement, it will do so in good faith and in
a commercially reasonable manner and that it will abide by any implied covenant
of good faith and fair dealing which may be imposed by any of the Laws.
No opinion may be inferred as to any matter other than as expressly
provided herein, and no opinion may be implied or inferred therefrom or from any
of the limitations, qualifications, and assumptions set forth herein.
Specifically, we express no opinion as to (a) the financial ability of ORIX Real
Estate Capital Markets, LLC to meet its obligations under the Agreement, (b) the
truthfulness or accuracy of any reports, documents, certificates or other
matters furnished by ORIX Real Estate Capital Markets, LLC to any person in
connection with the Agreement, or (c) the truthfulness or accuracy of any
representation or warranty made by ORIX Real Estate Capital Markets, LLC.
This opinion is being furnished to you pursuant to your request therefor
and has been rendered to you on the condition that the opinions expressed herein
may not be published or otherwise communicated by you to any other person
without our specific prior written approval in each instance, except that copies
of this opinion may be distributed to the parties to the transaction
contemplated by the Agreement.
Very truly yours,
AKIN, GUMP, STRAUSS, XXXXX &
XXXX, L.L.P.
I-5
EXHIBIT J-1
Form I of Depositor's Officer's Certificate
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CK1
CERTIFICATE OF ASSISTANT SECRETARY OF
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
I, Xxxxxx Xxxxx, hereby certify that I am a duly appointed Assistant
Secretary of Credit Suisse First Boston Mortgage Securities Corp. (the
"Company"), and further certify as follows:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware.
2. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Company are pending or contemplated.
3. Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Company and his genuine
signature is set forth opposite his name:
NAME OFFICE SIGNATURE
---- ------ ---------
----------------- ------------------- ------------------
----------------- ------------------- ------------------
4. Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Company, which Certificate
of Incorporation and By-Laws are, on the date hereof, and have been at all
times since the formation of the Company, in full force and effect.
5. Attached hereto as Exhibit II is a certificate of good standing of
the Company issued by the Secretary of State of the State of Delaware
within ten (10) days of the date hereof and no event (including, without
limitation, any act or omission on the part of the Company) has occurred
since the date thereof which has affected the good standing of the Company
under the laws of the State of Delaware.
6. The Board of Directors, by unanimous written consent dated
March , 2001 (the "Resolutions"), authorized all actions necessary to
accomplish the issuance and sale of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2001-CK1. The Resolutions are attached hereto as Exhibit III. The
Resolutions have not been amended, modified, annulled or revoked, and are
in full force and
J-1-1
effect as of the date hereof, and the instruments authorized in the
Resolutions were executed pursuant thereto and in compliance therewith.
Capitalized terms used but not defined herein have the respective meanings
assigned to them in the Pooling and Servicing Agreement, dated as of March 1,
2001, among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage, as
master servicer, ORIX Real Estate Capital Markets, LLC, as special servicer, and
Xxxxx Fargo Bank Minnesota, N.A., as trustee.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March , 2001.
-----------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Secretary
J-1-2
EXHIBIT J-2
Form II of Depositor's Officer's Certificate
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK1
CERTIFICATE OF THE DEPOSITOR
In connection with the issuance of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2001-CK1
(the "Certificates"), pursuant to a Pooling and Servicing Agreement dated as of
March 1, 2001 (the "Pooling and Servicing Agreement"), among Credit Suisse First
Boston Mortgage Securities Corp., as (the "Depositor"), KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage as master servicer, ORIX
Real Estate Capital Markets, LLC, as special servicer, and Xxxxx Fargo Bank
Minnesota, N.A., as trustee, and the sale of the Certificates pursuant to the
Underwriting Agreement dated as of March 5, 2001 (the "Underwriting Agreement"),
between the Depositor, Credit Suisse First Boston Corporation ("CSFB"), McDonald
Investments Inc. ("McDonald"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated (Xxxxxxx Xxxxx") and Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI"; and,
together with CSFB, McDonald, and Xxxxxxx Xxxxx, the "Underwriters"), and the
Certificate Purchase Agreement dated as of March 5, 2001 (the "Certificate
Purchase Agreement"), between the Depositor and CSFB (together, the Pooling and
Servicing Agreement, the Underwriting Agreement and the Certificate Purchase
Agreement are referred to as the "Agreements"), the Depositor does hereby
certify that (A) the representations and warranties of the Depositor in the
Agreements are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof and (B) the Depositor
has complied with all the agreements and satisfied all the conditions on its
part required under the Agreements to be performed or satisfied at or prior to
the date hereof. Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to such terms in the Agreements.
Certified March , 2001
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
By: ________________________________________________
Name:
Title:
J-2-1
EXHIBIT K
Form of Trustee's Officer's Certificate
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2001-CK1
CERTIFICATE OF TRUSTEE
I, Xxxx X. Xxxx, a Vice President of Xxxxx Fargo Bank Minnesota,
N.A.("Xxxxx Fargo"), the trustee under the Pooling and Servicing Agreement,
dated as of January 31, 2001 (the "Agreement"), between Credit Suisse First
Boston Mortgage Securities Corp., as Depositor, KeyCorp Real Estate Capital
Markets Inc. d/b/a Key Commercial Mortgage, as Master Servicer, ORIX Real Estate
Capital Markets, LLC, as Special Servicer, and Xxxxx Fargo, as Trustee, hereby
certify the following information. Capitalized terms used but not defined herein
shall have the meanings set forth in the Agreement.
(a) Xxxxx Fargo is the Trustee under the Agreement.
(b) The Agreement has been duly executed and acknowledged on behalf of
the Trustee by Xxxxxx X. Xxxxxxx, Vice President, its authorized signatory,
and the Agreement has been duly delivered on behalf of the Trustee.
(c) Attached hereto as Exhibits A, B, and C respectively, are true and
correct copies of the Organization Certificate, amended By-Laws and
Resolutions of the Board of Directors of Xxxxx Fargo, each of which is in
full force and effect on the date hereof.
(d) The signature set forth below, opposite the name and title of the
above-mentioned officer of the Trustee, is her authentic and genuine
signature.
Office Name Signature
------ ---- ---------
Vice President Xxxxxx X. Xxxxxxx ____________________
(e) The officer named in paragraph (d) above was at the time of the
acts referred to in paragraph (b) above and (f) below, and is at the date
hereof, duly appointed, qualified and acting as an officer of the Trustee,
and is duly authorized to perform such acts, and the signature on the
Agreement is her true signature.
(f) The Certificates dated the date hereof and provided for by the
Agreement have been authenticated, on behalf of the trust created by the
Agreement, by authorized officers of the Trustee.
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(g) The Certificates have on or before this date been delivered, by
the Trustee, to or on the order of the Depositor.
Dated: March ___, 2001
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee
By:______________________________
Xxxx X. Xxxx
K-2
EXHIBIT L
Form of Master Servicer's Officer's Certificate
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
OFFICER'S CERTIFICATE
The undersigned, Xxxxxx X. Xxxxx, a Senior Vice President of KeyCorp Real
Estate Capital Markets, Inc. (the "Corporation"), in connection with the Pooling
and Servicing Agreement dated as of March 1, 2001 (the "Pooling and Servicing
Agreement"), by and among the Corporation, Credit Suisse First Boston Mortgage
Securities Corp., ORIX Real Estate Capital Markets, LLC and Xxxxx Fargo Bank
Minnesota, N.A., as Trustee (unless otherwise indicated, defined terms used
herein shall have the meanings assigned to them in the Pooling and Servicing
Agreement), hereby certifies that, to the best of his knowledge, after
reasonable investigation:
1. The undersigned has carefully examined the Prospectus Supplement
and nothing has come to the attention of the undersigned that would lead
the undersigned to believe that the statements in the Prospectus Supplement
relating to the Corporation and its operations contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
2. The representations and warranties made by the Corporation in the
Pooling and Servicing Agreement were true and correct in all material
respects as of the date of the Pooling and Servicing Agreement and are true
and correct in all material respects as of the date hereof.
3. The Corporation has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied under the
Pooling and Servicing Agreement on or prior to the Closing Date.
IN WITNESS WHEREOF, the above named officer has hereunto signed his name.
Dated: March __, 2001
---------------------------
Xxxxxx X. Xxxxx
Senior Vice President
L-1
EXHIBIT M
Form of Special Servicer's Officer's Certificate
CERTIFICATE OF OFFICER
OF
ORIX REAL ESTATE CAPITAL MARKETS, LLC
I, the undersigned, Xxxxx X. Xxxxx, XX, hereby certify that I was validly
appointed to the office of, and am, the Chief Operating Officer of ORIX Real
Estate Capital Markets, LLC, a Delaware limited liability company, (the
"Company"), and do further certify as follows:
1. The Amended and Restated Limited Liability Company Agreement of
ORIX Real Estate Capital Markets, LLC dated as of July 12, 1999 (amending
and restating that certain Amended and Restated Limited Liability Company
Agreement of Banc One Mortgage Capital Markets, LLC dated as of March 31,
1997), (the "LLC Agreement") for the Company, is in full force and effect
on this date, and constitutes the complete agreement with respect to the
LLC Agreement. The Company is duly organized pursuant to the Certificate of
Formation of Banc One Mortgage Capital Markets, LLC dated as of March 13,
1997, for the Company, as amended by the Certificate of Correction to
Certificate of Formation of Banc One Mortgage Capital Markets, LLC dated as
of March 14, 1997 (collectively, the "Certificate of Formation"), and as
further amended by the State of Delaware Certificate of Amendment of Banc
One Mortgage Capital Markets, LLC dated as of July 1, 1999, effective as of
July 12, 1999, changing the name of the Company to ORIX Real Estate Capital
Markets, LLC, with the Company continuing as a Delaware limited liability
company under its existing charter, each of which has been filed with the
Secretary of State of the State of Delaware, and is in full force and
effect on this date.
2. The Company has taken all organizational actions necessary to
authorize the execution and delivery of, and to perform all of the
obligations arising from, that relate to that certain Pooling and Servicing
Agreement dated as of March 1, 2001, by and among Credit Suisse First
Boston Mortgage Securities Corp., as Depositor, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage, as Master Servicer, ORIX Real
Estate Capital Markets, LLC, as Special Servicer, and Xxxxx Fargo Bank
Minnesota, N.A., as Trustee, relating to Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 2001-CK1 (the "Transaction Document").
3. Either (i) no approval, authorization, consent or order,
registration, filing, qualification, license or permit of, or with, any
court or governmental agency or body or third party is required for the
consummation of the transactions contemplated by the Transaction Document,
or the execution, delivery or performance of the Transaction Document by
the Company, or (ii) any required consent, approval, authorization or order
has been obtained. The Transaction Document is consistent with the general
policies of the Company as contemplated by the resolutions adopted by the
Company's Board of Managers.
M-1
4. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Transaction Document, conflicts or will
conflict with or results or will result in a breach of or constitutes or
will constitute a default of the Company under the Certificate of
Formation, the LLC Agreement, or, to the best of my knowledge, the terms of
any indenture or other agreements or instrument to which the Company is a
party or by which it is bound or to which it is subject, or any statute or
order, rule, regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the Company is subject
or by which it is bound.
5. There is no action, suit, proceeding or investigation pending or,
to the best of my knowledge, threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial conditions,
properties or assets of the Company, or in any material impairment of the
right or ability of the Company to carry on its business substantially as
now conducted, or in any material liability on the part of the Company or
which would draw into question the validity of the Transaction Document or
of any action taken or to be taken in connection with the transactions
contemplated thereby, or which would be likely to impair materially the
ability of the Company to perform under the terms of the Transaction
Document.
6. The representations and warranties of the Company contained in the
Transaction Document are true and correct on the date hereof.
[SIGNATURE PAGE FOLLOWS]
M-2
Dated as of March ____, 2001 ORIX Real Estate Capital Markets, LLC,
a Delaware limited liability company
By:_____________________________________
Name: Xxxxx X. Xxxxx, XX
Title: Chief Operating Officer
I, J. Xxxxxxx Xxxx, Assistant Secretary of ORIX Real Estate Capital
Markets, LLC, hereby certify that Xxxxx X. Xxxxx, XX is the duly appointed,
qualified, and acting Chief Operating Officer of ORIX Real Estate Capital
Markets, LLC, that the signature appearing above is his genuine signature,
and that he is authorized to execute and deliver the Transaction Document
on behalf of the Company.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated as of March ____, 2001 ORIX Real Estate Capital Markets, LLC,
a Delaware limited liability company
By:_____________________________________
Name: J. Xxxxxxx Xxxx
Title: Assistant Secretary
M-3
EXHIBIT N
Form of Computational Material/ABS Term Sheet Legend
Under no circumstances shall the information presented herein constitute an
offer to sell or the solicitation of an offer to buy any security, nor shall
there be any sale of securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
for an exemption from such registration under the securities laws of such
jurisdiction. You have requested that Credit Suisse First Boston Corporation,
McDonald Investments Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated
and Xxxxxxx Xxxxx Barney Inc. (collectively, the "Underwriters") provide to you
information in connection with your considering the purchase of certain
securities described herein. The attached information is being provided to you
for informative purposes only in response to your specific request. The
information contained herein has been compiled by the Underwriters from sources
that the Underwriters believe to be reasonably reliable. However, the
Underwriters make no representation or warranty as to the accuracy or
completeness of such information and you must make your own determination as to
whether the information is appropriate and responsive to your request. Any
investment decision with respect to the securities described herein should be
based solely on the results of you own due diligence with respect to the
securities and the mortgage loans referred to herein and only upon your review
of the final prospectus and prospectus supplement for the securities. This
information may not be delivered by you to any other person without the
Underwriters' prior written consent. The Underwriters may from time to time
perform investment banking services for or solicit investment banking business
from any company named in the information herein. The Underwriters and/or their
employees may from time to time have a long or short position in any contract or
security discussed herein. Information contained in this material is current as
of the date appearing on this material only. Information in this material
regarding any assets backing any securities discussed herein supercedes all
prior information regarding such assets. All information in this term sheet
whether regarding the assets backing any securities discussed herein or
otherwise will be superceded by the information contained in any final
prospectus and prospectus supplement for any securities actually sold to you.
N-1
