================================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
(Seller)
-------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of July 11, 2000
-------------------------------------------
================================================================================
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-A MSDWMC Mortgage Loan Schedule
Schedule II-B FINOVA Realty Capital Mortgage Loan Schedule
Schedule II-C FINOVA Commercial Mortgage Loan Owner Trust 1998-1 Mortgage Loan
Schedule
Schedule II-D Llama Mortgage Company 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 on MSDWMC Mortgage Loans
Exhibit A Representations and Warranties of Seller Regarding the MSDWMC
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
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of July 11, 2000, is made by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MORTGAGE
CAPITAL INC., a New York corporation ("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 annexed hereto as Schedule II-A
(the "MSDWMC Mortgage Loans") and the Mortgage Loans identified on the schedules
annexed hereto as Schedule II-B and Schedule II-C (the "FINOVA Mortgage Loans"),
and the Mortgage Loans identified on the schedule annexed hereto as Schedule
II-D (the "Llama Mortgage Loans", and collectively with the MSDWMC Mortgage
Loans and the FINOVA Mortgage Loans, the "Subject Mortgage Loans"). The FINOVA
Mortgage Loans listed on Schedule II-B are those acquired by the Seller pursuant
to the FINOVA Capital Mortgage Loan Purchase Agreement and the FINOVA Mortgage
Loans listed on Schedule II-C are those acquired by the Seller pursuant to the
FINOVA Commercial Mortgage Loan Owner Trust 1998-1 Mortgage Loan Purchase
Agreement. The Llama Mortgage Loans listed on Schedule II-D are those acquired
by the Seller pursuant to the Llama Mortgage Company Mortgage Loan Purchase
Agreement. Schedules II-A, II-B, II-C and II-D are referred to collectively
herein as the "Mortgage Loan Schedule." Depositor intends to deposit the Subject
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 Subject Mortgage Loans listed in the Mortgage Loan Schedule to
▇▇▇▇▇ Fargo Bank Minnesota, N.A., as custodian (in such capacity, the
"Custodian") or as trustee (in such capacity, the "Trustee"), against receipt by
Seller of a trust receipt, pursuant to an arrangement between Seller and the
Custodian.
Section 2. Closing Date Actions. The sale of the Subject Mortgage
Loans shall take place on the Closing Date, subject to and simultaneously with
the deposit of the Subject 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 Purchasers pursuant to the Certificate
Purchase Agreement. The closing shall take place at the offices of Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 Subject 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 an amount determined in
accordance with the Letter of Understanding dated July [__], 2000 by and
among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mortgage Capital Inc., Credit Suisse First Boston Mortgage Capital LLC and
Credit Suisse First Boston Corporation (the "Letter of Understanding").
(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
Subject Mortgage Loans (together with certain other 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
Purchasers, and the Initial Purchasers 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 Purchasers will privately place certain classes of the
Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Subject 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 (i)
each of the Subject Mortgage Loans identified on the Mortgage Loan Schedule and
all property of Seller described in Section 19 of this Agreement, (ii) rights
with respect to the FINOVA Mortgage Loans arising under (x) that certain
mortgage loan purchase agreement, dated as of June 30, 1999 (the "FINOVA Capital
Mortgage Loan Purchase Agreement"), between the Seller and FINOVA Realty
Capital, Inc. ("FINOVA Realty Capital"), other than Articles 2, 4, 5, 6, 7,
Sections 8.5.14, 8.5.41, 8.5.42, and Articles 10, 12 and 14 thereof (such
provisions referred to in this clause, the "Redacted FINOVA Realty Capital
Provisions"), and (y) that certain mortgage loan purchase agreement, dated as of
June 30, 1999 (the "FINOVA Commercial Mortgage Owner Trust 1998-1 Mortgage Loan
Purchase Agreement"), among the Seller, FINOVA Capital Corporation and the
FINOVA Commercial Mortgage Loan Owner Trust 1998-1 (the "FINOVA Owner Trust"),
other than Articles 2, 4, 5, 6, 7, Sections 8.5.14, 8.5.41, 8.5.42, and Articles
10, 12 and 14 thereof (such provisions referred to in this clause, the "Redacted
FINOVA Owner Trust Provisions" and collectively with the Redacted FINOVA Realty
Capital Provisions, the "Redacted FINOVA Provisions") and (iii) rights with
respect to the Llama Mortgage Loans arising under that certain mortgage loan
purchase agreement, dated as of December 17, 1999 (the "Llama Mortgage Loan
Purchase Agreement"), between the Seller and Llama Capital Mortgage Company
Limited Partnership ("Llama Mortgage Company"). The parties acknowledge that
rights and obligations under the Redacted FINOVA Provisions are not being
assigned hereunder and copies of such Redacted FINOVA Provisions have not been
provided to the Depositor for its review.
On or prior to the Closing Date, each Mortgage File with respect to the
MSDWMC Mortgage Loans shall be delivered by Seller to the Custodian. Each such
Mortgage File shall contain the following documents:
(a) the original Mortgage Note, or with respect to those MSDWMC
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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 MSDWMC 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) letters of credit, if any, relating to the Additional Collateral
Loans;
(r) the applicable participation documents, if any;
(s) any environmental insurance policies; and
(t) any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage 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 Custodian 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.
On or prior to the Closing Date, each Mortgage File with respect to
the FINOVA Mortgage Loans and the Llama Mortgage Loans shall be delivered by
Seller to the Custodian. Each such Mortgage File shall contain all documents
required to have been delivered to the Seller pursuant to Section 3.2 of the
FINOVA Capital Mortgage Loan Purchase Agreement, pursuant to Section 3.2 of the
FINOVA Commercial Mortgage Owner Trust 1998-1 Mortgage Loan Purchase Agreement
or pursuant to Section 2.3 of the Llama Mortgage Loan Purchase Agreement.
Notwithstanding the foregoing, in the event that Seller cannot
deliver to the Custodian 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 Custodian 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 Custodian 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 Subject 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 Subject 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 Subject
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 Custodian by overnight mail
for next-day delivery and retained and maintained, in trust, by the Custodian 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
Subject 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 Custodian 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 Custodian 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 opinion expressed above, such counsel may limit
such opinions to matters governed by the General Corporation Law 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.
(v) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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. Such opinion may also express its reliance on the opinion of Seller's
in-house counsel, as referred to in clause (iv) above.
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.
Such counsel shall also state that, on the basis of the information
gained in the course of its representation of the Seller, considered in light of
its understanding of applicable law and the experience it has gained through its
practice, nothing has come to its attention in the course of its review of the
prospectus dated October 12, 1999 and prospectus supplement dated July [27],
2000 (collectively, the "Prospectus") relating to the Depositor's Mortgage
Pass-Through Certificates, Series 2000-C1 (the "Certificates") and the
confidential offering circular (the "Offering Circular") dated July [27], 2000
relating to certain classes of the Certificates that would cause it to believe
that as of its date or as of the Closing Date, the information relating to the
Subject Mortgage Loans in the Prospectus contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(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 Depositor 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 New York. 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
incorporation 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 the sale of the Subject
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
corporate action on the part of Seller and are within the corporate 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) Except as set forth on Schedule V hereto, the representations
and warranties contained in Exhibit A hereto are true and correct in all
material respects with respect to the MSDWMC Mortgage Loans as of the
Closing Date.
(b) In addition, the Seller hereby represents and warrants to the
Depositor and its assigns the following with respect to the FINOVA
Mortgage Loans:
(i) Seller has delivered to the Trustee the fully executed original
FINOVA Capital Mortgage Loan Purchase Agreement and FINOVA Commercial
Mortgage Owner Trust 1998-1 Mortgage Loan Purchase Agreement, redacted to
delete the Redacted FINOVA Provisions;
(ii) The FINOVA Capital Mortgage Loan Purchase Agreement and FINOVA
Commercial Mortgage Owner Trust 1998-1 Mortgage Loan Purchase Agreement
are in full force and effect and have not been modified or amended in any
material respect;
(iii) The obligations of FINOVA Realty Capital, the FINOVA
Commercial Mortgage Owner Trust 1998-1 and FINOVA Capital Corporation to
cure or repurchase an affected FINOVA Mortgage Loan for breach of
representation or warranty as set forth in the FINOVA Capital Mortgage
Loan Purchase Agreement and the FINOVA Commercial Mortgage Owner Trust
1998-1 Mortgage Loan Purchase Agreement (the "FINOVA Loan Seller
Obligations") are the valid, legal, and binding obligations of FINOVA
Realty Capital, FINOVA Commercial Mortgage Owner Trust 1998-1 and FINOVA
Capital Corporation, enforceable against FINOVA Realty Capital, FINOVA
Commercial Mortgage Owner Trust 1998-1 and FINOVA Capital Corporation in
accordance with their terms;
(iv) The FINOVA Loan Seller Obligations have not been previously
assigned;
(v) The FINOVA Loan Seller Obligations are assignable in accordance
with their terms and the Seller has the full right, power and authority to
assign those sections of the FINOVA Capital Mortgage Loan Purchase
Agreement and FINOVA Commercial Mortgage Owner Trust 1998-1 Mortgage Loan
Purchase Agreement assigned hereunder and all of the representations
assigned hereunder; and
(vi) The FINOVA Loan Seller Obligations are not subject to, and are
being transferred to the Depositor (and subsequently to the Trust) free
and clear of, any and all liens, pledges, charges, security interests or
other encumbrances.
(vii) Other than as noted on Schedule V hereto, the Mortgage Loan
Seller has no knowledge that any of the representations and warranties
contained in the FINOVA Mortgage Capital Mortgage Loan Purchase Agreement
or the FINOVA Commercial Mortgage Owner Trust 1998-1 Mortgage Loan
Purchase Agreement are not true and correct in all material respects as of
the Closing Date.
(viii) No scheduled principal and interest under any FINOVA Mortgage
Loan is 30 days or more delinquent as of the Closing Date.
(ix) The information set forth in Schedule II-B and II-C is
complete, true and correct in all material respects as of the date of this
Agreement and as of the Cut-off Date.
(x) Immediately prior to the transfer to the Depositor, the Seller
had good title to, and was the sole owner of, each FINOVA Mortgage Loan.
(xi) The gross proceeds of each FINOVA Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured
by an interest in real property as defined by the Code and the Regulations
thereunder having a fair market value (i) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal
balance of the Mortgage Loan or (ii) at the Closing Date at least equal to
80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real
property interest must first be reduced by (x) the amount of any lien on
the real property interest that is senior to the Mortgage Loan and (y) 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 clauses (a)(i) and (a)(ii) of this paragraph
shall be made on a pro rata basis in accordance with the fair market
values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage
Loan were used to acquire, improve or protect the real property which
served as the only security for such Mortgage Loan (other than a recourse
feature or other third party credit enhancement within the meaning of
Treasury Regulations Section 1.860G-2(a)(1)(ii)).
(c) In addition, the Seller hereby represents and warrants to the
Depositor and its assigns the following with respect to the Llama Mortgage
Loans:
(i) Seller has delivered to the Trustee the fully executed original
Llama Mortgage Loan Purchase Agreement;
(ii) The Llama Mortgage Loan Purchase Agreement is in full force and
effect and has not been modified or amended in any material respect;
(iii) The obligations of Llama Mortgage Company to cure or
repurchase an affected Llama Mortgage Loan for breach of representation or
warranty as set forth in the Llama Mortgage Loan Purchase Agreement (the
"Llama Loan Seller Obligations") are the valid, legal, and binding
obligations of Llama Mortgage Company, enforceable against Llama Mortgage
Company in accordance with its terms;
(iv) The Llama Loan Seller Obligations have not been previously
assigned;
(v) The Llama Loan Seller Obligations are assignable in accordance
with their terms and the Seller has the full right, power and authority to
assign those sections of the Llama Mortgage Loan Purchase Agreement
assigned hereunder and all of the representations assigned hereunder; and
(vi) The Llama Loan Seller Obligations are not subject to, and are
being transferred to the Depositor (and subsequently to the Trust) free
and clear of, any and all liens, pledges, charges, security interests or
other encumbrances.
(vii) Other than as noted on Schedule V hereto, the Mortgage Loan
Seller has no knowledge that any of the representations and warranties
contained in the Llama Mortgage Loan Purchase Agreement are not true and
correct in all material respects as of the Closing Date.
(viii) No scheduled principal and interest under any Llama Mortgage
Loan is 30 days or more delinquent as of the Closing Date.
(ix) If any Mortgage is a deed of trust, (1) a trustee, duly
qualified under applicable law to serve as such, is properly designated
and serving under such Mortgage, and (2) no fees or expenses are payable
to such trustee by Llama Mortgage Company, the Depositor or any transferee
thereof except in connection with a trustee's sale after default by the
related Mortgagor or in connection with any full or partial release of the
related Mortgaged Property or related security for the related Llama
Mortgage Loan.
(x) An environmental site assessment meeting the requirements of the
American Society of Testing and Materials was performed with respect to
each Mortgaged Property in connection with the origination of the related
Llama Mortgage Loan, a report of each such assessment (an "Environmental
Report") has been delivered to the Purchaser, and the Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not disclosed in
such report. Each Mortgage requires the related Mortgagor to comply with
all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a material
and adverse environmental condition or circumstance affecting any
Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance or
(ii) the related Mortgagor was required either to provide additional
security which was deemed to be sufficient by the originator to remediate
the problem and/or to obtain an operations and maintenance plan.
(xi) The gross proceeds of each Llama Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured
by an interest in real property as defined by the Code and the Regulations
thereunder having a fair market value (i) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal
balance of the Mortgage Loan or (ii) at the Closing Date at least equal to
80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real
property interest must first be reduced by (x) the amount of any lien on
the real property interest that is senior to the Mortgage Loan and (y) 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 clauses (a)(i) and (a)(ii) of this paragraph
shall be made on a pro rata basis in accordance with the fair market
values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage
Loan were used to acquire, improve or protect the real property which
served as the only security for such Mortgage Loan (other than a recourse
feature or other third party credit enhancement within the meaning of
Treasury Regulations Section 1.860G-2(a)(1)(ii)).
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 MSDWMC 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 Subject 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 Subject 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 Subject 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 Custodian, on behalf 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, as Depositor's
sole and exclusive remedy as a result of such Defect, 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 MSDWMC Mortgage Loans set forth in Exhibit A to this
Agreement or, with respect to the FINOVA Mortgage Loans, the representations,
warranties and covenants contained in Section 6(b) hereof or, with respect to
the Llama Mortgage Loans, the representations, warranties and covenants
contained in Section 6(c) hereof (or, if any such Breach would cause the Subject
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 Subject Mortgage Loan or (ii) the value of the
related MSDWMC 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, as Depositor's sole and exclusive remedy as a result of such
Breach, Seller shall purchase the affected Subject Mortgage Loan at the Purchase
Price pursuant to Section 2.03 of the Pooling and Servicing Agreement. If Seller
is required to repurchase any Subject Mortgage Loan that is part of a Mortgage
Group (as defined herein), Seller shall also be required to repurchase the
remaining MSDWMC Mortgage Loans in such Mortgage Group. For purposes of this
paragraph, a "Mortgage Group" is any group of MSDWMC 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 MSDWMC 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.
In the event the mortgage loan purchase price as such term is
defined in the Llama Mortgage Loan Purchase Agreement (the "Llama Mortgage Loan
Purchase Price") for a Llama Mortgage Loan is less than the Purchase Price
required under the Pooling and Servicing Agreement, the Seller shall pay to the
Depositor or, subsequent to the assignment of the Llama 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, the difference
between the Llama Mortgage Loan Purchase Price and the Purchase Price and
Depositor or its assignee, upon receipt of such funds, shall promptly release
the related Mortgage File or cause it to be released, to Llama Mortgage Company
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be necessary to vest in Llama Mortgage
Company 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).
(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 performance of the Depositor of this
Agreement or 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 Subject
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 Subject 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 Subject 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 and Depositor agree that
expenses shall be paid in accordance with the Letter of Understanding.
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: ▇▇▇▇▇ ▇. ▇▇▇▇, Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇; and (b) if sent to Seller, will be mailed, delivered or
telecopied to it at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mortgage Capital Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Telecopy No.:
(▇▇▇) ▇▇▇-▇▇▇▇.
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 Purchasers and any person or
persons who control Depositor, the Underwriters and the Initial Purchasers
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 Subject Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Subject Mortgage Loans by Seller to Depositor. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the Subject
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 Subject 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
Subject 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 Subject Mortgage Loans, including the related Mortgage
Notes, Mortgages and title and hazard and primary mortgage insurance
policies identified on the Mortgage Loan Schedule, including 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 all cases which
are payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral described in
(i) and (ii) above which are 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 Subject 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.
* * *
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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MORTGAGE CAPITAL
INC.,
as Seller
By:__________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:__________________________________________
Name:
Title:
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mortgage Capital Inc. (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.
"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 3, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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.
"Offered Certificates" means the Class A-1, Class A-2, Class B,
Class C and Class D.
"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 CapMark Services, LP, National Consumer Cooperative Bank, 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.
"Subject 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.
"Underwriters" means Credit Suisse First Boston Corporation and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
"Underwriting Agreement" means the Underwriting Agreement, dated
July 27, 2000, between Depositor and the Underwriters.
SCHEDULE II-A
MSDWMC MORTGAGE LOAN SCHEDULE
SCHEDULE II-B
FINOVA CAPITAL MORTGAGE LOAN SCHEDULE
SCHEDULE II-C
FINOVA COMMERCIAL MORTGAGE OWNER TRUST 1998-1
MORTGAGE LOAN SCHEDULE
SCHEDULE II-D
LLAMA 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 MSDWMC MORTGAGE LOANS
The Seller represents and warrants with respect to each Mortgage
Loan, as applicable, that as of the Closing Date:
(i) Schedule II-A. The information set forth in Schedule II-A is
complete, true and correct in all material respects as of the date of this
Agreement and as of the Cut-off Date.
(ii)Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is
a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Depositor, the Seller had good title to, and was
the sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each of the Mortgage Loans to or at the
direction of the Depositor and has validly and effectively conveyed (or caused
to be conveyed) to the Depositor or its designee all of the Seller's legal and
beneficial interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. The sale
of the Mortgage Loans to the Depositor or its designee does not require the
Seller to obtain any governmental or regulatory approval or consent that has not
been obtained.
(iii) Payment Record. No scheduled payment of principal and
interest under any Mortgage Loan was 30 days or more past due as of the Cut-off
Date, and no Mortgage Loan was 30 days or more delinquent in the twelve-month
period immediately preceding the Cut-off Date.
(iv)Lien; Valid Assignment. The Mortgage related to and delivered
in connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph (xiii) below, enforceable first priority lien
upon the related Mortgaged Property, which includes all buildings located
thereon and all fixtures thereto, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, and (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability, value or current use of the Mortgaged Property or
the current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt (the foregoing items (a) through
(d) being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph (xiii) below, enforceable security interest in favor of the holder
thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, and
such security interest is a first priority security interest, subject to any
prior purchase money security interest in such personal property and any
personal property leases applicable to such personal property. Notwithstanding
the foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
(v) Assignment of Leases and Rents. The Assignment of Leases set
forth in the Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and, subject to the
exceptions set forth in paragraph (xiii) below, enforceable first priority lien
and first priority security interest in the related Mortgagor's interest in all
leases, sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases, not
included in a Mortgage, executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
(vi)Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in material
part, and the related Mortgaged Property has not been released from the lien of
such Mortgage, in whole or in material part, nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, except for any partial reconveyances of portions of the
real property that do not materially adversely affect the value of the property.
None of the terms of any Mortgage Note, Mortgage or Assignment of Leases has
been impaired, waived, altered or modified in any respect, except by written
instruments, all of which are included in the related Mortgage File.
(vii) Condition of Property; Condemnation. Except as set forth in
an engineering report prepared in connection with the origination of the related
Mortgage Loan, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage that would materially and adversely affect its value as
security for the related Mortgage Loan. The Seller has received no notice of and
has no knowledge of the commencement of any proceeding for the condemnation of
all or any material portion of any Mortgaged Property. To the Seller's knowledge
(based on surveys and/or title insurance obtained in connection with the
origination of the Mortgage Loans), as of the date of the origination of each
Mortgage Loan, all of the material improvements on the related Mortgaged
Property which were considered in determining the appraised value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to herein or that do not materially and
adversely affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
(viii) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To the Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
(ix)No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
(x) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph (xiii))
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. Each Mortgage Loan
contains a "due on sale" clause, which provides for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan if, without prior
written consent of the holder of the Mortgage, the property subject to the
Mortgage or any material portion thereof, is transferred, sold or encumbered
other than the junior liens listed on Schedule B attached hereto; provided,
however, that certain Mortgage Loans provide a mechanism for the assumption of
the loan by a third party upon the Mortgagor's satisfaction of certain
conditions precedent, and upon payment of a transfer fee, if any.
(xi)Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (1) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (2) no fees or expenses
are payable to such trustee by the Seller, the Depositor or any transferee
thereof except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
(xii) Environmental Conditions. An environmental site assessment
meeting the requirements of the American Society of Testing and Materials was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) the related Mortgagor was required either to provide
additional security which was deemed to be sufficient by the originator to
remediate the problem and/or to obtain an operations and maintenance plan.
(xiii) Loan Document Status. Each Mortgage Note, Mortgage and
other agreement that evidences or secures a Mortgage Loan and that was executed
by or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) and there is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements.
(xiv) Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage, to be insured by (a) a fire and extended
perils insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage Loan
consistent with its normal commercial mortgage lending practices, against other
risks insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the Mortgaged
Property with no deduction for depreciation, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the Mortgaged Property; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to six months of operations of the Mortgaged
Property; (c) a flood insurance policy (if any portion of the buildings or other
structures on the Mortgaged Property are located in an area identified by the
Federal Emergency Management Agency as having special flood hazards); and (d) a
comprehensive general liability insurance policy in amounts as are generally
required by commercial mortgage lenders, and in any event not less than $1
million per occurrence. Such insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured and requires prior
notice to the holder of the Mortgage of termination or cancellation. No such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured. Each Mortgage obligates the related Mortgagor to maintain
all such insurance and, upon such Mortgagor's failure to do so, authorizes the
holder of the Mortgage to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from such Mortgagor. Each Mortgage
provides that casualty insurance proceeds will be applied either to the
restoration or repair of the related Mortgaged Property or to the reduction of
the principal amount of the Mortgage Loan.
(xv)Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes or assessments (including assessments payable in
future installments), or other outstanding charges affecting any Mortgaged
Property which are or may become a lien of priority equal to or higher than the
lien of the related Mortgage. For purposes of this representation and warranty,
real property taxes and assessments shall not be considered unpaid until the
date on which interest and/or penalties would be first payable thereon.
(xvi) Mortgagor Bankruptcy. No Mortgagor is, to the Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding.
(xvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate in real estate or, if the related Mortgage
Loan is secured in whole or in part by the interest of a Mortgagor as a lessee
under a ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest"):
(A) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between the Seller and related
lessor) permits the current use of the Mortgaged Property and
permits the interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material change in the
payment terms of such Ground Lease since the origination of the
related Mortgage Loan, with the exception of material changes
reflected in written instruments that are a part of the related
Mortgage File;
(B) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is
assignable to the Depositor and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Depositor and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(D) Such Ground Lease is in full force and effect and no
material amendment to such Ground Lease is binding on mortgagee
unless mortgagee has consented thereto, and the Seller has received
no notice that an event of default has occurred thereunder, and, to
the Seller's knowledge, there exists no condition that, but for the
passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other
agreement, (A) requires the lessor under such Ground Lease to give
notice of any default by the lessee to the holder of the Mortgage;
and (B) provides that no notice of termination given under such
Ground Lease is effective against the holder of the Mortgage unless
a copy of such notice has been delivered to such holder and the
lessor has offered to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the
Ground Lease.
(F) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the receipt
of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than ten
years beyond the Stated Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the mortgagee, will be applied either
(A) to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by it
the related Mortgage having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located.
(xviii) Escrow Deposits. All escrow deposits and payments relating
to each Mortgage Loan that are, as of the Closing Date required to be deposited
or paid have been so deposited or paid.
(xix) LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property as defined by the Code and the Regulations thereunder
having a fair market value (i) at the date the Mortgage Loan was originated at
least equal to 80 percent of the original principal balance of the Mortgage Loan
or (ii) at the Closing Date at least equal to 80 percent of the principal
balance of the Mortgage Loan on such date; provided that for purposes hereof,
the fair market value of the real property interest must first be reduced by (x)
the amount of any lien on the real property interest that is senior to the
Mortgage Loan and (y) 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 clauses (a)(i) and (a)(ii) of this paragraph (xix) shall be made on
a pro rata basis in accordance with the fair market values of the Mortgaged
Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xx)Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default or reasonably foreseeable default of such Mortgage Loan or (b)
satisfies the provisions of either clause (a)(i) of paragraph (xix)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (a)(ii) of paragraph (xix), including the proviso
thereto.
(xxi) Advancement of Funds by the Seller. No holder of a Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
(xxii) No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
(xxiii) Compliance with Usury Laws. Each Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
(xxiv) Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
(xxv) Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan. The Mortgages relating to those Mortgage Loans identified
on Schedule II-A hereto require the mortgagee to grant releases of portions of
the related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and (b) the payment of a release price set forth
therein and prepayment consideration in connection therewith.
(xxvi) No Equity Participation or Contingent Interest. No Mortgage
Loan contains any equity participation by the lender or provides for negative
amortization or for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
(xxvii) No Material Default. To the Seller's best knowledge, there
exists no material default, breach, violation or event of acceleration (and no
event which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs (iii),
(vii), (xiv), (xv), (xvi), (xvii) and (xxii) of this Exhibit A.
(xxviii) Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
(xxix) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, 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, such value as determined by the
appraisal performed at origination.
(xxx) Junior Liens. Schedule B attached hereto lists all Mortgage
Loans that permit the related Mortgaged Property to be encumbered by any lien
junior to the lien of the related Mortgage and describes any related debt
service coverage or similar criteria needed to be satisfied to obtain such
junior lien. Except as otherwise set forth on Schedule B, the Seller has no
knowledge that any of the Mortgaged Properties is encumbered by any lien junior
to the lien of the related Mortgage.
(xxxi) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgage
Loan or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
(xxxii) Servicing. The servicing and collection practices used by
the Seller have been in all material respects legal, proper and prudent and have
met 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.
(xxxiii) Licenses and Permits. To the Seller's knowledge, based on
due diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(xxxiv) Collateral in Trust. The Mortgage Note for each Mortgage
Loan is not secured by any collateral (including any mortgage) that is not
included in the Trust.
(xxxv) Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-Off Date Principal Balance in excess of $20 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
(xxxvi) Non-Recourse Exceptions. The Mortgage Loan documents for
each Mortgage Loan provide that such Mortgage Loan constitutes the non-recourse
obligations of the related obligors thereon except that either (i) such
provision does not apply in the case of fraud by the Mortgagor or (ii) such
documents provide that the Mortgagor shall be liable to the holder of the
Mortgage Loan for losses incurred as a result of fraud by the Mortgagor.
(xxxvii) Loan Underwriting. Each Mortgage Loan complies, in all
material respects, with all of the terms, conditions and requirements of the
Seller's underwriting standards in effect at the time of origination of such
Mortgage Loan.
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Mortgage Capital Inc. ("MSDWMC");
2. that MSDWMC 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 MSDWMC, 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 ______________________, under date of _______________________
(the "Note");
4. that the Note is now owned and held by MSDWMC;
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 MSDWMC; and
7. upon assignment of the Note by MSDWMC 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 2000-C1 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by MSDWMC to the Trustee) MSDWMC
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 MSDWMC or the Depositor's failure to
deliver said original Note to the Trustee.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MORTGAGE CAPITAL
INC.
By:__________________________________________
Authorized Signatory
Sworn to before me this
day of July, 2000
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mortgage Capital Inc., a Delaware Corporation, whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ASSIGNOR") in consideration of ten and 00/100
($10.00) dollars and other good and valuable consideration, paid by ▇▇▇▇▇ 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 3 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("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 Schedules "A-1" and "A-2" 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.
IN WITNESS WHEREOF, the ASSIGNOR has duly executed this Assignment
the __ day of __________ 2000.
IN PRESENCE OF:
By:__________________________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On this day of , 2000, before me the undersigned, a NOTARY PUBLIC
OF , personally appeared _______________, as _______________ of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Mortgage Capital Inc., a Delaware corporation, 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 corporation and (2) he executed said
instrument as the act and deed of said corporation.
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____________________
ASSIGNMENT OF MORTGAGE
AND
ASSIGNMENT OF ASSIGNMENT OF LESSOR'S INTERESTS
IN LEASES, RENTS AND PROFITS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
TO
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., AS TRUSTEE
RECORD AND RETURN TO:
Exhibit D
Form of Seller's In-House Counsel Opinion