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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of July 11, 2000
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TABLE OF CONTENTS
Page
Section 1. Transactions on or Prior to the Closing Date..................1
Section 2. Closing Date Actions..........................................1
Section 3. Conveyance of Mortgage Loans..................................2
Section 4. Depositor's Conditions to Closing.............................5
Section 5. Seller's Conditions to Closing................................7
Section 6. Representations and Warranties of Seller......................7
Section 7. Obligations of Seller.........................................9
Section 8. Representations and Warranties of Depositor..................10
Section 9. Survival of Certain Representations, Warranties and Covenants11
Section 10. Accountant's Letters.........................................11
Section 11. Expenses; Recording Costs....................................11
Section 12. Notices......................................................11
Section 13. Examination of Mortgage Files................................12
Section 14. Successors...................................................12
Section 15. Governing Law................................................12
Section 16. Severability.................................................12
Section 17. Further Assurances...........................................12
Section 18. Counterparts.................................................12
Section 19. Treatment as Security Agreement..............................13
Section 20. Recordation of Agreement.....................................14
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and
Warranties
Exhibit A Representations and Warranties of Seller Regarding the
Mortgage Loans
Exhibit B Form of Lost Mortgage Note Affidavit
Exhibit C Form of Assignment of Mortgage(s) and Assignment of Assignment
of Lessor's Interests in Leases, Rents and Profits
Exhibit D Form of Seller's In-House Counsel Opinion
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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of July 11, 2000, is made by and between CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC, a Delaware limited liability company ("Seller") and CREDIT SUISSE
FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor").
RECITALS
I.....Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II....On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II. Depositor intends to deposit the Mortgage Loans
and other assets into the Trust Fund created pursuant to the Pooling and
Servicing Agreement and to cause the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Wells
Fargo Bank Minnesota, N.A. as trustee (the "Trustee"), against receipt by Seller
of a trust receipt, pursuant to an arrangement between Seller and the Trustee.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Offered Certificates by Depositor to the
Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing shall take place at the offices of Cadwalader,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, or such other
location as agreed upon between the parties hereto. On the Closing Date, the
following actions shall take place in sequential order on the terms set forth
herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price (as defined herein) shall be paid by Depositor to Seller or at its
direction by wire transfer in immediately available funds to an account
designated by Seller on or prior to the Closing Date. The "Mortgage Loan
Purchase Price" paid by Depositor shall be equal to [____%] of the
aggregate outstanding principal balance of the Mortgage Loans, after
giving effect to any scheduled monthly payments due on or prior to the
Cut-off Date, plus accrued interest at the weighted average Mortgage Rate
from the Cut-off Date to but not including the Closing Date.
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Offered Certificates pursuant to the
Underwriting Agreement, and Depositor shall sell to the Initial Purchaser,
and the Initial Purchaser shall purchase from Depositor, the Private
Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Offered Certificates for sale
to the public pursuant to the Prospectus and the Prospectus Supplement and
the Initial Purchaser will privately place certain classes of the
Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, without recourse except as provided
herein, to Depositor, free and clear of any liens, claims or other encumbrances,
all of Seller's right, title and interest in, to and under each of the Mortgage
Loans identified on the Mortgage Loan Schedule and all property of Seller
described in Section 19 of this Agreement. On or prior to the Closing Date, each
Mortgage File shall be delivered by Seller to the Trustee. Each Mortgage File
shall contain the following documents:
(a) the original Mortgage Note, or with respect to those Mortgage
Loans listed in Schedule IV hereto, a "lost note" affidavit substantially
in the form of Exhibit B hereto and a true and complete copy of the
Mortgage Note, bearing, or accompanied by, all prior and intervening
endorsements or assignments thereof showing a complete chain of
endorsement or assignment from the Originator of the related Mortgage Loan
to Seller, and further endorsed (at the direction of Depositor given
pursuant to this Agreement) by Seller, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of Wells Fargo Bank Minnesota, N.A., as trustee
for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2000-C1, without recourse, representation or warranty, express or
implied;"
(b) a duplicate original Mortgage (or a certified copy thereof from
the applicable recording office) and originals (or certified copies from
the applicable recording office) of any intervening assignments thereof
showing a complete chain of assignment from the Originator of the related
Mortgage Loan to Seller, in each case with evidence of recording indicated
thereon;
(c) an original (or a true and complete copy if the original
has been sent by the Seller for recordation) Assignment of Mortgage
substantially in the form of Exhibit C hereto, in recordable form, from
Seller to Wells Fargo Bank Minnesota, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 2000-C1;
(d) an original Assignment of Leases (if such item is a
document separate from the Mortgage), in recordable form;
(e) an original (or a true and complete copy if the original has
been sent by the Seller for recordation) of any related assignment of
Assignment of Leases (if such item is a document separate from the
Mortgage) substantially in the form of Exhibit C hereto and the originals
or copies of any intervening assignments thereof showing a complete chain
of assignment from the Originator of the related Mortgage Loan to Seller,
in each case with evidence of recording thereon;
(f) an original or a true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller;
(g) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in recordable
form, executed by Seller in favor of Wells Fargo Bank Minnesota, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2000-C1;
(h) originals or true and complete copies of all assumption,
modification, written assurance and substitution agreements, with evidence
of recording thereon, where appropriate, in those instances where the
terms or provisions of the related Mortgage or Mortgage Note or any
related security document have been modified or the related Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the related Mortgage Loan,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, or if the policy has not yet
been issued, a written binding commitment or interim binder, dated as of
the date the related Mortgage Loan was funded;
(j) the original or a true and complete copy of any guaranty of the
obligations of the Mortgagor under the related Mortgage Loan and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller, in each case with evidence of recording thereon;
(k) all UCC Financing Statements and continuation statements or
copies thereof filed with respect to the Mortgage Loans;
(l) the original or a true and complete copy of the power of
attorney (with evidence of recording thereon) granted by the Mortgagor if
the Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(m) any intercreditor agreement relating to any debt of a Borrower
secured by the related Mortgaged Property other than the related Mortgage
Loan;
(n) if any related Lock-Box Agreement or Cash Collateral Agreement
is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a
copy of the UCC-1 financing statements, if any, submitted for filing with
respect to the Seller's security interest in the Cash Collateral Accounts
and Lock-Box Accounts and all funds contained therein (and UCC-2 or UCC-3
financing statements assigning such security interest to the Trustee on
behalf of the Certificateholders);
(o) any Loan Agreement;
(p) [reserved];
(q) any environmental insurance policies;
(r) [reserved];
(s) letters of credit, if any, relating to the Additional Collateral
Loans, including with respect to Loan Nos. 20, 21 and 22, within 120 days
of the Closing Date, the original letter of credit provided by the
borrower, fully assigned to the Trustee;
(t) the related intercreditor agreement, if any;
(u) the applicable participation documents, including (i) the
Amended and Restated Participation and Intercreditor Agreement for Loan
No. 8 on the Mortgage Loan Schedule (the "L'Enfant Loan"), dated June 11,
2000, by and between the Depositor and The Chase Manhattan Bank, as
trustee for Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Pass Through Certificates, Series 1999-C1 as successor to
Credit Suisse First Boston Mortgage Securities Corp., and (ii) the
Co-Lender Agreement relating to the L'Enfant Loan, dated November 11,
1998, by and between The Chase Manhattan Bank, as trustee for Credit
Suisse First Boston Mortgage Securities Corp., Commercial Pass Through
Certificates, Series 1998 C-2 as successor to Credit Suisse First Boston
Mortgage Securities Corp. and the Seller; and
(v) any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
With respect to the L'Enfant Loan and the 1211 Avenue of the
Americas Loan, document delivery requirements (other than those specified in
clause (u) above) will be met by the delivery of copies of any mortgage loan
documents required to be delivered under this agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan (other than the L'Enfant Loan or the 1211 Avenue of the
Americas Loan, Seller cannot deliver an original recorded counterpart of any of
the documents required to be delivered pursuant to clauses (b), (d), (f), (h),
(k) (with respect to UCC financing statements filed other than in accordance
with the transfer contemplated by this Agreement) and (l) above with evidence of
recording or filing thereon concurrently with the execution and delivery hereof,
solely because of a delay caused by the public recording office where such
document or instrument has been delivered for recordation, Seller shall deliver,
or cause to be delivered, to the Trustee a duplicate original or true copy of
such document certified by the applicable public recording or filing office to
be a true and complete duplicate original or copy of the original thereof
submitted for recording or filing.
Notwithstanding the foregoing, in the event that Seller cannot
deliver to the Trustee any UCC-2 or UCC-3 assignment with the filing information
of the UCC-1 financing statement being assigned, solely because of a delay
caused by the public filing office where such UCC-1 financing statement has been
delivered for filing, Seller shall deliver or cause to be delivered to the
Trustee a photocopy of such UCC-2 or UCC-3 assignment with the filing
information left blank. Seller, promptly upon receipt of the applicable filing
information of the UCC-1 financing statement being so assigned, shall deliver to
the Trustee the original UCC-2 or UCC-3 assignment with all appropriate filing
information set forth thereon.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of documents prepared by Seller
or any of its affiliates solely for internal uses, shall immediately vest in
Depositor and shall be forwarded by Seller to the Trustee by overnight mail for
next-day delivery and retained and maintained, in trust, by the Trustee at the
will of Depositor, in such custodial capacity only. All Monthly Payments,
Principal Prepayments and other amounts received by Seller and not otherwise
belonging to Seller pursuant to this Agreement shall be sent by Seller within
three (3) Business Days of Seller's receipt thereof to the Servicer via wire
transfer for deposit by the Servicer into the Collection Account.
Section 4. Depositor's Conditions to Closing. The obligations
of Depositor under this Agreement shall be subject to the satisfaction, on
the Closing Date, of the following conditions:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
all of the representations and warranties of Seller under this Agreement
shall be true and correct in all material respects as of the Closing Date;
and no event shall have occurred with respect to Seller or any of the
Mortgage Loans and related Mortgage Files which, with notice or the
passage of time, would constitute a material default under this Agreement;
and Depositor shall have received certificates to the foregoing effect
signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other
than Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, which shall have been delivered
to and held by the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) an officer's certificate of Seller, dated as of the
Closing Date, with certified copies of the charter, by-laws, and a
certificate of good standing dated as of a recent date of Seller;
(iv) an opinion of Seller's in-house counsel, dated the
Closing Date, in substantially the same form as Exhibit D attached hereto.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made herein, and on certificates or other documents furnished by officers of
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the Limited Liability Company Act of the
State of Delaware and the laws of the State of New York and the United States
and shall not be required to express any opinion with respect to the
registration or qualification of the Certificates under any applicable state or
federal securities laws.
Such counsel shall state that, although such counsel has not
specifically considered the possible applicability to Seller of any other laws,
regulations, judgments, orders or decrees, no facts have been disclosed to such
counsel that cause such counsel to conclude that any other consent, approval or
action is required;
(v) an opinion of Cadwalader, Wickersham & Taft, special
counsel to Seller, dated the Closing Date, substantially to the effect of
the following (with such changes and modifications as Depositor may
approve):
Assuming the due authorization, execution and delivery of this
Agreement by Seller, this Agreement constitutes a valid and
binding agreement of Seller, enforceable against Seller in
accordance with its terms, except to the extent that
enforcement hereof may be limited by (x) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect and (y) general principles of
equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of,
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the laws of the State of New York and the
United States to the extent specifically referred to.
(vi) such other certificates of Seller's officers or others
and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as Depositor or its counsel may reasonably
request.
Section 5. Seller's Conditions to Closing. The obligations of
Seller under this Agreement shall be subject to the satisfaction, on the
Closing Date, of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
and all of the representations and warranties of Seller under this
Agreement shall be true and correct in all material respects as of the
Closing Date; and no event shall have occurred with respect to Depositor
which, with notice or the passage of time, would constitute a material
default under this Agreement, and Seller shall have received certificates
to that effect signed by authorized officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to
Seller and Depositor, duly executed by all signatories other than Seller,
as required pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(B) such other certificates of its officers or others and such
other documents required to evidence fulfillment of the conditions
set forth in this Agreement as Seller or its counsel may reasonably
request.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller has conducted and
is conducting its business so as to comply in all material respects with
all applicable statutes and regulations of regulatory bodies or agencies
having jurisdiction over it, except where the failure so to comply would
not have a materially adverse effect on the performance by Seller of this
Agreement, and there is no charge, investigation, action, suit or
proceeding before or by any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Seller, threatened, which
is reasonably likely to materially and adversely affect the performance by
Seller of this Agreement or the consummation of transactions contemplated
by this Agreement.
(ii)Neither the execution and delivery by Seller of this
Agreement, nor the compliance by Seller with the provisions hereof, nor
the consummation by Seller of transactions contemplated by this Agreement
will (I) conflict with or result in a breach of, or constitute a default
or result in the acceleration of any obligations under, the certificate of
formation or operating agreement of Seller or, after giving effect to the
consents or the taking of the actions contemplated by clause (II) of this
subparagraph (ii), any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on Seller or its properties
or any of the provisions of any material indenture or mortgage or any
other material contract or instrument to which Seller is a party or by
which it or any of its properties is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument (other than pursuant to this Agreement) or (II) require the
consent of or notice to, or any filing with, any person, entity or
governmental body, which has not been obtained or made by Seller, except
where, in any of the instances contemplated by clause (I) above or this
clause (II), the failure to do so will not have a material adverse effect
on any transactions relating to the sale of the Mortgage Loans by Seller.
(iii) The execution and delivery by Seller of this Agreement,
and the consummation of transactions contemplated by this Agreement on the
terms set forth herein, have been duly authorized by all necessary limited
liability company action on the part of Seller and are within the limited
liability company power of Seller, and this Agreement has been duly
executed and delivered by Seller and constitutes a legal, valid and
binding instrument, enforceable against Seller in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws of general applicability relating to or
affecting the enforcement of creditors' rights generally, and to general
principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in
equity or at law).
(iv)No consent, approval, authorization or order of,
registration or filing with, or notice to any federal, state or local
governmental authority or court that has not been obtained, made or given
is required in connection with the execution, delivery and performance of
this Agreement by Seller.
(v) No litigation is pending or, threatened against the Seller
which would materially and adversely affect the validity of the Mortgage
Loans, or the ability of the Seller to carry out any transactions relating
to the sale of the Mortgage Loans by Seller.
(vi)Except as set forth on Schedule V hereto, the
representations and warranties contained in Exhibit A-1 and Exhibit A-2
hereto are true and correct in all material respects as of the Closing
Date.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, subject to Section 14 of this Agreement,
notwithstanding any restrictive or qualified endorsement on the mortgage notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement. The representations and warranties contained in or required
to be made by Seller pursuant to Section 6 of this Agreement shall not be
impaired by any review or examination of the Mortgage Files or other documents
evidencing or relating to the Mortgage Loans or any failure on the part of
Depositor to review or examine such documents and shall inure to the benefit of
any initial transferee of the Mortgage Loans from Depositor including, without
limitation, the Trustee for the benefit of the Holders of the Certificates.
Upon discovery of any Defect (as defined herein) in a Mortgage File
related to a Mortgage Loan, Depositor or its assignee shall promptly notify
Seller in writing of such Defect and request that Seller cure such Defect within
90 days from the date Seller was notified of such Defect; provided, however,
that if such Defect would cause such Mortgage Loan to be other than a "qualified
mortgage" under Section 860G(a)(3) of the Code, then such cure shall be within
90 days of discovery of such Defect. A document in the Mortgage File shall be
deemed to have a "Defect" if (a) any document required to be included in the
Mortgage File is not in the possession of the Trustee, within the time required
to be delivered pursuant to this Agreement or (b) such document has not been
properly executed or is otherwise defective on its face; provided, however, that
a document shall not be deemed to have a Defect if such Defect is caused by the
failure by Depositor to execute such document after having been directed by
Seller to execute such document. If Seller does not correct or cure such Defect
within such period, Seller shall purchase such Mortgage Loan from the Trust Fund
at the Purchase Price pursuant to Section 2.03 of the Pooling and Servicing
Agreement.
Within 90 days of the receipt of written notice by Seller of a
breach (a "Breach") of any of the representations, warranties or covenants of
Seller with respect to the Mortgage Loans set forth in Exhibit A to this
Agreement (or, if any such Breach would cause the Mortgage Loan to be other than
a "qualified mortgage" under Section 860G(a)(3) of the Code, within 90 days of
discovery of the Breach) which, in either case, materially and adversely affects
either (i) the interests of Depositor or the Certificateholders in the related
Mortgage Loan or (ii) the value of the related Mortgage Loan, Seller shall cure
such Breach and, if Seller does not correct or cure such Breach within such
period, or if such Breach cannot be so cured, then Seller shall purchase the
affected Mortgage Loan at the Purchase Price pursuant to Section 2.03 of the
Pooling and Servicing Agreement. If Seller is required to repurchase any
Mortgage Loan that is part of a Mortgage Group (as defined herein), Seller shall
also be required to repurchase the remaining Mortgage Loans in such Mortgage
Group. For purposes of this paragraph, a "Mortgage Group" is any group of
Mortgage Loans identified as a Mortgage Group on Schedule III to this Agreement.
The Purchase Price for any repurchased Mortgage Loan shall be
payable to Depositor or, subsequent to the assignment of the Mortgage Loans to
the Trustee, the Trustee as its assignee, by wire transfer of immediately
available funds to the account designated by Depositor or its assignee, and
Depositor or its assignee, upon receipt of such funds, shall promptly release
the related Mortgage File or cause it to be released, to Seller and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in Seller title to any Mortgage
Loan released pursuant hereto. The Depositor or the Servicer, as applicable,
shall deliver to Seller an officer's certificate setting forth the calculation
of the Purchase Price.
Section 8. Representations and Warranties of Depositor.
Depositor hereby represents and warrants to Seller as of the date hereof, as
follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its
business as it is conducted, and is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the ownership
or lease of its property or the conduct of its business requires such
qualification (except where the failure to qualify would not have a
materially adverse effect on the consummation of any transactions
contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the
corporate power of Depositor and have been duly authorized by Depositor
and neither the execution and delivery by Depositor of this Agreement nor
the compliance by Depositor with the provisions hereof, nor the
consummation by Depositor of the transactions contemplated by this
Agreement, will (i) conflict with or result in a breach of, or constitute
a default under, the certificate of incorporation or by-laws of Depositor
or, after giving effect to the consents or taking of the actions
contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on Depositor or its properties, or any of the provisions of any
material indenture or mortgage or any other material contract or other
instrument to which Depositor is a party or by which it is bound or result
in the creation or imposition of any lien, charge or encumbrance upon any
of its properties pursuant to the terms of any such indenture, mortgage,
contract or other instrument or (ii) require the consent of or notice to,
or any filing with any person, entity or governmental body, which has not
been obtained or made by Depositor, except where, in any of the instances
contemplated by clause (i) above or this clause (ii), the failure to do so
will not have a material and adverse effect on the consummation of any
transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally and to general principles of equity and the discretion of the
court (regardless of whether enforcement of such remedies is considered in
a proceeding in equity or at law) and, as to rights of indemnification
hereunder, subject to limitations of public policy under applicable
securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Depositor, threatened
against Depositor the outcome of which could be reasonably expected to
materially and adversely affect the consummation of any transactions
contemplated by this Agreement.
Section 9. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 11 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 10. Accountant's Letters. On or before the Closing Date,
PriceWaterhouseCoopers LLP will have reviewed the characteristics of the
Mortgage Loans described in (a) the Mortgage Loan Schedule attached hereto and
set forth as an exhibit to the Pooling and Servicing Agreement and (b) the
computer disk prepared by Seller and provided to Depositor and will compare
those characteristics to, and ensure their agreement with (i) the description of
the Mortgage Loans contained in the Prospectus Supplement and the Offering
Circular, respectively; (ii) original documentation and files of Seller
maintained with respect to each Mortgage Loan; and (iii) if applicable,
information with respect to such Mortgage Loans contained in the report on Form
8-K to be filed by Depositor with the Commission in connection with the offering
of the Certificates. Seller will cooperate with Depositor and
PriceWaterhouseCoopers LLP in making available all information and taking all
steps reasonably necessary to permit such accountants to complete the review set
forth in this Section 10 and to deliver the letters required of them under the
Underwriting Agreement and the Certificate Purchase Agreement.
Section 11. Expenses; Recording Costs. Seller agrees to pay to
Depositor or its designee all recording and filing fees incurred in connection
with the recording or filing of the documents listed in Section 3 of this
Agreement.
Section 12. Notices. All communications hereunder will be in
writing, and, (a) if sent to Depositor, will be mailed, delivered or
telecopied and confirmed to it at Credit Suisse First Boston Mortgage
Securities Corp., Eleven Madison Avenue, 5th Floor, New York, New York 10010,
Attention: Allan J. Baum, Telecopy No.: (212) 325-8162; and (b) if sent to
Seller, will be mailed, delivered or telecopied to it at Credit Suisse First
Boston Mortgage Capital LLC, Eleven Madison Avenue, New York, New York 10010,
Attention: President, Telecopy No.: (212) 325-8160.
Section 13. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 14. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and legal representatives, and nothing expressed in this Agreement is intended
or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; it being understood that (a) the indemnities
of Seller contained in that certain Indemnification Agreement dated July 27,
2000 among Seller, Depositor and the Underwriters, subject to all limitations
therein contained, shall also be for the benefit of the officers and directors
of Depositor, the Underwriters and the Initial Purchaser and any person or
persons who control Depositor, the Underwriters and the Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the 1934 Act,
and (b) the rights of Depositor pursuant to this Agreement, subject to all
limitations herein contained, including those set forth in Section 9 of this
Agreement, may be assigned to the Trustee as may be required to effect the
purposes of the Pooling and Servicing Agreement and, upon such assignment, the
Trustee shall succeed to such rights of Depositor hereunder. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
Section 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 16. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 17. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other parties
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 18. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 19. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in
and to:
(i) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the property
described in the Mortgage Loans, including the related Mortgage Notes,
Mortgages and title, hazard and primary mortgage insurance policies
identified on the Mortgage Loan Schedule, including all replacement
Mortgage Loans, and all distributions with respect thereto payable after
the Cut-off Date;
(ii)all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral
described in (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Mortgage
Notes, the Mortgages and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or
possession by a purchaser or a person designated by him or her, for
purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law. Seller, Depositor or their assignee at the direction of
Seller shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Mortgage Loans and the proceeds
thereof, 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. In connection herewith, Depositor
and its assignee shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the
relevant jurisdiction.
Section 20. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC,
as Seller
By:_______________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:_______________________________________
Name:
Title: Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of July 11, 2000, between Credit Suisse First Boston Mortgage Capital LLC (" the
Seller") and Credit Suisse First Boston Mortgage Securities Corp. (" the
Depositor"). Capitalized terms used herein without definition have the meanings
given them in or by reference in the Agreement or, if not defined in the
Agreement, in the Pooling and Servicing Agreement, the Underwriting Agreement or
the Certificate Purchase Agreement, as the case may be.
"Borrower" means the borrower under the Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated July 27, 2000, between Depositor and the Initial Purchasers.
"Certificates" means each class of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 2000-C1.
"Closing Date" means August 4, 2000.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means, July 11, 2000.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Initial Purchasers" means Credit Suisse First Boston Corporation
and Morgan Stanley & Co. Incorporated.
"Investment Officer" means any employee of Seller designated by
Seller as an "investment officer" or whose title includes the words "investment
officer."
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the Originator and the Borrower, pursuant to which
such Mortgage Loan was made.
"Mortgage Loan Pool" means the pool of Mortgage Loans, which are the
primary assetspof the Trust Fund.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Mortgage Loans" means the mortgage loans to be sold to Depositor
pursuant to the Agreement, specifically identified in the Mortgage Loan Schedule
to the Agreement.
"Offered Certificates" means the Class A-1, Class A-2, Class B,
Class C and Class D Certificates.
"Offering Circular" means the confidential offering circular dated
July 27, 2000, describing certain classes of the Certificates.
"Originator" means any institution which originated a Mortgage Loan
for a related Borrower.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of July
11, 2000, among the Servicer, the Special Servicer, Depositor and the Trustee,
including the Mortgage Loan Schedule annexed thereto.
"Prospectus" means the Prospectus, dated October 12, 1999.
"Prospectus Supplement" means the Prospectus Supplement, dated July
27, 2000, relating to the Offered Certificates.
"Underwriters" means Credit Suisse First Boston Corporation and
------------
Morgan Stanley & Co. Incorporated.
"Underwriting Agreement" means the Underwriting Agreement, dated
July 27, 2000, between Depositor and the Underwriters.
<PAGE>
SCHEDULE II-A
MORTGAGE LOAN SCHEDULE
<PAGE>
SCHEDULE II-B
MORTGAGE LOAN SCHEDULE (LOANS SOLD BY NCCB TO CSFB)
<PAGE>
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
<PAGE>
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
<PAGE>
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties contained in
Exhibit A corresponding to the roman numerals listed below:
[CURRENTLY PROVIDED AS SEPARATE DOCUMENT]
<PAGE>
EXHIBIT A-1
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS ON SCHEDULE A-1
The Seller represents and warrants with respect to each Mortgage
Loan, as applicable, that as of the date hereof:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Mortgage Note or Mortgage was subject to any assignment (other
than to the Seller), participation or pledge, and the Seller had good and
marketable title to, and was the sole owner of, the related Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iii) The Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iv) Each related Mortgage Note, Mortgage, assignment of leases
(if any) and other agreement executed in connection with such Mortgage Loan is
the legal, valid and binding obligation of the related borrower, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and there is no valid defense, counterclaim, or right of
rescission available to the related borrower with respect to such Mortgage Note,
Mortgage, assignment of leases and other agreements;
(v) Each related assignment of leases creates a valid first
priority collateral or first priority assignment of, or a valid first priority
security interest in, certain rights under the related lease, subject only to a
license granted to the related borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease, including the right
to operate the related Mortgaged Property; no person other than the related
borrower owns any interest in any payments due under such lease that is superior
to or of equal priority with the lender's interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the assignment of leases, if any, or
assignment of any other agreement executed in connection with such Mortgage Loan
from the Seller to the Depositor constitutes the legal, valid and binding
assignment from the Seller to the Depositor, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights generally,
or by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and, each related Mortgaged Property has not
been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(viii) Each related Mortgage is a valid and enforceable first
lien on the related Mortgaged Property (subject to Permitted Encumbrances (as
defined below)), and such Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's title insurance
policy (as described below). A UCC financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property; 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 on property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights generally or by
the application of general principles of equity).
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related borrower in the Mortgage
Loan not to be true;
(x) The Seller has no knowledge that the material representations
and warranties made by each related borrower in such Mortgage Loan are not true
in any material respect;
(xi) The lien of each related Mortgage is a first priority lien
on the fee or leasehold interest of the related borrower in the original
principal amount of such Mortgage Loan or allocated loan amount of the portions
of the Mortgaged Property covered thereby (as set forth in the related Mortgage)
after all advances of principal and is insured by an ALTA lender's title
insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring the Seller and its successors
and assigns as to such lien, subject only to (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which, individually or in
the aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with the
borrower's ability to pay its obligations when they become due or the value of
the Mortgaged Property and (c) the exceptions (general and specific) set forth
in such policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or materially
interferes with the security intended to be provided by such Mortgage or with
the related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property (items (a), (b) and (c) collectively,
"Permitted Encumbrances"); the premium for such policy was paid in full; such
policy was issued by a title insurance company licensed to issue policies in the
state in which the related Mortgaged Property is located and is assignable to
the Depositor and the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement; no claims
have been made under such policy and the Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder and the
Seller covenants that it will not make any future advances under the Mortgage
Loan to the related borrower;
(xiii) As of the later of the date of origination of such
Mortgage Loan or the most recent inspection of the related Mortgaged Property by
the Seller, as applicable, and to the knowledge of Seller as of the Closing
Date, each related Mortgaged Property is free of any material damage that would
affect materially and adversely the value of such Mortgaged Property as security
for the Mortgage Loan or reserves have been established to remediate such damage
and, as of the closing date for each Mortgage Loan and, to the Seller's
knowledge, as of the date hereof, there is no proceeding pending for the total
or partial condemnation of such Mortgaged Property that would have a material
adverse effect on the value of the Mortgaged Property;
(xiv) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgage
Property within three months of origination of the Mortgage Loan;
(xv) No Mortgage Loan has a shared appreciation feature, any
other contingent interest feature or a negative amortization feature other than
the ARD Loans which may have negative amortization from and after the
Anticipated Repayment Date;
(xvi) Each Mortgage Loan is a whole loan and contains no
equity participation by Seller;
(xvii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury; and any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xviii) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan and the origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in accordance with customary
industry standards, and no other person has been granted or conveyed the right
to service the Mortgage Loans or receive any consideration in connection
therewith, except as provided in the Pooling and Servicing Agreement;
(xix) All taxes and governmental assessments that became due and
owing prior to the Closing Date with respect to each related Mortgaged Property
have been paid or an escrow of funds in an amount sufficient to cover such
payments has been established;
(xx) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies in connection therewith and all such escrows
and deposits have been conveyed by the Seller to the Depositor and identified as
such with appropriate detail;
(xxi) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the
replacement cost (with no deduction for physical depreciation) and the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the related Mortgaged Property; each related Mortgaged Property is also covered
by business interruption insurance which covers a period of not less than 12
months and comprehensive general liability insurance in amounts generally
required by institutional lenders for similar properties; all premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received; such insurance names the
lender under the Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related borrower to
maintain all such insurance and, at such borrower's failure to do so, authorizes
the lender to maintain such insurance at the borrower's cost and expense and to
seek reimbursement therefor from such borrower;
(xxii) There is no monetary default, breach, violation or event
of acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) material non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b) event
(other than payments due but not yet delinquent) which, with the passage of time
or with notice and the expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of acceleration;
(xxiii) No Mortgage Loan has been more than 30 days delinquent
since origination and as of the Cut-off Date no Mortgage Loan is 30 or more days
delinquent;
(xxiv) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure, and there
is no exemption available to the borrower which would interfere with such right
to foreclose (except as may be imposed by bankruptcy, insolvency, moratorium,
redemption or other similar laws affecting creditors' rights generally, or by
general principles of equity) and to the Seller's knowledge, no borrower is a
debtor in a state or federal bankruptcy or insolvency proceeding;
(xxv) At origination, each borrower represented and warranted
that except as set forth in certain environmental reports and to its 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
or other environmental laws; the related borrower or an affiliate or an
affiliate thereof agreed to indemnify, defend and hold the mortgagee and its
successors and assigns harmless from and against losses, liabilities, damages,
injuries, penalties, fines, expenses, and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in connection
with such Mortgage Loan. A Phase I environmental report and with respect to
certain Mortgage Loans, a Phase II environmental report, was conducted by a
reputable environmental engineer in connection with such Mortgage Loan, which
report did not indicate any material non-compliance with applicable
environmental laws or material existence of hazardous materials or, if any
material non-compliance or material existence of hazardous materials was
indicated in any such report, funds sufficient to cure such findings have been
escrowed by the related borrower and held by the related mortgagee or an
operations and maintenance program has been required to be instituted by the
related borrower. To the best of the Seller's knowledge, in reliance on such
environmental reports and except as set forth in such environmental reports,
each Mortgaged Property is in material compliance with all applicable federal,
state and local environmental laws, and to the best of the Seller's knowledge,
no notice of violation of such laws has been issued by any governmental agency
or authority, except, in all cases, as indicated in certain environmental
reports or other documents previously provided to the Rating Agencies; and the
Seller has not taken any action which would cause the Mortgaged Property to not
be in compliance with all federal, state and local environmental laws pertaining
to environmental hazards;
(xxvi) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members and other estate related transfers that satisfy
certain criteria specified in the related Mortgage (which criteria is consistent
with the practices of prudent commercial mortgage lenders), each Mortgage Loan
with a Stated Principal Balance of over $20,000,000 also contains the provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage, (and the
mortgage requires the mortgagor to pay all fees and expenses associated with
obtaining such consent) a controlling interest in the related Borrower is
directly or indirectly transferred or sold;
(xxvii) All improvements included in any MAI appraisals are
within the boundaries of the related Mortgaged Property, except for de minimis
encroachments onto adjoining parcels for which the Seller has obtained title
insurance against losses arising therefrom and no improvements on adjoining
parcels encroach onto the related Mortgaged Property except for de minimis
encroachments;
(xxviii) The mortgage loan schedule which is attached as an
exhibit to the Pooling and Servicing Agreement is complete and accurate in all
material respects as of the dates of the information set forth therein;
(xxix) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate,
based upon the terms of the ground lease and any estoppel received from the
ground lessor, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest of the
lessee 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 adversely affect the security provided by
the related Mortgage. To the Seller's best knowledge, there has been no
material change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the related
mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is not
binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the lender) that extends not
less than 20 years beyond the stated maturity of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
Mortgage, subject to Permitted Encumbrances and liens that encumber the
ground lessor's fee interest;
(E) The ground lease is assignable to the lender under the
leasehold estate and its assigns without the consent of the lessor
thereunder;
(F) As of the Closing Date, the ground lease is in full force
and effect, the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred, and there is no existing
condition which, but for the passage of time or giving of notice, would
result in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by the
lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee in
the relevant portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect the
security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case
of condemnation awards, the ground lessor may be entitled to a portion of
such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in respect
of a total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
as provided by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease will have an
option to terminate or modify the ground lease without the prior written
consent of the lender as a result of any casualty or partial condemnation,
except to provide for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxx) With respect to Mortgage Loans that are
cross-collateralized, all other loans that are cross-collateralized by such
Mortgage Loans are included in the Trust Fund;
(xxxi) Neither Seller nor any affiliate thereof has any
obligation to make any capital contribution to any borrower under a Mortgage
Loan, other than contributions made on or prior to the Closing Date;
(xxxii) (1) The Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an MAI appraisal conducted
within 12 months of the origination of the Mortgage Loan, was at least equal to
80% of the principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed exchange
under Section 1001 of the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not reasonably foreseeable, the date
of the last such modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first be reduced by (A) the
amount of any lien on the real property interest that is senior to the Mortgage
Loan (unless such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on an aggregated basis) and
(B) a proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregate basis);
(xxxiii) There are no subordinate mortgages encumbering the
related Mortgaged Property, nor are there any preferred equity interests held by
the Seller or any mezzanine debt related to such Mortgaged Property, except as
set forth in the Prospectus Supplement, this Exhibit A or in the related
Mortgage Loan Purchase Agreement;
(xxxiv) The loan documents executed in connection with each
Mortgage Loan require that the related borrower be a single-purpose entity (for
this purpose, "single-purpose entity" shall mean an entity, other than an
individual, that is formed or organized solely for the purpose of owning and
operating one or more Mortgaged Properties, is prohibited from engaging in any
business unrelated to such property and the related Mortgage Loan, does not have
any assets other than those related to its interest in the related Mortgaged
Property or its financing, or any indebtedness other than as permitted under the
related Mortgage Loan);
(xxxv) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property and, except in
connection with trade debt and equipment financings in the ordinary course of
borrower's business, from carrying any additional indebtedness, except, in each
case, liens contested in accordance with the terms of the Mortgage Loans;
(xxxvi) Each borrower covenants in the Mortgage Loan documents
that it shall remain in material compliance with all material licenses, permits
and other legal requirements necessary and required to conduct its business;
(xxxvii) Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, is served by public utilities and services generally available in the
surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and is a separate tax parcel;
(xxxviii) Based solely on a flood zone certification or a survey
of the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency, with respect to certain Mortgage Loans, or the Secretary of
Housing and Urban Development with respect to other Mortgage Loans, as having
special flood hazards, the terms of the Mortgage Loan require the borrower to
maintain flood insurance or at such borrowers failure to do so, authorizes the
Lender to maintain such insurance at the cost and expense of the borrower;
(xxxix) To the knowledge of the Seller, with respect to each
Mortgage which is a deed of trust, a trustee, duly qualified under applicable
law to serve as such, currently so serves and is named in the deed of trust or
has been substituted in accordance with applicable law, and except in connection
with a trustee's sale after a default by the related borrower, no fees are
payable to such trustee;
(xl) RESERVED.
(xli) RESERVED.
(xlii) Except as disclosed in the Prospectus Supplement, to the
knowledge of the Seller as of the Closing Date, there was no pending action,
suit or proceeding, arbitration or governmental investigation against any
borrower or Mortgaged Property, an adverse outcome of which would materially and
adversely affect such borrower's ability to perform under the related Mortgage
Loan;
(xliii) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of preferred
equity interests by the Preferred Interest Holder, as disclosed in the
Prospectus Supplement) and no funds have been received from any person other
than, or on behalf of, the related borrower for, or on account of, payments due
on the Mortgage Loan;
(xliv) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Mortgage Note, each
holder of the Mortgage Note was authorized to transact and do business in the
jurisdiction in which each related Mortgaged Property is located, or failure to
be so authorized did not materially affect the ability of such holder to
transact business in the jurisdiction in which each related Mortgaged Property
is located while such entity was the holder;
(xlv) All collateral for the Mortgage Loans is being
transferred as part of the Mortgage Loans;
(xlvi) Except as disclosed in the Prospectus Supplement, in
connection with Crossed Loans and Multi-Property Loans, no Mortgage Loan
requires the lender to release any portion of the Mortgaged Property from the
lien of the related Mortgage except upon (a) payment in full or defeasance of
the related Mortgage Loan, (b) releases of unimproved out-parcels or (c)
releases of portions of the Mortgaged Property which will not have a material
adverse effect on the value of the collateral for the related Mortgage Loan;
(xlvii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all Mortgage Loans other
than Credit Lease Loans and with respect to all casualty losses or takings in
excess of a specified percentage of the related loan amount, the lender (or a
trustee appointed by it) having the right to hold and disburse such proceeds as
the repair or restoration progresses or (b) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon;
(xlviii) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, together with each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller and each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement executed by the Seller in blank which the
Trustee or its designee is authorized to complete (and but for the insertion of
the name of the assignee and any related filing information which is not yet
available to the Seller) is in suitable form for filing in the filing office in
which such financing statement was filed;
(xlix) To the Seller's knowledge, (a) all material commercial
leases affecting the Mortgaged Properties securing the Mortgage Loans are in
full force and effect and (b) there exists no default under any such material
commercial lease either by the lessee thereunder or by the related borrower that
could give rise to the termination of such lease;
(l) The improvements located on or forming part of each Mortgaged
Property comply with applicable zoning laws and ordinances, or constitute a
legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property. With respect to properties with a Stated
Principal Balance of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent the Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(li) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision) and all Prepayment Premiums and Yield Maintenance Charges
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(lii) With respect to any Mortgage Loan that pursuant to the
mortgage documents can be defeased, (i) the Mortgage Loan cannot be defeased
within two years of the Closing Date, (ii) the borrower can pledge only United
States government securities in an amount sufficient to make all scheduled
payments under the Mortgage Loan when due, (iii) the borrower is required to
provide independent certified public accountants certification that the
collateral is sufficient to make such payments, (iv) the loan may be required to
be assumed by a single-purpose entity designated by the holder of the Mortgage
Loan, and (v) the borrower is required to provide an opinion of counsel that the
trustee has a perfected security interest in such collateral prior to any other
claim or interest;
(liii) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the Seller for any
losses incurred by the Seller due to (i) the misapplication or misappropriation
of rents, insurance proceeds or condemnation awards, (ii) any willful act of
material waste, (iii) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, (iv) fraud, and (v) any act resulting in the
Mortgaged Property becoming an asset in a voluntary bankruptcy or insolvency
proceeding;
(liv) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date and provides that: (i) its Mortgage
Rate will increase by no more than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan is an
asset of the Trust Fund; (ii) its Anticipated Repayment Date is not less than
seven years following the origination of such Mortgage Loan; (iii) no later than
the related Anticipated Repayment Date, if it has not previously done so, the
related borrower is required 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 Servicer; and (iv) any 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 Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures.
(lv) Except as disclosed in the Prospectus Supplement, not more
than 5% of the aggregate initial principal amount of the Mortgage Loans have the
same Mortgagor or, to the Seller's best knowledge, have mortgagors that are
affiliates of each other;
(lvi) The Participation and Intercreditor Agreement (the
"L'Enfant Participation Agreement") relating to Loan No. 8 on the Mortgage Loan
Schedule (the L'Enfant Loan) represents the legal, valid and binding obligations
of the Seller, enforceable against the Seller, as the Other B Note Participant
(as defined in the L'Enfant Participation Agreement), enforceable against the
Seller in accordance with its terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization of other similar laws affecting the
enforcement of creditors rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity of at law).
(lvii) The Intercreditor Agreement (the "1211 Avenue of the
Americas Intercreditor Agreement") relating to Loan No. 3 on the Mortgage Loan
Schedule (the 1211 Avenue of the Americas Loan) represents the legal, valid and
binding obligations of the Seller, enforceable against the Seller, as the Other
Note Holder (as defined in the 1211 Avenue of the Americas Intercreditor
Agreement), enforceable against the Seller in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization of
other similar laws affecting the enforcement of creditors rights generally, and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity of at law).
<PAGE>
EXHIBIT A-2
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS ON SCHEDULE II-B
Seller represents and warrants with respect to each Mortgage Loan,
as applicable, that, except as set forth on EXHIBIT _ annexed hereto and made a
part hereof, the following statements are true and correct in all material
respects, as of the date hereof:
(i) Immediately prior to the sale, transfer and assignment to the
Purchaser, no Mortgage Note or Mortgage was subject to any assignment (other
than to Seller), participation or pledge, and Seller had good and marketable
title to, and was the sole owner of, the related Mortgage Loan;
(ii) Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Purchaser constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iii) Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iv) Each related Mortgage Note, Mortgage, assignment of leases
(if any) and other agreement executed in connection with such Mortgage Loan is
the legal, valid and binding obligation of the related borrower, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and there is no valid defense, counterclaim, or right of
rescission available to the related borrower with respect to such Mortgage Note,
Mortgage, assignment of leases and other agreements;
(v) Each related assignment of leases creates a valid first
priority assignment of, or a valid first priority security interest in, certain
rights under the related lease, subject only to a license granted to the related
borrower to exercise certain rights and to perform certain obligations of the
lessor under such lease, including the right to operate the related Mortgaged
Property; no person other than the related borrower owns any interest in any
payments due under such lease that is superior to or of equal priority with the
lender's interest therein;
(vi) Each related assignment of Mortgage from Seller to the
Purchaser and related assignment of the assignment of leases, if any, or
assignment of any other agreement executed in connection with such Mortgage Loan
from Seller to the Purchaser constitutes the legal, valid and binding assignment
from Seller to the Purchaser, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and, each related Mortgaged Property has not
been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(viii) Each related Mortgage is a valid and enforceable first
lien on the related Mortgaged Property (subject to Permitted Encumbrances (as
defined below)), and such Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's title insurance
policy (as described below). A UCC financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property; 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 on property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights generally or by
the application of general principles of equity).
(ix) Seller has not taken any action that would cause the
representations and warranties made by each related borrower in the Mortgage
Loan not to be true;
(x) Seller has no knowledge that the material
representations and warranties made by each related borrower in such Mortgage
Loan are not true in any material respect;
(xi) The lien of each related Mortgage is a first priority lien
on the fee or leasehold interest of the related borrower in the original
principal amount of such Mortgage Loan or allocated loan amount of the portions
of the Mortgaged Property covered thereby (as set forth in the related Mortgage)
after all advances of principal and is insured by an ALTA lender's title
insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring Seller and its successors and
assigns as to such lien, subject only to (a) the lien of current real property
taxes, ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property and (c) the exceptions (general and specific) set forth in
such policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or materially
interferes with the security intended to be provided by such Mortgage or with
the related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property (items (a), (b) and (c) collectively,
"Permitted Encumbrances"); the premium for such policy was paid in full; such
policy was issued by a title insurance company licensed to issue policies in the
state in which the related Mortgaged Property is located and is assignable to
the Purchaser and the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement; no claims
have been made under such policy and Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder and Seller
covenants that it will not make any future advances under the Mortgage Loan to
the related borrower;
(xiii) As of the later of the date of origination of such Mortgage
Loan or the most recent inspection of the related Mortgaged Property by Seller,
as applicable, and to the knowledge of Seller as of the Closing Date, each
related Mortgaged Property is free of any material damage that would affect
materially and adversely the value of such Mortgaged Property as security for
the Mortgage Loan or reserves have been established to remediate such damage
and, as of the closing date for each Mortgage Loan and, to Seller's knowledge,
as of the date hereof, there is no proceeding pending for the total or partial
condemnation of such Mortgaged Property that would have a material adverse
effect on the value of the Mortgaged Property;
(xiv) Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months, or the originator of the
Mortgage Loan inspected or caused to be inspected each related Mortgage Property
within three months of origination of the Mortgage Loan;
(xv) No Mortgage Loan has a shared appreciation feature,
any other contingent interest feature or a negative amortization feature;
(xvi) Each Mortgage Loan is a whole loan and contains no
equity participation by Seller;
(xvii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury; and any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xviii) Neither Seller nor to Seller's knowledge, any originator,
committed any fraudulent acts during the origination process of any Mortgage
Loan and the origination, servicing and collection of each Mortgage Loan is in
all respects legal, proper and prudent in accordance with customary industry
standards, and no other person has been granted or conveyed the right to service
the Mortgage Loans or receive any consideration in connection therewith, except
as provided in the Pooling and Servicing Agreement;
(xix) All taxes and governmental assessments that became due and
owing prior to the Closing Date with respect to each related Mortgaged Property
have been paid or an escrow of funds in an amount sufficient to cover such
payments has been established;
(xx) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of Seller or its
agent and there are no deficiencies in connection therewith and all such escrows
and deposits have been conveyed by Seller to the Purchaser and identified as
such with appropriate detail;
(xxi) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the
replacement cost (with no deduction for physical depreciation) and the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the related Mortgaged Property; each related Mortgaged Property is also covered
by business interruption insurance which covers a period of not less than 12
months and comprehensive general liability insurance in amounts generally
required by institutional lenders for similar properties; all premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received; such insurance names the
lender under the Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related borrower to
maintain all such insurance and, at such borrower's failure to do so, authorizes
the lender to maintain such insurance at the borrower's cost and expense and to
seek reimbursement therefor from such borrower;
(xxii) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To Seller's knowledge,
there is no (a) material non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan or (b) event (other than
payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does constitute
a material default, breach, violation or event of acceleration;
(xxiii) No Mortgage Loan has been more than 30 days delinquent since
origination and as of the Cut-off Date no Mortgage Loan is 30 or more days
delinquent;
(xxiv) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure, and there
is no exemption available to the borrower which would interfere with such right
to foreclose (except as may be imposed by bankruptcy, insolvency, moratorium,
redemption or other similar laws affecting creditors' rights generally, or by
general principles of equity) and to Seller's knowledge, no borrower is a debtor
in a state or federal bankruptcy or insolvency proceeding;
(xxv) At origination, each borrower represented and warranted that
except as set forth in certain environmental reports and to its 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
or other environmental laws; the related borrower or an affiliate or an
affiliate thereof agreed to indemnify, defend and hold the mortgagee and its
successors and assigns harmless from and against losses, liabilities, damages,
injuries, penalties, fines, expenses, and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in connection
with such Mortgage Loan. A Phase I environmental report and with respect to
certain Mortgage Loans, a Phase II environmental report, was conducted by a
reputable environmental engineer in connection with such Mortgage Loan, which
report did not indicate any material non-compliance with applicable
environmental laws or material existence of hazardous materials or, if any
material non-compliance or material existence of hazardous materials was
indicated in any such report, funds sufficient to cure such findings have been
escrowed by the related borrower and held by the related mortgagee or an
operations and maintenance program has been required to be instituted by the
related borrower. To the best of Seller's knowledge, in reliance on such
environmental reports and except as set forth in such environmental reports,
each Mortgaged Property is in material compliance with all applicable federal,
state and local environmental laws, and to the best of Seller's knowledge, no
notice of violation of such laws has been issued by any governmental agency or
authority, except, in all cases, as indicated in certain environmental reports
or other documents previously provided to the Rating Agencies; and Seller has
not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining to
environmental hazards;
(xxvi) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage, the related
Mortgaged Property is directly or indirectly transferred or sold (except for
transfers of stock of the related Borrower in connection with the assignment of
a proprietary lease for an apartment unit by a tenant-shareholder of the related
Borrower to other persons who by virtue of such transfers become
tenant-shareholders), and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members and other estate related transfers that satisfy
certain criteria specified in the related Mortgage (which criteria is consistent
with the practices of prudent commercial mortgage lenders), each Mortgage Loan
with a Stated Principal Balance of over $20,000,000, also contains provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage, a
controlling interest in the related Borrower is directly or indirectly
transferred or sold;
(xxvii) All improvements included in any MAI appraisals are within
the boundaries of the related Mortgaged Property, except for de minimis
encroachments onto adjoining parcels for which Seller has obtained affirmative
title insurance with respect to such encroachments in customary form and no
improvements on adjoining parcels encroach onto the related Mortgaged Property
except for de minimis encroachments;
(xxviii) The mortgage loan schedule which is attached as an
exhibit to the Pooling and Servicing Agreement is complete and accurate in all
material respects as of the dates of the information set forth therein;
(xxix) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate,
based upon the terms of the ground lease and any estoppel received from the
ground lessor, Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest of the
lessee 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 adversely affect the security provided by
the related Mortgage. To Seller's best knowledge, there has been no
material change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the related
mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is not
binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the lender) that extends not
less than 20 years beyond the stated maturity of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by Seller, the ground lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the Mortgage,
subject to Permitted Encumbrances and liens that encumber the ground
lessor's fee interest;
(E) The ground lease is assignable to the lender under the
leasehold estate and its assigns without the consent of the lessor
thereunder;
(F) As of the Closing Date, the ground lease is in full force
and effect, Seller has no actual knowledge of any default beyond
applicable notice and grace periods has occurred, and there is no existing
condition which, but for the passage of time or giving of notice, would
result in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by the
lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee in
the relevant portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect the
security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case
of condemnation awards, the ground lessor may be entitled to a portion of
such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in respect
of a total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
as provided by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by institutional
investors, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease will have an
option to terminate or modify the ground lease without the prior written
consent of the lender as a result of any casualty or partial condemnation,
except to provide for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxx) With respect to Mortgage Loans that are
cross-collateralized, all other loans that are cross-collateralized by such
Mortgage Loans are included in the Trust Fund;
(xxxi) Neither Seller nor any affiliate thereof has any
obligation to make any capital contribution to any borrower under a Mortgage
Loan, other than contributions made on or prior to the Closing Date;
(xxxii) (1) The Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an MAI appraisal conducted
within 12 months of the origination of the Mortgage Loan, was at least equal to
80% of the principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed exchange
under Section 1001 of the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not reasonably foreseeable, the date
of the last such modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first be reduced by (A) the
amount of any lien on the real property interest that is senior to the Mortgage
Loan (unless such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on an aggregated basis) and
(B) a proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregate basis);
(xxxiii) There are no subordinate mortgages encumbering the
related Mortgaged Property, nor are there any preferred equity interests held by
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement and the Mortgage Loan Schedule;
(xxxiv) Intentionally omitted;
(xxxv) Each Mortgage Loan (i) prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the consent
of Seller (which consent, in certain instances, Seller may not unreasonably
withhold) and (ii) prohibits the related borrower from incurring any unsecured
indebtedness in excess of an amount (which amount would not be viewed as
commercially unreasonable) stated in the related Mortgage Loan Documents without
the consent of Seller.
(xxxvi) Each borrower covenants in the Mortgage Loan documents
that it shall remain in material compliance with all material licenses, permits
and other legal requirements necessary and required to conduct its business;
(xxxvii) Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, is served by public utilities and services generally available in the
surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and is a separate tax parcel;
(xxxviii) Based solely on a flood zone certification or a survey
of the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency, with respect to certain Mortgage Loans, or the Secretary of
Housing and Urban Development with respect to other Mortgage Loans, as having
special flood hazards, the terms of the Mortgage Loan require the borrower to
maintain flood insurance or at such borrowers failure to do so, authorizes the
Lender to maintain such insurance at the cost and expense of the borrower;
(xxxix) To the knowledge of Seller, with respect to each Mortgage
which is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law, and except in connection with a
trustee's sale after a default by the related borrower, no fees are payable to
such trustee;
(xl) Intentionally Omitted:
---------------------
(xli) Intentionally Omitted:
---------------------
(xlii) Except as disclosed in the Prospectus Supplement, to the
knowledge of Seller as of the Closing Date, there was no pending action, suit or
proceeding, arbitration or governmental investigation against any borrower or
Mortgaged Property, an adverse outcome of which would materially and adversely
affect such borrower's ability to perform under the related Mortgage Loan;
(xliii) Except with respect to subordinate debt disclosed in the
Mortgage Loan Schedule, no advance of funds has been made by Seller to the
related borrower and no funds have been received from any person other than, or
on behalf of, the related borrower for, or on account of, payments due on the
Mortgage Loan;
(xliv) To the extent required under applicable law, as of the
Cut-off Date, the holder of the related Mortgage Loan was authorized to transact
and do business in the jurisdiction in which each related Mortgaged Property is
located, or failure to be so authorized does not materially affect the ability
of such holder to transact business in the jurisdiction in which each related
Mortgaged Property is located;
(xlv) All collateral for the Mortgage Loans is being
transferred as part of the Mortgage Loans;
(xlvi) Except as disclosed in the Prospectus Supplement, in
connection with Crossed Loans, no Mortgage Loan requires the lender to release
any portion of the Mortgaged Property from the lien of the related Mortgage
except upon (a) payment in full or defeasance of the related Mortgage Loan, (b)
releases of unimproved out-parcels or (c) releases of portions of the Mortgaged
Property which will not have a material adverse effect on the value of the
collateral for the related Mortgage Loan;
(xlvii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all Mortgage Loans, and
with respect to all casualty losses or takings in excess of a specified
percentage of the related loan amount, the lender (or a trustee appointed by it)
having the right to hold and disburse such proceeds as the repair or restoration
progresses or (b) to the payment of the outstanding principal balance of such
Mortgage Loan together with any accrued interest thereon;
(xlviii) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, together with each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to Seller and each Form UCC-2 or UCC-3 assignment, if any,
of such financing statement executed by Seller in blank which the Trustee or its
designee is authorized to complete (and but for the insertion of the name of the
assignee and any related filing information which is not yet available to
Seller) is in suitable form for filing in the filing office in which such
financing statement was filed;
(xlix) To Seller's knowledge, (a) all material commercial leases
affecting the Mortgaged Properties securing the Mortgage Loans are in full force
and effect and (b) there exists no default under any such material commercial
lease either by the lessee thereunder or by the related borrower that could give
rise to the termination of such lease;
(l) The improvements located on or forming part of each Mortgaged
Property comply with applicable zoning laws and ordinances, or constitute a
legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property. With respect to properties with a Stated
Principal Balance of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(li) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision) and all Prepayment Premiums and Yield Maintenance Charges
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(lii) With respect to any Mortgage Loan that pursuant to the
mortgage documents can be defeased, (i) the Mortgage Loan cannot be defeased
within two years of the Closing Date, (ii) the borrower can pledge only United
States government securities in an amount sufficient to make all scheduled
payments under the Mortgage Loan when due, (iii) the borrower is required to
provide either a certificate or opinion of an independent certified public
accountants that the collateral is sufficient to make such payments, (iv) the
loan may be required to be assumed by a single-purpose entity designated by the
holder of the Mortgage Loan, and (v) the borrower is required to provide an
opinion of counsel be provided that the trustee has a perfected security
interest in such collateral prior to any other claim or interest;
(liii) With respect to Mortgage Loan Nos. 92, 135 and 145, such
Mortgage Loans are fully recourse to the related Borrowers. Certain of the
Mortgage Loans are non-recourse to the shareholders, officers and/or directors
of the mortgagor, except with respect to damages suffered or incurred by the
holder of the Mortgage relating to or arising out of (i) any claim for damages
against the mortgagor relating to the misapplication of any insurance proceeds
or condemnation awards with respect to the Mortgaged Property, including,
without limitation, any action taken by the shareholder, officer and/or director
of mortgagor on behalf of mortgagor, (ii) any claim relating to any fraud or
misrepresentation by or on behalf of mortgagor, including, without limitation,
any fraud or misrepresentation by the shareholder, officer and/or director of
mortgagor, (iii) any claim relating to a misappropriation of any reserve
accounts, security deposits or rents maintained by mortgagor, including, without
limitation, any misappropriation of any reserve accounts, security deposits or
rents by the shareholder, officer and/or director of mortgagor, (iv) any failure
of mortgagor to comply with the provisions of the related Mortgage governing any
transfer, sale, hypothecation, pledge or further encumbering of the related
Mortgaged Property or any part thereof or (v) any breach by mortgagor of any of
the provisions of the related Mortgage concerning hazardous materials; with
respect to Mortgage Loans No. 34, 35 and 36, the Mortgage Loan Documents for
each Mortgage Loan provide that the related borrower thereunder shall be liable
to the Seller for any losses incurred by the Seller due to (i) the
misapplication or misappropriation of rents, insurance proceeds or condemnation
awards, (ii) any willful act of material waste, (iii) any breach of the
environmental covenants contained in the related Mortgage Loan Documents, (iv)
fraud, and (v) any act resulting in the Mortgaged Property becoming an asset in
a voluntary bankruptcy or insolvency proceeding.
(liv) Intentionally Omitted.
(lv) Except as disclosed in the Prospectus Supplement, not more
than 5% of the aggregate initial principal amount of the Mortgage Loan Pool have
the same Mortgagor or, to Seller's best knowledge, have mortgagors that are
affiliates of each other.
<PAGE>
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK_)
______ ) ss.:
COUNTY OF NEW YORK )
,
, being duly sworn, deposes and says:
1. that he is an authorized signatory of Credit Suisse First
Boston Mortgage Capital LLC ("CSFBMC");
2. that CSFBMC is the owner and holder of a mortgage loan in
the original principal amount of $ secured by a mortgage
(the "Mortgage") on the premises known as
located in ;
-------------------- --------------------
3. (a) that CSFBMC, after having conducted a diligent investigation
of its records and files, has been unable to locate the following original note
and believes that said original note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a note in the original sum of $ made by
, to Credit Suisse First Boston Mortgage
Capital Corp., under date of (the "Note");
4. that the Note is now owned and held by CSFBMC;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has
any right, title, interest or claim in the Note except CSFBMC; and
7. upon assignment of the Note by CSFBMC to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor") and subsequent assignment by
the Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series (the "Trustee") (which assignment may, at the discretion of
the Depositor, be made directly by CSFBMC to the Trustee) CSFBMC covenants and
agrees (a) promptly to deliver to the Trustee the original Note if it is
subsequently found, and (b) to indemnify and hold harmless the Trustee and its
successors and assigns from and against any and all costs, expenses and monetary
losses arising as a result of CSFBMC's or the Depositor's failure to deliver
said original Note to the Trustee.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:
Authorized Signatory
Sworn to before me this
day of August [__], 2000
----------
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KNOW ALL MEN BY THESE PRESENTS:
THAT, as of , 2000, Credit Suisse First Boston Mortgage Capital LLC,
a Delaware limited liability company, whose address is Eleven Madison Avenue,
New York, New York 10010 ("ASSIGNOR") in consideration of ten and 00/100
($10.00) dollars and other good and valuable consideration, paid by Wells Fargo
Bank Minnesota, N.A., as trustee for Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2000-C1,
whose address is 45 Broadway, New York, New York 10001 ("ASSIGNEE"), receipt of
which is acknowledged by ASSIGNOR, hereby sells, assigns, transfers, sets over
and conveys unto the ASSIGNEE certain mortgage(s) and assignments of leases,
rents and profits and other collateral documents as follows:
See Schedule "A" attached hereto and incorporated herein
by this reference.
TOGETHER with the note(s), debt(s) and claim(s) secured by said
mortgage(s) and the covenants contained in said mortgage(s), together with all
amendments, supplements and modifications thereto and all liens, financing
statements, guaranties and security interests securing the payment of such
notes, including, without limitation, any other documents recorded in the real
property records of the jurisdiction in which the real property covered by the
mortgage(s) is located with respect to such notes, and any other documents,
agreements, instruments or property relating to such loan(s) and all right,
title, interest, claims, demands, causes of action and judgments securing or
relating to such loan(s); TO HAVE AND TO HOLD the same unto the ASSIGNEE and to
the successors, legal representatives and assigns of the ASSIGNEE forever.
THIS ASSIGNMENT is made without recourse or representation or
warranty of any kind or nature, express or implied except as expressly set forth
in that certain Mortgage Loan Purchase Agreement, dated as of July 11, 2000
between ASSIGNOR and Credit Suisse First Boston Mortgage Securities Corp.
<PAGE>
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment
the __ day of ________ 2000.
IN PRESENCE OF:___
By:____________________________________
Name:
Title:
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this day of , 2000, before me the undersigned, a NOTARY PUBLIC OF
, personally appeared , as ______of Credit Suisse First Boston Mortgage Capital
LLC, a Delaware limited liability company, who, I am satisfied, was the maker of
the foregoing instrument and who then stated and acknowledged to me that, as
such officer and maker (1) he was authorized to execute the foregoing instrument
on behalf of said limited liability company and (2) he executed said instrument
as the act and deed of said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in the day and year last above written.
Signature______________________________
Print Name_____________________________
Residing at____________________________
____________________________
____________________________
A NOTARY PUBLIC OF____________
[AFFIX SEAL] My Commission expires on____________________
<PAGE>
ASSIGNMENT OF MORTGAGE
AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
TO
WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE
RECORD AND RETURN TO:
<PAGE>
Exhibit D
Form of Seller's In-House Counsel Opinion
<PAGE>
================================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
(Seller)
-------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of July 11, 2000
-------------------------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Transactions on or Prior to the Closing Date.................
Section 2. Closing Date Actions.........................................
Section 3. Conveyance of Mortgage Loans.................................
Section 4. Depositor's Conditions to Closing............................
Section 5. Seller's Conditions to Closing...............................
Section 6. Representations and Warranties of Seller.....................
Section 7. Obligations of Seller........................................
Section 8. Representations and Warranties of Depositor..................
Section 9. Survival of Certain Representations, Warranties and Covenants
Section 10. Accountant's Letters.........................................
Section 11. Expenses; Recording Costs....................................
Section 12. Notices......................................................
Section 13. Examination of Mortgage Files................................
Section 14. Successors...................................................
Section 15. Governing Law................................................
Section 16. Severability.................................................
Section 17. Further Assurances...........................................
Section 18. Counterparts.................................................
Section 19. Treatment as Security Agreement..............................
Section 20. Recordation of Agreement.....................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and
Warranties
Exhibit A Representations and Warranties of Seller Regarding the
Mortgage Loans
Exhibit B Form of Lost Mortgage Note Affidavit
Exhibit C Form of Assignment of Mortgage(s) and Assignment of Assignment
of Lessor's Interests in Leases, Rents and Profits
Exhibit D Form of Seller's In-House Counsel Opinion
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of July 11, 2000, is made by and between CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC, a Delaware limited liability company ("Seller") and CREDIT SUISSE
FIRST BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II. Depositor intends to deposit the Mortgage Loans
and other assets into the Trust Fund created pursuant to the Pooling and
Servicing Agreement and to cause the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Wells
Fargo Bank Minnesota, N.A. as trustee (the "Trustee"), against receipt by Seller
of a trust receipt, pursuant to an arrangement between Seller and the Trustee.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Offered Certificates by Depositor to the
Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing shall take place at the offices of Cadwalader,
Wickersham & Taft, 100 Maiden Lane, New York, New York 10038, or such other
location as agreed upon between the parties hereto. On the Closing Date, the
following actions shall take place in sequential order on the terms set forth
herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price (as defined herein) shall be paid by Depositor to Seller or at its
direction by wire transfer in immediately available funds to an account
designated by Seller on or prior to the Closing Date. The "Mortgage Loan
Purchase Price" paid by Depositor shall be equal to [____%] of the
aggregate outstanding principal balance of the Mortgage Loans, after
giving effect to any scheduled monthly payments due on or prior to the
Cut-off Date, plus accrued interest at the weighted average Mortgage Rate
from the Cut-off Date to but not including the Closing Date.
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Offered Certificates pursuant to the
Underwriting Agreement, and Depositor shall sell to the Initial Purchaser,
and the Initial Purchaser shall purchase from Depositor, the Private
Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Offered Certificates for sale
to the public pursuant to the Prospectus and the Prospectus Supplement and
the Initial Purchaser will privately place certain classes of the
Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, without recourse except as provided
herein, to Depositor, free and clear of any liens, claims or other encumbrances,
all of Seller's right, title and interest in, to and under each of the Mortgage
Loans identified on the Mortgage Loan Schedule and all property of Seller
described in Section 19 of this Agreement. On or prior to the Closing Date, each
Mortgage File shall be delivered by Seller to the Trustee. Each Mortgage File
shall contain the following documents:
(a) the original Mortgage Note, or with respect to those Mortgage
Loans listed in Schedule IV hereto, a "lost note" affidavit substantially
in the form of Exhibit B hereto and a true and complete copy of the
Mortgage Note, bearing, or accompanied by, all prior and intervening
endorsements or assignments thereof showing a complete chain of
endorsement or assignment from the Originator of the related Mortgage Loan
to Seller, and further endorsed (at the direction of Depositor given
pursuant to this Agreement) by Seller, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of Wells Fargo Bank Minnesota, N.A., as trustee
for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2000-C1, without recourse, representation or warranty, express or
implied;"
(b) a duplicate original Mortgage (or a certified copy thereof from
the applicable recording office) and originals (or certified copies from
the applicable recording office) of any intervening assignments thereof
showing a complete chain of assignment from the Originator of the related
Mortgage Loan to Seller, in each case with evidence of recording indicated
thereon;
(c) an original (or a true and complete copy if the original
has been sent by the Seller for recordation) Assignment of Mortgage
substantially in the form of Exhibit C hereto, in recordable form, from
Seller to Wells Fargo Bank Minnesota, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities
Corp. Commercial Mortgage Pass-Through Certificates, Series 2000-C1;
(d) an original Assignment of Leases (if such item is a
document separate from the Mortgage), in recordable form;
(e) an original (or a true and complete copy if the original has
been sent by the Seller for recordation) of any related assignment of
Assignment of Leases (if such item is a document separate from the
Mortgage) substantially in the form of Exhibit C hereto and the originals
or copies of any intervening assignments thereof showing a complete chain
of assignment from the Originator of the related Mortgage Loan to Seller,
in each case with evidence of recording thereon;
(f) an original or a true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller;
(g) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in recordable
form, executed by Seller in favor of Wells Fargo Bank Minnesota, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2000-C1;
(h) originals or true and complete copies of all assumption,
modification, written assurance and substitution agreements, with evidence
of recording thereon, where appropriate, in those instances where the
terms or provisions of the related Mortgage or Mortgage Note or any
related security document have been modified or the related Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the related Mortgage Loan,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, or if the policy has not yet
been issued, a written binding commitment or interim binder, dated as of
the date the related Mortgage Loan was funded;
(j) the original or a true and complete copy of any guaranty of the
obligations of the Mortgagor under the related Mortgage Loan and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan to Seller, in each case with evidence of recording thereon;
(k) all UCC Financing Statements and continuation statements or
copies thereof filed with respect to the Mortgage Loans;
(l) the original or a true and complete copy of the power of
attorney (with evidence of recording thereon) granted by the Mortgagor if
the Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(m) any intercreditor agreement relating to any debt of a Borrower
secured by the related Mortgaged Property other than the related Mortgage
Loan;
(n) if any related Lock-Box Agreement or Cash Collateral Agreement
is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a
copy of the UCC-1 financing statements, if any, submitted for filing with
respect to the Seller's security interest in the Cash Collateral Accounts
and Lock-Box Accounts and all funds contained therein (and UCC-2 or UCC-3
financing statements assigning such security interest to the Trustee on
behalf of the Certificateholders);
(o) any Loan Agreement;
(p) [reserved];
(q) any environmental insurance policies;
(r) [reserved];
(s) letters of credit, if any, relating to the Additional Collateral
Loans, including with respect to Loan Nos. 20, 21 and 22, within 120 days
of the Closing Date, the original letter of credit provided by the
borrower, fully assigned to the Trustee;
(t) the related intercreditor agreement, if any;
(u) the applicable participation documents, including (i) the
Amended and Restated Participation and Intercreditor Agreement for Loan
No. 8 on the Mortgage Loan Schedule (the "L'Enfant Loan"), dated June 11,
2000, by and between the Depositor and The Chase Manhattan Bank, as
trustee for Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Pass Through Certificates, Series 1999-C1 as successor to
Credit Suisse First Boston Mortgage Securities Corp., and (ii) the
Co-Lender Agreement relating to the L'Enfant Loan, dated November 11,
1998, by and between The Chase Manhattan Bank, as trustee for Credit
Suisse First Boston Mortgage Securities Corp., Commercial Pass Through
Certificates, Series 1998 C-2 as successor to Credit Suisse First Boston
Mortgage Securities Corp. and the Seller; and
(v) any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
With respect to the L'Enfant Loan and the 1211 Avenue of the
Americas Loan, document delivery requirements (other than those specified in
clause (u) above) will be met by the delivery of copies of any mortgage loan
documents required to be delivered under this agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan (other than the L'Enfant Loan or the 1211 Avenue of the
Americas Loan, Seller cannot deliver an original recorded counterpart of any of
the documents required to be delivered pursuant to clauses (b), (d), (f), (h),
(k) (with respect to UCC financing statements filed other than in accordance
with the transfer contemplated by this Agreement) and (l) above with evidence of
recording or filing thereon concurrently with the execution and delivery hereof,
solely because of a delay caused by the public recording office where such
document or instrument has been delivered for recordation, Seller shall deliver,
or cause to be delivered, to the Trustee a duplicate original or true copy of
such document certified by the applicable public recording or filing office to
be a true and complete duplicate original or copy of the original thereof
submitted for recording or filing.
Notwithstanding the foregoing, in the event that Seller cannot
deliver to the Trustee any UCC-2 or UCC-3 assignment with the filing information
of the UCC-1 financing statement being assigned, solely because of a delay
caused by the public filing office where such UCC-1 financing statement has been
delivered for filing, Seller shall deliver or cause to be delivered to the
Trustee a photocopy of such UCC-2 or UCC-3 assignment with the filing
information left blank. Seller, promptly upon receipt of the applicable filing
information of the UCC-1 financing statement being so assigned, shall deliver to
the Trustee the original UCC-2 or UCC-3 assignment with all appropriate filing
information set forth thereon.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of documents prepared by Seller
or any of its affiliates solely for internal uses, shall immediately vest in
Depositor and shall be forwarded by Seller to the Trustee by overnight mail for
next-day delivery and retained and maintained, in trust, by the Trustee at the
will of Depositor, in such custodial capacity only. All Monthly Payments,
Principal Prepayments and other amounts received by Seller and not otherwise
belonging to Seller pursuant to this Agreement shall be sent by Seller within
three (3) Business Days of Seller's receipt thereof to the Servicer via wire
transfer for deposit by the Servicer into the Collection Account.
Section 4. Depositor's Conditions to Closing. The obligations
of Depositor under this Agreement shall be subject to the satisfaction, on
the Closing Date, of the following conditions:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
all of the representations and warranties of Seller under this Agreement
shall be true and correct in all material respects as of the Closing Date;
and no event shall have occurred with respect to Seller or any of the
Mortgage Loans and related Mortgage Files which, with notice or the
passage of time, would constitute a material default under this Agreement;
and Depositor shall have received certificates to the foregoing effect
signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other
than Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, which shall have been delivered
to and held by the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) an officer's certificate of Seller, dated as of the
Closing Date, with certified copies of the charter, by-laws, and a
certificate of good standing dated as of a recent date of Seller;
(iv) an opinion of Seller's in-house counsel, dated the
Closing Date, in substantially the same form as Exhibit D attached hereto.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made herein, and on certificates or other documents furnished by officers of
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the Limited Liability Company Act of the
State of Delaware and the laws of the State of New York and the United States
and shall not be required to express any opinion with respect to the
registration or qualification of the Certificates under any applicable state or
federal securities laws.
Such counsel shall state that, although such counsel has not
specifically considered the possible applicability to Seller of any other laws,
regulations, judgments, orders or decrees, no facts have been disclosed to such
counsel that cause such counsel to conclude that any other consent, approval or
action is required;
(v) an opinion of Cadwalader, Wickersham & Taft, special
counsel to Seller, dated the Closing Date, substantially to the effect of
the following (with such changes and modifications as Depositor may
approve):
Assuming the due authorization, execution and delivery of this
Agreement by Seller, this Agreement constitutes a valid and
binding agreement of Seller, enforceable against Seller in
accordance with its terms, except to the extent that
enforcement hereof may be limited by (x) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect and (y) general principles of
equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of,
Seller.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the laws of the State of New York and the
United States to the extent specifically referred to.
(vi) such other certificates of Seller's officers or others
and such other documents to evidence fulfillment of the conditions set
forth in this Agreement as Depositor or its counsel may reasonably
request.
Section 5. Seller's Conditions to Closing. The obligations of
Seller under this Agreement shall be subject to the satisfaction, on the
Closing Date, of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects;
and all of the representations and warranties of Seller under this
Agreement shall be true and correct in all material respects as of the
Closing Date; and no event shall have occurred with respect to Depositor
which, with notice or the passage of time, would constitute a material
default under this Agreement, and Seller shall have received certificates
to that effect signed by authorized officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to
Seller and Depositor, duly executed by all signatories other than Seller,
as required pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(B) such other certificates of its officers or others and such
other documents required to evidence fulfillment of the conditions
set forth in this Agreement as Seller or its counsel may reasonably
request.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware. Seller has conducted and
is conducting its business so as to comply in all material respects with
all applicable statutes and regulations of regulatory bodies or agencies
having jurisdiction over it, except where the failure so to comply would
not have a materially adverse effect on the performance by Seller of this
Agreement, and there is no charge, investigation, action, suit or
proceeding before or by any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Seller, threatened, which
is reasonably likely to materially and adversely affect the performance by
Seller of this Agreement or the consummation of transactions contemplated
by this Agreement.
(ii)Neither the execution and delivery by Seller of this
Agreement, nor the compliance by Seller with the provisions hereof, nor
the consummation by Seller of transactions contemplated by this Agreement
will (I) conflict with or result in a breach of, or constitute a default
or result in the acceleration of any obligations under, the certificate of
formation or operating agreement of Seller or, after giving effect to the
consents or the taking of the actions contemplated by clause (II) of this
subparagraph (ii), any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on Seller or its properties
or any of the provisions of any material indenture or mortgage or any
other material contract or instrument to which Seller is a party or by
which it or any of its properties is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument (other than pursuant to this Agreement) or (II) require the
consent of or notice to, or any filing with, any person, entity or
governmental body, which has not been obtained or made by Seller, except
where, in any of the instances contemplated by clause (I) above or this
clause (II), the failure to do so will not have a material adverse effect
on any transactions relating to the sale of the Mortgage Loans by Seller.
(iii) The execution and delivery by Seller of this Agreement,
and the consummation of transactions contemplated by this Agreement on the
terms set forth herein, have been duly authorized by all necessary limited
liability company action on the part of Seller and are within the limited
liability company power of Seller, and this Agreement has been duly
executed and delivered by Seller and constitutes a legal, valid and
binding instrument, enforceable against Seller in accordance with its
terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws of general applicability relating to or
affecting the enforcement of creditors' rights generally, and to general
principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in
equity or at law).
(iv)No consent, approval, authorization or order of,
registration or filing with, or notice to any federal, state or local
governmental authority or court that has not been obtained, made or given
is required in connection with the execution, delivery and performance of
this Agreement by Seller.
(v) No litigation is pending or, threatened against the Seller
which would materially and adversely affect the validity of the Mortgage
Loans, or the ability of the Seller to carry out any transactions relating
to the sale of the Mortgage Loans by Seller.
(vi)Except as set forth on Schedule V hereto, the
representations and warranties contained in Exhibit A-1 and Exhibit A-2
hereto are true and correct in all material respects as of the Closing
Date.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, subject to Section 14 of this Agreement,
notwithstanding any restrictive or qualified endorsement on the mortgage notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement. The representations and warranties contained in or required
to be made by Seller pursuant to Section 6 of this Agreement shall not be
impaired by any review or examination of the Mortgage Files or other documents
evidencing or relating to the Mortgage Loans or any failure on the part of
Depositor to review or examine such documents and shall inure to the benefit of
any initial transferee of the Mortgage Loans from Depositor including, without
limitation, the Trustee for the benefit of the Holders of the Certificates.
Upon discovery of any Defect (as defined herein) in a Mortgage File
related to a Mortgage Loan, Depositor or its assignee shall promptly notify
Seller in writing of such Defect and request that Seller cure such Defect within
90 days from the date Seller was notified of such Defect; provided, however,
that if such Defect would cause such Mortgage Loan to be other than a "qualified
mortgage" under Section 860G(a)(3) of the Code, then such cure shall be within
90 days of discovery of such Defect. A document in the Mortgage File shall be
deemed to have a "Defect" if (a) any document required to be included in the
Mortgage File is not in the possession of the Trustee, within the time required
to be delivered pursuant to this Agreement or (b) such document has not been
properly executed or is otherwise defective on its face; provided, however, that
a document shall not be deemed to have a Defect if such Defect is caused by the
failure by Depositor to execute such document after having been directed by
Seller to execute such document. If Seller does not correct or cure such Defect
within such period, Seller shall purchase such Mortgage Loan from the Trust Fund
at the Purchase Price pursuant to Section 2.03 of the Pooling and Servicing
Agreement.
Within 90 days of the receipt of written notice by Seller of a
breach (a "Breach") of any of the representations, warranties or covenants of
Seller with respect to the Mortgage Loans set forth in Exhibit A to this
Agreement (or, if any such Breach would cause the Mortgage Loan to be other than
a "qualified mortgage" under Section 860G(a)(3) of the Code, within 90 days of
discovery of the Breach) which, in either case, materially and adversely affects
either (i) the interests of Depositor or the Certificateholders in the related
Mortgage Loan or (ii) the value of the related Mortgage Loan, Seller shall cure
such Breach and, if Seller does not correct or cure such Breach within such
period, or if such Breach cannot be so cured, then Seller shall purchase the
affected Mortgage Loan at the Purchase Price pursuant to Section 2.03 of the
Pooling and Servicing Agreement. If Seller is required to repurchase any
Mortgage Loan that is part of a Mortgage Group (as defined herein), Seller shall
also be required to repurchase the remaining Mortgage Loans in such Mortgage
Group. For purposes of this paragraph, a "Mortgage Group" is any group of
Mortgage Loans identified as a Mortgage Group on Schedule III to this Agreement.
The Purchase Price for any repurchased Mortgage Loan shall be
payable to Depositor or, subsequent to the assignment of the Mortgage Loans to
the Trustee, the Trustee as its assignee, by wire transfer of immediately
available funds to the account designated by Depositor or its assignee, and
Depositor or its assignee, upon receipt of such funds, shall promptly release
the related Mortgage File or cause it to be released, to Seller and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in Seller title to any Mortgage
Loan released pursuant hereto. The Depositor or the Servicer, as applicable,
shall deliver to Seller an officer's certificate setting forth the calculation
of the Purchase Price.
Section 8. Representations and Warranties of Depositor.
Depositor hereby represents and warrants to Seller as of the date hereof, as
follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its
business as it is conducted, and is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the ownership
or lease of its property or the conduct of its business requires such
qualification (except where the failure to qualify would not have a
materially adverse effect on the consummation of any transactions
contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the
corporate power of Depositor and have been duly authorized by Depositor
and neither the execution and delivery by Depositor of this Agreement nor
the compliance by Depositor with the provisions hereof, nor the
consummation by Depositor of the transactions contemplated by this
Agreement, will (i) conflict with or result in a breach of, or constitute
a default under, the certificate of incorporation or by-laws of Depositor
or, after giving effect to the consents or taking of the actions
contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order
binding on Depositor or its properties, or any of the provisions of any
material indenture or mortgage or any other material contract or other
instrument to which Depositor is a party or by which it is bound or result
in the creation or imposition of any lien, charge or encumbrance upon any
of its properties pursuant to the terms of any such indenture, mortgage,
contract or other instrument or (ii) require the consent of or notice to,
or any filing with any person, entity or governmental body, which has not
been obtained or made by Depositor, except where, in any of the instances
contemplated by clause (i) above or this clause (ii), the failure to do so
will not have a material and adverse effect on the consummation of any
transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally and to general principles of equity and the discretion of the
court (regardless of whether enforcement of such remedies is considered in
a proceeding in equity or at law) and, as to rights of indemnification
hereunder, subject to limitations of public policy under applicable
securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental
agency or body pending or, to the knowledge of Depositor, threatened
against Depositor the outcome of which could be reasonably expected to
materially and adversely affect the consummation of any transactions
contemplated by this Agreement.
Section 9. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 11 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 10. Accountant's Letters. On or before the Closing Date,
PriceWaterhouseCoopers LLP will have reviewed the characteristics of the
Mortgage Loans described in (a) the Mortgage Loan Schedule attached hereto and
set forth as an exhibit to the Pooling and Servicing Agreement and (b) the
computer disk prepared by Seller and provided to Depositor and will compare
those characteristics to, and ensure their agreement with (i) the description of
the Mortgage Loans contained in the Prospectus Supplement and the Offering
Circular, respectively; (ii) original documentation and files of Seller
maintained with respect to each Mortgage Loan; and (iii) if applicable,
information with respect to such Mortgage Loans contained in the report on Form
8-K to be filed by Depositor with the Commission in connection with the offering
of the Certificates. Seller will cooperate with Depositor and
PriceWaterhouseCoopers LLP in making available all information and taking all
steps reasonably necessary to permit such accountants to complete the review set
forth in this Section 10 and to deliver the letters required of them under the
Underwriting Agreement and the Certificate Purchase Agreement.
Section 11. Expenses; Recording Costs. Seller agrees to pay to
Depositor or its designee all recording and filing fees incurred in connection
with the recording or filing of the documents listed in Section 3 of this
Agreement.
Section 12. Notices. All communications hereunder will be in
writing, and, (a) if sent to Depositor, will be mailed, delivered or telecopied
and confirmed to it at Credit Suisse First Boston Mortgage Securities Corp.,
Eleven Madison Avenue, 5th Floor, New York, New York 10010, Attention: Allan J.
Baum, Telecopy No.: (212) 325-8162; and (b) if sent to Seller, will be mailed,
delivered or telecopied to it at Credit Suisse First Boston Mortgage Capital
LLC, Eleven Madison Avenue, New York, New York 10010, Attention: President,
Telecopy No.: (212) 325-8160.
Section 13. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 14. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and legal representatives, and nothing expressed in this Agreement is intended
or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; it being understood that (a) the indemnities
of Seller contained in that certain Indemnification Agreement dated July 27,
2000 among Seller, Depositor and the Underwriters, subject to all limitations
therein contained, shall also be for the benefit of the officers and directors
of Depositor, the Underwriters and the Initial Purchaser and any person or
persons who control Depositor, the Underwriters and the Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the 1934 Act,
and (b) the rights of Depositor pursuant to this Agreement, subject to all
limitations herein contained, including those set forth in Section 9 of this
Agreement, may be assigned to the Trustee as may be required to effect the
purposes of the Pooling and Servicing Agreement and, upon such assignment, the
Trustee shall succeed to such rights of Depositor hereunder. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
Section 15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 16. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 17. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other parties
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 18. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 19. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in
and to:
(i) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the property
described in the Mortgage Loans, including the related Mortgage Notes,
Mortgages and title, hazard and primary mortgage insurance policies
identified on the Mortgage Loan Schedule, including all replacement
Mortgage Loans, and all distributions with respect thereto payable after
the Cut-off Date;
(ii)all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral
described in (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Mortgage
Notes, the Mortgages and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or
possession by a purchaser or a person designated by him or her, for
purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law. Seller, Depositor or their assignee at the direction of
Seller shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Mortgage Loans and the proceeds
thereof, 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. In connection herewith, Depositor
and its assignee shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the
relevant jurisdiction.
Section 20. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC,
as Seller
By:_______________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:_______________________________________
Name:
Title:____________________________
Vice President
<PAGE>
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of July 11, 2000, between Credit Suisse First Boston Mortgage Capital LLC (" the
Seller") and Credit Suisse First Boston Mortgage Securities Corp. (" the
Depositor"). Capitalized terms used herein without definition have the meanings
given them in or by reference in the Agreement or, if not defined in the
Agreement, in the Pooling and Servicing Agreement, the Underwriting Agreement or
the Certificate Purchase Agreement, as the case may be.
"Borrower" means the borrower under the Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated July 27, 2000, between Depositor and the Initial Purchasers.
"Certificates" means each class of the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 2000-C1.
"Closing Date" means August 4, 2000.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means, July 11, 2000.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Initial Purchasers" means Credit Suisse First Boston Corporation
and Morgan Stanley & Co. Incorporated.
"Investment Officer" means any employee of Seller designated by
Seller as an "investment officer" or whose title includes the words "investment
officer."
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the Originator and the Borrower, pursuant to which
such Mortgage Loan was made.
"Mortgage Loan Pool" means the pool of Mortgage Loans, which are the
primary assets of the Trust Fund.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Mortgage Loans" means the mortgage loans to be sold to Depositor
pursuant to the Agreement, specifically identified in the Mortgage Loan Schedule
to the Agreement.
"Offered Certificates" means the Class A-1, Class A-2, Class B,
Class C and Class D Certificates.
"Offering Circular" means the confidential offering circular dated
July 27, 2000, describing certain classes of the Certificates.
"Originator" means any institution which originated a Mortgage Loan
for a related Borrower.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of July
11, 2000, among the Servicer, the Special Servicer, Depositor and the Trustee,
including the Mortgage Loan Schedule annexed thereto.
"Prospectus" means the Prospectus, dated October 12, 1999.
"Prospectus Supplement" means the Prospectus Supplement, dated July
27, 2000, relating to the Offered Certificates.
"Underwriters" means Credit Suisse First Boston Corporation and
Morgan Stanley & Co. Incorporated.
"Underwriting Agreement" means the Underwriting Agreement, dated
July 27, 2000, between Depositor and the Underwriters.
<PAGE>
SCHEDULE II-A
MORTGAGE LOAN SCHEDULE
<PAGE>
SCHEDULE II-B
MORTGAGE LOAN SCHEDULE (LOANS SOLD BY NCCB TO CSFB)
<PAGE>
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
<PAGE>
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
<PAGE>
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties contained in
Exhibit A corresponding to the roman numerals listed below:
[CURRENTLY PROVIDED AS SEPARATE DOCUMENT]
<PAGE>
EXHIBIT A-1
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS ON SCHEDULE A-1
The Seller represents and warrants with respect to each Mortgage
Loan, as applicable, that as of the date hereof:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Mortgage Note or Mortgage was subject to any assignment (other
than to the Seller), participation or pledge, and the Seller had good and
marketable title to, and was the sole owner of, the related Mortgage Loan;
(ii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iii) The Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iv) Each related Mortgage Note, Mortgage, assignment of leases
(if any) and other agreement executed in connection with such Mortgage Loan is
the legal, valid and binding obligation of the related borrower, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and there is no valid defense, counterclaim, or right of
rescission available to the related borrower with respect to such Mortgage Note,
Mortgage, assignment of leases and other agreements;
(v) Each related assignment of leases creates a valid first
priority collateral or first priority assignment of, or a valid first priority
security interest in, certain rights under the related lease, subject only to a
license granted to the related borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease, including the right
to operate the related Mortgaged Property; no person other than the related
borrower owns any interest in any payments due under such lease that is superior
to or of equal priority with the lender's interest therein;
(vi) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the assignment of leases, if any, or
assignment of any other agreement executed in connection with such Mortgage Loan
from the Seller to the Depositor constitutes the legal, valid and binding
assignment from the Seller to the Depositor, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights generally,
or by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and, each related Mortgaged Property has not
been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(viii) Each related Mortgage is a valid and enforceable first
lien on the related Mortgaged Property (subject to Permitted Encumbrances (as
defined below)), and such Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's title insurance
policy (as described below). A UCC financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property; 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 on property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights generally or by
the application of general principles of equity).
(ix) The Seller has not taken any action that would cause the
representations and warranties made by each related borrower in the Mortgage
Loan not to be true;
(x) The Seller has no knowledge that the material representations
and warranties made by each related borrower in such Mortgage Loan are not true
in any material respect;
(xi) The lien of each related Mortgage is a first priority lien
on the fee or leasehold interest of the related borrower in the original
principal amount of such Mortgage Loan or allocated loan amount of the portions
of the Mortgaged Property covered thereby (as set forth in the related Mortgage)
after all advances of principal and is insured by an ALTA lender's title
insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring the Seller and its successors
and assigns as to such lien, subject only to (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which, individually or in
the aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with the
borrower's ability to pay its obligations when they become due or the value of
the Mortgaged Property and (c) the exceptions (general and specific) set forth
in such policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or materially
interferes with the security intended to be provided by such Mortgage or with
the related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property (items (a), (b) and (c) collectively,
"Permitted Encumbrances"); the premium for such policy was paid in full; such
policy was issued by a title insurance company licensed to issue policies in the
state in which the related Mortgaged Property is located and is assignable to
the Depositor and the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement; no claims
have been made under such policy and the Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder and the
Seller covenants that it will not make any future advances under the Mortgage
Loan to the related borrower;
(xiii) As of the later of the date of origination of such
Mortgage Loan or the most recent inspection of the related Mortgaged Property by
the Seller, as applicable, and to the knowledge of Seller as of the Closing
Date, each related Mortgaged Property is free of any material damage that would
affect materially and adversely the value of such Mortgaged Property as security
for the Mortgage Loan or reserves have been established to remediate such damage
and, as of the closing date for each Mortgage Loan and, to the Seller's
knowledge, as of the date hereof, there is no proceeding pending for the total
or partial condemnation of such Mortgaged Property that would have a material
adverse effect on the value of the Mortgaged Property;
(xiv) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgage
Property within three months of origination of the Mortgage Loan;
(xv) No Mortgage Loan has a shared appreciation feature, any
other contingent interest feature or a negative amortization feature other than
the ARD Loans which may have negative amortization from and after the
Anticipated Repayment Date;
(xvi) Each Mortgage Loan is a whole loan and contains no
equity participation by Seller;
(xvii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury; and any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xviii) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan and the origination, servicing and collection of each Mortgage
Loan is in all respects legal, proper and prudent in accordance with customary
industry standards, and no other person has been granted or conveyed the right
to service the Mortgage Loans or receive any consideration in connection
therewith, except as provided in the Pooling and Servicing Agreement;
(xix) All taxes and governmental assessments that became due and
owing prior to the Closing Date with respect to each related Mortgaged Property
have been paid or an escrow of funds in an amount sufficient to cover such
payments has been established;
(xx) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies in connection therewith and all such escrows
and deposits have been conveyed by the Seller to the Depositor and identified as
such with appropriate detail;
(xxi) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the
replacement cost (with no deduction for physical depreciation) and the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the related Mortgaged Property; each related Mortgaged Property is also covered
by business interruption insurance which covers a period of not less than 12
months and comprehensive general liability insurance in amounts generally
required by institutional lenders for similar properties; all premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received; such insurance names the
lender under the Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related borrower to
maintain all such insurance and, at such borrower's failure to do so, authorizes
the lender to maintain such insurance at the borrower's cost and expense and to
seek reimbursement therefor from such borrower;
(xxii) There is no monetary default, breach, violation or event
of acceleration existing under the related Mortgage Loan. To the Seller's
knowledge, there is no (a) material non-monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan or (b) event
(other than payments due but not yet delinquent) which, with the passage of time
or with notice and the expiration of any grace or cure period, would and does
constitute a default, breach, violation or event of acceleration;
(xxiii) No Mortgage Loan has been more than 30 days delinquent
since origination and as of the Cut-off Date no Mortgage Loan is 30 or more days
delinquent;
(xxiv) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure, and there
is no exemption available to the borrower which would interfere with such right
to foreclose (except as may be imposed by bankruptcy, insolvency, moratorium,
redemption or other similar laws affecting creditors' rights generally, or by
general principles of equity) and to the Seller's knowledge, no borrower is a
debtor in a state or federal bankruptcy or insolvency proceeding;
(xxv) At origination, each borrower represented and warranted
that except as set forth in certain environmental reports and to its 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
or other environmental laws; the related borrower or an affiliate or an
affiliate thereof agreed to indemnify, defend and hold the mortgagee and its
successors and assigns harmless from and against losses, liabilities, damages,
injuries, penalties, fines, expenses, and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in connection
with such Mortgage Loan. A Phase I environmental report and with respect to
certain Mortgage Loans, a Phase II environmental report, was conducted by a
reputable environmental engineer in connection with such Mortgage Loan, which
report did not indicate any material non-compliance with applicable
environmental laws or material existence of hazardous materials or, if any
material non-compliance or material existence of hazardous materials was
indicated in any such report, funds sufficient to cure such findings have been
escrowed by the related borrower and held by the related mortgagee or an
operations and maintenance program has been required to be instituted by the
related borrower. To the best of the Seller's knowledge, in reliance on such
environmental reports and except as set forth in such environmental reports,
each Mortgaged Property is in material compliance with all applicable federal,
state and local environmental laws, and to the best of the Seller's knowledge,
no notice of violation of such laws has been issued by any governmental agency
or authority, except, in all cases, as indicated in certain environmental
reports or other documents previously provided to the Rating Agencies; and the
Seller has not taken any action which would cause the Mortgaged Property to not
be in compliance with all federal, state and local environmental laws pertaining
to environmental hazards;
(xxvi) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members and other estate related transfers that satisfy
certain criteria specified in the related Mortgage (which criteria is consistent
with the practices of prudent commercial mortgage lenders), each Mortgage Loan
with a Stated Principal Balance of over $20,000,000 also contains the provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage, (and the
mortgage requires the mortgagor to pay all fees and expenses associated with
obtaining such consent) a controlling interest in the related Borrower is
directly or indirectly transferred or sold;
(xxvii) All improvements included in any MAI appraisals are
within the boundaries of the related Mortgaged Property, except for de minimis
encroachments onto adjoining parcels for which the Seller has obtained title
insurance against losses arising therefrom and no improvements on adjoining
parcels encroach onto the related Mortgaged Property except for de minimis
encroachments;
(xxviii) The mortgage loan schedule which is attached as an
exhibit to the Pooling and Servicing Agreement is complete and accurate in all
material respects as of the dates of the information set forth therein;
(xxix) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate,
based upon the terms of the ground lease and any estoppel received from the
ground lessor, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest of the
lessee 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 adversely affect the security provided by
the related Mortgage. To the Seller's best knowledge, there has been no
material change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the related
mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is not
binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the lender) that extends not
less than 20 years beyond the stated maturity of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
Mortgage, subject to Permitted Encumbrances and liens that encumber the
ground lessor's fee interest;
(E) The ground lease is assignable to the lender under the
leasehold estate and its assigns without the consent of the lessor
thereunder;
(F) As of the Closing Date, the ground lease is in full force
and effect, the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred, and there is no existing
condition which, but for the passage of time or giving of notice, would
result in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by the
lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee in
the relevant portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect the
security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case
of condemnation awards, the ground lessor may be entitled to a portion of
such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in respect
of a total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
as provided by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease will have an
option to terminate or modify the ground lease without the prior written
consent of the lender as a result of any casualty or partial condemnation,
except to provide for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxx) With respect to Mortgage Loans that are
cross-collateralized, all other loans that are cross-collateralized by such
Mortgage Loans are included in the Trust Fund;
(xxxi) Neither Seller nor any affiliate thereof has any
obligation to make any capital contribution to any borrower under a Mortgage
Loan, other than contributions made on or prior to the Closing Date;
(xxxii) (1) The Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an MAI appraisal conducted
within 12 months of the origination of the Mortgage Loan, was at least equal to
80% of the principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed exchange
under Section 1001 of the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not reasonably foreseeable, the date
of the last such modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first be reduced by (A) the
amount of any lien on the real property interest that is senior to the Mortgage
Loan (unless such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on an aggregated basis) and
(B) a proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregate basis);
(xxxiii) There are no subordinate mortgages encumbering the
related Mortgaged Property, nor are there any preferred equity interests held by
the Seller or any mezzanine debt related to such Mortgaged Property, except as
set forth in the Prospectus Supplement, this Exhibit A or in the related
Mortgage Loan Purchase Agreement;
(xxxiv) The loan documents executed in connection with each
Mortgage Loan require that the related borrower be a single-purpose entity (for
this purpose, "single-purpose entity" shall mean an entity, other than an
individual, that is formed or organized solely for the purpose of owning and
operating one or more Mortgaged Properties, is prohibited from engaging in any
business unrelated to such property and the related Mortgage Loan, does not have
any assets other than those related to its interest in the related Mortgaged
Property or its financing, or any indebtedness other than as permitted under the
related Mortgage Loan);
(xxxv) Each Mortgage Loan prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property and, except in
connection with trade debt and equipment financings in the ordinary course of
borrower's business, from carrying any additional indebtedness, except, in each
case, liens contested in accordance with the terms of the Mortgage Loans;
(xxxvi) Each borrower covenants in the Mortgage Loan documents
that it shall remain in material compliance with all material licenses, permits
and other legal requirements necessary and required to conduct its business;
(xxxvii) Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, is served by public utilities and services generally available in the
surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and is a separate tax parcel;
(xxxviii) Based solely on a flood zone certification or a survey
of the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency, with respect to certain Mortgage Loans, or the Secretary of
Housing and Urban Development with respect to other Mortgage Loans, as having
special flood hazards, the terms of the Mortgage Loan require the borrower to
maintain flood insurance or at such borrowers failure to do so, authorizes the
Lender to maintain such insurance at the cost and expense of the borrower;
(xxxix) To the knowledge of the Seller, with respect to each
Mortgage which is a deed of trust, a trustee, duly qualified under applicable
law to serve as such, currently so serves and is named in the deed of trust or
has been substituted in accordance with applicable law, and except in connection
with a trustee's sale after a default by the related borrower, no fees are
payable to such trustee;
(xl) RESERVED.
(xli) RESERVED.
(xlii) Except as disclosed in the Prospectus Supplement, to the
knowledge of the Seller as of the Closing Date, there was no pending action,
suit or proceeding, arbitration or governmental investigation against any
borrower or Mortgaged Property, an adverse outcome of which would materially and
adversely affect such borrower's ability to perform under the related Mortgage
Loan;
(xliii) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of preferred
equity interests by the Preferred Interest Holder, as disclosed in the
Prospectus Supplement) and no funds have been received from any person other
than, or on behalf of, the related borrower for, or on account of, payments due
on the Mortgage Loan;
(xliv) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Mortgage Note, each
holder of the Mortgage Note was authorized to transact and do business in the
jurisdiction in which each related Mortgaged Property is located, or failure to
be so authorized did not materially affect the ability of such holder to
transact business in the jurisdiction in which each related Mortgaged Property
is located while such entity was the holder;
(xlv) All collateral for the Mortgage Loans is being
transferred as part of the Mortgage Loans;
(xlvi) Except as disclosed in the Prospectus Supplement, in
connection with Crossed Loans and Multi-Property Loans, no Mortgage Loan
requires the lender to release any portion of the Mortgaged Property from the
lien of the related Mortgage except upon (a) payment in full or defeasance of
the related Mortgage Loan, (b) releases of unimproved out-parcels or (c)
releases of portions of the Mortgaged Property which will not have a material
adverse effect on the value of the collateral for the related Mortgage Loan;
(xlvii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all Mortgage Loans other
than Credit Lease Loans and with respect to all casualty losses or takings in
excess of a specified percentage of the related loan amount, the lender (or a
trustee appointed by it) having the right to hold and disburse such proceeds as
the repair or restoration progresses or (b) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon;
(xlviii) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, together with each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to the Seller and each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement executed by the Seller in blank which the
Trustee or its designee is authorized to complete (and but for the insertion of
the name of the assignee and any related filing information which is not yet
available to the Seller) is in suitable form for filing in the filing office in
which such financing statement was filed;
(xlix) To the Seller's knowledge, (a) all material commercial
leases affecting the Mortgaged Properties securing the Mortgage Loans are in
full force and effect and (b) there exists no default under any such material
commercial lease either by the lessee thereunder or by the related borrower that
could give rise to the termination of such lease;
(l) The improvements located on or forming part of each Mortgaged
Property comply with applicable zoning laws and ordinances, or constitute a
legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property. With respect to properties with a Stated
Principal Balance of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent the Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(li) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision) and all Prepayment Premiums and Yield Maintenance Charges
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(lii) With respect to any Mortgage Loan that pursuant to the
mortgage documents can be defeased, (i) the Mortgage Loan cannot be defeased
within two years of the Closing Date, (ii) the borrower can pledge only United
States government securities in an amount sufficient to make all scheduled
payments under the Mortgage Loan when due, (iii) the borrower is required to
provide independent certified public accountants certification that the
collateral is sufficient to make such payments, (iv) the loan may be required to
be assumed by a single-purpose entity designated by the holder of the Mortgage
Loan, and (v) the borrower is required to provide an opinion of counsel that the
trustee has a perfected security interest in such collateral prior to any other
claim or interest;
(liii) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the Seller for any
losses incurred by the Seller due to (i) the misapplication or misappropriation
of rents, insurance proceeds or condemnation awards, (ii) any willful act of
material waste, (iii) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, (iv) fraud, and (v) any act resulting in the
Mortgaged Property becoming an asset in a voluntary bankruptcy or insolvency
proceeding;
(liv) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date and provides that: (i) its Mortgage
Rate will increase by no more than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan is an
asset of the Trust Fund; (ii) its Anticipated Repayment Date is not less than
seven years following the origination of such Mortgage Loan; (iii) no later than
the related Anticipated Repayment Date, if it has not previously done so, the
related borrower is required 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 Servicer; and (iv) any 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 Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures.
(lv) Except as disclosed in the Prospectus Supplement, not more
than 5% of the aggregate initial principal amount of the Mortgage Loans have the
same Mortgagor or, to the Seller's best knowledge, have mortgagors that are
affiliates of each other;
(lvi) The Participation and Intercreditor Agreement (the
"L'Enfant Participation Agreement") relating to Loan No. 8 on the Mortgage Loan
Schedule (the L'Enfant Loan) represents the legal, valid and binding obligations
of the Seller, enforceable against the Seller, as the Other B Note Participant
(as defined in the L'Enfant Participation Agreement), enforceable against the
Seller in accordance with its terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization of other similar laws affecting the
enforcement of creditors rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity of at law).
(lvii) The Intercreditor Agreement (the "1211 Avenue of the
Americas Intercreditor Agreement") relating to Loan No. 3 on the Mortgage Loan
Schedule (the 1211 Avenue of the Americas Loan) represents the legal, valid and
binding obligations of the Seller, enforceable against the Seller, as the Other
Note Holder (as defined in the 1211 Avenue of the Americas Intercreditor
Agreement), enforceable against the Seller in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization of
other similar laws affecting the enforcement of creditors rights generally, and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity of at law).
<PAGE>
EXHIBIT A-2
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS ON SCHEDULE II-B
Seller represents and warrants with respect to each Mortgage Loan,
as applicable, that, except as set forth on EXHIBIT _ annexed hereto and made a
part hereof, the following statements are true and correct in all material
respects, as of the date hereof:
(i) Immediately prior to the sale, transfer and assignment to the
Purchaser, no Mortgage Note or Mortgage was subject to any assignment (other
than to Seller), participation or pledge, and Seller had good and marketable
title to, and was the sole owner of, the related Mortgage Loan;
(ii) Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Purchaser constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iii) Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iv) Each related Mortgage Note, Mortgage, assignment of leases
(if any) and other agreement executed in connection with such Mortgage Loan is
the legal, valid and binding obligation of the related borrower, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and there is no valid defense, counterclaim, or right of
rescission available to the related borrower with respect to such Mortgage Note,
Mortgage, assignment of leases and other agreements;
(v) Each related assignment of leases creates a valid first
priority assignment of, or a valid first priority security interest in, certain
rights under the related lease, subject only to a license granted to the related
borrower to exercise certain rights and to perform certain obligations of the
lessor under such lease, including the right to operate the related Mortgaged
Property; no person other than the related borrower owns any interest in any
payments due under such lease that is superior to or of equal priority with the
lender's interest therein;
(vi) Each related assignment of Mortgage from Seller to the
Purchaser and related assignment of the assignment of leases, if any, or
assignment of any other agreement executed in connection with such Mortgage Loan
from Seller to the Purchaser constitutes the legal, valid and binding assignment
from Seller to the Purchaser, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium or
other laws relating to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(vii) Since origination, and except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and, each related Mortgaged Property has not
been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(viii) Each related Mortgage is a valid and enforceable first
lien on the related Mortgaged Property (subject to Permitted Encumbrances (as
defined below)), and such Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's title insurance
policy (as described below). A UCC financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property; 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 on property described therein (except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights generally or by
the application of general principles of equity).
(ix) Seller has not taken any action that would cause the
representations and warranties made by each related borrower in the Mortgage
Loan not to be true;
(x) Seller has no knowledge that the material
representations and warranties made by each related borrower in such Mortgage
Loan are not true in any material respect;
(xi) The lien of each related Mortgage is a first priority lien
on the fee or leasehold interest of the related borrower in the original
principal amount of such Mortgage Loan or allocated loan amount of the portions
of the Mortgaged Property covered thereby (as set forth in the related Mortgage)
after all advances of principal and is insured by an ALTA lender's title
insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring Seller and its successors and
assigns as to such lien, subject only to (a) the lien of current real property
taxes, ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property and (c) the exceptions (general and specific) set forth in
such policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or materially
interferes with the security intended to be provided by such Mortgage or with
the related borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property (items (a), (b) and (c) collectively,
"Permitted Encumbrances"); the premium for such policy was paid in full; such
policy was issued by a title insurance company licensed to issue policies in the
state in which the related Mortgaged Property is located and is assignable to
the Purchaser and the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement; no claims
have been made under such policy and Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xii) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder and Seller
covenants that it will not make any future advances under the Mortgage Loan to
the related borrower;
(xiii) As of the later of the date of origination of such Mortgage
Loan or the most recent inspection of the related Mortgaged Property by Seller,
as applicable, and to the knowledge of Seller as of the Closing Date, each
related Mortgaged Property is free of any material damage that would affect
materially and adversely the value of such Mortgaged Property as security for
the Mortgage Loan or reserves have been established to remediate such damage
and, as of the closing date for each Mortgage Loan and, to Seller's knowledge,
as of the date hereof, there is no proceeding pending for the total or partial
condemnation of such Mortgaged Property that would have a material adverse
effect on the value of the Mortgaged Property;
(xiv) Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months, or the originator of the
Mortgage Loan inspected or caused to be inspected each related Mortgage Property
within three months of origination of the Mortgage Loan;
(xv) No Mortgage Loan has a shared appreciation feature,
any other contingent interest feature or a negative amortization feature;
(xvi) Each Mortgage Loan is a whole loan and contains no
equity participation by Seller;
(xvii) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury; and any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xviii) Neither Seller nor to Seller's knowledge, any originator,
committed any fraudulent acts during the origination process of any Mortgage
Loan and the origination, servicing and collection of each Mortgage Loan is in
all respects legal, proper and prudent in accordance with customary industry
standards, and no other person has been granted or conveyed the right to service
the Mortgage Loans or receive any consideration in connection therewith, except
as provided in the Pooling and Servicing Agreement;
(xix) All taxes and governmental assessments that became due and
owing prior to the Closing Date with respect to each related Mortgaged Property
have been paid or an escrow of funds in an amount sufficient to cover such
payments has been established;
(xx) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of Seller or its
agent and there are no deficiencies in connection therewith and all such escrows
and deposits have been conveyed by Seller to the Purchaser and identified as
such with appropriate detail;
(xxi) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the
replacement cost (with no deduction for physical depreciation) and the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the related Mortgaged Property; each related Mortgaged Property is also covered
by business interruption insurance which covers a period of not less than 12
months and comprehensive general liability insurance in amounts generally
required by institutional lenders for similar properties; all premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received; such insurance names the
lender under the Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related borrower to
maintain all such insurance and, at such borrower's failure to do so, authorizes
the lender to maintain such insurance at the borrower's cost and expense and to
seek reimbursement therefor from such borrower;
(xxii) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To Seller's knowledge,
there is no (a) material non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan or (b) event (other than
payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does constitute
a material default, breach, violation or event of acceleration;
(xxiii) No Mortgage Loan has been more than 30 days delinquent since
origination and as of the Cut-off Date no Mortgage Loan is 30 or more days
delinquent;
(xxiv) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure, and there
is no exemption available to the borrower which would interfere with such right
to foreclose (except as may be imposed by bankruptcy, insolvency, moratorium,
redemption or other similar laws affecting creditors' rights generally, or by
general principles of equity) and to Seller's knowledge, no borrower is a debtor
in a state or federal bankruptcy or insolvency proceeding;
(xxv) At origination, each borrower represented and warranted that
except as set forth in certain environmental reports and to its 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
or other environmental laws; the related borrower or an affiliate or an
affiliate thereof agreed to indemnify, defend and hold the mortgagee and its
successors and assigns harmless from and against losses, liabilities, damages,
injuries, penalties, fines, expenses, and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from a breach of the foregoing
representations, warranties or covenants given by the borrower in connection
with such Mortgage Loan. A Phase I environmental report and with respect to
certain Mortgage Loans, a Phase II environmental report, was conducted by a
reputable environmental engineer in connection with such Mortgage Loan, which
report did not indicate any material non-compliance with applicable
environmental laws or material existence of hazardous materials or, if any
material non-compliance or material existence of hazardous materials was
indicated in any such report, funds sufficient to cure such findings have been
escrowed by the related borrower and held by the related mortgagee or an
operations and maintenance program has been required to be instituted by the
related borrower. To the best of Seller's knowledge, in reliance on such
environmental reports and except as set forth in such environmental reports,
each Mortgaged Property is in material compliance with all applicable federal,
state and local environmental laws, and to the best of Seller's knowledge, no
notice of violation of such laws has been issued by any governmental agency or
authority, except, in all cases, as indicated in certain environmental reports
or other documents previously provided to the Rating Agencies; and Seller has
not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining to
environmental hazards;
(xxvi) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage, the related
Mortgaged Property is directly or indirectly transferred or sold (except for
transfers of stock of the related Borrower in connection with the assignment of
a proprietary lease for an apartment unit by a tenant-shareholder of the related
Borrower to other persons who by virtue of such transfers become
tenant-shareholders), and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members and other estate related transfers that satisfy
certain criteria specified in the related Mortgage (which criteria is consistent
with the practices of prudent commercial mortgage lenders), each Mortgage Loan
with a Stated Principal Balance of over $20,000,000, also contains provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage, a
controlling interest in the related Borrower is directly or indirectly
transferred or sold;
(xxvii) All improvements included in any MAI appraisals are within
the boundaries of the related Mortgaged Property, except for de minimis
encroachments onto adjoining parcels for which Seller has obtained affirmative
title insurance with respect to such encroachments in customary form and no
improvements on adjoining parcels encroach onto the related Mortgaged Property
except for de minimis encroachments;
(xxviii) The mortgage loan schedule which is attached as an
exhibit to the Pooling and Servicing Agreement is complete and accurate in all
material respects as of the dates of the information set forth therein;
(xxix) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate,
based upon the terms of the ground lease and any estoppel received from the
ground lessor, Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the interest of the
lessee 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 adversely affect the security provided by
the related Mortgage. To Seller's best knowledge, there has been no
material change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the related
mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is not
binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the lender) that extends not
less than 20 years beyond the stated maturity of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by Seller, the ground lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the Mortgage,
subject to Permitted Encumbrances and liens that encumber the ground
lessor's fee interest;
(E) The ground lease is assignable to the lender under the
leasehold estate and its assigns without the consent of the lessor
thereunder;
(F) As of the Closing Date, the ground lease is in full force
and effect, Seller has no actual knowledge of any default beyond
applicable notice and grace periods has occurred, and there is no existing
condition which, but for the passage of time or giving of notice, would
result in a default under the terms of the ground lease;
(G) The ground lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by the
lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by an
institutional investor. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee in
the relevant portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect the
security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case
of condemnation awards, the ground lessor may be entitled to a portion of
such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in respect
of a total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
as provided by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by institutional
investors, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease will have an
option to terminate or modify the ground lease without the prior written
consent of the lender as a result of any casualty or partial condemnation,
except to provide for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxx) With respect to Mortgage Loans that are
cross-collateralized, all other loans that are cross-collateralized by such
Mortgage Loans are included in the Trust Fund;
(xxxi) Neither Seller nor any affiliate thereof has any
obligation to make any capital contribution to any borrower under a Mortgage
Loan, other than contributions made on or prior to the Closing Date;
(xxxii) (1) The Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential property, and (2) the fair
market value of such real property, as evidenced by an MAI appraisal conducted
within 12 months of the origination of the Mortgage Loan, was at least equal to
80% of the principal amount of the Mortgage Loan (a) at origination (or if the
Mortgage Loan has been modified in a manner that constituted a deemed exchange
under Section 1001 of the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not reasonably foreseeable, the date
of the last such modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first be reduced by (A) the
amount of any lien on the real property interest that is senior to the Mortgage
Loan (unless such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) shall be made on an aggregated basis) and
(B) a proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (a) and (b)
shall be made on an aggregate basis);
(xxxiii) There are no subordinate mortgages encumbering the
related Mortgaged Property, nor are there any preferred equity interests held by
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement and the Mortgage Loan Schedule;
(xxxiv) Intentionally omitted;
(xxxv) Each Mortgage Loan (i) prohibits the related borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the consent
of Seller (which consent, in certain instances, Seller may not unreasonably
withhold) and (ii) prohibits the related borrower from incurring any unsecured
indebtedness in excess of an amount (which amount would not be viewed as
commercially unreasonable) stated in the related Mortgage Loan Documents without
the consent of Seller.
(xxxvi) Each borrower covenants in the Mortgage Loan documents
that it shall remain in material compliance with all material licenses, permits
and other legal requirements necessary and required to conduct its business;
(xxxvii) Each Mortgaged Property is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, is served by public utilities and services generally available in the
surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and is a separate tax parcel;
(xxxviii) Based solely on a flood zone certification or a survey
of the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency, with respect to certain Mortgage Loans, or the Secretary of
Housing and Urban Development with respect to other Mortgage Loans, as having
special flood hazards, the terms of the Mortgage Loan require the borrower to
maintain flood insurance or at such borrowers failure to do so, authorizes the
Lender to maintain such insurance at the cost and expense of the borrower;
(xxxix) To the knowledge of Seller, with respect to each Mortgage
which is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law, and except in connection with a
trustee's sale after a default by the related borrower, no fees are payable to
such trustee;
(xl) Intentionally Omitted:
(xli) Intentionally Omitted:
(xlii) Except as disclosed in the Prospectus Supplement, to the
knowledge of Seller as of the Closing Date, there was no pending action, suit or
proceeding, arbitration or governmental investigation against any borrower or
Mortgaged Property, an adverse outcome of which would materially and adversely
affect such borrower's ability to perform under the related Mortgage Loan;
(xliii) Except with respect to subordinate debt disclosed in the
Mortgage Loan Schedule, no advance of funds has been made by Seller to the
related borrower and no funds have been received from any person other than, or
on behalf of, the related borrower for, or on account of, payments due on the
Mortgage Loan;
(xliv) To the extent required under applicable law, as of the
Cut-off Date, the holder of the related Mortgage Loan was authorized to transact
and do business in the jurisdiction in which each related Mortgaged Property is
located, or failure to be so authorized does not materially affect the ability
of such holder to transact business in the jurisdiction in which each related
Mortgaged Property is located;
(xlv) All collateral for the Mortgage Loans is being
transferred as part of the Mortgage Loans;
(xlvi) Except as disclosed in the Prospectus Supplement, in
connection with Crossed Loans, no Mortgage Loan requires the lender to release
any portion of the Mortgaged Property from the lien of the related Mortgage
except upon (a) payment in full or defeasance of the related Mortgage Loan, (b)
releases of unimproved out-parcels or (c) releases of portions of the Mortgaged
Property which will not have a material adverse effect on the value of the
collateral for the related Mortgage Loan;
(xlvii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all Mortgage Loans, and
with respect to all casualty losses or takings in excess of a specified
percentage of the related loan amount, the lender (or a trustee appointed by it)
having the right to hold and disburse such proceeds as the repair or restoration
progresses or (b) to the payment of the outstanding principal balance of such
Mortgage Loan together with any accrued interest thereon;
(xlviii) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property, together with each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement to Seller and each Form UCC-2 or UCC-3 assignment, if any,
of such financing statement executed by Seller in blank which the Trustee or its
designee is authorized to complete (and but for the insertion of the name of the
assignee and any related filing information which is not yet available to
Seller) is in suitable form for filing in the filing office in which such
financing statement was filed;
(xlix) To Seller's knowledge, (a) all material commercial leases
affecting the Mortgaged Properties securing the Mortgage Loans are in full force
and effect and (b) there exists no default under any such material commercial
lease either by the lessee thereunder or by the related borrower that could give
rise to the termination of such lease;
(l) The improvements located on or forming part of each Mortgaged
Property comply with applicable zoning laws and ordinances, or constitute a
legal non-conforming use or structure or, if any such improvement does not so
comply, such non-compliance does not materially and adversely affect the value
of the related Mortgaged Property. With respect to properties with a Stated
Principal Balance of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(li) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision) and all Prepayment Premiums and Yield Maintenance Charges
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(lii) With respect to any Mortgage Loan that pursuant to the
mortgage documents can be defeased, (i) the Mortgage Loan cannot be defeased
within two years of the Closing Date, (ii) the borrower can pledge only United
States government securities in an amount sufficient to make all scheduled
payments under the Mortgage Loan when due, (iii) the borrower is required to
provide either a certificate or opinion of an independent certified public
accountants that the collateral is sufficient to make such payments, (iv) the
loan may be required to be assumed by a single-purpose entity designated by the
holder of the Mortgage Loan, and (v) the borrower is required to provide an
opinion of counsel be provided that the trustee has a perfected security
interest in such collateral prior to any other claim or interest;
(liii) With respect to Mortgage Loan Nos. 92, 135 and 145, such
Mortgage Loans are fully recourse to the related Borrowers. Certain of the
Mortgage Loans are non-recourse to the shareholders, officers and/or directors
of the mortgagor, except with respect to damages suffered or incurred by the
holder of the Mortgage relating to or arising out of (i) any claim for damages
against the mortgagor relating to the misapplication of any insurance proceeds
or condemnation awards with respect to the Mortgaged Property, including,
without limitation, any action taken by the shareholder, officer and/or director
of mortgagor on behalf of mortgagor, (ii) any claim relating to any fraud or
misrepresentation by or on behalf of mortgagor, including, without limitation,
any fraud or misrepresentation by the shareholder, officer and/or director of
mortgagor, (iii) any claim relating to a misappropriation of any reserve
accounts, security deposits or rents maintained by mortgagor, including, without
limitation, any misappropriation of any reserve accounts, security deposits or
rents by the shareholder, officer and/or director of mortgagor, (iv) any failure
of mortgagor to comply with the provisions of the related Mortgage governing any
transfer, sale, hypothecation, pledge or further encumbering of the related
Mortgaged Property or any part thereof or (v) any breach by mortgagor of any of
the provisions of the related Mortgage concerning hazardous materials; with
respect to Mortgage Loans No. 34, 35 and 36, the Mortgage Loan Documents for
each Mortgage Loan provide that the related borrower thereunder shall be liable
to the Seller for any losses incurred by the Seller due to (i) the
misapplication or misappropriation of rents, insurance proceeds or condemnation
awards, (ii) any willful act of material waste, (iii) any breach of the
environmental covenants contained in the related Mortgage Loan Documents, (iv)
fraud, and (v) any act resulting in the Mortgaged Property becoming an asset in
a voluntary bankruptcy or insolvency proceeding.
(liv) Intentionally Omitted.
(lv) Except as disclosed in the Prospectus Supplement, not more
than 5% of the aggregate initial principal amount of the Mortgage Loan Pool have
the same Mortgagor or, to Seller's best knowledge, have mortgagors that are
affiliates of each other.
<PAGE>
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK_)
______ ) ss.:
COUNTY OF NEW YORK )
,
, being duly sworn, deposes and says:
1. that he is an authorized signatory of Credit Suisse First
Boston Mortgage Capital LLC ("CSFBMC");
2. that CSFBMC is the owner and holder of a mortgage loan in the
original principal amount of $ secured by a mortgage (the "Mortgage") on the
premises known as ______________________ located in ___________________ ;
3. (a) that CSFBMC, after having conducted a diligent investigation
of its records and files, has been unable to locate the following original note
and believes that said original note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a note in the original sum of $ made by
___________________ , to Credit Suisse First Boston Mortgage
Capital Corp., under date of _________________ (the "Note");
4. that the Note is now owned and held by CSFBMC;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has
any right, title, interest or claim in the Note except CSFBMC; and
7. upon assignment of the Note by CSFBMC to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor") and subsequent assignment by
the Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series (the "Trustee") (which assignment may, at the discretion of
the Depositor, be made directly by CSFBMC to the Trustee) CSFBMC covenants and
agrees (a) promptly to deliver to the Trustee the original Note if it is
subsequently found, and (b) to indemnify and hold harmless the Trustee and its
successors and assigns from and against any and all costs, expenses and monetary
losses arising as a result of CSFBMC's or the Depositor's failure to deliver
said original Note to the Trustee.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:
Authorized Signatory
Sworn to before me this
day of August [__], 2000
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT OF MORTGAGE(S) AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
KNOW ALL MEN BY THESE PRESENTS:
THAT, as of , 2000, Credit Suisse First Boston Mortgage Capital LLC,
a Delaware limited liability company, whose address is Eleven Madison Avenue,
New York, New York 10010 ("ASSIGNOR") in consideration of ten and 00/100
($10.00) dollars and other good and valuable consideration, paid by Wells Fargo
Bank Minnesota, N.A., as trustee for Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2000-C1,
whose address is 45 Broadway, New York, New York 10001 ("ASSIGNEE"), receipt of
which is acknowledged by ASSIGNOR, hereby sells, assigns, transfers, sets over
and conveys unto the ASSIGNEE certain mortgage(s) and assignments of leases,
rents and profits and other collateral documents as follows:
See Schedule "A" attached hereto and incorporated herein by this
reference.
TOGETHER with the note(s), debt(s) and claim(s) secured by said
mortgage(s) and the covenants contained in said mortgage(s), together with all
amendments, supplements and modifications thereto and all liens, financing
statements, guaranties and security interests securing the payment of such
notes, including, without limitation, any other documents recorded in the real
property records of the jurisdiction in which the real property covered by the
mortgage(s) is located with respect to such notes, and any other documents,
agreements, instruments or property relating to such loan(s) and all right,
title, interest, claims, demands, causes of action and judgments securing or
relating to such loan(s); TO HAVE AND TO HOLD the same unto the ASSIGNEE and to
the successors, legal representatives and assigns of the ASSIGNEE forever.
THIS ASSIGNMENT is made without recourse or representation or
warranty of any kind or nature, express or implied except as expressly set forth
in that certain Mortgage Loan Purchase Agreement, dated as of July 11, 2000
between ASSIGNOR and Credit Suisse First Boston Mortgage Securities Corp.
<PAGE>
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment
the __ day of ________ 2000.
IN PRESENCE OF:___
By:____________________________________
Name:
Title:
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this day of , 2000, before me the undersigned, a NOTARY PUBLIC OF
, personally appeared , as ______of Credit Suisse First Boston Mortgage Capital
LLC, a Delaware limited liability company, who, I am satisfied, was the maker of
the foregoing instrument and who then stated and acknowledged to me that, as
such officer and maker (1) he was authorized to execute the foregoing instrument
on behalf of said limited liability company and (2) he executed said instrument
as the act and deed of said limited liability company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in the day
and year last above written.
Signature______________________________
Print Name_____________________________
Residing at____________________________
A NOTARY PUBLIC OF____________
[AFFIX SEAL] My Commission expires on____________________
<PAGE>
ASSIGNMENT OF MORTGAGE
AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
TO
WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE
RECORD AND RETURN TO:
<PAGE>
Exhibit D
Form of Seller's In-House Counsel Opinion
