MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of November 1, 2001, between KeyBank National Association, a
national banking association ("KeyBank"), as seller (in such capacity, together
with its successors and permitted assigns hereunder, the "Seller"), and Credit
Suisse First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB
Mortgage Securities"), as purchaser (in such capacity, together with its
successors and permitted assigns hereunder, the "Purchaser").
RECITALS
KeyBank desires to sell, assign, transfer, set over and otherwise
convey to CSFB Mortgage Securities, without recourse, and CSFB Mortgage
Securities desires to purchase, subject to the terms and conditions set forth
herein, the multifamily and commercial mortgage loans (collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A, as
such schedule may be amended from time to time pursuant to the terms hereof.
CSFB Mortgage Securities intends to create a trust (the "Trust"), the
primary assets of which will be a segregated pool of multifamily and commercial
mortgage loans that includes the Mortgage Loans. Beneficial ownership of the
assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and
Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing Agreement dated as of November 12, 2001 (the "Pooling and Servicing
Agreement"), among CSFB Mortgage Securities as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer and
special servicer of non-residential cooperative mortgage loans, National
Consumer Cooperative Bank, as master servicer and special servicer of
residential cooperative mortgage loans, and Xxxxx Fargo Bank Minnesota, N.A., as
trustee. Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement as
in full force and effect on the Closing Date (as defined in Section 1 hereof).
It is anticipated that CSFB Mortgage Securities will transfer the Mortgage Loans
to the Trust contemporaneously with its purchase of the Mortgage Loans
hereunder.
CSFB Mortgage Securities intends to sell certain classes of the
Certificates (collectively, the "Publicly Offered Certificates") to Credit
Suisse First Boston Corporation ("CSFB Corporation") and the other underwriters
named in the Underwriting Agreement (as defined below) (collectively in such
capacity, the "Underwriters"), pursuant to an underwriting agreement dated as of
November 1, 2001 (the "Underwriting Agreement), between CSFB Mortgage Securities
and CSFB Corporation as representative of the Underwriters, and CSFB Mortgage
Securities intends to sell certain classes of the remaining Certificates (the
"Privately Offered Certificates") to CSFB Corporation, pursuant to a certificate
purchase agreement dated as of the date hereof (the "Certificate Purchase
Agreement"), between CSFB Mortgage Securities and the CSFB Corporation. The
Publicly Offered are more fully described in a prospectus dated October 22, 2001
(the "Basic Prospectus"), and the supplement to the Basic Prospectus dated
November 1, 2001 (the "Prospectus Supplement" and, together with the Basic
Prospectus, the "Prospectus"), as each may be amended or supplemented at any
time hereafter. The Privately Offered Certificates are more fully described in a
confidential offering circular dated
November 1, 2001 (the "Confidential Offering Circular"), as it may be amended or
supplemented at any time hereafter.
KeyBank will indemnify CSFB Mortgage Securities, CSFB Corporation, the
other Underwriters and certain related parties with respect to the disclosure
regarding the Mortgage Loans contained in the Prospectus, the Confidential
Offering Circular and certain other disclosure documents and offering materials
relating to the Certificates, pursuant to an indemnification agreement dated as
of November 1, 2001 (the "Indemnification Agreement"), among KeyBank, CSFB
Mortgage Securities and CSFB Corporation, both as a representative of the
Underwriters and as initial purchaser of the Privately Offered Certificates.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the terms and
conditions set forth herein, the Mortgage Loans. The purchase and sale of the
Mortgage Loans shall take place on November 13, 2001 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). As of the
close of business on the respective Due Dates for the Mortgage Loans in November
2001 (individually and collectively, the "Cut-off Date"), the Mortgage Loans
will have an aggregate principal balance, after application of all payments of
principal due on the Mortgage Loans on or before the Cut-off Date, whether or
not received, of $283,173,402, subject to a variance of plus or minus 5%. The
consideration for the Mortgage Loans shall be cash in the amount of 108.8% of
such aggregate principal balance of the Mortgage Loans, together with accrued
interest on the Mortgage Loans at their respective Net Mortgage Rates from and
including November 1, 2001 to but not including the Closing Date, which cash
amount the Purchaser shall pay to the Seller on the Closing Date by wire
transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, all of the right, title and interest of the Seller in and to the
Mortgage Loans, including all interest and principal received on or with respect
to the Mortgage Loans after the Cut-off Date (other than scheduled payments of
interest and principal due on or before the Cut-off Date), together with all of
the right, title and interest of the Seller in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled payments
of principal and interest due on the Mortgage Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date (other than scheduled payments of principal and interest due on the
Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver to and deposit with, or cause to be delivered to
and deposited with, the Purchaser or
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its designee the Mortgage File and any Additional Collateral (other than reserve
funds and escrow payments) with respect to each Mortgage Loan. In addition, with
respect to each Mortgage Loan, as to which any Additional Collateral is in the
form of a Letter of Credit as of the Closing Date, the Seller shall cause to be
prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are required under such Letter
of Credit to assign, without recourse, to the Trustee the Seller's rights as the
beneficiary thereof and drawing party thereunder. The designated recipient of
the items described in the second preceding sentence, and the designated
beneficiary under each Letter of Credit referred to in the preceding sentence,
shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original or
certified recorded document or original policy of title insurance which is to be
delivered as part of the related Mortgage File for any Mortgage Loan solely
because the Seller is delayed in making such delivery by reason of the fact that
such original or certified recorded document has not been returned by the
appropriate recording office or such original policy of title insurance has not
yet been issued, then the Seller shall deliver such documents to the Purchaser
or its designee, promptly upon the Seller's receipt thereof.
In addition, the Seller shall, at its expense, deliver to and deposit
with, or cause to be delivered to and deposited with, the Purchaser or its
designee, on or before the Closing Date, the following items (except to the
extent that any of the following items are to be retained by a subservicer that
will continue to act on behalf of the Purchaser or its designee): (i) originals
or copies of all financial statements, appraisals, environmental/engineering
reports, leases, rent rolls (or, in the case of any Mortgage Loans secured by
residential cooperative properties, maintenance schedules), third-party
underwriting reports, insurance policies, legal opinions, tenant estoppels and
any other documents that the Purchaser or its servicing agent reasonably deems
necessary to service the subject Mortgage Loan in the possession or under the
control of the Seller that relate to the Mortgage Loans and, to the extent they
are not required to be a part of a Mortgage File for any Mortgage Loan,
originals or copies of all documents, certificates and opinions in the
possession or under the control of the Seller that were delivered by or on
behalf of the related Borrowers in connection with the origination of the
Mortgage Loans (provided that the Seller shall not be required to deliver
documents or materials prepared by the Seller or its affiliates solely for
internal uses); and (ii) all unapplied reserve funds and escrow payments in the
possession or under the control of the Seller that relate to the Mortgage Loans.
The designated recipient of the items described in clauses (i) and (ii) of the
preceding sentence shall be the applicable Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to deliver any
Letter of Credit constituting Additional Collateral for any Mortgage Loan then
the Seller may, in lieu thereof, deliver on behalf of the related Borrower, to
be used for the same purposes as such missing Letter of Credit either: (i) a
substitute letter of credit substantially comparable to, but in all cases in the
same amount and with the same draw conditions and renewal rights as, that Letter
of Credit and issued by an obligor that meets any criteria in the related
Mortgage Loan Documents applicable to the issuer of that Letter of Credit; or
(ii) a cash reserve in an amount equal to the amount of that Letter of Credit.
For purposes of the delivery requirements of this Section 2(c), any such
substitute letter of credit shall be deemed to be Additional Collateral of the
type covered by the first paragraph of this Section 2(c) and any such cash
reserve shall be deemed to be reserve funds of the type covered by the third
paragraph of this Section 2(c).
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In connection with the foregoing paragraphs of this Section 2(c), the
Seller is a designated recipient, or shall otherwise be the beneficiary, of all
certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement. To the extent that those certifications and/or the related
exception reports reflect Document Defects with respect to the Mortgage Loans,
those certifications and/or the related exception reports shall constitute
notice to the Seller for purposes of Section 5 upon receipt thereof by the
Seller.
(d) The Seller shall be responsible for all reasonable fees and
out-of-pocket costs and expenses associated with recording and/or filing any and
all assignments and other instruments of transfer with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; provided that the Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer. If the Seller receives written notice that any such
assignment or other instrument of transfer is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
prepare or cause the preparation of a substitute therefor or cure such defect,
as the case may be; provided that the cost of such preparation shall be borne by
the Purchaser if the loss or return is caused by the Purchaser's negligence. The
Seller shall provide the Purchaser or its designee with a power of attorney to
enable it or them to record any loan documents that the Purchaser has been
unable to record. Unless the Purchaser notifies the Seller in writing to the
contrary, the designated recipients of the power of attorney referred to in the
preceding sentence shall be the Trustee.
(e) The Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to the Purchaser, as
provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange
for the consideration specified in Section 1 hereof. In connection with the
foregoing, the Seller shall cause all of its financial and accounting records to
reflect such transfer as a sale (as opposed to a secured loan). Regardless of
its treatment of the transfer of the Mortgage Loans to the Purchaser under GAAP,
the Seller shall at all times following the Closing Date cause all of its
records and financial statements and any relevant consolidated financial
statements of any direct or indirect parent to clearly reflect that the Mortgage
Loans have been transferred to the Purchaser and are no longer available to
satisfy claims of the Seller's creditors.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser,
as provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Seller to the Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to time,
shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
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SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage Files
for, and any other documents and records relating to, the Mortgage Loans, that
may be undertaken by or on behalf of the Purchaser. The fact that the Purchaser
has conducted or has failed to conduct any partial or complete examination of
any of the Mortgage Files for, and/or any of such other documents and records
relating to, the Mortgage Loans, shall not affect the Purchaser's right to
pursue any remedy available in equity or at law for a breach of the Seller's
representations and warranties made pursuant to Section 4 (subject, however, to
Section 5(d)).
SECTION 4. Representations, Warranties and Covenants of the Seller and
the Purchaser.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser, each of the representations and warranties set forth
in Exhibit B-1. The Purchaser hereby makes, as of the Closing Date, to and for
the benefit of the Seller, each of the representations and warranties set forth
in Exhibit B-2.
(b) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, with respect to each Mortgage Loan,
each of the representations and warranties set forth in Exhibit C.
(i) The Seller hereby represents and warrants, as of the Closing Date,
to and for the benefit of CSFB Mortgage Securities only, that the Seller
has not dealt with any broker, investment banker, agent or other person
(other than the CSFB Mortgage Securities, CSFB Corporation and the other
Underwriters) who may be entitled to any commission or compensation in
connection with the sale to the Purchaser of the Mortgage Loans.
(c) The Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Purchaser, with respect to
any replacement mortgage loan (a "Replacement Mortgage Loan") that is
substituted for a Defective Mortgage Loan (as defined in Section 5(a) hereof),
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit C (references therein to "Closing Date" being
deemed to be references to the "date of substitution", references therein to
"Cut-off Date" being deemed to be references to the "most recent Due Date for
the subject Replacement Mortgage Loan on or before the date of substitution" and
references to "November 2001" and "October 2001" being deemed to be references
to the "month of substitution" and the "month preceding the month of
substitution", respectively). From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
(d) It is understood and agreed that the representations and warranties
set forth in this Section 4 shall survive delivery of the respective Mortgage
Files to the Purchaser or its designee and shall inure to the benefit of the
Purchaser for so long as any of the Mortgage Loans remains outstanding,
notwithstanding any restrictive or qualified endorsement or assignment.
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SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Purchaser or its designee shall provide the Seller with written
notice of any Material Breach or Material Document Defect with respect to any
Mortgage Loan. Within 90 days (or in the case of a Material Document Defect that
consists of the failure to deliver a Specially Designated Mortgage Loan
Document, 15 days) of the earlier of discovery or receipt of written notice by
the Seller that there has been a Material Breach or Material Document Defect
with respect to any Mortgage Loan (such 90-day (or, if applicable, 15-day)
period, the "Initial Resolution Period"), the Seller shall, subject to Section
5(b) and Section 5(c) below, (i) correct or cure such Material Breach or
Material Document Defect, as the case may be, in all material respects or (ii)
repurchase the Mortgage Loan affected by such Material Breach or Material
Document Defect, as the case may be (such Mortgage Loan, a "Defective Mortgage
Loan"), at the related Purchase Price, with payment to be made in accordance
with the reasonable directions of the Purchaser; provided that if the Seller
shall have delivered to the Purchaser a certification executed on behalf of the
Seller by an officer thereof stating (i) that such Material Breach or Material
Document Defect, as the case may be, does not relate to whether the Defective
Mortgage Loan is or, as of the Closing Date (or, in the case of a Replacement
Mortgage Loan, as of the related date of substitution), was a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (a "Qualified
Mortgage"), (ii) that such Material Breach or Material Document Defect, as the
case may be, is capable of being cured but not within the applicable Initial
Resolution Period, (iii) that the Seller has commenced and is diligently
proceeding with the cure of such Material Breach or Material Document Defect, as
the case may be, within the applicable Initial Resolution Period, (iv) what
actions the Seller is pursuing in connection with the cure thereof and (v) that
the Seller anticipates that such Material Breach or Material Document Defect, as
the case may be, will be cured within an additional period not to exceed the
applicable Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such cure or, failing such, to repurchase the Defective Mortgage Loan;
and provided, further, that, if the Seller's obligation to repurchase any
Defective Mortgage Loan as a result of a Material Breach or Material Document
Defect arises within the three-month period commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the Defective
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section 1.860G-2(f)), and
if the Defective Mortgage Loan is still subject to the Pooling and Servicing
Agreement, the Seller may, at its option, subject to the terms, conditions and
limitations set forth in the Pooling and Servicing Agreement, in lieu of
repurchasing such Defective Mortgage Loan (but, in any event, no later than such
repurchase would have to have been completed), (i) replace such Defective
Mortgage Loan with one or more substitute mortgage loans that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and
(ii) pay any corresponding Substitution Shortfall Amount, such substitution and
payment to be effected in accordance with the terms of the Pooling and Servicing
Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Material
Breach or Material Document Defect, but if the Seller discovers a Material
Breach or Material Document Defect with respect to a any Mortgage Loan, it will
notify the Purchaser.
"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to any
Mortgage Loan, 90 days;
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(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is and remains a Performing Mortgage Loan
throughout the applicable Initial Resolution Period, the period commencing
at the end of the applicable Initial Resolution Period and ending on, and
including, the earlier of (A) the 90th day following the end of such
Initial Resolution Period and (B) the 45th day following the Seller's
receipt of written notice from the Purchaser or its designee of the
occurrence of any Servicing Transfer Event with respect to such Mortgage
Loan subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to which a
Servicing Transfer Event occurs during such Initial Resolution Period, the
period commencing at the end of the applicable Initial Resolution Period
and ending on, and including, the 90th day following the earlier of (A) the
end of such Initial Resolution Period and (B) the Seller's receipt of
written notice from the Purchaser or its servicing agent of the occurrence
of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan as
of the commencement of the applicable Initial Resolution Period, zero (-0-)
days, provided that, if the Seller did not receive written notice from the
Purchaser or its servicing agent of the relevant Servicing Transfer Event
as of the commencement of the applicable Initial Resolution Period, then
such Servicing Transfer Event will be deemed to have occurred during such
Initial Resolution Period and clause (iii) of this definition will be
deemed to apply;
provided that, except as otherwise set forth in the following two provisos,
there shall be no Resolution Extension Period in respect of a Material Document
Defect involving a Specially Designated Mortgage Loan Document; and provided,
further, that if a Material Document Defect exists with respect to any Mortgage
Loan, if such Mortgage Loan is then subject to the Pooling and Servicing
Agreement, and if the Seller escrows with the applicable Master Servicer, prior
to the end of the Initial Resolution Period and any Resolution Extension Period
otherwise applicable to the remediation of such Material Document Defect without
regard to this proviso, cash in the amount of the then Purchase Price for such
Mortgage Loan and subsequently delivers to the applicable Master Servicer, on a
monthly basis, such additional cash as may be necessary to maintain a total
escrow equal to the Purchase Price for such Mortgage Loan as such price may
increase over time (the total amount of cash delivered to the applicable Master
Servicer with respect to any Mortgage Loan as contemplated by this proviso or
the immediately following proviso, the "Purchase Price Security Deposit"), then
the Resolution Extension Period applicable to the remediation of such Material
Document Defect shall be extended until the earliest of (i) the second
anniversary of the Closing Date, (ii) the date on which such Mortgage Loan is no
longer outstanding and part of the Trust Fund and (iii) if such Mortgage Loan
becomes a Specially Serviced Mortgage Loan under the Pooling and Servicing
Agreement, the date, if any, on which the applicable Special Servicer determines
in its reasonable, good faith judgment that such Material Document Defect will
materially interfere with or delay the realization against the related Mortgaged
Property or materially increase the cost thereof; and provided, further, that if
the Material Document Defect referred to in the preceding proviso consists of a
failure to deliver a Specially Designated Mortgage Loan Document, and if the
Seller delivers to the applicable Master Servicer a Purchase Price Security
Deposit equal to 25% of the outstanding principal balance of the subject
Mortgage Loan, then
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the Resolution Extension Period applicable to the remediation of such Material
Document Defect shall be extended to the 15th day following the end of the
applicable Initial Resolution Period.
The Purchaser or its designee shall establish, and maintain any
Purchase Price Security Deposit delivered to it with respect to any Mortgage
Loan in, one or more accounts (individually and collectively, the "Purchase
Price Security Deposit Account") and shall be entitled to make withdrawals from
such account(s) for the following purposes: (i) to cover any costs and expenses
resulting from the applicable Material Document Defect; (ii) upon any discounted
payoff or other liquidation of such Mortgage Loan, to cover any Realized Loss
related thereto; and (iii) if the Seller so directs, or if the balance on
deposit in the Purchase Price Security Deposit Account declines, and for 45 days
remains, below the Purchase Price for such Mortgage Loan (except where a
Purchase Price Security Deposit equal to 25% of the outstanding principal
balance of the subject Mortgage Loan is permitted to be delivered in order to
obtain a 15-day Resolution Extension Period with respect to the failure to
deliver a Specially Designated Mortgage Loan Document), or if such Material
Document is not remedied on or before the second anniversary of the Closing
Date, or if such Mortgage Loan becomes a Specially Serviced Mortgage Loan under
the Pooling and Servicing Agreement and the applicable Special Servicer
determines in its reasonable, good faith judgment that such Material Document
Defect will materially interfere with or delay the realization against the
related Mortgaged Property or materially increase the cost thereof, to apply the
Purchase Price Security Deposit to a full or partial, as applicable, payment of
the Purchase Price for such Mortgage Loan (with the Seller to pay any remaining
balance of such Purchase Price). The Seller may obtain a release of the Purchase
Price Security Deposit for any Mortgage Loan (net of any amounts payable
therefrom as contemplated by the prior sentence) upon such Mortgage Loan's being
paid in full or otherwise satisfied, liquidated or removed from the Trust Fund
or upon the subject Material Document Defect's being remedied in all material
respects and all associated fees and expenses being paid in full. The Seller may
direct the Purchaser or its designee to invest or cause the investment of the
funds deposited in any Purchase Price Security Deposit Account in one or more
Permitted Investments that bear interest or are sold at a discount and that
mature, unless payable on demand, no later than the Business Day prior to the
next Master Servicer Remittance Date. The Purchaser or its designee shall act
upon the written instructions of the Seller with respect to the investment of
funds in any Purchase Price Security Deposit Account in such Permitted
Investments, provided that in the absence of appropriate written instructions
from the Seller, the Purchaser shall have no obligation to invest or direct the
investment of funds in such Purchase Price Security Deposit Account. All income
and gain realized from the investment of funds deposited in any Purchase Price
Security Deposit Account shall be for the benefit of the Seller and shall be
withdrawn by the Purchaser or its designee and remitted to the Seller on each
Master Servicer Remittance Date (net of any losses incurred and any deposits
required to be made by the Seller as contemplated by the second proviso to the
prior paragraph), and the Seller shall remit to the Purchaser from the Seller's
own funds for deposit into such Purchase Price Security Deposit Account the
amount of any realized losses (net of realized gains) in respect of such
Permitted Investments immediately upon realization of such net losses and
receipt of written notice thereof from the Purchaser; provided that the Seller
shall not be required to make any such deposit for any realized loss which is
incurred solely as a result of the insolvency of the federal or state depository
institution or trust company that holds such Purchase Price Security Deposit
Account. Neither the Purchaser nor any of its designees shall have any
responsibility or liability with respect to the investment directions of the
Seller, the investment of funds in any Purchase Price Security Deposit Account
in Permitted Investments or any losses resulting therefrom.
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If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase or
substitution, the Purchaser or its designee shall use its best efforts, subject
to the terms of such Mortgage Loans, to prepare and, to the extent necessary and
appropriate, have executed by the related Borrower and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased or replaced, on the one hand, and the remaining Mortgage Loans
therein, on the other hand, such that those two groups of Mortgage Loans are
each secured only by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly corresponding thereto (as to each such group, the "Primary
Real Property Collateral"); provided that, if the affected Cross-Collateralized
Group is then subject to the Pooling and Servicing Agreement, then no such
termination shall be affected unless and until the Trustee and the applicable
Master Servicer shall have received from the Seller (i) an Opinion of Counsel
from independent counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool and (ii) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates;
and provided, further, that the Seller may, at its option, purchase the entire
subject Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the Purchaser and
its servicing agents pursuant to this paragraph shall be included in the
calculation of Purchase Price for the Mortgage Loan(s) to be repurchased or
replaced.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the prior paragraph for
any reason (including, but not limited to, the Seller's failure to satisfy any
of the conditions set forth in the proviso to the first sentence of the prior
paragraph), if the Seller has not elected to purchase the entire affected
Cross-Collateralized Group, and if such Cross-Collateralized Group is then
subject to the Pooling and Servicing Agreement, then, to the extent that the
Seller is required to repurchase or replace any Mortgage Loan in that
Cross-Collateralized Group in the manner prescribed above while the Trust
continues to hold any other Mortgage Loan in that Cross-Collateralized Group,
the Trustee, on behalf of the Trust, and the Seller each hereby agrees to
forbear from enforcing any remedies against the other's Primary Real Property
Collateral but may exercise remedies against the Primary Real Property
Collateral securing the Mortgage Loans in that Cross-Collateralized Group held
by it; provided that the Trustee and the applicable Master Servicer shall have
received from the Seller an Opinion of Counsel from independent counsel to the
effect that (i) the exercise of remedies by the Seller, on the one hand, or the
Trust, on the other hand, with respect to the Primary Real Property Collateral
securing the respective Mortgage Loan(s) in such Cross-Collateralized Group held
by such party would not materially and adversely affect the rights of the other
such party to proceed against the Primary Real Property Collateral for the
respective Mortgage Loan(s) in such Cross-Collateralized Group held by such
other party and (ii) the foregoing arrangement would not result in an Adverse
REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event
with respect to any Grantor Trust Pool. Any reserve or other cash collateral or
letters of credit securing the subject Cross-Collateralized Group shall be
allocated between the Mortgage Loans therein held by the Seller, on the one
hand, and the Trust, on the other hand, in accordance with the related Mortgage
Loan documents, or otherwise on a pro rata basis based upon the outstanding
principal balances of their respective Mortgage Loans in such
Cross-Collateralized Group. All other terms of the Mortgage Loans in such
Cross-Collateralized Group shall remain in full force and effect, without any
modification thereof. The Borrowers under the respective Cross-Collateralized
Groups of Mortgage Loans are intended third-party beneficiaries of the provision
set forth in this
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paragraph. The provisions of this paragraph may not be modified with respect to
any Mortgage Loan in a Cross-Collateralized Group without the related Borrower's
consent.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the second preceding
paragraph for any reason (including, but not limited to, the Seller's failure to
satisfy any of the conditions set forth in the proviso to the first sentence of
the second preceding paragraph) and the forbearance arrangement in respect of
such Cross-Collateralized Group cannot be effected as contemplated by the
preceding paragraph for any reason (including, but not limited to, the Seller's
failure to satisfy any of the conditions set forth in the proviso to the first
sentence of the prior paragraph) then the entire Cross-Collateralized Group
shall be repurchased or replaced if the subject Material Breach or Material
Document Defect, as the case may be, is not remedied in all material respects by
the end of the applicable Initial Resolution Period and any applicable
Resolution Extension Period.
Whenever one or more mortgage loans are substituted by the Seller for a
Defective Mortgage Loan as contemplated by this Section 5(a), the Seller shall
(i) deliver the related Mortgage File for each such substitute mortgage loan to
the Purchaser or its designee (which designee, unless otherwise stated, is the
Trustee), (ii) certify that such substitute mortgage loan satisfies or such
substitute mortgage loans satisfy, as the case may be, all of the requirements
of the definition of "Qualifying Substitute Mortgage Loan" set forth in the
Pooling and Servicing Agreement and (iii) send such certification to the
Purchaser or its designee. No mortgage loan may be substituted for a Defective
Mortgage Loan as contemplated by this Section 5(a) if the Defective Mortgage
Loan to be replaced was itself a Replacement Mortgage Loan, in which case,
absent cure of the relevant Material Breach or Material Document Defect, the
Defective Mortgage Loan will be required to be repurchased as contemplated
hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each Defective Mortgage Loan (if any) after the Cut-off Date (or, in
the case of a Replacement Mortgage Loan, after the date on which it is added to
the Trust Fund) and on or prior to the related date of repurchase or
replacement, shall belong to the Purchaser. Monthly Payments due with respect to
each Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the Purchaser.
(b) It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to Section 5(a) that the
Purchaser (which shall include the Trustee) shall have executed and delivered
such instruments of transfer or assignment then presented to it by the Seller,
in each case without recourse, as shall be necessary to vest in the Seller the
legal and beneficial ownership of such Defective Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto), to the extent that such ownership interest was transferred to
the Purchaser hereunder.
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(c) If, on or after May 13, 2003, the Seller receives notice of a
Material Document Defect with respect to any Mortgage Loan, which Material
Document Defect constitutes a Recording Omission, and if such Mortgage Loan is
still subject to the Pooling and Servicing Agreement, then the Seller, with the
consent of the Controlling Class Representative, which consent may be granted or
withheld in its sole discretion, in lieu of repurchasing or replacing such
Mortgage Loan (as and to the extent contemplated by Section 5(a) above), but in
no event later than such repurchase would have to have been completed, establish
a Recording Omission Credit or a Recording Omission Reserve with the applicable
Master Servicer. In furtherance of the preceding sentence, the Purchaser or its
designee shall establish one or more accounts (individually and collectively,
the "Special Reserve Account"), each of which shall be an Eligible Account, and
the Purchaser or its designee shall deposit any Recording Omission Reserve into
the Special Reserve Account within one Business Day of receipt. The Seller may
direct the Purchaser or its designee to invest or cause the investment of the
funds deposited in the Special Reserve Account in one or more Permitted
Investments that bear interest or are sold at a discount and that mature, unless
payable on demand, no later than the Business Day prior to the next Master
Servicer Remittance Date. The Purchaser or its designee shall act upon the
written instructions of the Seller with respect to the investment of funds in
the Special Reserve Account in such Permitted Investments, provided that in the
absence of appropriate written instructions from the Seller, the Purchaser shall
have no obligation to invest or direct the investment of funds in such Special
Reserve Account. All income and gain realized from the investment of funds
deposited in such Special Reserve Account shall be for the benefit of the Seller
and shall be withdrawn by the Purchaser or its designee and remitted to the
Seller on each Master Servicer Remittance Date (net of any losses incurred), and
the Seller shall remit to the Purchaser from the Seller's own funds for deposit
into such Special Reserve Account the amount of any realized losses (net of
realized gains) in respect of such Permitted Investments immediately upon
realization of such net losses and receipt of written notice thereof from the
Purchaser; provided that the Seller shall not be required to make any such
deposit for any realized loss which is incurred solely as a result of the
insolvency of the federal or state depository institution or trust company that
holds such Special Reserve Account. Neither the Purchaser nor any of its
designees shall have any responsibility or liability with respect to the
investment directions of the Seller, the investment of funds in the Special
Reserve Account in Permitted Investments or any losses resulting therefrom. A
Recording Omission Credit shall (i) entitle the Purchaser or its designee to
draw upon the Recording Omission Credit on behalf of the Purchaser upon
presentation of only a sight draft or other written demand for payment, (ii)
permit multiple draws by the Purchaser or its designee, and (iii) be issued by
such issuer and containing such other terms as the Purchaser or its designee may
reasonably require to make such Recording Omission Credit reasonably equivalent
security to a Recording Omission Reserve in the same amount. Once a Recording
Omission Reserve or Recording Omission Credit is established with respect to any
Mortgage Loan, the Purchaser or its designee shall, from time to time, withdraw
funds from the related Special Reserve Account or draw upon the related
Recording Omission Credit, as the case may be, and apply the proceeds thereof to
pay the losses or expenses directly incurred by the Purchaser or its designee as
a result of a Recording Omission. The Recording Omission Reserve or Recording
Omission Credit or any unused balance thereof with respect to any Mortgage Loan
will be released to the Seller by the Purchaser upon the earlier of the Seller's
cure of all Recording Omissions with respect to such Mortgage Loan (provided
that the Purchaser has been reimbursed with respect to all losses and expenses
relating to Recording Omissions with respect to such Mortgage Loan) and such
Mortgage Loan's no longer being a part of the Trust Fund under the Pooling and
Servicing Agreement.
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(d) It is understood and agreed that the obligations of the Seller set
forth in this Section 5 to cure a Material Breach or a Material Document Defect,
repurchase or replace the related Defective Mortgage Loan(s) or establish a
Recording Omission Credit or a Recording Omission Reserve with respect to the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser, the Certificateholders or the Trustee on behalf of the
Certificateholders with respect to a Breach or Document Defect in respect of any
Mortgage Loan.
(e) If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the affected Mortgage Loan from the Purchaser or its assignee or
(iii) to replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan,
each in accordance with the foregoing provisions of this Section 5, then
(provided that (i) the Mortgage Loan is then subject to the Pooling and
Servicing Agreement, (ii) the applicable Initial Resolution Period and any
applicable Resolution Extension Period has expired and (iii) the Mortgage Loan
is then in default and is then a Specially Serviced Mortgage Loan) the
applicable Special Servicer may, subject to the Servicing Standard, modify,
work-out or foreclose, sell or otherwise liquidate (or permit the liquidation
of) the Mortgage Loan pursuant to the terms of the Pooling and Servicing
Agreement, while pursuing the repurchase claim, and such action shall not be a
defense to the repurchase claim or alter the applicable Purchase Price.
If any REO Property in respect of any Mortgage Loan is subject to the
Pooling and Servicing Agreement, then the Seller shall be notified promptly and
in writing by the applicable Special Servicer of any offer that it receives to
purchase such REO Property. Upon the receipt of such notice by the Seller, the
Seller shall then have the right to repurchase such REO Property from the Trust
at a purchase price equal to the amount of such offer. The Seller shall have
three (3) Business Days to purchase such REO Property from the date that it was
notified of such offer. The applicable Special Servicer shall be obligated to
provide the Seller with any appraisal or other third-party reports relating to
such REO Property within its possession to enable the related Mortgage Loan
Seller to evaluate such REO Property. Any sale of a Mortgage Loan, or
foreclosure upon such Mortgage Loan and sale of any related REO Property, to a
Person other than the Seller shall be (i) without recourse of any kind (either
expressed or implied) by such Person against the Seller and (ii) without
representation or warranty of any kind (either expressed or implied) by the
Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Mortgage Loan or REO Property) shall not prejudice any claim of the
Trust against the Seller for repurchase of the subject Mortgage Loan or REO
Property. The provisions of this Section 5 regarding remedies against the Seller
for a Material Breach or Material Document Defect with respect to any Mortgage
Loan shall also apply to the related REO Property.
If the Seller fails to correct or cure the Material Document Defect or
Material Breach or purchase the subject REO Property, then the provisions above
regarding notice of offers related to such REO Property and the Seller's right
to purchase such REO Property shall apply. If a court of competent jurisdiction
issues a final order that the Seller is or was obligated to repurchase the
related Mortgage Loan or REO Property or the Seller otherwise accepts liability,
then, after the expiration of any applicable appeal period, but in no event
later than the termination of the Trust pursuant to the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the amount, if any,
by which
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the applicable Purchase Price exceeds any Liquidation Proceeds received upon
such liquidation (including those arising from any sale to the Seller); provided
that the prevailing party in such action shall be entitled to recover all costs,
fees and expenses (including reasonable attorneys' fees) related thereto.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Seller made
pursuant to Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date;
(ii) all documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects to obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the Purchaser or
its designee, all documents, funds and other assets required to be
delivered thereto pursuant to Section 2 of this Agreement;
(iv) the result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) all other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) the Seller shall have received the consideration for the Mortgage
Loans, as contemplated by Section 1;
(vii) the Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(viii) neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their commercially reasonable best efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of
the following:
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(i) this Agreement, duly executed by the Purchaser and the Seller;
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) an Officer's Certificate substantially in the form of Exhibit
D-1A hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity, and dated the Closing Date, and
upon which CSFB Mortgage Securities, CSFB Corporation, the other
Underwriters and the Rating Agencies (collectively, for purposes of this
Section 7, the "Interested Parties") may rely, attaching thereto as
exhibits (A) the resolutions of the board of directors of the Seller
authorizing the Seller's entering into the transactions contemplated by
this Agreement, and (B) the organizational documents of the Seller;
(iv) a certificate of good standing with respect to the Seller issued
by the Comptroller of the Currency not earlier than 30 days prior to the
Closing Date, and upon which the Interested Parties may rely;
(v) a Certificate of the Seller substantially in the form of Exhibit
D-1B hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
(vi) a written opinion of in-house counsel for the Seller, dated the
Closing Date and addressed to the Interested Parties and the respective
parties to the Pooling and Servicing Agreement, which opinion shall be
substantially in the form of Exhibit D-2A hereto (with such additions,
deletions or modifications as may be required by either Rating Agency);
(vii) a written opinion of Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx
LLP, special counsel for the Seller, dated the Closing Date and addressed
to the Interested Parties and the respective parties to the Pooling and
Servicing Agreement, which opinion shall be substantially in the form of
Exhibit D-2B hereto (with such additions, deletions or modifications as may
be required by either Rating Agency);
(viii) a written opinion of Xxxxxxxxxx Xxxxxxx & Xxxxx, P.C., special
counsel for the Seller, dated the Closing Date and addressed to the
Interested Parties and the respective parties to the Pooling and Servicing
Agreement, which opinion shall be substantially in the form of Exhibit D-2C
hereto (with such additions, deletions or modifications as may be required
by either Rating Agency);
(ix) a letter from Xxxxxxxxxx Xxxxxxx & Xxxxx, P.C., special counsel
for the Seller, dated the Closing Date and addressed to CSFB Mortgage
Securities, CSFB Corporation and the other Underwriters, which letter shall
be substantially in the form of Exhibit D-2D hereto;
(x) one or more comfort letters from Xxxxxx Xxxxxxxx LLP, certified
public accountants, dated the date of any preliminary Prospectus Supplement
and of the Prospectus Supplement, respectively, and addressed to, and in
form and substance acceptable to, CSFB Mortgage Securities, CSFB
Corporation, the other Underwriters and their respective counsel, stating
in effect that, using the assumptions and methodology used by CSFB Mortgage
Securities, all of which shall be described in such letters, they have
recalculated such numbers
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and percentages relating to the Mortgage Loans set forth in any preliminary
Prospectus Supplement and the Prospectus Supplement, compared the results
of their calculations to the corresponding items in any preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and
found each such number and percentage set forth in any preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, to be in
agreement with the results of such calculations; and
(xi) such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date or any Rating Agency may
require and in a form reasonably acceptable to the Purchaser and the
Seller.
SECTION 8. Costs. Whether or not this Agreement is terminated, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated pursuant to the terms of the Term Sheet for the
Joint Conduit Securitizations between Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Prudential Securities Incorporated, Prudential Mortgage Capital
Company, LLC, Column Financial, Inc. and KeyBank National Association, as
supplemented and modified by the Term Sheet for the Joint Securitizations among
Column Financial, Inc., Credit Suisse First Boston Corporation and KeyBank
National Association for Calendar Year 2001 (the foregoing term sheets,
together, the "Term Sheets").
In addition, it is hereby acknowledged that CSFB Mortgage Securities
has acquired from the National Consumer Cooperative Bank ("NCB") and NCB Capital
Corporation ("NCBCC") other mortgage loans (the "NCB/NCBCC Loans") for transfer
to the Trust. The Seller agrees that the costs and expenses associated with such
transactions will be allocated as follows: (i) all out-of-pocket and/or
internally allocated costs and expenses incurred by NCB and/or NCBCC in
connection with such transactions, including, without limitation, the fees and
disbursements of counsel for NCB and/or NCBCC, together with all other due
diligence and accounting costs and expenses relating to the NCB/NCBCC Loans,
shall be borne by NCB, NCBCC and their affiliates; and (ii) all other costs and
expenses incurred in connection with such transactions shall be allocated in
accordance with the Term Sheets.
SECTION 9. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed, by registered mail, postage prepaid, by overnight mail
or courier service, or transmitted by facsimile and confirmed by similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 00 Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, or such other
address as may be designated by the Purchaser to the Seller in writing, or, if
to the Seller, addressed to the Seller at 000 Xxxx Xxxxxx, Xxxxx 00000, Xxxxxx
Xxxx, Xxxxxxxx 00000, Attention: X.X. Xxxxx (with a copy to 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxx), or such other address as may
be designated by the Seller to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
together constitute but one and the same instrument. This Agreement will inure
to the benefit of and be binding upon the parties hereto
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and their respective successors and assigns, and no other person will have any
right or obligation hereunder. Notwithstanding any contrary provision of this
Agreement or the Pooling and Servicing Agreement, the Purchaser shall not
consent to any amendment of the Pooling and Servicing Agreement which will
increase the obligations of, or otherwise adversely affect, the Seller, without
the consent of the Seller.
SECTION 11. Characterization. The parties hereto agree that it is their
express intent that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by CSFB Mortgage Securities to the Trustee of its
interests in the Mortgage Loans as contemplated by Section 16 hereof shall be
deemed to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser of the related Mortgage Notes and such other items
of property as constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest under applicable law; and (e) notifications to,
and acknowledgments, receipts or confirmations from, persons or entities holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, bailees or agents (as applicable) of the Purchaser for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions, including, without limitation, the filing of UCC financing statements,
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller delivered pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser, notwithstanding any restrictive or qualified
endorsement or assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction
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shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT WILL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY IN
SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER AND
THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW
YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS
ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH
RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE
DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates. To the extent of
any such assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder. In
connection with the transfer of any Mortgage Loan by the Trust as contemplated
by the terms of the Pooling and Servicing Agreement, the Trustee, for the
benefit of the registered holders and beneficial owners of the Certificates, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be the Purchaser hereunder (but
solely with respect to such Mortgage Loan that was transferred to it). Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. Information. The Seller shall provide the Purchaser with
such information about the Seller, the Mortgage Loans and the Seller's
underwriting and servicing procedures as is (i) customary in commercial mortgage
loan securitization transactions, (ii) required by a Rating Agency or a
governmental agency or body or (iii) reasonably requested by the Purchaser for
use in a public or private disclosure document.
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SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans are, in the case of each such particular group of Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms, cross-defaulted
and cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Mortgage Loan.
SECTION 19. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein, and
this Agreement supersedes any prior agreements and/or understandings, written or
oral, with respect to such matters.
* * *
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
KEYBANK NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By:
--------------------------------
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CKN5
# PROPERTY NAME ADDRESS CITY
- ------------- ------- ----
5 Coldwater Crossing (1A) 5300 - 0000 Xxxxxxxxx Xxxx Xxxx Xxxxx
6 Kings Mall I & II (1A) N/S of Fields Xxxxx Road at Kings Xxxx Xxxxx Xxxx Xxxxxxxxxx
0 Xxxxxxxx Xxxxxxxxxxx (0X) 000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
0 Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxxxx
9 0000-0000 Xxxxxxxx Xxxxxx 3111, 3141 and 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxx
12 Governor's Plaza (1B) S/W/C of Fields Xxxxx Road and Union Cemetary Road Cincinnati
13 Tri-County Marketplace (1B) 11741-11755 Xxxxxxxxx Xxxx Xxxxxxxxxx
00 000 Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxx Xxxxxxxxx
00 Xxxxxxxxxxx Xxxxx XX 23 (North High Street) Orange Township
25 Sterling University Xxxxxxx 0000 Xxxxxxxx Xxx Xxxxx Xxxxxxxx
26 00-000 Xxxxxxx Xxxxxx 00-000 Xxxxxxx Street Dedham
27 Sterling University - Grove 0000 Xxx Xxxxxxxxxx Xxxx Tallahassee
34 Signal Butte Marketplace 10623-10745 East Apache Trail Mesa
43 Woodside Self Storage 000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxx
44 Timberleaf Apartments 0000 Xxxxxxxxxx Xxxxx Xxxxxx
52 Walgreens-Xxxx City 0000 Xxxxxxx Xxxxxx Xxxx Xxxx
00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx 0000-0000 Ming Avenue Bakersfield
58 Stantec Engineering Building 0000 Xxxxxxx Xxxx Xxx Xxxxxxxxxx
62 Walgreen's Drug Store-Las Vegas The Northeast Corner of Rancho Drive and Washington Avenue Las Vegas
66 Sahara Vista II 0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx
67 Midtown Apartments 0000-0000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx
73 Square 74 Retail 000 Xxxxx Xxxxxxxx Xxxxxx Indianapolis
00 Xxxxxx'x Xxxxxx Xxxxxxxx 0000 Xxxxxx Xxxxxx Xxxxx
00 Xxx Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxx-Xxxxx II 0000 Xxxxx Xxxxx and 0000-0000 Xxxxxxxx Xxxxx Xxx Xxxxx
81 Walgreen's Drug Store-Fort Xxxxx 0000 Xxxxxx Xxxxxx Xxxx Xxxxx
85 Walgreen's Drug Store-Amarillo 000 X. Xxxxxxxx Xxxxxx Amarillo
89 Compass Bank Building 5275-5285 XxXxxxxxx Boulevard Loveland
00 Xxx Xxxx Xxx Xxxxxxxx Xxxxxx 00000-00000 Xxxx Xxx Xxxxxxxxx Xxxxxxx
94 Shurgard - Red Bug Lake Road 5215 Red Bug Lake Road Winter Springs
96 0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx
99 Shurgard-West Town 000 Xxxxx XX 000 Xxxxxxxxx Xxxxxxx
106 Staples Office Superstore 3534 Highway 54 Osage Beach
111 Flowserve Corporation 0000 Xxxxx Xxxxx Xxxx Xxxxxxx
112 CVS Pharmacy 000 Xxxxxx Xxxxxx Xxxx Xxxxx
119 Greenville Crossing Shopping Center Corner of SR 4006 and Xxxxxx Greenville
128 Oakridge Shopping Center 3251-3337 Belt Line Road Garland
130 Best Storage 0000 Xxxxxxx 00 Xxxxxxx
165 0000 00xx Xxxxxx 0000 00xx Xxxxxx Santa Xxxxxx
A-1
INITIAL
CUT-OFF INTEREST ORIG REM.
ZIP MORTGAGE MORTGAGE FEE/ ORIGINAL BALANCE ONLY AMORT. AMORT.
# STATE CODE ORIGINATOR LOAN SELLER LEASEHOLD BALANCE (2) TERM TERM TERM
- ----- ---- ---------- ----------- --------- ------- --- ---- ---- ----
5 IN 46825 Key Key Fee $14,400,000 $14,380,363 0 360 358
6 OH 45249 Key Key Fee $11,840,000 $11,823,854 0 360 358
7 OH 45245 Key Key Fee $8,880,000 $8,867,891 0 360 358
8 CA 95503 Key Key Fee/Leasehold $34,300,000 $34,245,033 0 360 358
9 CA 95054 Key Key Fee $27,400,000 $27,334,812 0 360 356
12 OH 45249 Key Key Fee $12,800,000 $12,783,017 0 360 358
13 OH 45246 Key Key Fee $9,120,000 $9,107,900 0 360 358
17 MA 02139 Key Key Fee $19,500,000 $19,444,857 0 360 356
23 OH 43065 Key Key Fee $16,000,000 $15,956,495 0 360 356
25 MI 48858 First Union Key Fee $14,660,000 $14,660,000 24 360 360
26 MA 02137 Key Key Fee $14,550,000 $14,360,811 0 300 287
27 FL 32303 First Union Key Fee $14,240,000 $14,240,000 24 360 360
34 AZ 85220 Key Key Fee $9,800,000 $9,782,249 0 360 357
43 CA 94063 Key Key Fee $5,400,000 $5,389,153 0 300 298
44 TX 75243 Key Key Fee $5,360,000 $5,352,191 0 360 358
52 CA 94014 Key Key Fee $4,972,500 $4,963,418 0 360 357
53 CA 93304 Key Key Fee $4,850,000 $4,841,552 0 360 357
58 CA 95833 Key Key Fee $4,372,000 $4,364,870 0 360 357
62 NV 89106 Key Key Fee $4,104,000 $4,096,587 0 360 357
66 NV 89146 Key Key Fee $3,900,000 $3,889,456 0 360 355
67 TX 77840 Key Key Fee $3,900,000 $3,888,223 0 360 355
73 IN 46225 Key Key Leasehold $3,400,000 $3,387,845 0 300 296
78 NE 68102 Key Key Fee $3,250,000 $3,239,999 0 300 297
80 NV 89120 Key Key Fee $3,093,000 $3,084,033 0 360 355
81 AR 72901 Key Key Fee $3,079,000 $3,072,211 0 360 356
85 TX 79107 Key Key Fee $2,958,000 $2,951,439 0 360 356
89 CO 80538 Key Key Fee $2,850,000 $2,843,622 0 360 356
93 TX 77084 Key Key Fee $2,700,000 $2,694,065 0 360 356
94 FL 32708 Key Key Fee $2,700,000 $2,689,841 0 300 296
96 IN 46221 Key Key Fee $2,460,000 $2,452,908 0 360 355
99 FL 32714 Key Key Fee $2,300,000 $2,291,346 0 300 296
106 MO 65065 Key Key Fee $2,025,000 $2,019,134 0 300 297
111 IL 60185 Key Key Fee $1,950,000 $1,946,064 0 360 356
112 CT 06516 Key Key Fee/Leasehold $1,880,000 $1,875,428 0 324 321
119 PA 16125 Key Key Fee $1,631,200 $1,627,024 0 360 355
128 TX 75044 Key Key Fee $1,406,000 $1,321,487 0 300 254
130 TX 78602 Key Key Fee $1,300,000 $1,285,551 0 180 176
165 CA 90404 Key Key Fee $620,000 $618,673 0 360 356
A-2
ORIG REM. INTEREST SERVICING
TERM TO TERM TO CALCULATION FIRST AND
MATURITY MATURITY INTEREST (30/360/ MONTHLY PAYMENT TRUSTEE
# (3) (3) RATE ACTUAL/360) PAYMENT DATE ARD (4) DEFEASANCE DEFEASANCE PROVISION FEES
- --- --- ---- ----------- ------- ---- ------- ---------- -------------------- ----
5 84 82 7.2500% Actual/360 98,233 10/1/01 N/A Yes Lock/26_Def/55_0%/3 0.0525%
6 84 82 7.2500% Actual/360 80,770 10/1/01 N/A Yes Lock/26_Def/55_0%/3 0.0525%
7 84 82 7.2500% Actual/360 60,577 10/1/01 N/A Yes Lock/26_Def/55_0%/3 0.0525%
8 120 118 7.1300% 30/360 231,201 10/1/01 9/1/11 Yes Lock/26_Def/90_0%/4 0.0525%
9 120 116 7.4800% Actual/360 191,210 8/1/01 N/A Yes Lock/28_Def/89_0%/3 0.0525%
12 120 118 7.3600% Actual/360 88,276 10/1/01 N/A Yes Lock/26_Def/91_0%/3 0.0525%
13 120 118 7.3600% Actual/360 62,896 10/1/01 N/A Yes Lock/26_Def/91_0%/3 0.0525%
17 120 116 7.7900% 30/360 140,240 8/1/01 N/A No N/A 0.1025%
23 120 116 7.0000% Actual/360 106,448 8/1/01 N/A Yes Lock/28_Def/89_0%/3 0.0525%
25 120 114 7.4400% Actual/360 101,903 6/1/01 N/A Yes Lock/48_Def/69_0%/3 0.0525%
26 120 107 7.9400% Actual/360 111,722 11/1/00 10/1/10 Yes Lock/37_Def/79_0%/4 0.0525%
27 120 114 7.4400% Actual/360 98,984 6/1/01 N/A Yes Lock/48_Def/69_0%/3 0.0525%
34 120 117 7.5200% Actual/360 68,657 9/1/01 N/A No N/A 0.0525%
43 120 118 7.6800% Actual/360 40,540 10/1/01 N/A Yes Lock/26_Def/91_0%/3 0.0525%
44 120 118 6.9800% Actual/360 35,588 10/1/01 N/A Yes Lock/26_Def/91_0%/3 0.0525%
52 120 117 7.4900% Actual/360 34,734 9/1/01 8/1/11 Yes Lock/27_Def/89_0%/4 0.0525%
53 120 117 7.6600% Actual/360 34,445 9/1/01 N/A Yes Lock/27_Def/89_0%/4 0.0525%
58 120 117 7.8900% Actual/360 31,746 9/1/01 8/1/11 Yes Lock/27_Def/89_0%/4 0.0525%
62 120 117 7.5300% Actual/360 28,780 9/1/01 8/1/11 Yes Lock/27_Def/89_0%/4 0.0525%
66 120 115 8.0300% Actual/360 28,698 7/1/01 N/A Yes Lock/29_Def/88_0%/3 0.0525%
67 120 115 7.6300% Actual/360 27,617 7/1/01 N/A No N/A 0.0525%
73 120 116 8.0000% Actual/360 26,242 8/1/01 N/A Yes Lock/28_Def/89_0%/3 0.0525%
78 120 117 7.4100% Actual/360 23,827 9/1/01 N/A Yes Lock/27_Def/90_0%/3 0.0525%
80 120 115 7.7800% Actual/360 22,223 7/1/01 N/A Yes Lock/29_Def/88_0%/3 0.0525%
81 120 116 7.7400% Actual/360 22,037 8/1/01 7/1/11 Yes Lock/28_Def/88_0%/4 0.0525%
85 120 116 7.7200% Actual/360 21,130 8/1/01 7/1/11 Yes Lock/28_Def/88_0%/4 0.0525%
89 120 116 7.6900% Actual/360 20,300 8/1/01 N/A Yes Lock/28_Def/89_0%/3 0.0525%
93 84 80 7.7500% Actual/360 19,343 8/1/01 N/A No N/A 0.0525%
94 120 116 7.7600% Actual/360 20,412 8/1/01 N/A Yes Lock/28_Def/89_0%/3 0.0525%
96 132 127 7.8000% Actual/360 17,709 7/1/01 N/A Yes Lock/29_Def/100_0%/3 0.0525%
99 120 116 7.7600% Actual/360 17,388 8/1/01 N/A Yes Lock/28_Def/89_0%/3 0.0525%
106 120 117 7.7100% Actual/360 15,242 9/1/01 8/1/11 Yes Lock/27_Def/89_0%/4 0.0525%
111 120 116 8.0300% Actual/360 14,349 8/1/01 7/1/11 No N/A 0.0525%
112 120 117 7.5700% Actual/360 13,637 9/1/01 8/1/11 Yes Lock/27_Def/89_0%/4 0.0525%
119 120 115 8.2200% Actual/360 12,220 7/1/01 N/A No N/A 0.0525%
128 120 74 7.5500% 30/360 10,436 2/1/98 N/A No N/A 0.0525%
130 120 116 7.9000% Actual/360 12,349 8/1/01 N/A No N/A 0.0525%
165 120 116 7.8400% Actual/360 4,480 8/1/01 N/A No N/A 0.0525%
X-0
XXXXXXX X-0
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the Closing Date:
1. The Seller is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
2. The execution and delivery by the Seller of, and the performance by
the Seller under, this Agreement, the execution (including, without limitation,
by facsimile or machine signature) and delivery of any and all documents
contemplated by this Agreement, including, without limitation, endorsements of
Mortgage Notes, and the consummation by the Seller of the transactions herein
contemplated, will not: (a) violate the Seller's organizational documents; or
(b) constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
indenture, agreement or other instrument to which the Seller is a party or by
which it is bound or which is applicable to it or any of its assets, which
default or breach, in the Seller's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the Seller.
3. The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. The Seller has the full right, power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans (and, in the event that the
related transaction is deemed to constitute a loan secured by all or part of the
Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under the
conditions set forth in, this Agreement.
5. Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and (b)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
6. The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance under and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
7. There are no actions, suits or proceedings pending or, to the best
of the Seller's knowledge, threatened against the Seller which, if determined
adversely to the Seller, would prohibit the Seller from entering into this
Agreement or, in the Seller's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
B-1-1
8. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
9. The transfer of the Mortgage Loans to the Purchaser as contemplated
herein is not subject to any bulk transfer or similar law in effect in any
applicable jurisdiction.
10. The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
11. The Seller is not transferring the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud its present or future creditors.
12. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
13. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
14. The Seller does not intend to, and does not believe that it will,
incur debts or obligations beyond its ability to pay such debts and obligations
as they mature.
15. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
16. In connection with its transfer of the Mortgage Loans to the
Purchaser as contemplated herein, the Seller is receiving new value and
consideration constituting at least reasonably equivalent value and fair
consideration.
B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing
Date:
1. The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Purchaser of, and the performance
by the Purchaser under, this Agreement, and the consummation by the Purchaser of
transactions herein contemplated, will not: (a) violate the Purchaser's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Purchaser is a party or by which it is bound or which is applicable to it or any
of its assets, which default or breach, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
3. The Purchaser has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (a) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
5. The Purchaser is not in violation of, and its execution and delivery
of this Agreement and its performance under and compliance with the terms hereof
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Purchaser's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
6. There are no actions, suits or proceedings pending or, to the best
of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, would be likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations hereunder or the financial condition
of the Purchaser.
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been
B-2-1
completed, and except for those filings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
B-2-2
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrases "to
the knowledge of the Seller" or "to the Seller's knowledge" shall mean, except
where otherwise expressly set forth below, the actual state of knowledge of the
Seller or any servicer acting on its behalf regarding the matters referred to,
in each case: (i) after the Seller's having conducted such inquiry and due
diligence into such matters as would be customarily performed by prudent
institutional commercial or multifamily, as applicable, mortgage lenders, and in
all events as required by the Seller's underwriting standards, at the time of
the Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the servicing and monitoring
practices customarily utilized by prudent commercial mortgage loan servicers
with respect to securitizable commercial or multifamily, as applicable, mortgage
loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Seller" or "to the Seller's actual knowledge"
shall mean, except where otherwise expressly set forth below, the actual state
of knowledge of the Seller or any servicer acting on its behalf without any
express or implied obligation to make inquiry. All information contained in
documents which are part of or required to be part of a Mortgage File shall be
deemed to be within the knowledge and the actual knowledge of the Seller.
Wherever there is a reference to receipt by, or possession of, the Seller of any
information or documents, or to any action taken by the Seller or not taken by
the Seller or its agents or employees, such reference shall include the receipt
or possession of such information or documents by, or the taking of such action
or the not taking such action by, either of the Seller or any servicer acting on
its behalf.
The Seller hereby represents and warrants with respect to the Mortgage
Loans that, as of the date hereinbelow specified or, if no such date is
specified, as of the Closing Date, and subject to Section 18 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the respective Due Dates for the Mortgage Loans in November 2001.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to sell, transfer and assign each Mortgage Loan to, or at the
direction of, the Purchaser free and clear of any and all pledges, liens,
charges, security interests, participation interests and/or other interests and
encumbrances (except for certain servicing rights described on Schedule C-42
hereto or otherwise contemplated by this Agreement or the Pooling and Servicing
Agreement). Subject to the completion of the names and addresses of the
assignees and endorsees and any missing recording information in all instruments
of transfer or assignment and endorsements and the completion of all recording
and filing contemplated hereby and by the Pooling and Servicing Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance (except for certain
servicing rights described on Schedule C-42 hereto or otherwise contemplated by
this Agreement or the Pooling and Servicing Agreement). The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental
C-1
or regulatory approval or consent that has not been obtained. Each Mortgage Note
is, or shall be as of the Closing Date, properly endorsed to the Purchaser or
its designee and each such endorsement is genuine.
3. Payment Record. No scheduled payment of principal and interest due
under any Mortgage Loan on the Due Date in October 2001 and on any Due Date in
the twelve-month period immediately preceding the Due Date for such Mortgage
Loan in October 2001 was 30 days or more delinquent, without giving effect to
any applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for the following (collectively, the "Permitted Encumbrances"): (a) the
lien for current real estate taxes, water charges, sewer rents and assessments
not yet due and payable; (b) covenants, conditions and restrictions, rights of
way, easements and other matters that are of public record and are referred to
in the related lender's title insurance policy (or, if not yet issued, referred
to in a pro forma title policy or title policy commitment meeting the
requirements described in Paragraph 8 below); (c) exceptions and exclusions
specifically referred to in the related lender's title insurance policy (or, if
not yet issued, referred to in a pro forma title policy or title policy
commitment meeting the requirements described in Paragraph 8 below); (d) other
matters to which like properties are commonly subject; (e) the rights of tenants
(as tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property; (f) condominium declarations of record and identified in the
related lender's title insurance policy (or, if not yet issued, identified in a
pro forma title policy or title policy commitment meeting the requirements
described in Paragraph 8 below); and (g) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group. With respect to
each Mortgage Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided by the
related Mortgage, the current principal use of the related Mortgaged Property or
the ability of the related Mortgaged Property to generate income sufficient to
service such Mortgage Loan. If the related Mortgaged Property is a residential
cooperative property, then the related Mortgage is superior to any lien against
the related Mortgaged Property securing any and all other debts of and to the
subject cooperative entity. The related assignment of the Mortgage for each
Mortgage Loan, executed and delivered in favor of the Trustee, is in recordable
form (but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) to validly and
effectively convey the assignor's interest therein and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases. The Mortgage File contains an assignment of
leases and rents (an "Assignment of Leases"), either as a separate instrument or
incorporated into the related Mortgage, which establishes and creates a valid,
subsisting and, subject to the exceptions set forth in Paragraph 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Borrower
described therein, except that a license may have been granted to the related
Borrower to exercise certain rights and perform certain obligations of the
lessor under the relevant lease or leases, including, without limitation, the
right to operate the related leased property; and each assignor thereunder has
the full right to assign the same. The related assignment of any Assignment of
Leases not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name and address of the
assignee and any
C-2
related recording information which is not yet available to the Seller) to
validly and effectively convey the assignor's interest therein and constitutes a
legal, valid, binding and, subject to the exceptions set forth in Paragraph 13
below, enforceable assignment of such Assignment of Leases from the relevant
assignor to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part. Except as
described on Schedule C-6 hereto, no alterations, waivers, modifications or
assumptions of any kind have been given, made or consented to by or on behalf of
the Seller since [SPECIFY DATE AS OF WHICH MORTGAGE FILES WERE DELIVERED TO
B-PIECE BUYER]. The Seller has not taken any affirmative action that would cause
the representations and warranties of the related Borrower under the Mortgage
Loan not to be true and correct in any material respect.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth on Schedule C-7A or in an engineering report prepared
in connection with the origination of such Mortgage Loan, the related Mortgaged
Property is, to the Seller's knowledge, in good repair, free and clear of any
damage that would materially and adversely affect its value as security for such
Mortgage Loan (except in any such case where an escrow of funds or insurance
coverage exists sufficient to effect the necessary repairs and maintenance);
provided that, if no engineer or architect physically visited the related
Mortgaged Property in connection with preparing and delivering such engineering
report, then the representation and warranty made in this sentence shall not be
qualified by "to the Seller's knowledge". As of origination of such Mortgage
Loan there was no proceeding pending, and subsequent to such date, the Seller
has not received actual notice of, any proceeding pending for the condemnation
of all or any material portion of the Mortgaged Property securing any Mortgage
Loan. If any of the engineering reports referred to above in this Paragraph 7
revealed any material damage or material deferred maintenance, then one of the
following is true: (a) the repairs and/or maintenance necessary to correct such
condition have been completed in all material respects; (b) an escrow of funds
is required or a letter of credit was obtained in an amount reasonably estimated
to be sufficient to complete the repairs and/or maintenance necessary to correct
such condition; or (c) the reasonable estimate of the cost to complete the
repairs and/or maintenance necessary to correct such condition represented no
more than 2% of the value of the related Mortgaged Property as reflected in an
appraisal conducted in connection with the origination of the subject Mortgage
Loan. As of the date of the origination of each Mortgage Loan, except as set
forth on Schedule C-7B: (a) all of the material improvements on the related
Mortgaged Property lay wholly within the boundaries and, to the extent in effect
at the time of construction, building restriction lines of such property, except
for encroachments that are insured against by the lender's title insurance
policy referred to in Paragraph 8 below or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and (b) no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the lender's title insurance policy referred to in Paragraph 8 below.
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8. Title Insurance. The lien of each Mortgage securing a Mortgage Loan
is insured by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (except that if such policy
is yet to be issued, such insurance may be evidenced by a "marked up" pro forma
policy or title commitment in either case marked as binding and countersigned by
the title company or its authorized agent, either on its face or by an
acknowledged closing instruction or escrow letter) in the original principal
amount of such Mortgage Loan after all advances of principal, insuring the
originator of the related Mortgage Loan, its successors and assigns (as the sole
insured) that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid, the Seller has
made no claims thereunder and, to the Seller's actual knowledge, no prior holder
of the related Mortgage has made any claims thereunder and no claims have been
paid thereunder. The Seller has not, and to the Seller's actual knowledge, no
prior holder of the related Mortgage has, done, by act or omission, anything
that would materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee (including endorsement and delivery of the related Mortgage Note to the
Purchaser and recording of the related Assignment of Mortgage in favor of the
Purchaser in the applicable real estate records), such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. Such
Title Policy contains no exclusion for, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available), (a) access to a public road, and (b) that the area
shown on the survey, if any, reviewed or prepared in connection with the
origination of the related Mortgage Loan is the same as the property legally
described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. If the related Mortgage
Loan Documents include any requirements regarding (a) the completion of any
on-site or off-site improvements and (b) the disbursement of any funds escrowed
for such purpose, and if those requirements were to have been complied with on
or before the Closing Date, then such requirements have been complied with in
all material respects or such funds so escrowed have not been released except to
the extent specifically provided by the related Mortgage Loan Documents.
10. Mortgage Provisions. The Mortgage Note, Mortgage and Assignment of
Leases for each Mortgage Loan, together with applicable state law, contains
customary and, subject to the exceptions set forth in Paragraph 13 below,
enforceable provisions for commercial Mortgage Loans such as to render the
rights and remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except for such fees and expenses (all of which are the
obligation of the related Borrower under the related Mortgage Loan Documents) as
would be payable in connection with a
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trustee's sale after default by the related Borrower or in connection with any
full or partial release of the related Mortgaged Property or related security
for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule C-12(Ab/LBP) (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint) and Schedule C-12(TS) (as to which a transaction screen meeting the
requirements of the American Society for Testing and Materials (a "Transaction
Screen") was performed), (a) an environmental site assessment meeting the
requirements of the American Society for Testing and Materials and covering all
environmental hazards typically assessed for similar properties including use,
type and tenants of the Mortgaged Property ("Environmental Report"), or an
update of such an assessment, was performed by a licensed (to the extent
required by applicable state law) environmental consulting firm with respect to
each Mortgaged Property securing a Mortgage Loan in connection with the
origination of such Mortgage Loan and, except with respect to the Mortgaged
Properties identified on Schedule C-12(NU), thereafter updated such that, except
as set forth on Schedule C-12(OLD), such Environmental Report is dated no
earlier than twelve months prior to the Closing Date, (b) a copy of each such
Environmental Report has been delivered to the Purchaser, and (c) either: (i) no
such Environmental Report provides that as of the date of the report there is a
material violation of any applicable environmental laws with respect to any
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same have not
been subsequently remediated in all material respects, then, except as described
on Schedule C-12(MV), one or more of the following are true--(A) one or more
parties not related to or including the related Borrower and collectively having
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects, were identified as the responsible party or
parties for such condition or circumstance and such condition or circumstance
does not materially impair the value of the Mortgaged Property, (B) the related
Borrower was required to provide additional security reasonably estimated to be
adequate to cure the subject violation in all material respects and/or to obtain
an operations and maintenance plan, (C) the related Borrower, or other
responsible party, provided a "no further action" letter or other evidence
reasonably acceptable to a reasonably prudent commercial mortgage lender that
applicable federal, state or local governmental authorities had no current
intention of taking any action, and are not requiring any action, in respect of
such condition or circumstance, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, an
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is identified on Schedule C-12(EI) and insured under a policy
of insurance subject to reasonable per occurrence and aggregate limits and a
reasonable deductible, against certain losses arising from such circumstances
and conditions or (H) a party with financial resources reasonably estimated to
be adequate to cure the subject violation in all material respects provided a
guaranty or indemnity to the related Borrower to cover the costs of any required
investigation, testing, monitoring or remediation. To the Seller's actual
knowledge, there are no significant or material circumstances or conditions with
respect to any Mortgaged Property not revealed in any such Environmental Report,
where obtained, or in any Borrower questionnaire delivered to the Seller in
connection with the issue of any related environmental insurance policy, if
applicable, that render such Mortgaged Property in material violation of any
applicable environmental laws. The Mortgage Loan Documents for each Mortgage
Loan require the related Borrower to comply in all material respects with all
applicable
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federal, state and local environmental laws and regulations. The Seller has not
taken any affirmative action which would cause the Mortgaged Property securing
any Mortgage Loan not to be in compliance with all federal, state and local laws
pertaining to environmental hazards. Each Borrower represents and warrants in
the related Mortgage Loan documents generally to the effect that, except as set
forth in certain specified environmental reports and to the Borrower's
knowledge, it has not used, caused or permitted to exist and will not use, cause
or permit to exist on the related Mortgaged Property any hazardous materials in
any manner which violates federal, state or local laws, ordinances, regulations,
orders, directives, or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of
hazardous materials. Unless the related Mortgaged Property is identified on
Schedule C-12(EI), the related Borrower (or an affiliate thereof) has agreed to
indemnify, defend and hold the Seller and its successors and assigns harmless
from and against, or otherwise be liable for, any and all losses resulting from
a breach of environmental representations, warranties or covenants given by the
Borrower in connection with such Mortgage Loan, generally including any and all
losses, liabilities, damages, injuries, penalties, fines, expenses and claims of
any kind or nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any such party
resulting from such breach.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower, or any guarantor of
non-recourse exceptions and environmental liability, with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent transfer and conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and except that certain provisions in such loan documents may be
further limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth in the foregoing clauses (i) and (ii)) such limitations
will not render such loan documents invalid as a whole or substantially
interfere with the mortgagee's realization of the principal benefits and/or
security provided thereby. There is no right of rescission, offset, abatement,
diminution or valid defense or counterclaim available to the related Borrower
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby. The Seller
has no actual knowledge of any such rights, defenses or counterclaims having
been asserted.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, and except as otherwise set forth
on Schedule C-14(a), all improvements upon each Mortgaged Property securing a
Mortgage Loan are insured under a fire and extended perils insurance policy
included within the classification "All Risk of Physical Loss" insurance (or the
equivalent) policy in an amount at least equal to the lesser of the outstanding
principal balance of such Mortgage Loan and 100% of the insurable replacement
cost of the improvements located on the related Mortgaged Property, and if
applicable, the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. Except in the case of the
Mortgaged Properties identified on Schedule C-14(b) hereto, each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage for at least twelve (12) months
(or a specified dollar amount which is reasonably estimated to cover no less
than twelve
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(12) months of rental income). If, based solely on a flood zone certification or
a survey of the related Mortgaged Property, any portion of the improvements on a
Mortgaged Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the Federal Register
by the Flood Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (an "SFH Area") and flood insurance was available, then a flood
insurance policy meeting the requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the minimum amount required, under the terms of coverage, to compensate for
any damage or loss on a replacement basis, (2) the outstanding principal balance
of such Mortgage Loan, and (3) the maximum amount of insurance available under
the applicable National Flood Insurance Administration Program. All such hazard
and flood insurance policies contain a standard mortgagee clause for the benefit
of the holder of the related Mortgage, its successors and assigns, as mortgagee,
and are not terminable (nor may the amount of coverage provided thereunder be
reduced) without ten (10) days' prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured and, to the Seller's actual knowledge, all such
insurance is in full force and effect. Each Mortgaged Property and all
improvements thereon are also covered by comprehensive general liability
insurance in such amounts as are generally required by reasonably prudent
commercial lenders for similar properties and seismic insurance to the extent
any Mortgaged Property has a probable maximum loss of greater than twenty
percent (20%) of the replacement value of the related improvements, calculated
using methodology acceptable to a reasonably prudent commercial mortgage lender
with respect to similar properties in same area or earthquake zone. If the
Mortgaged Property for any Mortgage Loan is located in Florida or within 25
miles of the coast in Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina or South Carolina, then such Mortgaged Property is insured by windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of such Mortgage Loan and (ii) 100% of the insurable
replacement cost of the improvements located on the related Mortgaged Property.
If any Mortgaged Property is, to the Seller's knowledge, a materially
non-conforming use or structure under applicable zoning laws and ordinances,
then, in the event of a material casualty or destruction, one or more of the
following is true: (i) such Mortgaged Property may be restored or repaired to
materially the same extent of the use or structure at the time of such casualty;
(ii) such Mortgaged Property is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial mortgage lenders;
or (iii) the amount of hazard insurance currently in place and required by the
related Mortgage Loan Documents would generate proceeds sufficient to pay off
the subject Mortgage Loan. Additionally, for any Mortgage Loan having a Cut-off
Date Principal Balance equal to or greater than $20,000,000, the insurer for all
of the required coverages set forth herein has a claims paying ability rating
from Standard & Poor's, Xxxxx'x or Fitch of not less than A-minus (or the
equivalent), or from A.M. Best of not less than "A:V" (or the equivalent). With
respect to each Mortgage Loan, the related Mortgage Loan Documents require that
the related Borrower or a tenant of such Borrower maintain insurance as
described above or permit the Mortgagee to require insurance as described above.
Except under circumstances that would be reasonably acceptable to a prudent
commercial mortgage lender or that would not otherwise materially and adversely
affect the security intended to be provided by the related Mortgage, the
Mortgage Loan Documents for each Mortgage Loan provide that proceeds paid under
any such casualty insurance policy will (or, at the lender's option, will) be
applied either to the repair or restoration of the related Mortgaged Property or
to the payment of amounts due under such Mortgage Loan; provided that the
related Mortgage Loan Documents may entitle the related Borrower to any portion
of such proceeds remaining after the repair or restoration of the related
Mortgaged Property or payment of amounts due under the Mortgage Loan; and
provided, further, that, if the related Borrower holds a leasehold interest in
the related Mortgaged Property, the application of such proceeds
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will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). To the Seller's actual knowledge, all insurance policies
described above are with an insurance carrier qualified to write insurance in
the relevant jurisdiction.
15. Taxes and Assessments. As of the date of origination of the subject
Mortgage Loan or November 11, 2000, whichever is later, there were no (and, to
the Seller's actual knowledge, as of the Closing Date, there are no) delinquent
property taxes or assessments or other outstanding charges affecting any
Mortgaged Property securing a Mortgage Loan that are not otherwise covered by an
escrow of funds sufficient to pay such charge. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered delinquent until the date on which interest and/or penalties would be
payable thereon.
16. Borrower Bankruptcy. No Mortgaged Property securing a Mortgage Loan
is the subject of, and no Borrower under a Mortgage Loan is a debtor in, any
state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, except as described on Schedule C-17, the improvements located on or
forming part of, and the existing use of, each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease (together with any and
all written amendments and modifications thereof and any and all estoppels from
or other agreements with the ground lessor, a "Ground Lease"), but not by the
related fee interest in the subject real property (the "Fee Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage and does not restrict the use of the related
Mortgaged Property by such lessee, its successors or assigns in a manner that
would materially adversely affect the security provided by the related Mortgage;
and there has been no material change in the terms of such Ground Lease since
its recordation, with the exception of material changes reflected in written
instruments which are a part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that
it shall remain superior to any mortgage or other lien upon the related Fee
Interest;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to, but without
the consent of, the lessor thereunder (or,
C-8
if such consent is required, it has been obtained); provided that such Ground
Lease has not been terminated and all defaults, if any, on the part of the
related lessee have been cured;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any material
default has occurred under such Ground Lease, and the lessor under such Ground
Lease has been sent notice of the lien evidenced by the Mortgage in accordance
with the terms of the Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (or an original term plus
options exercisable by the holder of the related Mortgage) which extends not
less than twenty (20) years beyond the end of the amortization term of such
Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of a
rejection of such Ground Lease in a bankruptcy proceeding involving the related
Borrower unless the mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice thereof from the lessor;
(i) Except as described on Schedule C-18(i), under the terms of such
Ground Lease and the related Mortgage Loan Documents, taken together, any
casualty insurance proceeds, other than de minimis amounts for minor casualties,
with respect to the leasehold interest will be applied either: (i) to the repair
or restoration of all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to hold and disburse
such proceeds as the repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding principal balance of
the Mortgage Loan together with any accrued interest thereon. Under the terms of
such Ground Lease and the related Mortgage Loan Documents, taken together, any
condemnation proceeds or awards in respect of a total or substantially total
taking will be applied first to the payment of the outstanding principal and
interest on the Mortgage Loan (except as otherwise provided by applicable law)
and subject to any rights to require the improvements to be rebuilt;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property is
located at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted to disturb the
possession, interest or quiet enjoyment of the lessee in the relevant portion of
the Mortgaged Property subject to
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such Ground Lease for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
(l) Such Ground Lease provides that it may not be amended or modified
without the prior consent of the mortgagee under such Mortgage Loan and that any
such action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a), and the related Mortgaged Property, if acquired in
connection with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section 860G(a)(8).
20. Advancement of Funds. The Seller has not advanced funds, or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (or a tenant at or the property
manager of the related Mortgaged Property), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, has a shared appreciation feature,
provides for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property, or, except as identified on
Schedule C-21, provides for interest-only payments without principal
amortization for more than six months or for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue, may be compounded monthly and shall be payable only after
the outstanding principal of such Mortgage Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to the
principal portion of the related Monthly Payment. Neither the Seller nor any
affiliate thereof has any obligation to make any capital contribution to the
Borrower under the Mortgage Loan or otherwise.
22. Legal Proceedings. To the Seller's knowledge, as of origination of
the Mortgage Loan, there were no, and to the Seller's actual knowledge, as of
the Closing Date, there are no pending actions, suits, litigation or other
proceedings by or before any court or governmental authority against or
affecting the Borrower (or any guarantor to the extent a reasonably prudent
commercial or multifamily, as applicable, mortgage lender would consider such
guarantor material to the underwriting of such Mortgage Loan) under any Mortgage
Loan or the related Mortgaged Property that, if determined adversely to such
Borrower or Mortgaged Property, would materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan, the Borrower's
ability to pay principal, interest or any other amounts due under such Mortgage
Loan or the ability of any such guarantor to meet its obligations.
23. Other Mortgage Liens. Except as otherwise set forth on Schedule
C-23 and except for Mortgage Loans secured by residential cooperative
properties, none of the Mortgage Loans permits the related Mortgaged Property or
any direct controlling equity interest in the related
C-10
Borrower to be encumbered by any mortgage lien or, in the case of a direct
controlling equity interest in the related Borrower, a lien to secure any other
debt, without the prior written consent of the holder of the subject Mortgage
Loan or the satisfaction of debt service coverage or similar criteria specified
therein. To the Seller's knowledge, as of origination of the subject Mortgage
Loan, and to the Seller's actual knowledge, as of the Closing Date, except as
otherwise set forth on Schedule C-23, and except for cases involving other
Mortgage Loans, no Mortgaged Property securing the subject Mortgage Loan is
encumbered by any other mortgage liens (other than Permitted Encumbrances) and
no direct controlling equity interest in the related Borrower is encumbered by a
lien to secure any other debt. Except in the case where the related Mortgaged
Property is a residential cooperative property, the related Mortgage Loan
Documents require the Borrower under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
reasonable legal fees and expenses and any applicable Rating Agency fees, or
would permit the subject mortgagee to withhold such consent if such costs and
expenses are not paid by a party other than such mortgagee.
24. No Mechanics' Liens. To the Seller's knowledge, as of the
origination of the Mortgage Loan, and, to the Seller's actual knowledge, as of
the Closing Date: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance with Usury Laws. Each Mortgage Loan complied with, or
was exempt from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the extent required by applicable law, and
except as identified on Schedule C-26, each Mortgage Loan requires the related
Borrower to be qualified to do business, and requires the related Borrower and
the related Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive covenants and zoning
and building laws, in each case to the extent required by law or to the extent
that the failure to be so qualified or in compliance would have a material and
adverse effect upon the enforceability of the Mortgage Loan or upon the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the Seller's
knowledge, as of the date of origination of each Mortgage Loan and based on any
of: (i) a letter from governmental authorities, (ii) a legal opinion, (iii) an
endorsement to the related Title Policy, (iv) a representation of the related
Borrower at the time of origination of such Mortgage Loan, (v) a zoning report
from a zoning consultant, or (vi) other due diligence that the originator of the
Mortgage Loan customarily performs in the origination of comparable mortgage
loans, the related Borrower was in possession of all material licenses, permits
and franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. Except as set forth on Schedule
C-28A, no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon: (i) payment in full of all
C-11
amounts due under the related Mortgage Loan or (ii) delivery of "government
securities" within the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in
connection with a defeasance of the related Mortgage Loan; provided that the
Mortgage Loans that are Cross-Collateralized Mortgage Loans, and the other
individual Mortgage Loans secured by multiple parcels, may require the
respective mortgagee(s) to grant releases of material portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon: (i) the satisfaction of certain legal and underwriting requirements, (ii)
the payment of a release price (in an amount that is, except as otherwise set
forth on Schedule C-28B, at least equal to 125% of the allocated loan amount for
the released property or parcel) and prepayment consideration in connection
therewith or (iii) the delivery of substitute real estate collateral. No release
or partial release of any Mortgaged Property, or any portion thereof, expressly
permitted pursuant to the terms of any Mortgage Note or Mortgage will constitute
a significant modification of the related Mortgage Loan under Treas. Reg.
Section 1.860G-2(b)(2).
29. Defeasance. With respect to any Mortgage Loan that contains a
provision for any defeasance of mortgage collateral (a "Defeasance Loan"), the
related Mortgage Note or Mortgage provides that the defeasance option is not
exercisable prior to a date that is at least two (2) years following the Closing
Date and is otherwise in compliance with applicable statutes, rules and
regulations governing REMICs; requires prior written notice to the holder of the
Mortgage Loan of the exercise of the defeasance option and payment by the
Borrower of all related reasonable fees, costs and expenses as set forth below;
if the Borrower would continue to own assets in addition to the defeasance
collateral, requires, or permits the lender to require, the Mortgage Loan (or
the portion thereof being defeased) to be assumed by a single-purpose entity;
and requires counsel to provide a legal opinion that the Trustee has a perfected
security interest in such collateral prior to any other claim or interest. In
addition, each Mortgage Loan that is a Defeasance Loan permits defeasance only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount sufficient to make
all scheduled payments under the Mortgage Note (or the portion thereof being
defeased) when due, and in the case of ARD Loans, assuming the Anticipated
Repayment Date is the Maturity Date. To the Seller's actual knowledge,
defeasance under the Mortgage Loan is only for the purpose of facilitating the
disposition of a Mortgaged Property and not as part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages. With respect to each Defeasance Loan, except as set forth on Schedule
C-29, the related Mortgage Loan Documents provide that the related Borrower
shall (a) pay all Rating Agency fees associated with defeasance (if rating
confirmation is a specific condition precedent thereto) and all other reasonable
expenses associated with defeasance, including, but not limited to, accountant's
fees and opinions of counsel, or (b) provide all opinions required under the
related loan documents, including, if applicable, a REMIC opinion and a
perfection opinion and any applicable rating agency letters confirming no
downgrade or qualification of ratings on any classes in the transaction.
Additionally, for any Mortgage Loan having a Cut-off Date Principal Balance
equal to or greater than $19,900,000, the Mortgage Loan or the related documents
require confirmation from the Rating Agency that exercise of the defeasance
option will not cause a downgrade or withdrawal of the rating assigned to any
securities backed by the Mortgage Loan and require the Borrower to pay any
Rating Agency fees and expenses.
30. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
31. Inspection. Except as set forth on Schedule C-31, the Seller, an
affiliate of the Seller, or a correspondent in the conduit funding program of
the Seller, inspected, or caused the
C-12
inspection of, each Mortgaged Property securing a Mortgage Loan within twelve
(12) months of the Closing Date.
32. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan; provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Seller in this Exhibit C.
33. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Borrower, is
transferred or sold, other than by reason of: (i) if the related Mortgaged
Property is a residential cooperative property, transfers of stock of the
Borrower in connection with the assignment of a proprietary lease for an
apartment unit in the related Mortgaged Property by a tenant-shareholder of the
Borrower to other persons who by virtue of such transfers become
tenant-shareholders in the Borrower; and (ii) in the case of other types of
Mortgaged Properties, family and estate planning transfers, transfers of less
than a controlling interest in the Borrower, transfers of shares in public
companies, issuance of non-controlling new equity interests, transfers to an
affiliate meeting the requirements of the Mortgage Loan, transfers among
existing members, partners or shareholders in the Borrower, transfers among
affiliated Borrowers with respect to cross-collateralized Mortgaged Loans or
multi-property Mortgage Loans, transfers among co-Borrowers or transfers of a
similar nature to the foregoing meeting the requirements of the Mortgage Loan.
Except in the case where the related Mortgaged Property is a residential
cooperative property, the related Mortgage Loan Documents require the Borrower
under each Mortgage Loan to pay all reasonable fees and expenses associated with
securing the consent or approval of the holder of the related Mortgage for all
actions requiring such consent or approval under the related Mortgage, including
the cost of counsel opinions relating to REMIC or other securitization and tax
issues or require the payment of a specified fee or fees, including a 1%
assumption fee that would be applied to pay such fees and expenses.
34. Single Purpose Entity. Except in cases where the related Mortgaged
Property is a residential cooperative property and, further, except as otherwise
described on Schedule C-34 hereto, each Mortgage Loan with an original principal
balance over $5,000,000.00 requires the related Borrower to be, at least for so
long as the Mortgage Loan is outstanding, and to the Seller's actual knowledge,
the related Borrower is, a Single-Purpose Entity. For this purpose,
"Single-Purpose Entity" means a person, other than an individual, which is
formed or organized solely for the purpose of owning and operating the related
Mortgaged Property or Properties; does not engage in any business unrelated to
such Mortgaged Property or Properties and the financing thereof; and whose
organizational documents provide, or which entity represented and covenanted in
the related Mortgage Loan Documents, substantially to the effect that such
Borrower (i) does not and will not have any material assets other than those
related to its interest in such Mortgaged Property or Properties or the
financing thereof; (ii) does not and will not have any indebtedness other than
as permitted by the related Mortgage or other related Mortgage Loan Documents;
(iii) maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other person; and
(iv) holds itself out as being a legal entity, separate and apart from any other
person. In addition, each Mortgage Loan with a Cut-off Date Principal Balance of
$20,000,000 or more, except in cases where the related Mortgaged Property is a
residential cooperative property and, further, except as set forth on Schedule
C-
C-13
34, the related Borrower's organizational documents provide substantially to the
effect that the Borrower shall: conduct business in its own name; not guarantee
or assume the debts or obligations of any other person; not commingle its assets
or funds with those of any other person; prepare separate tax returns and
financial statements, or if part of a consolidated group, be shown as a separate
member of such group; transact business with affiliates on an arm's length
basis; hold itself out as being a legal entity, separate and apart from any
other person, and such organizational documents further provide substantially to
the effect that: any dissolution and winding up or insolvency filing for such
entity is prohibited or requires the consent of an independent director or
member or the unanimous consent of all partners or members, as applicable; such
documents may not be amended with respect to the Single-Purpose Entity
requirements without the approval of the mortgagee or rating agencies; the
Borrower shall have an outside independent director or member. Except in cases
where the related Mortgaged Property is a residential cooperative property, the
Seller has obtained, with respect to each Mortgage Loan having a Cut-off Date
Principal Balance of $20,000,000 or more, in connection with its origination or
acquisition thereof, a counsel's opinion regarding non-consolidation of the
Borrower in any insolvency proceeding involving any other party. To the Seller's
actual knowledge, each Borrower has fully complied with the requirements of the
related Mortgage Note and Mortgage and the Borrower's organizational documents
regarding Single-Purpose-Entity status. The organization documents of any
Borrower on a Mortgage Loan having a Cut-off Date Principal Balance of
$20,000,000 or more that is a single member limited liability company, provide
that the Borrower shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member. Any such single member
limited liability company Borrower is organized in jurisdictions that provide
for such continued existence, and the Seller has obtained, in connection with
its origination or acquisition of the subject Mortgage Loan, an opinion of such
Borrower's counsel confirming such continued existence and that the applicable
law provides that creditors of the single member may only attach the assets of
the member including the membership interests in the Borrower but not the assets
of the Borrower.
35. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
36. Tax Parcels. Except as described on Schedule C-36 of this
Agreement, each Mortgaged Property constitutes one or more complete separate tax
lots containing no other property, or is subject to an endorsement under the
related Title Policy insuring same, or an application for the creation of
separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made and approved by
the applicable governing authority and such separate tax lots shall be effective
for the next tax year.
37. ARD Loans. Except as described on Schedule C-37, each Mortgage Loan
which is an ARD Loan commenced amortizing on its initial scheduled Due Date, and
provides that: (i) its Mortgage Rate will increase by at least two (2)
percentage points in connection with the passage of its Anticipated Repayment
Date; (ii) its Anticipated Repayment Date is not less than seven (7) years
following the origination of such Mortgage Loan; (iii) no later than the related
Anticipated Repayment Date, the related Borrower is required (if it has not
previously done so) to enter into a "lockbox agreement" whereby all revenue from
the related Mortgaged Property shall be deposited directly into a designated
account controlled by the Master Servicer; and (iv) any net cash flow from the
related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the scheduled principal and interest payment payable therefrom,
be net of budgeted and discretionary (servicer approved) capital expenditures.
C-14
38. Security Interests. The security agreements, financing statements
or other instruments, if any, related to the Mortgage Loan establish and create,
and a UCC financing statement has been filed and/or recorded in all places
required by applicable law for the perfection of (to the extent that the filing
of such a UCC financing statement can perfect such a security interest), a valid
security interest in the personal property granted under such Mortgage (and any
related security agreement), which in all cases includes elevators and all
Borrower-owned furniture, fixtures and equipment material to the operation and
use of the Mortgaged Property as presently operated, and if such Mortgaged
Property is a hotel operated by the related Borrower, then such personal
property constitutes such portion of the material personal property required to
operate the Borrower's business as the Seller considered appropriate in light of
its underwriting standards; any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the Mortgage
Loan establishes and creates a valid and enforceable lien and security interest
on the property described therein (subject to the exceptions set forth in
Paragraph 13 above), which lien/security interest shall, in the case of (i)
elevators at all Mortgaged Properties having the same and (ii) all
Borrower-owned furniture, fixtures and equipment at Borrower operated hotel
properties, be a first priority lien/security interest except for certain
personal property subject to purchase money security interests and personal
property leases. In the case of any Mortgage Loan secured by a hotel, the
related loan documents contain such provisions as are necessary and UCC
Financing Statements have been filed as necessary, in each case, to perfect a
valid first priority security interest in the related revenues with respect to
such Mortgaged Property. An assignment of each UCC financing statement relating
to the Mortgage Loan has been executed by the Seller in blank which the
Purchaser or Trustee, as applicable, or its designee is authorized to complete
and to file in the filing office in which such financing statement was filed.
Each Mortgage Loan and the related Mortgage (along with any security agreement
and UCC financing statement), together with applicable state law, contain
customary and enforceable provisions such as to render the rights and remedies
of the holders thereof adequate for the practical realization against the
personal property described above, and the principal benefits of the security
intended to be provided thereby.
39. Disclosure to Environmental Insurer and Other Matters. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impaired property policy, then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; and
(b) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent required by such policy or to the extent the failure
to make any such disclosure or deliver any such report would materially and
adversely affect the Purchaser's ability to recover under such policy. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impaired property policy, then: (x) all premiums for such insurance have been
paid; (y) such insurance is in full force and effect; and (z) (i) an
environmental report, a property condition report or an engineering report was
prepared that included an assessment for lead based paint ("LBP") (in the case
of a multifamily property built prior to 1978), asbestos containing materials
("ACM") (in the case of any property built prior to 1985) and radon gas ("RG")
(in the case of a multifamily property) at such Mortgaged Property and (ii) if
such report disclosed the existence of a material and adverse LBP, ACM
C-15
or RG environmental condition or circumstance affecting such Mortgaged Property,
then, except as otherwise described on Schedule C-39, (A) the related Borrower
was required to remediate such condition or circumstance prior to the closing of
the subject Mortgage Loan, or (B) the related Borrower was required to provide
additional security reasonably estimated to be adequate to cure such condition
or circumstance, or (C) the related Mortgage Loan documents require the related
Borrower to establish an operations and maintenance plan with respect to such
condition or circumstance after the closing of such Mortgage Loan. If the
Mortgage Loan is listed on Schedule C-12(EI) and the environmental insurance for
such Mortgage Loan is not a secured creditor policy but was required to be
obtained by the Borrower, then the holder of the Mortgage Loan is entitled to be
an additional insured under such policy, all premiums have been paid, such
insurance is in full force and effect and, to the Seller's knowledge, the
Borrower has made the disclosures and complied with the requirements of clauses
(a) and (b) of this Paragraph 39.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treas. Reg. Section 1.860G-1(b)(2).
41. Operating Statements. Except for the Mortgage Loans with an initial
principal balance less than $3,000,000, which may only require annual
statements, and except as set forth on Schedule C-41, each Mortgage Loan
requires the Borrower, in some cases only at the request of the holder of the
related Mortgage, to provide the owner or holder of the related Mortgage with at
least quarterly and annual operating statements, rent rolls (if there is more
than one tenant) and related information (except in cases where the related
Mortgaged Property is a residential cooperative property) and annual financial
statements, which annual financial statements with respect to each Mortgage Loan
with an original principal balance greater than $20 million shall be audited (or
prepared and certified) by an independent certified public accountant upon the
request of the holder of the related Mortgage.
42. Servicing Rights. Except as set forth on Schedule C-42 or as
otherwise contemplated in this Agreement or the Pooling and Servicing Agreement,
no Person has been granted or conveyed the right to service any Mortgage Loan or
receive any consideration in connection therewith.
43. Recourse. Each Mortgage Loan (other than a Mortgage Loan secured by
a residential cooperative property) is non-recourse; provided that, except as
described on Schedule C-43 or for Mortgage Loans with a Cut-off Date Principal
Balance of less than $5,000,000, the Borrower and either a principal of the
Borrower or other individual guarantor, with assets other than any interest in
the Borrower, is liable in the event of (i) fraud or material misrepresentation,
(ii) misapplication or misappropriation of rents, insurance payments,
condemnation awards or tenant security deposits, (iii) violation of applicable
environmental laws or breaches of environmental covenants or (iv) the filing of
a voluntary bankruptcy or insolvency proceeding by the Borrower; and provided,
further, that, with respect to clause (iii) of the preceding proviso, an
indemnification against losses related to such violations or environmental
insurance shall satisfy such requirement. No waiver of liability for such
non-recourse exceptions has been granted to the Borrower or any such guarantor
or principal by the Seller or anyone acting on behalf of the Seller.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that has not been assigned to the Purchaser.
C-16
45. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
46. Servicing. The servicing and collection practices used with respect
to each Mortgage Loan in all material respects have met customary standards
utilized by prudent commercial mortgage loan servicers with respect to whole
loans.
47. Originator's Authorization To Do Business. To the extent required
under applicable law, as of the Mortgage Loan's funding date and at all times
when it held such Mortgage Loan, the originator of each Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located, except where the failure to be so authorized does not
adversely affect the enforceability of such Mortgage Loan.
48. No Fraud In Origination. In the origination of the Mortgage Loan,
neither the originator nor any employee or agent of the Seller or the
originator, participated in any fraud or intentional material misrepresentation
with respect to the Borrower, the Mortgaged Property or any guarantor. To the
Seller's actual knowledge, no Borrower is guilty of defrauding or making an
intentional material misrepresentation to the Seller or originator with respect
to the origination of the Mortgage Loan, the Borrower or the Mortgaged Property.
49. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's actual
knowledge, had no interest, direct or indirect, in the Borrower, the Mortgaged
Property or in any loan made on the security of the Mortgaged Property, and
whose compensation is not affected by the approval or disapproval of the
Mortgage Loan; to the Seller's knowledge, the appraisal and appraiser both
satisfy the requirements of the "Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, all as in effect on the date the Mortgage Loan was originated.
50. Jurisdiction of Organization. Each Borrower under a Mortgage Loan
was organized under the laws of the United States or the laws of a jurisdiction
located within the United States, its territories and possessions.
51. Borrower Concentration. Except as otherwise specified on Schedule
C-51, no single Borrower or group of affiliated Borrowers is/are the obligor(s)
under any one or more Mortgage Loans with a Cut-off Date Principal Balance of
$50,000,000 or more.
52. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of the
Seller or its agents (which shall include the Master Servicer). All such escrow
deposits which are required for the administration and servicing of such
Mortgage Loan are conveyed hereunder to the Purchaser.
53. Access. The Mortgaged Property securing each Mortgage Loan is
located on or adjacent to a public road, or has access to an irrevocable
easement permitting ingress and egress.
C-17
EXCEPTIONS TO MLPA REPRESENTATION AND WARRANTIES
SCHEDULE C-6
MORTGAGE STATUS; WAIVERS AND MODIFICATIONS
An assumption of Loan No. 13445/Valley Square closed
approximately October 4, 2001.
C-18
SCHEDULE C-14
INSURANCE
With respect to Loan No. 13186/3111, 3141 and 3151 Coronado, the insurer that
issued the property and liability insurance has an S&P rating of "BBB+" and an
A.M. Best rating of "A-: X". The related Mortgage Loan Documents require the
related Borrower to maintain such property and liability insurance with one or
more insurers satisfactory to the mortgagee in its sole discretion and having a
rating of at least "A:V" by A.M. Best.
X-00
XXXXXXXX X-00
XXXXXXXXX XXXXXX ONLY
Mortgage Loan No. 10013614/Bayshore Mall is secured by a mortgage lien
on (i) Borrower's fee simple interest in an anchored retail shopping mall and
related surface parking lots and (ii) Borrower's leasehold interest in a small
portion of a surface parking area which is leased by Borrower from the City of
Eureka, California. Currently, the parking spaces in the ground leased area are
not being utilized by the Borrower. Seller, based on due diligence customary for
prudent commercial lenders in the origination of commercial mortgage loans
similar to the Bayshore Mall Mortgage Loan, determined that the failure to have
use of the ground leased parking area would not negatively affect the zoning
compliance of the Mortgaged Property. The following disclosures apply with
respect to that portion of the parking area that is the subject of the ground
lease:
a. The Ground Lease provides that it may be assigned incident to any
mortgage financing of the adjoining retail shopping mall property upon the
consent of the Executive Officer of the State Coastal Conservancy. Such
consent was not specifically obtained in connection with the loan closing.
The ground leased property may only be used for a parking area with a
portion of such parking area to be used for visitors to the adjacent xxxxx
land area.
b. The Ground Lease does not address mortgages or other liens upon the
related Fee Interest.
c. The Ground Lease does not address the assignability of the Ground
Lease to the Purchaser.
e. Although the Ground Lease requires the lessor to give notice of
default to the mortgagee, it does not specifically provide that no notice
of termination is effective against the mortgagee unless a copy has been
delivered to such mortgagee.
f. The mortgagee is given the right to cure defaults within the stated
cure period unless the lessor enters into a new agreement with the
mortgagee.
h. The Ground Lease does not specifically require the lessor to enter
into a new lease with the mortgagee upon termination of the Ground Lease at
a result of rejection in bankruptcy.
i. The Ground Lease is silent as to casualty proceeds (the property is
a surface parking lot) and the Borrower is entitled to a pro-rata portion
of any condemnation awards.
j. The Ground Lease provides that no sublease is allowed without the
consent of the owner of the Fee Interest.
k. The Ground Lease does not specifically address quiet enjoyment.
l. The Ground Lease does not specifically provide that it may not be
amended or modified without the prior consent of the mortgagee.
C-20
SCHEDULE C-21
NO EQUITY INTEREST, EQUITY PARTICIPATION OR CONTINGENT INTEREST
Loan No. 14222/Sterling University - Grove and Loan No. 14248/Sterling
University - Xxxxxxx each provide for monthly interest only payments through May
1, 2003.
C-21
SCHEDULE C-23
OTHER MORTGAGE LIENS
With respect to Loan No. 13186/3111, 3141 and 3151 Coronado, the
related Mortgage permits future mezzanine financing only with the lender's prior
written consent and only upon satisfaction of criteria specified in the
Mortgage, including a specified debt service coverage ratio, execution of an
intercreditor and subordination agreement, rating agency confirmation, and
establishment of a lockbox account.
C-22
SCHEDULE C-26
LICENSES AND PERMITS
The Mortgage Loan Documents for Loan No. 14222/Sterling University -
Grove and Loan No. 14248/Sterling University - Xxxxxxx do not specifically
require the related Borrower to be qualified to do business but do require the
Borrower to do all things necessary to preserve existence.
C-23
SCHEDULE C-33
DUE - ON - SALE
With respect to Loan No. 13186/3111, 3141 and 3151 Coronado, the
related Mortgage permits future mezzanine financing only with the lender's prior
written consent and only upon satisfaction of criteria specified in the
Mortgage, including a specified debt service coverage ratio, execution of an
intercreditor and subordination agreement, rating agency confirmation, and
establishment of a lockbox account.
C-24
SCHEDULE C-34
SINGLE PURPOSE ENTITY
The organizational documents of the Borrower for Loan No.
13614/BayShore Mall do not require that the related Borrower prepare separate
tax returns but do require the maintenance of separate financial statements.
C-25
SCHEDULE C-36
TAX PARCELS
The tax parcel for the Mortgaged Property securing Loan No.
13754/Signal Butte includes additional property. It is anticipated that this
situation will be resolved by September 2002. Seller has required on escrow of
funds for taxes for all property included in the tax parcel until such time that
Seller has received satisfactory evidence that the property has been issued a
tax parcel identification number that includes no other property.
C-26
SCHEDULE C-41
OPERATING STATEMENTS
With the exception of Loan Nos. 00000/00-000 Xxxxxxx Xxxxxx,
00000/Xxxxxx Square, 14222/Sterling University - Grove and 14248/Sterling
University - Xxxxxxx, none of the Mortgage Loans require the delivery of an
annual financial statement of the related Borrower, but do require the delivery
of an annual balance sheet of the related Borrower.
Loan Nos. 14222/Sterling University - Grove and 14248/Sterling
University - Xxxxxxx require rent rolls to be delivered annually and upon
lender's request, but do not require the delivery of quarterly rent rolls.
Loan Nos. 13186/3111-3151 Coronado, 13614/GGP Xxxxxxxx Xxxx,
00000/Xxxxxxxx'x Xxxxx, 00000/Xxx-Xxxxxx Xxxxxxxxxxx, 00000/Xxxx'x Xxxx,
00000/Xxxxxxxx Xxxxxx and 15098/Coldwater Crossing do not require the delivery
of annual financial statements audited (or prepared and certified) by an
independent certified public accountant upon the request of the holder of the
related Mortgage but do require such statements to be delivered and to be
certified by either (i) the chief financial officer of the related Borrower,
(ii) another Person designated in the related Mortgage Loan Documents, or (iii)
another Person acceptable to the holder of the related Mortgage.
C-27
SCHEDULE C-42
SERVICING RIGHTS
A third party is entitled to receive a correspondent servicing fee with
respect to Loan Xx. 00000/000 Xxxxxxxx Xxxxx.
C-28
SCHEDULE S-43
RECOURSE
Loan Nos. 00000/00-000 Xxxxxxx Xxxxxx, 00000/Xxxxxxxxxxx Plaza and
13445/Valley Square provides for liability in the event of intentional
misrepresentation rather than material misrepresentation.
The following Mortgage Loans do not provide for liability in the event
of the filing of a voluntary bankruptcy or insolvency proceeding by the
Borrower:
1286 Oakridge Shopping Center
13754 Signal Butte
14222 Sterling University - Grove
14248 Sterling University - Xxxxxxx
Loan No. 12903/1934 00xx Xxxxxx provides for full recourse against the
Borrower.
With respect to each of the following Mortgage Loans, the principal of
Borrower liable for the specified "carve-outs" is an entity rather than an
individual:
00000 Xxxxxxxxxxx Xxxxx
00000 Xxxxxxxx University - Grove
14248 Sterling University - Xxxxxxx
00000 Xxxxxxxx'x Xxxxx
00000 Xxx-Xxxxxx Xxxxxxxxxxx
00000 Xxxx'x Xxxx
00000 Xxxxxxxx Xxxxxx
15098 Coldwater Crossing
C-29
EXHIBIT D-1A
FORM OF CERTIFICATE OF THE SECRETARY
OR AN ASSISTANT SECRETARY OF THE SELLER
KEYBANK NATIONAL ASSOCIATION
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxx X. Xxxxxxx, hereby certify that I am a duly appointed
Assistant Secretary of KeyBank National Association, a national banking
association (the "Bank"), and further certify as follows:
1. Attached hereto as Attachment A are true, correct and complete
copies of the Articles of Association and the By-Laws of the Bank, which are in
full force and effect on the date hereof.
2. Attached hereto as Attachment B are the resolutions of the board of
directors of the Bank authorizing and approving the Bank's execution, delivery
and performance of (a) the Mortgage Loan Purchase Agreement, dated as of
November 1, 2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse
First Boston Mortgage Securities Corp., as purchaser and the Bank, as seller,
and (b) the corresponding Indemnification Agreement referred to in the Mortgage
Loan Purchase Agreement (the "Indemnification Agreement"). Such resolutions are
in full force and effect on the date hereof and do not conflict with any other
resolutions of the board of directors of the Bank in effect on the date hereof.
3. Attached hereto as Attachment C is a certificate of good standing
with respect to the Bank issued by the Comptroller of the Currency within 30
days of the date hereof and no event (including, without limitation, any act or
omission on the part of the Bank) has occurred since the date thereof that has
affected the good standing of the Bank under the laws of the United States of
America.
4. Each person who, as an officer or representative of the Bank, signed
the Mortgage Loan Purchase Agreement, the Indemnification Agreement or any other
document or certificate delivered by or on behalf of the Bank prior hereto or on
the date hereof in connection with the transactions contemplated in the Mortgage
Loan Purchase Agreement and/or the Indemnification Agreement, was, at the
respective times of such signing and delivery, and is as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
representative, and the signature of each such person appearing on any such
documents is his or her genuine signature.
D-1A-1
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
November __, 2001.
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary
D-1A-2
ATTACHMENT A
ARTICLES OF ASSOCIATION AND BY-LAWS OF THE BANK
D-1A-3
ATTACHMENT B
RESOLUTIONS OF THE BANK
D-1A-4
ATTACHMENT C
OCC CERTIFICATE OF GOOD STANDING
D-1A-5
EXHIBIT D-1B
FORM OF CERTIFICATE OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CKN5
CERTIFICATE OF KEYBANK NATIONAL ASSOCIATION
In connection with the execution and delivery by KeyBank National
Association ("KeyBank") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
November 1, 2001 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse
First Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and KeyBank,
as seller, and that certain Indemnification Agreement dated as of November 1,
2001 (the "Indemnification Agreement and, together with the Mortgage Loan
Purchase Agreement, the "Agreements"), between KeyBank, CSFBMSC and Credit
Suisse First Boston Corporation, as representative of the Underwriters and as
initial purchaser of the Privately Offered Certificates, the undersigned hereby
certifies that (i) the representations and warranties of KeyBank in the
Agreements are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) KeyBank has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Mortgage Loan Purchase Agreement to be
performed or satisfied at or prior to the date hereof. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Mortgage Loan Purchase Agreement.
Certified this day of November, 2001.
KEYBANK NATIONAL ASSOCIATION
By:
----------------------------------
Name:
Title:
D-1B-1
EXHIBIT D-2A
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE SELLER,
PURSUANT TO SECTION 7(VI)
November 13, 2001
Xxxxx'x Investors Service, Inc. Standard & Poor's Ratings Services
00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx.
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000-0000
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
Xxxxxx Brothers Inc.
000 Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Series 2001-CKN5
---------------------------------------------------------------------
Ladies and Gentlemen:
As Senior Vice President and Associate General Counsel of KeyBank
National Association, a national banking association (the "Bank"), I have acted
as counsel to the Bank and to its affiliate KeyCorp Real Estate Capital Markets,
Inc. (the "Corporation"), in connection with the negotiation, execution and
delivery by the Bank and the Corporation of the agreements listed below.
In that regard, I or attorneys working under my direction have examined
and relied upon originals or copies, certified or otherwise identified to my
satisfaction as being true copies of all such records of the Bank and the
Corporation, all such agreements, certificates and other documents as I have
deemed necessary as a basis for the opinions set forth herein, including the
following agreements executed in connection with the above referenced
securities:
1. The Mortgage Loan Purchase Agreement between the Bank and Credit
Suisse First Boston Mortgage Securities Corp. ("CSFBMSC");
2. The Pooling and Servicing Agreement among the Corporation, as
General Master Servicer and General Special Servicer, National Consumer
Cooperative Bank, as Co-op Master Servicer and Co-op Special Servicer,
CSFBMSC, as Depositor, and Xxxxx Fargo Bank Minnesota, N.A., as Trustee;
and
D-2A-1
3. The Mortgage Loan Seller Indemnification Agreement among the Bank,
CSFBMSC and Credit Suisse First Boston Corporation, as Representative of
the Underwriters and Initial Purchaser.
The agreements listed in items 1 through 3 above are collectively
referenced herein as the "Agreements."
In such examination, I or such attorneys working under my direction
have assumed the genuineness of all signatures other than those signatures for
the Bank and the Corporation, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as certified or
photostatic copies. I or such attorneys have investigated such questions of law
for the purpose of rendering these opinions as I have deemed necessary.
Based on the foregoing, and subject to the limitations and
qualifications set forth below, I am of the opinion that:
(a) the Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with corporate power and authority to own its properties and
to conduct its business as now conducted by it and to enter into and perform its
obligations under the Agreements it is a party to;
(b) the Corporation has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Ohio;
(c) the Corporation has the corporate power and authority to own its
properties and to conduct its business as now conducted by it and to enter into
and perform its obligations under the Agreements it is a party to;
(d) the Agreements to which it is a party have been duly and validly
authorized, executed and delivered by each of the Bank and the Corporation;
(e) neither the execution and delivery by the Bank of the Agreements it
is a party to, nor the consummation by the Bank of the transactions contemplated
by such Agreements, nor the performance by the Bank of its obligations
thereunder will result in a material breach or violation of, or constitute a
material default under (i) the Articles of Association or by-laws, as amended,
of the Bank, (ii) the terms of applicable current provisions of statutory law or
regulation, (iii) any existing obligation of the Bank under any indenture,
agreement, or instrument actually known to me, after reasonable investigation,
which breach, violation or default would reasonably be expected to have a
material adverse effect on the condition of the Bank, financial or otherwise, or
adversely affect the transactions contemplated by, or the Bank's performance of
its obligations under, the Agreements to which the Bank is a party, or (iv) the
terms of any order, writ, judgement or decree actually known to me after
reasonable investigation, issued by a court of competent jurisdiction and
specifically directed to the Bank or its property;
(f) neither the execution and delivery by the Corporation of the
Agreements it is a party to, nor the consummation by the Corporation of the
transactions contemplated by such 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
D-2A-2
by-laws, as amended, of the Corporation, (ii) the terms of applicable current
provisions of statutory law or regulation, (iii) any existing obligation of the
Corporation under any indenture, agreement, or instrument actually known to me,
after reasonable investigation, which breach, violation or default would
reasonably be expected to have a material adverse effect on the condition of the
Corporation, financial or otherwise, or adversely affect the transactions
contemplated by, or the Corporation's performance of its obligations under, the
Agreements to which the Corporation is a party, or (iv) the terms of any order,
writ, judgement or decree actually known to me after reasonable investigation,
issued by a court of competent jurisdiction and specifically directed to the
Corporation or its property;
(g) no consent, approval or authorization of, or filing with, any
governmental agency or body is required of either the Bank or the Corporation in
connection with its execution, delivery and performance of the Agreements to
which it is a party, except such consents, approvals or authorizations as have
been obtained or such filings as have been made; and
(h) to my actual knowledge, after reasonable investigation, there are
no actions, proceedings or investigations pending or threatened against the Bank
or the Corporation before any court, administrative agency, or tribunal (i)
asserting the invalidity of any of the Agreements, (ii) seeking to prevent the
consummation of any of the transactions contemplated by any of the Agreements,
or (iii) that could reasonably be expected to materially and adversely affect
the enforceability of any of the Agreements against the Bank or the Corporation,
as the case may be, or the ability of the Bank or the Corporation, as the case
may be, to perform its obligations thereunder.
For purposes of this opinion letter, I have assumed that (i) the
Agreements have been duly executed and delivered by all parties thereto (other
than the Bank and/or the Corporation, as the case may be) and are valid and
binding upon and enforceable against such parties (other than the Bank and/or
the Corporation, as the case may be), subject to applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance and other similar laws relating to
or affecting creditors' rights generally and court decisions with respect
thereto and (ii) there has been no mutual mistake of fact or misunderstanding,
fraud, duress, or undue influence.
The opinions expressed above are limited to Federal law and the laws of
the State of Ohio.
This opinion is rendered solely to the addressees hereof, for their use
in connection with the transactions contemplated herein and may not be relied
upon for any other purpose or by any other person.
Very truly yours,
Xxxxxx X. Xxxxx
Senior Vice President and
Associate General Counsel
D-2A-3
EXHIBIT D-2B
FORM OF OPINION OF PHILLIPS, LYTLE, XXXXXXXXX, XXXXXX & XXXXX LLP,
PURSUANT TO SECTION 7(VII)
November 13, 2001
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Credit Suisse First Boston Mortgage McDonald Investments Inc.
Securities Corp. 000 Xxxxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxxxxx, XX 00000
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc. Standard & Poor's Rating Services,
00 Xxxxxx Xxxxxx a division of The XxXxxx-Xxxx Companies
Xxx Xxxx, XX 00000 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Re: Pooling and Servicing Agreement among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor ("Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as General Master Servicer and General
Special Servicer, National Consumer Cooperative Bank as Co-op Master
Servicer and Co-op Special Servicer and Xxxxx Fargo Bank Minnesota,
N.A., as Trustee dated as of November 12, 2001 ("PSA")
and
Mortgage Loan Purchase Agreement between KeyBank National Association,
as Seller, and Credit Suisse First Boston Mortgage Securities Corp.,
as Purchaser dated November 1, 2001 ("MLPA" and together with the PSA,
the "Agreements")
Ladies and Gentlemen:
We have acted as special local counsel to KeyCorp Real Estate Capital
Markets, Inc. ("Company"), as General Special Servicer in connection with the
execution and delivery of the PSA, and to KeyBank National Association
("KeyBank"), as Seller in connection with the execution and delivery of the
MLPA.
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
D-2B-1
this opinion. As to facts material to our opinion we have, when relevant facts
were not independently established, relied upon the representations of the
Company and KeyBank in the Agreements.
In rendering the opinions expressed herein, we have assumed (i) the
genuineness of all signatures by each party; (ii) the authenticity of all
documents submitted to us as originals; (iii) the conformity to original
documents of all documents submitted to us as conformed or photostatic copies;
(iv) the conformity in all material respects of the final executed forms of the
Agreements with the versions submitted to us in draft form on November 8, 2001;
(v) the due formation and valid existence of the parties to the Agreements; and
(vi) the due authorization, execution and delivery of the Agreements by the
parties thereto, and their power and authority (including the obtaining of all
necessary permits, licenses and approvals) to execute and perform each of the
Agreements.
Based upon the foregoing assumptions and subject to the qualifications
hereinafter set forth, it is our opinion that, as of the date hereof:
1. The PSA constitutes the legal, valid and binding contract and
agreement of the Company and is enforceable in accordance with its terms.
2. The MLPA constitutes the legal, valid and binding contract and
agreement of KeyBank and is enforceable in accordance with its terms.
Our opinions concerning the enforceability of the Agreements are
subject to the qualification that:
(a) enforceability may be limited by or subject to (i) state and/or
federal bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws and rules of law affecting the enforcement generally
of creditors' rights and remedies; (ii) an implied duty of good faith; and (iii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable in whole
or in part, although the inclusion of such provisions does not render any of the
Agreements invalid as a whole, and the Agreements contain legally adequate
provisions for enforcing the other obligations of the parties thereunder and for
the practical realization of the principal rights and benefits purported to be
afforded thereby, subject to the economic consequences of any judicial,
administrative, or other procedural delay in connection with such enforcement
and realization.
In connection with servicing by the Company of mortgages on residential
property located in New York State, we point out that Section 6-k of the New
York Banking Law imposes certain obligations on mortgagees with respect to
casualty insurance escrow accounts, and Section 254 of the New York Real
Property Law imposes certain restrictions on the right of the mortgagee to
retain casualty insurance proceeds.
We express no opinion as to the applicability to, or effect on, the
transactions contemplated by either of the Agreements of any federal or state
securities law.
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
D-2B-2
letter is furnished to you solely for your benefit in connection with the
transactions contemplated by the Agreements. This opinion is not to be publicly
filed, used, circulated, quoted or otherwise relied upon by any other person or
entity or, for any other purpose, without our prior written consent.
Very truly yours,
D-2B-3
EXHIBIT D-2C
FORM OF OPINION OF XXXXXXXXXX XXXXXXX & XXXXX, P.C.,
PURSUANT TO SECTION 7(VIII)
November 13, 2001
Credit Suisse First Boston Corporation Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxx Xxxxxx 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Mortgage Xxxxx'x Investors Service, Inc.
Securities Corp. 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Standard & Poor's Rating Services
101 Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000-0000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association, a
national banking association ("Key"), in connection with the following
transactions (collectively, the "TRANSACTIONS"):
(i) the sale by Key, and the purchase by Credit Suisse First Boston
Mortgage Securities Corp. (the "DEPOSITOR") (such Transaction, the "SALE"),
of certain multifamily and commercial mortgage loans (the "MORTGAGE
LOANS"), pursuant to that certain Mortgage Loan Purchase Agreement dated as
of November 1, 2001 (the "LOAN PURCHASE AGREEMENT"), between Key as seller
and the Depositor as purchaser;
(ii) the creation of a common law trust (the "TRUST") and the issuance
of Commercial Mortgage Pass-Through Certificates, Series 2001-CKN5 (the
"CERTIFICATES"), pursuant to that certain Pooling and Servicing Agreement
dated as of November 12, 2001 (the "POOLING AND SERVICING AGREEMENT"),
among the Depositor as Depositor, KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage as General Master Servicer and General
Special Servicer, National Consumer Cooperative Bank as Co-op Master
Servicer and Co-op Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A.
as trustee (the "TRUSTEE"); and
D-2C-1
(iii) the transfer of the Mortgage Loans by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement in exchange for the
issuance of the Certificates at the direction of the Depositor.
The Loan Purchase Agreement and the Pooling and Servicing Agreement are
collectively referred to herein as the "AGREEMENTS". Capitalized terms not
defined in this letter have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the Loan Purchase
Agreement.
Under the terms of the Loan Purchase Agreement, Key will sell to the
Depositor, without recourse (except to the extent specified therein), all right,
title and interest of Key in and to the Mortgage Loans and the proceeds thereof.
Pursuant to the Pooling and Servicing Agreement, the Depositor will transfer the
Mortgage Loans to the Trustee, and the Trust will issue the Certificates
representing interests in the Trust. The following twenty-three classes of
Certificates representing beneficial interests in the Trust Fund will be issued
pursuant to the Pooling and Servicing Agreement: Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class A-X, Class
A-Y, Class A-CP, Class R, and Class V.
You have requested our opinion whether, in the event that the Federal
Deposit Insurance Corporation (the "FDIC") were appointed as conservator or
receiver for Key pursuant to Section 11(c) of the Federal Deposit Insurance Act
(the "FDIA"), a court, which acted reasonably and correctly applied the law to
the facts set forth herein after full consideration of all relevant factors,
would hold that the Rule (as defined herein) applies to the Sale and the
transfer of the Mortgage Loans by Key to the Depositor pursuant to the Loan
Purchase Agreement would be enforceable against Key notwithstanding the
appointment of the FDIC as conservator or receiver of Key.
ASSUMPTIONS OF FACT
In connection with this opinion, we have reviewed the Agreements and a
certificate, dated the date hereof, of an officer of Key (the "KEY
CERTIFICATE"), which certifies, to the best of such person's knowledge, inter
alia, as to certain of the matters in the immediately succeeding paragraph as of
the date hereof. This opinion is based solely upon our review of the Agreements
and such other documents, and such other investigations of law and fact, as we
have deemed necessary or advisable in connection with this opinion. Our opinion
is limited to the specific issues of federal law addressed and is further
limited in all respects, except as otherwise stated, to the facts assumed. We
express no opinion as to any other matter.
In rendering the opinions set forth herein, we have relied upon, and
assumed, without independent investigation or inquiry, the following to be true
at all relevant times:
(a) All representations and warranties set out in the Agreements, and
all statements in the Key Certificate and the certificates relating to the
Agreements or furnished in connection with the Transactions pertaining to
the transfer of the Mortgage Loans pursuant to the Agreements, are true and
correct.
(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
D-2C-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, conservatorship, fraudulent
transfer, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (2) general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
(d) The execution, delivery and performance of the Agreements by the
parties thereto do not violate any applicable law. All notices to, filings
with, and approvals of, all applicable governmental or regulatory
authorities required for the execution and delivery by Key, the Depositor,
and the Trustee of the Agreements and the performance by Key, the
Depositor, and the Trustee thereof have been obtained or made, and are in
full force and effect.
(e) Each of Key and the Depositor has taken all actions required under
applicable law to effectuate the transfer of the Mortgage Loans.
(f) There are no agreements or courses of prior dealing between any of
the parties that would alter the relationships set forth in the Agreements.
(g) The Depositor, Key, and the Trustee will at all times and in all
respects that are material to the opinions expressed in this letter comply
with all material provisions of the Agreements, as applicable.
(h) Key is a national banking association, the deposits of which are
insured by the FDIC pursuant to the provisions of the FDIA.
(i) As of the date of this opinion, Key has not violated any law or
regulation and is not in an unsafe or unsound condition that would
constitute a basis for the appointment of a conservator or receiver
pursuant to the FDIA.
(j) Key received adequate consideration, which may not be modified
subsequent to closing, for the transfer to the Depositor of the Mortgage
Loans pursuant to the Loan Purchase Agreement. Key has no obligation to
repay such consideration or any interest thereon to the Depositor. The
purchase price for the Mortgage Loans reflects the good-faith
determinations of Key and the Depositor of the fair market value of the
Mortgage Loans and is equal to the price that the parties believe would be
paid in a sale of the Mortgage Loans between other unaffiliated parties.
(k) Each of Key, the Depositor, and the Trustee did not and will not
(i) execute the Agreements or any other agreement to which it is a party in
connection with the Transactions or (ii) otherwise effectuate or consummate
any transfer of the Mortgage Loans pursuant to the Agreements or any other
agreement, in any case:
(1) in contemplation of Key's or the Depositor's insolvency;
D-2C-3
(2) with a view to preferring one creditor of Key or the Depositor
over another or to preventing the application of Key's or the
Depositor's assets in the manner required by applicable law or
regulations;
(3) after Key or the Depositor committed an act of insolvency; or
(4) with any intent to hinder, delay, or defraud Key or the Depositor
or any of their respective creditors, the FDIC or any other banking
agency.
(l) The execution, delivery and performance of each of the Agreements
and the Transactions constitute bona fide and arm's length transactions and
were and are undertaken in the ordinary course of business of the parties
to such Agreements.
(m) Key's assets are now, and are intended to be, sufficient to pay its
ongoing business expenses as they incur and to discharge its liabilities in
the event Key must be liquidated. Key's remaining property immediately
after the Sale is not an unreasonably small amount of capital for Key's
business operations.
(n) The Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class E, Class A-CP, Class A-X and Class A-Y Certificates are, as
of the date hereof, each rated in one of the four highest categories
assigned to long-term debt or in an equivalent short-term category by S&P
and Moody's.
(o) It is the intention of Key and the Depositor to treat the transfer
of the Mortgage Loans by Key to the Depositor pursuant to the Loan Purchase
Agreement as a sale (as set forth in Section 11 of the Loan Purchase
Agreement), and not a secured borrowing, including for accounting purposes,
and that the Sale is entered into for the sole purpose of effectuating the
Transactions under the Pooling and Servicing Agreement.
(p) Key has irrevocably transferred the Mortgage Loans to the Depositor
pursuant to the Loan Purchase Agreement, without recourse, and has
relinquished all rights with respect to the Mortgage Loans. Key has no
obligation to deliver to the Depositor other property, either in
substitution of or in addition to the Mortgage Loans, in the event of a
credit loss or decline in value of the Mortgage Loans. The Depositor has no
right or obligation to transfer the Mortgage Loans back to Key, and Key has
no right or obligation to reacquire any of the Mortgage Loans subsequent to
the Sale.(1)
------------------------
(1) Key makes certain representations and warranties regarding the Mortgage
Loans and, under certain circumstances, may be obligated to repurchase certain
Mortgage Loans or substitute new loans due to a breach of any such
representation or warranty. However, such obligation is limited, and any
repurchase or substitution of Mortgage Loans pursuant to this obligation would
result from the Mortgage Loans not being of the quality represented, and not
from a decline in the value of or future payment defaults on the Mortgage Loans
and does not give Key a general right to repurchase or otherwise reacquire the
Mortgage Loans or to reclaim any of the benefits of its ownership.
D-2C-4
(q) All of the requirements of generally accepted accounting principles
for treating the transfer of the Mortgage Loans as a sale have been
satisfied (other than the "legal isolation" condition).
(r) Key is and shall remain a separate and distinct entity from, and
shall not commingle its assets with those of, the Depositor, the Trustee
and/or the Trust. Key does not control, is not controlled by, and is not
under common control with, directly or indirectly, the Depositor or the
Trustee.
(s) The Depositor is a Delaware corporation and is a "special purpose
entity" (as defined in 12 C.F.R. ss. 360.6(a)(5)) and, as such, is
primarily engaged in acquiring and holding (or transferring to another
"special purpose entity") financial assets, and in activities related or
incidental thereto, in connection with the issuance of beneficial interests
by the Depositor (or by another "special purpose entity" that acquires
financial assets directly or indirectly from the Depositor).
(t) The Depositor, the Trustee or other appropriate party in interest
would actively oppose any attempt to recharacterize the Mortgage Loans as
property of Key's receivership or conservatorship estate under the FDIA.
OPINION EXPRESSED
Based on the reasoning and subject to the assumptions, qualifications
and limitations set forth in this letter, it is our opinion that in a properly
presented and decided case, a court would hold that the FDIC, if appointed as
receiver or conservator of Key pursuant to Section 11(c) of the FDIA:
(1) could not, in the exercise of its authority under 12 U.S.C. ss.
1821(e), reclaim, recover, or recharacterize as property of Key or the
receivership the Mortgage Loans that have been transferred by Key to the
Depositor pursuant to the Loan Purchase Agreement; and
(2) could not seek to avoid the Loan Purchase Agreement under 12
X.X.X.xx. 1823(e).
We wish to point out that we are giving no opinion (i) as to whether
the transfer of the Mortgage Loans by Key to the Depositor and, in turn, by the
Depositor to the Trust is a true sale or absolute conveyance, (ii) as to the
perfection or priority of any ownership interest or security interest in the
Mortgage Loans, (iii) concerning any law other than the federal laws of the
United States of America, or (iv) concerning any matter not expressly addressed
in this letter.
DISCUSSION
In an insolvency proceeding for Key, the United States Bankruptcy Code
(the "BANKRUPTCY CODE") would not apply.(2) Therefore, neither the provisions of
the Bankruptcy Code that impact the right of a secured creditor to liquidate
collateral nor the provisions of Section 547 of the Bankruptcy Code concerning
"preferential" transfers would apply in the event of the insolvency of Key. The
FDIC
---------------------
(2) 11 U.S.C.ss.ss.109(b)(2) and (d).
D-2C-5
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 (the "RULE").(3) If the Rule is applicable to
the Sale, the FDIC will not use its authority to disaffirm or repudiate the Loan
Purchase Agreement to reclaim, recover or recharacterize the Mortgage Loans as
property of Key. As of the date of this opinion, the Rule has not been modified
or repealed, and we are not aware of any reported judicial decision that
questions the validity of the Rule.
For the Sale to be covered by the Rule, the Sale must involve the (1)
transfer of financial assets (2) in connection with a securitization or
participation.(4) The first element is satisfied because the Sale is a transfer
of the Mortgage Loans, each of which "conveys to one entity a contractual right
to receive cash" and therefore qualifies as a "financial asset." (5)
The second element requires a determination of whether the Sale is "in
connection with a securitization or participation."(6) In our analysis we are
relying on the Rule's treatment of transfers in connection with a
securitization. We have found no case law that interprets the phrase "in
connection with a securitization" under the Rule. The Rule states that a
"securitization" means the issuance by a special purpose entity of beneficial
interests, the most senior class of which is rated in one of the four highest
rating categories by one or more nationally recognized statistical rating
organizations or which are sold in transactions not involving any public
offering or in transactions exempt from registration pursuant to Regulation S
under the Securities Act.(7)
The Sale is an integral part of the Transactions and is entered into
for the sole purpose of effectuating the Transactions under the Pooling and
Servicing Agreement. In connection with the Transactions, pursuant to the Loan
Purchase Agreement Key will transfer the Mortgage Loans to the Depositor, which
we have assumed to be a "special purpose entity" under the Rule. Pursuant to the
Pooling and Servicing Agreement, the Depositor will then immediately sell the
Mortgage Loans to the Trust, and the Trust will contemporaneously issue
beneficial interests in the form of the Certificates for public and private
sale. Key and the Depositor will engage in the Sale transaction for the sole
purpose of effectuating the creation of the Trust and the issuance of the
Certificates pursuant to the Pooling and Servicing Agreement. For these reasons,
we believe that a court would hold that the Sale is "in connection with" the
Transactions.
------------------
(3) See Treatment by the FDIC as Conservator or Receiver of Financial Assets
Transferred by an Insured Depository Institution in Connection With a
Securitization or Participation, 65 Fed. Reg. 49,189 (2000) (codified at 12
C.F.R. ss. 360.6).
(4) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(b)).
(5) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(a)(2)).
(6) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(b)).
(7) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(a)(4)(i)).
D-2C-6
For the Transactions to constitute a "securitization" under the Rule,
the Trust must be a "special purpose entity," as defined by the Rule. The Rule
defines "special purpose entity" to mean:
a trust . . . or other entity demonstrably distinct from the insured
depository institution that is primarily engaged in acquiring and
holding (or transferring to another special purpose entity) financial
assets, and in activities related or incidental thereto, in connection
with the issuance by such special purpose entity (or by another
special purpose entity that acquires financial assets directly or
indirectly from such special purpose entity) of beneficial
interests.(8)
The Trust is a trust established upon effectuation of the Transactions
under the laws of New York pursuant to the Pooling and Servicing Agreement. Key
does not control, is not controlled by, nor is it under common control with, the
Trustee or the Trust. Although a subsidiary of Key will act as a master servicer
and special servicer of the Trust's assets for the benefit of the Trustee and
the Certificateholders, the ultimate decision-making authority permitted under
the Pooling and Servicing Agreement is vested in the Trustee and the
Certificateholders or is otherwise limited or dictated by the terms of the
Pooling and Servicing Agreement, as set forth in the Pooling and Servicing
Agreement. Key will not share in the ownership of any of the principal assets of
the Trust. Neither Key nor the Trust will commingle any of its assets with the
other. Moreover, the documents evidencing the principal assets of the Trust, the
Mortgage Notes and related Mortgage Files, will be assigned to and physically
delivered into the possession of the Trustee, or a custodian appointed by the
Trustee (which custodian may not, as set forth in the Pooling and Servicing
Agreement, be Key or an affiliate of Key). Although the Rule does not provide
any guidance regarding the circumstances under which a special purpose entity is
"demonstrably distinct" from a depository institution, we believe that the facts
set forth above demonstrate that the Trust is an entity distinct from Key.
The Trust will be primarily engaged in acquiring and holding financial
assets and in activities related or incidental thereto, in connection with the
issuance of beneficial interests, which in this case are the Certificates. The
Certificates fall within the Rule's definition of "beneficial interests" because
they will be issued by the Trust and will entitle the Certificateholders to
receive payments that depend primarily on the cash flow from the Mortgage Loans
owned by the Trust. For the foregoing reasons, the Trust appears to satisfy the
definition of a "special purpose entity" under the Rule.
The other requirement for the Transactions to constitute a
securitization under the Rule is also met because the most senior class of
securities issued in the Transactions are rated in one of the four highest
categories assigned to long-term debt or in an equivalent short-term category by
S&P and Xxxxx'x, which are nationally recognized statistical rating
organizations.(9) Although the Rule does not define the phrase "nationally
recognized statistical rating organizations," this phrase is used by the FDIC,
other bank regulatory agencies and the Securities and Exchange Commission in
several regulations. The Securities and Exchange Commission expressly regards
S&P and Moody's (the two agencies rating the most senior classes of securities
in the Transactions) as nationally recognized
---------------------
(8) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(a)(5)).
(9) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(a)(4)(i)).
D-2C-7
statistical rating organizations.(10) Although the Rule does not identify
particular rating agencies, we believe that a court would hold that S&P and
Moody's are nationally recognized statistical rating organizations, either on
the basis of the Securities and Exchange Commission's statements or otherwise.
Furthermore, the Rule is not applicable to the Transactions unless the
Sale meets the criteria of a sale under generally accepted accounting principles
(other than the "legal isolation" condition)(11) , Key received adequate
consideration for the transfer of the Mortgage Loans, and the Transaction
documents reflect the intent of Key and the Depositor to treat the Sale as a
sale and not as a secured borrowing.(12) The Loan Purchase Agreement reflects
the intent of parties to treat the Sale as a sale and not as a secured
borrowing, and we have assumed, based on the Key Certificate, that, except for
the "legal isolation" condition, the requirements of generally accepted
accounting principles for treating the Sale as a sale have been satisfied, and
the consideration received by Key at the time of the transfer is adequate.
OTHER QUALIFICATIONS
The foregoing opinion is subject to the following qualifications:
If Key were to become a debtor under the FDIA and the FDIC were to
assert that the beneficial interest in and legal title to the Mortgage Loans
were part of Key's estate, we express no opinion as to how long the Trust would
be denied possession of the Mortgage Loans in Key's possession before the
validity of such an assertion could be finally decided. We also express no
opinion as to whether, if the FDIC were to assert that the beneficial interest
in and legal title to the Mortgage Loans were part of Key's receivership estate,
a court would permit Key to use collections of the Mortgage Loans in Key's
possession without the consent of the Trustee either before deciding the issue
or pending appeal after a decision adverse to the Trust.
We express no opinion as to the availability or effect of a preliminary
injunction, temporary restraining order or other such temporary relief affording
delay pending a determination on the merits; by such reservation, however, we do
not imply that we have undertaken any analysis to determine whether any such
equitable relief would ultimately be available to prevent enforcement of the
transaction.
-------------------
(10) See Securities and Exchange Commission, 62 Fed. Reg. 68,018 (1997) (to be
codified at 17 C.F.R. pt. 240) and 17 C.F.R.ss.240.15c3-1(c)(2)(vi)(F). See also
Government Securities Clearing Corporation, Securities and Exchange Commission,
60 Fed. Reg. 21,014 (1995); Pacific Stock Exchange, Inc., Securities and
Exchange Commission, 59 Fed. Reg. 38,998 (1994); and Proposed Rules, Securities
and Exchange Commission, 53 Fed. Reg. 44,016 (1988) (to be codified at 17 C.F.R.
pt. 230). The Department of Labor and the Federal Reserve System also regard S&P
and Moody's as nationally recognized statistical rating organizations. See
Prohibited Transaction Exemptions 2000-25, et al., Department of Labor, 65 Fed.
Reg. 35,129 (2000); and Proposed Rules, Federal Reserve System, 53 Fed. Reg.
14,812 (1988) (to be codified at 12 C.F.R. pt. 220).
(11) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(b)).
(12) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(c)).
D-2C-8
We express no opinion with respect to the power of the FDIC, as
receiver or conservator, to disaffirm or repudiate any agreement (including, but
not limited to, the Loan Purchase Agreement) to the extent it imposes continuing
obligations or duties upon Key in receivership or conservatorship.
We express no opinion herein as to whether any transfer or obligation
is avoidable as a preference or fraudulent transfer.
The opinions are subject to the effect of general principles of equity,
including (without limitation) concepts of materiality, reasonableness, good
faith and fair dealing, and other similar doctrines affecting the enforceability
of agreements generally (regardless of whether considered in a proceeding in
equity or at law).
We express no opinion as to compliance or the effect of noncompliance
by the Trustee with any state or federal laws or regulations applicable to it in
connection with the transactions described in the Pooling and Servicing
Agreement.
We express no opinion with respect to the enforceability of any
Mortgage Loan or the existence of any claims, rights, defenses, counterclaims or
objections in favor of the mortgagor thereon that can be asserted against or are
effective against Key, the Depositor, the Trustee or the Certificateholders. We
note that unless the mortgagor with respect to a Mortgage Loan has received
notice of the assignment thereof (such notice not being contemplated by the Loan
Purchase Agreement), bona fide payments made by such mortgagor to Key or a
second assignee of such Mortgage Loan shall discharge such mortgagor's
obligations to the extent of such payment, and such payment will only be
recoverable from Key or, in certain cases, from such second assignee, as the
case may be.
We have assumed that there are no agreements (other than the
Agreements) prohibiting, restricting or conditioning the assignment of any
portion of the Mortgage Notes.
We express no opinion as to the ability of the FDIC, as conservator or
receiver, to transfer the Loan Purchase Agreement without any approval or
consent of the parties, pursuant to 12 U.S.C. ss. 1821(d)(2)(G).
The foregoing analysis and its conclusions are premised upon, and
limited to, the law and the structure of the proposed Transactions in effect as
of the date of this letter. We do not assume responsibility for updating this
opinion letter as of any date subsequent to the date of this opinion letter, and
assume no responsibility for advising you of (i) the discovery subsequent to the
date of this opinion letter of factual information not previously known to us
pertaining to the events occurring prior to the date of this opinion letter or
(ii) the amendment or repeal of the Rule after the date of this opinion letter.
Furthermore, we note that a court's decision regarding matters upon which we
opine herein is based on the court's own analysis and interpretation of the
factual evidence before the court, and applicable legal principles.
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.
D-2C-9
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
D-2C-10
EXHIBIT D-2D
FORM OF LETTER OF XXXXXXXXXX XXXXXXX & XXXXX, P.C.,
PURSUANT TO SECTION 7(IX)
November 13, 2001
Credit Suisse First Boston Mortgage Xxxxx Fargo Bank Minnesota, N.A.
Securities Corp. 00 Xxxxxxxx, 00xx Xxxxx
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation McDonald Investments Inc.
00 Xxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Xxxxxx Brothers Xxxxx'x Investors Service, Inc.
101 Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CKN5
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association
("KEY") in connection with the sale by Key, and the purchase by Credit Suisse
First Boston Mortgage Securities Corp. (the "DEPOSITOR"), of certain multifamily
and commercial mortgage loans (the "KEY LOANS") pursuant to that certain
Mortgage Loan Purchase Agreement ("MORTGAGE LOAN PURCHASE AGREEMENT") dated as
of November 1, 2001, between Key as Seller and the Depositor as Purchaser, and
further in connection with the preparation and review of the sections of the
Prospectus Supplement dated November 1, 2001 ("PROSPECTUS SUPPLEMENT") to the
Depositor's Prospectus dated October 22, 2001 ("BASE PROSPECTUS"; and together
with the Prospectus Supplement, the "PROSPECTUS") titled "Summary of Prospectus
Supplement--Relevant Parties/Entities", "Summary of Prospectus
Supplement--Significant Dates and Periods", "Summary of Prospectus
Supplement--The Underlying Mortgage Loans", "Risk Factors--Risks Related to the
Underlying Mortgage Loans", and "Description of the Underlying Mortgage Loans"
(collectively, the "PROSPECTUS SUPPLEMENT--SPECIFIED SECTIONS"), and further in
connection with the preparation and review of the sections of the Confidential
Offering Circular dated November 1, 2001 (the "CONFIDENTIAL OFFERING CIRCULAR")
titled "Summary--Relevant
D-2D-1
Parties", "Summary--Significant Dates and Periods", "Summary--The Mortgage
Loans" (the "CONFIDENTIAL OFFERING CIRCULAR--SPECIFIED SECTIONS"). Capitalized
terms not otherwise defined herein are defined as set forth in the Mortgage Loan
Purchase Agreement.
The purpose of our professional engagement was to advise with respect
to legal matters and not to determine or verify facts. Many of the
determinations involved in the preparation of the Prospectus Supplement and the
Confidential Offering Circular were factual. We have not independently verified,
do not make any representation as to, and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Prospectus Supplement or the Confidential Offering Circular.
In connection with the delivery of this letter, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
the Prospectus, the Confidential Offering Circular, the Mortgage Loan Purchase
Agreement, and other such documents and records as we have deemed relevant or
necessary as the basis for the views expressed in this letter, solely with
respect to the information contained therein relating to the Key Loans. We have
obtained such certificates from and made such inquiries of officers and other
representatives of Key as we have deemed relevant or necessary as the basis of
the views expressed in this letter. We have relied upon and assumed the accuracy
of, such other documents and records, such certificates and the statements made
in response to such inquiries, with respect to the factual matters upon which
the views expressed in this letter are based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the Mortgage
Loan Purchase Agreement and underlying the assumptions set forth below or that
are otherwise factually relevant to the opinions expressed in this letter, (ii)
the legal capacity of natural persons, (iii) the genuineness of all signatures
(except for the signatures of officers of Key) and the authenticity of all
documents submitted to us as originals, (iv) the conformity to the originals of
all documents submitted to us as certified, conformed or photostatic copies, (v)
the due authorization by all necessary action, and the due execution and
delivery, of the Mortgage Loan Purchase Agreement by the parties thereto and the
constitution of the Mortgage Loan Purchase Agreement as the legal, valid and
binding obligations of each party thereto, enforceable against such party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation, and similar laws relating
to or affecting the enforceability of creditors' rights generally, the effect of
general equitable principals (in equity or at law), and the availability of
equitable remedies, (vi) the compliance with the relevant provisions of the
Mortgage Loan Purchase Agreement by the parties thereto, (vii) the conformity,
to the requirements of the Mortgage Loan Purchase Agreement, of the Mortgage
Loan Documents delivered to the Depositor by Key, (viii) the absence of any
agreement that supplements or otherwise modifies the agreements expressed in the
Mortgage Loan Purchase Agreement, and (ix) the conformity of the text of each
document filed with the Securities Exchange Commission through the XXXXX system
to the printed documents reviewed by us. In rendering this letter, we do not
express any view concerning the laws of any jurisdiction other than the federal
laws of the United States of America.
In the course of acting as special counsel to Key we have responded to
inquiries from time to time by Key's closing coordinators, reviewed
securitization questionnaires, title insurance commitments and surveys and
prepared most of the loan documents for a majority of the Key Loans. In
connection with the preparation of the Prospectus Supplement--Specified Sections
and the Confidential Offering Circular--Specified Sections, we met in
conferences and participated in telephone
D-2D-2
conversations with officers and employees of Key and counsel, officers and other
representatives of the Depositor, Credit Suisse First Boston Corporation, Xxxxxx
Brothers, McDonald Investments Inc., Column Financial, Inc., National Consumer
Cooperative Bank and NCB Capital Corporation, during which conferences and
telephone conversations the contents of the Prospectus Supplement--Specified
Sections and the Confidential Offering Circular--Specified Sections were
discussed. We have not independently undertaken any procedures that were
intended or likely to elicit information concerning the accuracy, completeness
or fairness of the statements made in the Prospectus or the Confidential
Offering Circular.
On the basis of the foregoing and subject to the limitations set forth
herein, nothing has come to our attention to cause us to believe that either the
Prospectus Supplement--Specified Sections or the Confidential Offering
Circular--Specified Sections, as of their respective dates or as of the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that we have not been requested
to and we do not make any comment in this paragraph with respect to (i)
financial statements, schedules or other accounting, financial, or statistical
data or other information of that nature contained in or omitted from the
Prospectus Supplement--Specified Sections or the Confidential Offering
Circular--Specified Sections, or (ii) information contained in the computer
diskette or the CD-ROM accompanying the Prospectus Supplement which we assume,
but have not verified, does not vary from and is not different in any way from
the information contained in the Prospectus Supplement). In that connection, we
advise you that, as to any facts material to the opinions expressed herein that
we have not independently established or verified, we have relied upon
statements and representations of officers and other representatives of Key and
its affiliates. In addition, in that connection we call to your attention that,
with your knowledge and consent, we have not (except as described above)
examined or otherwise reviewed any of the Mortgage Files in connection with the
transactions contemplated by the Mortgage Loan Purchase Agreement (the
"TRANSACTIONS"), any particular documents contained in such files or any other
documents with respect to the Key Loans.
We note that investors in the certificates marketed and sold pursuant
to the Confidential Offering Circular (the "PRIVATE CERTIFICATES") typically
conduct due diligence on their own behalf, including review and analysis of the
Key Loans and related information to a greater degree than we have done in the
course of our representation of Key. Consequently, they have been and/or may be
provided information regarding the Key Loans that we have not reviewed, and had
we reviewed such information something may have come to our attention that would
have lead us to believe that the Confidential Offering Circular at the date
thereof or at the date of this letter contained or contains an untrue statement
of material fact or that otherwise would have been material in connection with
evaluating an investment in the Private Certificates.
Whenever a statement herein is qualified by the phrase "come to our
attention," it is intended to indicate that, during the course of our
representation of Key, no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of those
attorneys currently in this firm who have been actively involved in representing
Key in connection with the Transactions or in connection with the origination of
any of the Key Loans being sold as part of the Transactions. However, we have
not undertaken any independent investigation to determine the 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
D-2D-3
bearing on the accuracy of any such statement should be drawn from the fact of
our representation of Key.
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to the parties involved in the
Transactions and their respective counsel as part of the closing set related to
the Transactions) without our prior written approval. We disclaim any obligation
to update this letter for events occurring or coming to our attention after the
date hereof, notwithstanding that such changes may affect the views or beliefs
expressed in this letter.
Very truly yours,
XXXXXXXXXX XXXXXXX & XXXXX, P.C.
D-2D-4
