CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
DEPOSITOR
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CK3
UNDERWRITING AGREEMENT
June 12, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
MCDONALD INVESTMENTS INC.
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
FIRST UNION SECURITIES, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation (the "Depositor"), proposes to form a commercial mortgage
trust (the "Trust"), which will issue securities entitled Credit Suisse First
Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 2001-CK3, certain classes of which securities the Depositor proposes to
sell to you hereunder (such classes of such securities to be sold hereunder,
collectively, the "Certificates"). Each Certificate will evidence a fractional
undivided, percentage interest or beneficial interest in the Trust. The terms on
which the Trust will issue the Certificates will be specified in the Prospectus
(as defined herein). The property of the Trust will consist of a pool of 169
mortgage loans (collectively, the "Mortgage Loans") that will be purchased by
the Depositor from Column Financial, Inc. ("Column"), KeyBank National
Association ("KeyBank") and First Union National Bank ("First Union" and,
collectively with Column and Key Bank, the "Mortgage Loan Sellers"),
respectively, pursuant to separate Mortgage Loan Purchase Agreements (each, a
"Mortgage Loan Purchase Agreement"). The assets of the Trust are collectively
referred to herein as the "Trust Fund". The Mortgage Loans will be transferred
to the Trust, and the Certificates will be issued, respectively, pursuant to a
Pooling and Servicing Agreement, dated as of June 1, 2001 (the "Pooling and
Servicing Agreement"), among the Depositor, KeyCorp Real Estate Capital Markets,
Inc. d/b/a Key Commercial Mortgage, as master servicer (in such capacity, the
"Master Servicer") and special
servicer (in such capacity, the "Special Servicer"), and ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as trustee (the "Trustee").
The offering of the Certificates made pursuant to the Registration
Statement (as defined herein) will be made through you as underwriters. This
Agreement provides for the sale of such Certificates to, and the purchase and
offering thereof by, you, as underwriters (the "Underwriters" and, each of you
individually, an "Underwriter"). Schedule I shall specify the principal balance
of each class of the Certificates to be issued and any terms thereof not
otherwise specified in the Pooling and Servicing Agreement, the classes of
Certificates subject to this Agreement, the price at which such Certificates are
to be purchased by the Underwriters from the Depositor and the aggregate amount
of Certificates to be purchased by you. The offering of the Certificates will be
governed by this Agreement.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to you as of the date hereof as follows:
(a) a registration statement on Form S-3, including a prospectus and
such amendments thereto as may have been required to the date hereof,
relating to the Certificates and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), in the form heretofore delivered to you, has been filed with the
Securities and Exchange Commission (the "Commission") and has become
effective; such registration statement (including all post-effective
amendments thereto, but excluding any related Computational Materials and
ABS Term Sheets (each as defined in Section 8(a) below) previously filed or
to be filed and any Computational Materials and ABS Term Sheets relating to
securities other than the Certificates), and the prospectus relating to the
sale of the Certificates offered thereby by the Depositor and constituting
a part of such registration statement, as such prospectus is from time to
time amended or supplemented (including any prospectus filed with the
Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission (the "Rules and Regulations") under the Act), are respectively
referred to herein as the "Registration Statement" and the "Base
Prospectus"; the conditions to the use of a registration statement on Form
S-3 under the Act and the conditions of Rule 415 under the Act have been
satisfied with respect to the Registration Statement; the Registration
Statement complies in all material respects with the Act and the Rules and
Regulations; and no other amendment to the Registration Statement (other
than any amendment thereof by reason of Rule 429) will be filed which shall
be reasonably disapproved by you promptly after reasonable notice thereof;
(b) there is no request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional
information; the Commission has not issued any stop order suspending the
effectiveness of the Registration Statement and have not instituted or, to
the Depositor's knowledge, threatened any proceeding for that purpose; and
the Depositor has not received notification with respect to the suspension
of the qualification of the Certificates for sale in any jurisdiction or
with respect to any initiation or threat of any proceeding for such
purpose;
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(c) the Registration Statement (i) on its effective date and on the
date of the then most recently filed Prospectus Supplement conformed in all
respects to the requirements of the Act and the Rules and Regulations
thereunder and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and (ii) on the date hereof
will conform in all respects to the requirements of the Act and the Rules
and Regulations thereunder and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Base Prospectus and the supplement to the Base Prospectus prepared pursuant
to Section 5(a) below (the "Prospectus Supplement" and, together with the
Base Prospectus, the "Prospectus"), together will all amendments thereof
and supplements thereto, on the date hereof and on the Specified Delivery
Date (as defined in Section 3 below), will conform in all respects to the
requirements of the Act and the Rules and Regulations thereunder and will
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing does not apply
to (A) the information contained in or omitted from the Registration
Statement or the Prospectus, or any amendment thereof or supplement
thereto, in reliance upon and in conformity with written or electronic
information furnished to the Depositor by any Underwriter specifically for
use therein, (B) the information contained in or omitted from the
Prospectus, or any amendment thereof or supplement thereto, in reliance
upon and conformity with (1) the Master Tape (it being acknowledged that
the Master Tape was used to prepare the Prospectus Supplement, including,
without limitation, Exhibit A-1 and Exhibit A-2 to the Prospectus
Supplement and the accompanying diskette), (2) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement, or (3) any other information
concerning the characteristics of the Mortgage Loans, the related obligors
on the Mortgage Loans (the "Borrowers") or the related mortgaged real
properties securing the Mortgage Loans (the "Mortgaged Properties")
furnished electronically or in writing to the Depositor or the Underwriters
by any Mortgage Loan Seller in connection with the preparation of the
Prospectus, or any amendment thereof or supplement thereto, (C) the
information regarding the Mortgage Loans, the Borrowers, the Mortgaged
Properties and/or the Mortgage Loan Sellers contained in or omitted from
the Prospectus Supplement, or any amendment thereof or supplement thereto,
under the headings "Summary of Prospectus Supplement--The Underlying
Mortgage Loans", "Risk Factors--Risks Related to the Underlying Mortgage
Loans" and "Description of the Underlying Mortgage Loans", on Exhibit A-1
or Exhibit A-2 thereto or on the accompanying diskette, or (D) except for
Depositor Mathematical Errors (as defined in Section 7), the information
contained in or omitted from any Computational Materials and/or ABS Term
Sheets (each as defined in Section 8(a) hereof), or any amendment thereof
or supplement thereto, incorporated by reference in the Registration
Statement or the Prospectus (or any amendment thereof or supplement
thereto). The "Master Tape" consists of the compilation of underlying
information and data regarding the Mortgage Loans covered by the
Independent Accountants Report on Applying Agreed Upon
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Procedures dated June 12, 2001, as supplemented to the Closing Date, and
rendered by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP;
(d) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its
business as described in the Prospectus and now conducted by it, is duly
qualified as a foreign corporation in good standing in all jurisdictions in
which the ownership or lease of its property or the conduct of its business
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the Depositor, and is
conducting its business so as to comply in all material respects with the
applicable statutes, ordinances, rules and regulations of the jurisdictions
in which it is conducting business;
(e) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the
Specified Delivery Date, to the description thereof contained in the
Registration Statement and the Prospectus; and the Certificates, on the
Specified Delivery Date, will be duly and validly authorized and, when such
Certificates are duly and validly executed by the Depositor or the Trustee,
authenticated by the Trustee and delivered in accordance with the Pooling
and Servicing Agreement and delivered and paid for as provided herein, will
be validly issued and outstanding and entitled to the benefits and security
afforded by the Pooling and Servicing Agreement;
(f) the Depositor is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material and
adverse to the Depositor or which violation or default would have a
material adverse effect on the performance by the Depositor of its
obligations under this Agreement, the Pooling and Servicing Agreement or
the Mortgage Purchase Loan Agreements; and the issue and sale of the
Certificates and the compliance by the Depositor with all of the provisions
of the Certificates, this Agreement and the Pooling and Servicing
Agreement, and the execution and delivery by the Depositor of this
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreements are within the corporate power of the Depositor and
have been, or will have been, duly authorized by all necessary corporate
action on the part of the Depositor; and neither the execution and delivery
by the Depositor of such instruments, nor the consummation by the Depositor
of the transactions herein or therein contemplated, nor the compliance by
the Depositor with the provisions hereof or thereof, did, does or will (A)
conflict with or result in a breach of, or constitute a default under, any
of the provisions of the certificate of incorporation or by-laws of the
Depositor, (B) conflict with any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Depositor or its
properties, (C) conflict with any of the provisions of any indenture,
mortgage, contract or other instrument to which the Depositor is a party or
by which it is bound or (D) except as contemplated by the Pooling and
Servicing Agreement, result in the creation or imposition of any lien,
charge or encumbrance upon any of its property or assets pursuant to the
terms of any such indenture, mortgage, contract or other instrument;
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(g) there are no actions or proceedings against, or investigations of,
the Depositor pending, or, to the knowledge of the Depositor, threatened,
before any court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement, either
of the Mortgage Loan Purchase Agreements or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement, the Pooling and Servicing
Agreement or any of the Mortgage Loan Purchase Agreements, (iii) which
might materially and adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability against the
Depositor of, this Agreement, the Pooling and Servicing Agreement, any of
the Mortgage Loan Purchase Agreements or the Certificates or (iv) seeking
to affect adversely the federal income tax attributes of the Certificates
described in the Prospectus;
(h) there has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Depositor
since the date of its latest audited financial statements which would have
a material adverse effect on the ability of the Depositor to perform its
obligations under this Agreement, the Pooling and Servicing Agreement or
any of the Mortgage Loan Purchase Agreements;
(i) there are no contracts, indentures or other documents of a
character required by the Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement which have not
been so described or referred to therein or so filed or incorporated by
reference as exhibits thereto;
(j) the Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Depositor has not received any notice of
proceedings relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Depositor;
(k) this Agreement has been duly authorized, executed and delivered by
the Depositor; and, assuming due authorization, execution and delivery
hereof by the other parties hereto, this Agreement constitutes a legal,
valid and binding obligation of the Depositor, enforceable against the
Depositor in accordance with the terms hereof, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity), and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement which purport or are
construed to provide indemnification from liabilities under applicable
securities laws.
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(l) on the Specified Delivery Date, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements will have been duly
authorized, executed and delivered by the Depositor and will be legal,
valid and binding agreements of the Depositor, enforceable against the
Depositor in accordance with their respective terms, except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (2) general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity);
(m) all approvals, authorizations, consents, orders or other actions
of any person, corporation or other organizations, or of any court,
governmental agency or body or official (except with respect to the state
securities or "blue sky" laws of various jurisdictions) required in
connection with the valid and proper authorization, issuance, offering and
sale of the Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement have been or will be taken or obtained on or prior to
the Specified Delivery Date;
(n) at the Specified Delivery Date, each of the Mortgage Loans will
meet the criteria for selection described in the Prospectus Supplement;
(o) neither the Depositor nor the Trust Fund is, and neither the sale
of the Certificates in the manner contemplated by the Prospectus nor the
activities of the Trust Fund pursuant to the Pooling and Servicing
Agreement will cause the Depositor or the Trust Fund to be an "investment
company" or under the control of an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and the Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act");
(p) at the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) except as disclosed in the
Prospectus, will convey to the Trustee, or cause to be conveyed to the
Trustee, all of the Depositor's right, title and interest in and to the
Mortgage Loans being transferred to the Trustee pursuant to the Pooling and
Servicing Agreement, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"Liens") granted by or imposed upon the Depositor, (B) will not have
assigned to any other person any of its right, title or interest in the
Mortgage Loans or in the Pooling and Servicing Agreement or the
Certificates, and (C) will have the power and authority to transfer or
cause the transfer of the Mortgage Loans to the Trustee and to sell the
Certificates to the Underwriters. Upon execution and delivery of the
Pooling and Servicing Agreement by the Trustee, the Trustee will have
acquired ownership of all of the Depositor's right, title and interest in
and to the Mortgage Loans except to the extent disclosed in the Prospectus,
and upon delivery to the Underwriters of the Certificates pursuant hereto,
each Underwriter will have good title to the Certificates purchased by such
Underwriter, in each case free of Liens granted by or imposed upon the
Depositor;
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(q) under generally accepted accounting principles and for federal
income tax purposes, the Depositor will report the transfer of the Mortgage
Loans to the Trustee in exchange for the Certificates and the sale of the
Certificates to the Underwriters pursuant to this Agreement as a sale of
the interest in the Mortgage Loans evidenced by the Certificates;
(r) the consideration received by the Depositor upon the sale of the
Certificates to the Underwriters will constitute at least reasonably
equivalent value and fair consideration for the Certificates;
(s) the Depositor will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Certificates to the
Underwriters;
(t) the Depositor is not selling the Certificates to the Underwriters
with any intent to hinder, delay or defraud any of the creditors of the
Depositor;
(u) at the Specified Delivery Date, the respective Classes of
Certificates shall have been assigned ratings no lower than those set forth
in Schedule I hereto by the nationally recognized statistical rating
organizations identified in Schedule I hereto (the "Rating Agencies"); and
(v) any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other
than income taxes) have been paid or will be paid at or prior to the
Specified Delivery Date.
3. Purchase, Sale and Delivery of Certificates. The closing for the
purchase and sale of the Certificates contemplated hereby (the "Closing"), shall
be made at the date, location and time of delivery set forth in Schedule I
hereto, or such later date as shall be mutually acceptable to the Underwriters
and the Depositor (such date and time of purchase and sale of the Certificates
being herein called the "Specified Delivery Date"). Delivery of the Certificates
will be made in book-entry form through the facilities of The Depository Trust
Company ("DTC"). Each class of Certificates will be represented by one or more
definitive global certificates to be deposited by or on behalf of the Depositor
with DTC. Delivery of the Certificates shall be made to the several Underwriters
against payment by the several Underwriters of the purchase price for the
Certificates to or upon the order of the Depositor by wire transfer of
immediately available funds or by such other method as may be acceptable to the
Depositor.
The Depositor agrees to have the Certificates available for inspection by
the Underwriters in New York, New York, not later than 1:00 p.m. on the business
day prior to the Specified Delivery Date.
4. Offering by Underwriters. It is understood that the Underwriters propose
to offer the Certificates for sale to the public as set forth in the Prospectus.
It is further understood that the Depositor, in reliance upon Policy Statement
105, has not filed and will not file an offering statement pursuant to Section
352-e of the General Business Law of the State of New York with respect to the
Certificates. As required by Policy Statement 105, each Underwriter therefore
7
covenants and agrees with the Depositor that sales of the Certificates made by
such Underwriter in the State of New York will be made only to institutional
investors within the meaning of Policy Statement 105.
5. Covenants of the Depositor. The Depositor covenants and agrees with you
that:
(a) the Depositor has prepared and/or shall prepare (and shall file
with the Commission pursuant to Rule 424 under the Act) a Prospectus
Supplement setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Base Prospectus, the price at
which such Certificates are to be purchased by the Underwriters from the
Depositor, either the initial public offering price or the method by which
the price at which such Certificates are to be sold will be determined, the
selling concessions and reallowances, if any, and such other information as
you and the Depositor deem appropriate in connection with the offering of
such Certificates, but the Depositor shall not file any amendments to the
Registration Statement as in effect with respect to the Certificates (other
than an amendment by reason of Rule 429 under the Act), or any amendments
or supplements to the Prospectus, unless it has first delivered copies of
such amendments or supplements to you and given you a reasonable
opportunity to review the same, or if you have reasonably objected thereto
promptly after receipt thereof; the Depositor shall immediately advise you
or your counsel (i) when notice is received from the Commission that any
post-effective amendment to the Registration Statement (other than an
amendment by reason of Rule 429 under the Act) has been filed or has become
or will become effective or any supplement to the Prospectus or any amended
Prospectus, in each case relating to the Certificates specified in Schedule
I has been filed and will furnish you with copies thereof, (ii) of any
request by the Commission for any amendment of the Registration Statement
or the Prospectus or for any additional information relating to the
Certificates and (iii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Certificates or of any proceedings or examinations that may lead to such an
order or communication, whether by or of the Commission or any authority
administering any state securities or "blue sky" law, as soon as the
Depositor is advised thereof, and shall use its best efforts to prevent the
issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued. Subject to the Underwriters' compliance
with their obligations set forth in Section 8 below, the Depositor shall
file with the Commission a Current Report on Form 8-K including any
Computational Materials and ABS Term Sheets provided to it by any
Underwriter pursuant to Section 8 below not later than the date on which
such Current Report is required to be filed with the Commission;
(b) if, at any time when the Prospectus is required to be delivered
under the Act, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the
Depositor shall prepare and file with the Commission, at its expense and
subject to clause
8
(a) above, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance;
(c) the Depositor shall make generally available to the holders of the
Certificates (the "Certificateholders"), in each case as soon as
practicable, earning statements covering (i) a period of 12 months
beginning not later than the first day of the Trust's fiscal quarter next
following the effective date of the Registration Statement and (ii) a
period of 12 months beginning no later than the first day of the Trust's
fiscal quarter next following the date hereof, which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission with
respect to the Certificates. The Depositor shall cause the Pooling and
Servicing Agreement to require the Trustee to furnish or make available,
within a reasonable time after the end of each calendar year, to each
holder of a Certificate at any time during such year, such information as
the Depositor deems necessary or desirable to assist Certificateholders in
preparing their federal income tax returns;
(d) the Depositor shall furnish to you, without charge, signed copies
of the Registration Statement (including exhibits thereto), the Prospectus,
and all amendments and supplements to such documents relating to the
Certificates, in each case as soon as available and in such quantities as
you reasonably request;
(e) the Depositor shall arrange for the qualification of the
Certificates for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you designate and shall
continue such qualifications in effect so long as required for the
distribution; provided, however, that neither the Depositor nor the Trust
shall be required to qualify to do business in any jurisdiction where it is
now not qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction in which it is now not
subject to service of process;
(f) the costs and expenses incurred in connection with the
transactions herein contemplated shall be allocated pursuant to the terms
of (i) the Term Sheet for the Joint Conduit Securitizations between
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, Prudential Securities
Incorporated, Prudential Mortgage Capital Company, LLC, Column Financial,
Inc. and KeyBank National Association, as supplemented and modified by the
Term Sheet for the Joint Securitizations among Column Financial, Inc.,
Credit Suisse First Boston Corporation and KeyBank National Association for
Calendar Year 2001, together with (ii) the term sheet dated May 31, 2001,
among Credit Suisse First Boston, KeyBank and First Union, entitled CSFB
2001-CK3 Terms Relating to Joint Securitization between Credit Suisse First
Boston, KeyBank National Association and First Union National Bank;
(g) to the extent that the Pooling and Servicing Agreement provides
that the Underwriters are to receive any notices or reports, or have any
other rights thereunder, the Depositor will cause the Pooling and Servicing
Agreement to provide that the Underwriters are to be third-party
beneficiaries and that it may not be amended in any
9
manner that would materially adversely affect such rights of the
Underwriters without their consent; and
(h) during the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Depositor shall file, or cause the Trustee to file on behalf
of the Trust, on a timely and complete basis, all documents that are
required to be filed by the related Trust with the Commission pursuant to
Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
6. Conditions to the Obligations of the Underwriters. The obligation of
each Underwriter to purchase and pay for its allotment of the Certificates
subject to this Agreement will be subject to the accuracy of the representations
and warranties on the part of the Depositor as of the date hereof and the
Specified Delivery Date, to the accuracy of the statements of the Depositor made
pursuant to the provisions thereof, to the performance by the Depositor in all
material respects of its obligations hereunder and to the following additional
conditions precedent:
(a) You shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, certified public
accountants, letters dated the date of the Prospectus Supplement and the
date of any preliminary version of the Prospectus Supplement delivered to
prospective investors in the Certificates (a "Preliminary Prospectus
Supplement" and, together with the accompanying form of the Base
Prospectus, a "Preliminary Prospectus"), respectively, and satisfactory in
form and substance to the Underwriters and counsel for the Underwriters,
stating in effect that, using the assumptions and methodology used by the
Depositor, all of which shall be described in such letters, they have
recalculated such numbers and percentages set forth in the Prospectus
Supplement and any Preliminary Prospectus Supplement as the Underwriters
may reasonably request and as are agreed to by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
compared the results of their calculations to the corresponding items in
the Prospectus Supplement and any Preliminary Prospectus Supplement,
respectively, and found each such number and percentage set forth in the
Prospectus Supplement and any Preliminary Prospectus Supplement,
respectively, to be in agreement with the results of such calculations.
(b) all actions required to be taken and all filings required to be
made by the Depositor under the Act prior to the Specified Delivery Date
shall have been duly taken or made; and prior to the Specified Delivery
Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted, or to the knowledge of the Depositor or any
Underwriter, shall be contemplated by the Commission;
(c) unless otherwise specified in Schedule I, the Certificates subject
to this Agreement and offered by means of the Registration Statement shall
be rated the ratings specified in Schedule I, and shall not have been
lowered or placed on any credit watch with a negative implication for
downgrade;
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(d) you shall have received an opinion of in-house counsel to the
Depositor, dated the Specified Delivery Date, in substantially the same
form as Exhibit A attached hereto;
(e) you shall have received opinions and a letter of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇, special counsel to the Depositor, dated the Specified
Delivery Date, in substantially the same forms as Exhibit B-1, Exhibit B-2
and Exhibit B-3, respectively, attached hereto;
(f) you shall have received an opinion of in-house counsel to Column,
dated the Specified Delivery Date, in substantially the same form as
Exhibit C attached hereto;
(g) you shall have received an opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
special counsel to Column, dated the Specified Delivery Date, in
substantially the same form as Exhibit D attached hereto;
(h) you shall have received an opinion of in-house counsel to KeyBank,
the Master Servicer and the Special Servicer, dated the Specified Delivery
Date, in substantially the same form as Exhibit E attached hereto;
(i) you shall have received an opinion and a letter of ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., special counsel to KeyBank, dated the Specified
Delivery Date, in substantially the same forms as Exhibit F-1 and Exhibit
F-2, respectively, attached hereto;
(j) you shall have received an opinion of Phillips, Lytle, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel to KeyBank, the Master Servicer and the
Special Servicer, dated the Specified Delivery Date, in substantially the
same form as Exhibit G attached hereto;
(k) you shall have received an opinion of in-house counsel to First
Union, dated the Specified Delivery Date, in substantially the same form as
Exhibit H attached hereto;
(l) you shall have received opinions and a letter of Cadwalader
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel to First Union, dated the Specified
Delivery Date, in substantially the same forms as Exhibit I-1, Exhibit I-2
and Exhibit I-3, respectively, attached hereto;
(m) you shall have received opinions of counsel to the Trustee, dated
the Specified Delivery Date, in substantially the same forms as Exhibit J-1
and Exhibit J-2, respectively, attached hereto;
(n) you shall have received from the counsel referred to in clauses
6(d) through 6(m) above copies of any other opinions rendered thereby to
the rating agencies identified on Schedule I hereto in connection with the
issuance of the Certificates, together with reliance letters, dated the
Specified Delivery Date, authorizing you to rely on those opinions as if
they were addressed to you;
11
(o) each of you shall have received from your counsel a favorable
opinion, dated the Specified Delivery Date, covering such matters as you
may reasonably request relating to the issuance of the Certificates;
(p) you shall have received a certificate or certificates signed by
one or more duly authorized officers of the Depositor, dated the Specified
Delivery Date, in substantially the same forms as Exhibit K-1 and Exhibit
K-2;
(q) you shall have received a certificate of the Trustee, signed by
one or more duly authorized officers of the Trustee, dated the Specified
Delivery Date, in substantially the same form as Exhibit L;
(r) you shall have received a certificate of the Master Servicer and
Special Servicer, signed by one or more duly authorized officers of the
Master Servicer and Special Servicer, dated the Specified Delivery Date, in
substantially the same form as Exhibit M; and
(s) Column, KeyBank and First Union shall have sold the Mortgage Loans
to the Depositor, pursuant to the Mortgage Loan Purchase Agreements; and
(t) all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to you and your counsel, and you and
your counsel shall have received such additional information, certificates
and documents as you or they may have reasonably requested.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter,
each of its officers and each of its directors and each person, if any,
that controls any Underwriter within the meaning of the Act or the Exchange
Act against any expenses, losses, claims, damages or liabilities, joint or
several, as incurred, to which such Underwriter or any such officer,
director or controlling person may become subject, under the Act or
otherwise, insofar as such expenses, losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment or supplement thereto or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; and the Depositor shall reimburse, as incurred,
each Underwriter and each such officer, director and controlling person for
any legal or other expenses reasonably incurred by such Underwriter and
each such officer, director and controlling person in connection with
12
investigating or defending any such expense, loss, claim, damage, liability
or action; provided, however, that the Depositor shall not be liable in any
such case to the extent that any such expense, loss, claim, damage or
liability (A) arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus Supplement or the Prospectus Supplement (or any amendment
thereof or supplement thereto) in reliance upon and in conformity with
written or electronic information furnished to the Depositor by any
Underwriter specifically for use therein (the "Underwriters' Information"),
(B) arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus Supplement or the Prospectus Supplement (or any amendment
thereof or supplement thereto) in reliance upon and in conformity with (1)
the Master Tape (it being acknowledged that the Master Tape was used to
prepare any Preliminary Prospectus Supplement and the Prospectus
Supplement, including, without limitation, Exhibit A-1 and Exhibit A-2
thereto and the accompanying diskette), (2) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement or (3) any other information
concerning the characteristics of the Mortgage Loans, the Mortgaged
Properties or the Borrowers furnished electronically or in writing to the
Depositor or the Underwriters by any Mortgage Loan Seller in connection
with the preparation of any Preliminary Prospectus or the Prospectus or any
amendment thereof or supplement thereto, or (C) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission (other than a Depositor Mathematical Error (as defined below))
made in any Preliminary Prospectus Supplement or the Prospectus Supplement
(or any amendment thereof or supplement thereto) with respect to the
Mortgage Loans, the Mortgaged Properties, the Borrowers and/or the Mortgage
Loan Sellers under the headings "Summary of Prospectus Supplement--The
Underlying Mortgage Loans", "Risk Factors--Risks Related to the Underlying
Mortgage Loans" and "Description of the Underlying Mortgage Loans" therein,
on Exhibit A-1 or Exhibit A-2 thereto or on the accompanying diskette, or
(D) arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission (other than Depositor
Mathematical Error) made in any Computational Materials or ABS Term Sheets
(or any amendments thereof or supplements thereto) furnished to prospective
investors and made a part of, or incorporated by reference into, the
Registration Statement or in any Preliminary Prospectus or the Prospectus
(or any amendment thereof or supplement thereto); and provided, further,
that such indemnity with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such expense, loss, claim,
damage or liability purchased the Certificates which are the subject
thereof if such Underwriter did not deliver to such person a copy of the
Prospectus (or the Prospectus as most recently amended or supplemented) at
or prior to the confirmation of the sale of such Certificates to such
person in any case where such delivery is required by the Act, the
Depositor has previously furnished to such Underwriter copies thereof in
sufficient quantity and the untrue statement or omission of a material fact
contained in such Preliminary Prospectus was corrected in the Prospectus
(or the Prospectus as most
13
recently amended or supplemented) and such correction would have cured the
defect giving rise to any such expense, loss, claim, damage, liability or
action.
The Depositor and the Underwriters acknowledge that the following
statements constitute the only Underwriters' Information furnished in writing or
electronically by or on behalf of the Underwriters for inclusion in the
Registration Statement, the Prospectus or any Preliminary Prospectus: the second
sentence of the second paragraph, and the only sentence of the sixth paragraph,
on the cover of each of the Prospectus Supplement and any Preliminary Prospectus
Supplement; the entire subsection entitled "Summary of Prospectus
Supplement--Relevant Parties--Underwriters" in each of the Prospectus Supplement
and any Preliminary Prospectus Supplement; and the first sentence of the fourth
paragraph, and the second sentence of the fifth paragraph, under the heading
"Underwriting" in each of the Prospectus Supplement and any Preliminary
Prospectus Supplement.
A "Depositor Mathematical Error" consists of any untrue statement or
omission made in the Prospectus Supplement, any Preliminary Prospectus
Supplement or, if it was developed or approved by the Depositor or Credit Suisse
First Boston Corporation, any ABS Term Sheet as a result of an error in the
manipulation of, or any calculations based upon, or any aggregation (other than
an aggregation made in the Master Tape) of, the numerical, financial and/or
statistical information regarding the Mortgage Loans, the Mortgaged Properties,
the Borrowers and/or the Mortgage Loan Sellers contained in the Master Tape or
otherwise provided to the Depositor by any Mortgage Loan Seller.
(b) Each Underwriter shall severally, and not jointly, indemnify and
hold harmless the Depositor, each of its directors, each of its officers
who has signed the Registration Statement and each person, if any, who
controls the Depositor within the meaning of the Act or the Exchange Act
against any expenses, losses, claims, damages or liabilities, as incurred,
to which the Depositor or any such director, officer or controlling person
may become subject under the Act, the Exchange Act or otherwise, and shall
reimburse any legal or other expenses reasonably incurred by the Depositor
or any such director, officer or controlling person in connection with
investigating or defending any such expense, loss, claim, damage, liability
or action, in each case insofar as such expenses, losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment or supplement
thereto or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue
statement of any material fact contained in any Preliminary Prospectus
Supplement, the Prospectus Supplement or any amendment or supplement
thereto or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (iii)(A) any untrue statement or alleged untrue statement of
any material fact (other than a Depositor Mathematical Error) contained in
the Computational Materials or ABS Term Sheets, as applicable, that such
Underwriter provides to its respective potential investors, or (B) the
omission or the alleged omission to state therein a material fact required
to be stated therein or which,
14
when read together with any Preliminary Prospectus Supplement and the
Prospectus Supplement, is necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that no Underwriter shall be liable for any such loss,
claim, damage, liability, cost or expense that arises out of an untrue
statement or alleged untrue statement or omission or alleged omission in
the Registration Statement, any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto),
except to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written or electronic information relating to such Underwriter
furnished to the Depositor by such Underwriter specifically for use in such
document; and provided, further, that no Underwriter shall be liable to the
extent that any expense, loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission
or alleged omission in any Computational Materials or ABS Term Sheets (or
any amendment thereof or supplement thereto) made in reliance upon and in
conformity with (A) the Master Tape (it being acknowledged that the Master
Tape was used to prepare any Computational Materials and ABS Term Sheets),
(B) the representations and warranties of any Mortgage Loan Seller set
forth in or made pursuant to the related Mortgage Loan Purchase Agreement
or (C) any other information concerning the characteristics of the Mortgage
Loans, the Mortgaged Properties or the Borrowers furnished to the
Underwriters by the Depositor or any Mortgage Loan Seller (the error in the
Master Tape or any such other information concerning the characteristics of
the Mortgage Loans, the Mortgaged Properties or the Borrowers or the breach
in such representations and warranties that gave rise to such untrue
statement or omission, a "Collateral Error"), except to the extent that a
Mortgage Loan Seller or the Depositor notified such Underwriter in writing
of such Collateral Error or provided in written or electronic form
information superseding or correcting such Collateral Error (in any case, a
"Corrected Collateral Error") prior to the time of confirmation of sale to
the person that purchased the Certificates that are the subject of any such
loss, claim, damage, liability, cost or expense, or action in respect
thereof, and such Underwriter failed to deliver to such person corrected
Computational Materials or ABS Term Sheets (or, if the superseding or
correcting information was contained in the Prospectus, failed to deliver
to such person the Prospectus as amended or supplemented) at or prior to
confirmation of such sale to such person. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have. Any
Computational Materials or ABS Term Sheets (or amendments thereof or
supplements thereto) so furnished to the Depositor by a particular
Underwriter shall relate exclusively to and be, to the extent provided
herein, the several responsibility of such Underwriter and no other
Underwriter.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party
shall not relieve it from any liability which it may have to any
indemnified party otherwise than in this Section 7. In case any such action
is brought against any indemnified party, after such indemnifying party has
been notified of the
15
commencement thereof, such indemnifying party shall be entitled to
participate therein (at its own expense), and, to the extent that it may
wish, shall be entitled to assume the defense thereof (jointly with any
other indemnifying party similarly notified) with counsel satisfactory to
such indemnified party (which shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its election to so
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 7 for any legal fees or expenses
of separate counsel subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and
the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
designate within a reasonable period of time counsel satisfactory to the
indemnified party (in which case the fees and expenses of separate counsel
shall be paid as incurred by the indemnifying party). In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. An indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent. However, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing two sentences, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which
the indemnifying party is obligated under this subsection, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 60 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. If an indemnifying party assumes the defense of any proceeding,
it shall be entitled to settle such proceeding with the consent of the
indemnified party or, if such settlement provides for an unconditional
release of the indemnified party in connection with all matters relating to
the proceeding that have been asserted against the indemnified party in
such proceeding by the other parties to such settlement, without the
consent of the indemnified party.
(d) If recovery is not available under Section 7(a) or Section 7(b)
for any reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contribution from
the Depositor (in the case of Section 7(a)) or one or more Underwriters (in
the case of Section 7(b)), as applicable, for the expenses, losses, claims,
damages and/or liabilities intended to be covered under the relevant
16
Section, as incurred, except to the extent that contribution is not
permitted under Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by the Depositor on the one hand
and each Underwriter on the other from the offering of the Certificates
subject to this Agreement (taking into account the portion of the proceeds
of the offering realized by each). In the event contribution according to
the foregoing sentence is not permitted by law, in determining the amount
of contribution to which the respective parties are entitled, there shall
be considered the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission and any other
equitable considerations appropriate under the circumstances. The Depositor
and the Underwriters agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter in connection with the offering of
the Certificates exceeds the amount of damages that such Underwriter has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. The obligations of the
Underwriters in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(e) The amount paid or payable by an indemnified party as a result of
the expenses, losses, claims, damages or other liabilities referred to in
this Section 7 shall be deemed to include any legal fees and disbursements
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such claim except where the
indemnified party is required to bear such expenses, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that it is reasonable to believe that the
indemnifying party will be ultimately obligated to pay such expenses. In
the event that any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly
refund the amount so paid to the party which made such payment. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 7 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any indemnified party at law or
in equity.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by the
Depositor, any Underwriter, any of their respective directors or officers,
or any person controlling the Depositor or any Underwriter, and (iii)
acceptance of and payment for any of the Certificates.
17
(g) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Depositor and to each person, if any, who controls the Depositor within
the meaning of the Act.
8. Computational Materials.
(a) The Underwriters agree to provide to the Depositor not later than
10:30 a.m., New York time, on the Business Day before the date on which a
Current Report on Form 8-K is required to be filed by the Depositor with
the Commission pursuant to the No-Action Letters (as defined below) (each,
a "Current Report") five complete copies of all materials that have been
provided by the Underwriters to prospective investors in the Certificates
and that constitute (i) "Computational Materials" within the meaning of the
no-action letter dated May 20, 1994 and issued by the Division of
Corporation Finance of the Commission to ▇▇▇▇▇▇, Peabody Acceptance
Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ Structured
Asset Corporation and the no-action letter dated May 27, 1994 and issued by
the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "▇▇▇▇▇▇ Letters") and (ii) "ABS Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
and issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together with the ▇▇▇▇▇▇ Letters, the
"No-Action Letters"), and the Underwriters acknowledge that the filing of
such materials is a condition of relief granted in such letter (such
materials, the "Computational Materials" and the "ABS Term Sheets,"
respectively); provided, however, that any ABS Term Sheets are subject to
the review and approval of the Depositor prior to their distribution to any
prospective investors, and a copy of all such ABS Term Sheets and
Computational Materials as are delivered to prospective investors shall, in
addition to the foregoing delivery requirements, be delivered to the
Depositor simultaneously with delivery thereof to prospective investors.
Each delivery of Computational Materials and ABS Term Sheets to the
Depositor pursuant to this Section 8(a) shall be effected by delivering
four copies of such materials to counsel for the Depositor on behalf of the
Depositor and one copy of such materials to the Depositor. No Underwriter
shall provide to any investor or prospective investor in the Certificates
any Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials or ABS Term Sheets are required to be provided to
the Depositor pursuant to this subsection (a) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to the
Depositor in accordance with this subsection (a)) for filing pursuant to
Section 5(a), unless such Computational Materials or ABS Term Sheets are
preceded or accompanied by the delivery of a Prospectus to such investor or
prospective investor.
(b) As of the date of this Agreement and as of the Specified Delivery
Date, each of the Underwriters represents and warrants to, and agrees with,
the Depositor and
18
with each other Underwriter that: (i) the Computational Materials and ABS
Term Sheets furnished to the Depositor pursuant to Section 8(a) above by
such Underwriter, if any, constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective investors
by such Underwriter that is required to be filed with the Commission with
respect to the Certificates in accordance with the No-Action Letters, and
such Computational Materials and ABS Term Sheets comply with the
requirements of the No-Action Letters; (ii) on the date any such
Computational Materials and ABS Term Sheets developed by such Underwriter
with respect to such Certificates (or any written or electronic materials
furnished to prospective investors on which such Computational Materials
and ABS Term Sheets are based) were last furnished by such Underwriter to a
prospective investor and on the date of delivery thereof to the Depositor
pursuant to Section 8(a) above and on such Specified Delivery Date, such
Computational Materials and ABS Term Sheets (or materials) were accurate in
all material respects when read in conjunction with the Prospectus (taking
into account the assumptions explicitly set forth in the Computational
Materials), except to the extent of any errors therein that are caused by
Collateral Errors (other than Corrected Collateral Errors) or Depositor
Mathematical Errors; (iii) such Underwriter will not represent to potential
investors that any Computational Materials and ABS Term Sheets were
prepared or disseminated on behalf of the Depositor; and (iv) all
Computational Materials and ABS Term Sheets (or underlying materials
distributed to prospective investors on which the Computational Materials
and ABS Term Sheets were based) shall bear a legend substantially in the
form of Exhibit N or as otherwise reasonably approved by the Depositor in
writing. Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials and
ABS Term Sheets (or any written or electronic materials furnished to
prospective investors on which the Computational Materials and ABS Term
Sheets are based), if any, included or will include any inaccurate
statement resulting directly from any Collateral Errors (other than
Corrected Collateral Errors) or Depositor Mathematical Errors.
(c) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology
and assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided, however, that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. In the event that any
Computational Materials and ABS Term Sheets that are required to be filed
were based on assumptions with respect to the Mortgage Loans that are
incorrect or that differ from the Master Tape in any material respect prior
to the printing of the Prospectus, the Underwriters shall prepare revised
Computational Materials or ABS Term Sheets, as the case may be, based on
the information in the Master Tape and the final Certificate structuring
assumptions, shall circulate such revised Computational Materials and ABS
Term Sheets to all recipients of the preliminary versions thereof that
indicated orally to the Underwriters they would purchase all or any portion
of the Certificates, and shall include such revised Computational Materials
or ABS Term Sheets (marked "as revised") in the materials delivered to the
Depositor pursuant to Section 8(a) above.
19
(d) If, within the period during which a prospectus relating to the
Certificates is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of
the Depositor or the related Underwriter, to contain a material error or,
when read together with the Prospectus, a material omission, then (unless
such material error or omission was corrected in the Prospectus) such
Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected Computational
Materials or ABS Term Sheets to all recipients of the prior versions
thereof that either indicated orally to such Underwriter they would
purchase all or any portion of the Certificates, or actually purchased all
or any portion thereof, and shall deliver copies of such corrected
Computational Materials or ABS Term Sheets (marked, "as corrected") to the
Depositor for filing with the Commission in a subsequent Form 8-K
submission ( which filing the Depositor shall so complete subject to its
obtaining an accountant's comfort letter, to the extent applicable, in
respect of such corrected Computational Materials and ABS Term Sheets,
which the parties acknowledge shall be at the expense of the Mortgage Loan
Sellers). As of the date that any Underwriter disseminates any
Computational Materials or ABS Term Sheets, such Underwriter shall not have
any knowledge or reason to believe that such Computational Materials or ABS
Term Sheets disseminated by it contained any material error or, when read
together with the Prospectus, any material omission and each Underwriter
agrees to promptly notify the Depositor of any such material error or
omission of which such Underwriter becomes aware. Notwithstanding the
foregoing, the Underwriters make no representation or warranty as to
whether any Computational Materials or ABS Term Sheets (or any written or
electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets are based) included or will
include any inaccurate statement resulting directly from any Collateral
Error (other than a Corrected Collateral Error).
(e) Each Underwriter shall be deemed to have represented, as of the
Specified Delivery Date, that, except for Computational Materials and ABS
Term Sheets provided to the Depositor pursuant to subsection (a) above,
such Underwriter did not provide any prospective investors with any
information in written or electronic form in connection with the offering
of the Certificates that is required to be filed with the Commission in
accordance with the No-Action Letters.
(f) In the event of any delay in the delivery by any Underwriter to
the Depositor of Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (a) above, or in the delivery of
the accountant's comfort letter in respect thereof pursuant to Section
5(a), the Depositor shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the Specified
Delivery Date and to take other appropriate actions in each case as
necessary in order to allow the Depositor to comply with its agreement set
forth in Section 5(a) to file the Computational Materials and ABS Term
Sheets by the time specified therein.
(g) Each Underwriter further represents and warrants that, if and to
the extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with
the offering of the Certificates,
20
all of the conditions set forth in clauses (a), (c), (d) and (f) above have
been satisfied with respect thereto.
(h) Computational Materials and ABS Term Sheets may be distributed by
the Underwriter through electronic means in accordance with SEC Release No.
33-7233 or other applicable laws or regulations.
9. Default of Underwriters. If any Underwriter defaults in its obligations
to purchase Certificates hereunder and the aggregate principal amount of
Certificates that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total principal amount of Certificates to
be purchased hereunder, Credit Suisse First Boston Corporation may make
arrangements satisfactory to the Depositor for the purchase of such Certificates
by other persons, but if no such arrangements are made by the Specified Delivery
Date, Credit Suisse First Boston Corporation shall be obligated to purchase the
Certificates that such defaulting Underwriter agreed but failed to purchase
hereunder. If any Underwriter so defaults and the aggregate principal amount of
Certificates with respect to which such default occurs exceeds 10% of the total
principal amount of Certificates to be purchased hereunder and arrangements
satisfactory to the non-defaulting Underwriters and the Depositor for the
purchase of such Certificates by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Depositor, except as provided in
Section 5(f) and Section 7. As used in this Agreement, the term "Underwriter"
includes any person substituted for a Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
10. Termination of the Obligations of the Underwriters. (a) Any Underwriter
may terminate its obligations under this Agreement by notice to the Depositor,
at any time at or prior to the Specified Delivery Date if the sale of the
Certificates provided for herein is not consummated because of any failure or
refusal on the part of the Depositor to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Depositor shall be
unable to perform its obligations under this Agreement.
(b) The obligations of any Underwriter to purchase on the Specified
Delivery Date its allocation of the Certificates described in Schedule I
shall be terminable by such Underwriter if (i) at any time on or prior to
the Specified Delivery Date (A) trading in securities generally on the New
York Stock Exchange shall have been suspended or materially limited, or
there shall have been any setting of minimum prices for trading on such
exchange, (B) a general moratorium on commercial banking activities in New
York shall have been declared by any Federal or New York State authorities,
(C) there shall have occurred any material outbreak or escalation of
hostilities or other calamity or crisis, the effect of which on the
financial markets of the United States is such as to make it, in your
judgment as representative of such Underwriters, impracticable to
consummate the transactions contemplated herein or is such as would
materially and adversely affect the marketability of or the market price
for such Certificates or (D) any change or any development involving a
prospective change occurs, materially and adversely affecting (1) the Trust
Fund taken as a whole or (2) the business or properties of the Depositor,
which, in the reasonable judgment of such Underwriter, in the case of
either (1) or (2),
21
materially impairs the investment quality of the Certificates or (ii) any
representation or warranty of another party shall be incorrect in any
material respect.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Depositor and of the several Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
or statement as to the results thereof made by or on behalf of such
Underwriters, the Depositor or any of its officers or directors or any
controlling person, and shall survive delivery of and payment of the related
Certificates.
If this Agreement is terminated pursuant to Section 10 above or if for any
reason the purchase by the Underwriters of the Certificates described Schedule I
is not consummated, the obligations of the Depositor and the Underwriters
pursuant to Section 7 above shall remain in effect.
12. Notices. All communications hereunder shall be in writing and, if sent
to Credit Suisse First Boston Corporation, shall be mailed, delivered or
telecopied to it at Credit Suisse First Boston Corporation, Eleven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Transactions Advisory Group,
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇; if sent to McDonald Investments, Inc., shall be
mailed, delivered or telecopied to it at McDonald Investments Inc., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopy No.: (216)
443-2951 (with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ at KeyBank National Association, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇); if sent to
First Union Securities, Inc., shall be mailed, delivered or telecopied to it at
First Union Securities, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇; if sent to
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., shall be mailed, delivered or telecopied to it at
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇; or, if sent to the
Depositor, shall be mailed, delivered or telecopied to it at Credit Suisse First
Boston Mortgage Securities Corp., Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇; or, in the case
of any of the foregoing parties, to such other address as may be furnished by
such party to the other parties.
13. Successors. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 7 above, and their
successors and assigns, and no other person shall have any right or obligation
hereunder. No purchaser of any Certificates from any Underwriter shall be deemed
a successor or assign by reason merely of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES).
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon it will become a
binding agreement among the Depositor and the Underwriters in accordance with
its terms. Alternatively, the execution of this Agreement by the Depositor and
its acceptance by or on behalf of the Underwriters may be evidenced by an
exchange of telegraphic or other written communications.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.,
as Depositor
By:
-----------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Underwriter
By:
---------------------------------
Name:
Title:
McDONALD INVESTMENTS INC.,
as Underwriter
By:
---------------------------------
Name:
Title:
23
FIRST UNION SECURITIES, INC.,
as Underwriter
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Underwriter
By:
---------------------------------
Name:
Title:
24
SCHEDULE I
Certificates: Commercial Mortgage Pass-Through certificates, Series 2001-CK3,
Class ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇, ▇ and D.
Closing: 10:00 A.M., June 13, 2001, at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Prospectus: Prospectus Supplement dated June 12, 2001 and Base Prospectus dated
June 5, 2001 (Registration Statement No.: 333-53012)
Total Principal Amount of Certificates: $974,824,000 (approximate)
Total Principal Amount:
-----------------------
Class A-1 $ 50,000,000
Class A-2 $ 105,500,000
Class A-3 $ 127,040,000
Class A-4 $ 582,406,000
Class B $ 42,262,000
Class C $ 56,348,000
Class D $ 11,268,000
Ratings (▇▇▇▇▇'▇ Investors Service, Inc./Fitch Inc.):
-----------------------------------------------------
Class A-1 Aaa/AAA
Class A-2 Aaa/AAA
Class A-3 Aaa/AAA
Class A-4 Aaa/AAA
Class B Aa2/AA
Class C A2/A
Class D A3/A-
Initial Pass-Through Rates:
---------------------------
Class A-1 5.2600%
Class A-2 6.0400%
Class A-3 6.4000%
Class A-4 6.5300%
Class B 6.6800%
Class C 6.8600%
Class D 6.9800%
I-1
Price (Expressed as a Percentage of Par):
-----------------------------------------
Class A-1 100.000000%
Class A-2 100.503777%
Class A-3 100.509603%
Class A-4 100.519446%
Class B 100.484375%
Class C 100.500000%
Class D 100.515625%
I-2
CERTIFICATES PURCHASED
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
UNDERWRITER AMOUNT AMOUNT AMOUNT AMOUNT
----------- ------------ ------------- ------------- -------------
Credit Suisse First Boston Corporation $ 40,000,000 $ 95,500,000 $ 95,040,000 $ 507,406,000
McDonald Investments Inc. $ 10,000,000 $ 10,000,000 $ 12,000,000 $ 40,000,000
First Union Securities, Inc. $ 0 $ 0 $ 10,000,000 $ 20,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $ 0 $ 0 $ 10,000,000 $ 15,000,000
------------ ------------- ------------- -------------
Total $ 50,000,000 $ 105,500,000 $ 127,040,000 $ 582,406,000
============ ============= ============= =============
CLASS B CLASS C CLASS D
PRINCIPAL PRINCIPAL PRINCIPAL
UNDERWRITER AMOUNT AMOUNT AMOUNT
----------- ------------ ------------- -------------
Credit Suisse First Boston Corporation $ 42,262,000 $ 56,348,000 $ 11,268,000
McDonald Investments Inc. $ 0 $ 0 $ 0
First Union Securities, Inc. $ 0 $ 0 $ 0
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $ 0 $ 0 $ 0
------------ ------------- -------------
Total $ 42,262,000 $ 56,348,000 $ 11,268,000
============ ============= =============
I-3
EXHIBIT A
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE DEPOSITOR
June __, 2001
To the Parties Listed on Annex A hereto
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
----------------------------------------------------------------
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston Corporation
("CSFB") and have acted as special counsel to Credit Suisse First Boston
Mortgage Securities Corp., a Delaware corporation (the "Depositor"), in
connection with certain matters relating to: (i) its purchase from Column
Financial, Inc. ("Column") of various mortgage assets, including without
limitation, certain multifamily and commercial mortgage loans, pursuant to the
Mortgage Loan Purchase Agreement, dated as of June 12, 2001 (the "Column
Mortgage Loan Purchase Agreement"), between the Depositor and Column; (ii) its
purchase from KeyBank National Association ("KeyBank") of certain other mortgage
assets, including without limitation, certain other multifamily and commercial
mortgage loans, pursuant to the Mortgage Loan Purchase Agreement, dated as of
June 12, 2001 (the "KeyBank Mortgage Loan Purchase Agreement"), between the
Depositor and KeyBank, (iii) its purchase from First Union National Bank ("First
Union") of certain other mortgage assets, including without limitation, certain
other multifamily and commercial mortgage loans, pursuant to the Mortgage Loan
Purchase Agreement, dated as of June 12, 2001 (the "First Union Mortgage Loan
Purchase Agreement"), between the Depositor and First Union, (iv) the issuance
of the Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2001-CK3, consisting of 21 classes designated
Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class B, Class C, Class D, Class
A-X, Class E, Class F, Class G-1, G-2, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class R and Class V (the "Certificates"), pursuant to the
Pooling and Servicing Agreement, dated as of June 1, 2001 (the "Pooling and
Servicing Agreement"), by and among the Depositor, as depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer
and special servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"); (v) the sale by the Depositor of the Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C and Class D Certificates, pursuant to the
Underwriting Agreement, dated as of June 12, 2001 (the "Underwriting
Agreement"), among the Depositor, CSFB, McDonald Investments, Inc., First Union
Securities, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., and (vi) the sale by the
Depositor of the Class A-X, Class E, Class F, Class G-1, Class G-2, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class R and Class V
Certificates, pursuant to the Certificate Purchase Agreement, dated as of June
12, 2001 (the "Certificate Purchase Agreement"), between the Depositor and CSFB.
Capitalized terms used and not otherwise defined herein have the meanings given
to them in the Pooling and Servicing Agreement.
A-1
In rendering the opinions set forth below, I have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Underwriting Agreement, the Certificate Purchase Agreement,
the Pooling and Servicing Agreement, the Column Mortgage Loan Purchase
Agreement, the KeyBank Mortgage Loan Purchase Agreement and the First Union
Mortgage Loan Purchase Agreement (collectively, the "Agreements"), specimen
forms of the Certificates, and such certificates, corporate records and other
documents, agreements, instruments and opinions, as I have deemed appropriate as
a basis for the opinions hereinafter expressed. In connection with such
examination, I have assumed the genuineness of all signatures (other than with
respect to the Depositor), the authenticity of all documents, agreements and
instruments submitted to me as originals, the conformity to original documents,
agreements and instruments of all documents, agreements and instruments
submitted to me as copies or specimens and the authenticity of the originals of
such documents, agreements and instruments submitted to me as copies or
specimens, and the accuracy of the matters set forth in the documents,
agreements and instruments I reviewed, to the extent such matters do not
constitute legal conclusions. As to any facts materials to such opinions that
were not known to me, I have relied upon statements, certificates and
representations of officers and other representatives of the Depositor, Column,
KeyBank, First Union, CSFB, the Trustee and public officials.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Depositor is incorporated, validly existing and in good standing
under the laws of the State of Delaware, with requisite power and authority to
execute and deliver the Agreements, and to perform its obligations thereunder.
16. The execution, delivery and performance of the Agreements have been
duly authorized by the Depositor, and the Agreements have been duly executed and
delivered by the Depositor.
17. The Certificates have been duly authorized by all necessary corporate
action of the Depositor.
18. The issuance of the Certificates pursuant to the Pooling and Servicing
Agreement, the execution and delivery by the Depositor of the Agreements, the
performance by the Depositor of its obligations under the Agreements and the
consummation by the Depositor of the transactions therein contemplated, do not
conflict with or result in a breach or violation of the Depositor's certificate
of incorporation or bylaws or, to my knowledge, conflict with or result in a
breach or violation of any material indenture, agreement or instrument to which
the Depositor is a party or by which it or any of its property is bound, or any
judgement, decree or order applicable to the Depositor, of any New York State or
federal court, regulatory body, administrative agency or other governmental
authority, other than potential conflicts, breaches or violations, which
individually and in the aggregate are not reasonably expected to have a material
adverse effect on the ability of the Depositor to perform its obligations under
the Agreements.
A-2
19. To my knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against the Depositor (a)
asserting the invalidity of any of the Agreements or the Certificates, (b)
seeking to prevent the issuance of the Certificates or the consummation of any
of the transactions contemplated by the Agreements, or (c) which would
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability (with respect to the
Depositor) of, the Agreements or the Certificates. For purposes of the opinion
set forth in this paragraph, I have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the potential
litigant or governmental authority has manifested to the Depositor a present
intention to initiate such proceedings.
I am a member of the Bar of the State of New York and this opinion is
limited by the laws of the State of New York, the General Corporation Law of the
State of Delaware and the federal laws of the United States of America (in each
case without regard to conflicts of laws principles). I am not licensed to
practice law in the State of Delaware, and the opinion in paragraph (1) above as
to Delaware General Corporation Law is based solely on standard compilations of
the official statutes of Delaware. I express no opinion as to the effect of the
laws of any other jurisdiction on matters addressed in this opinion.
This opinion is limited to the matters specifically addressed herein, and I
express no opinion as to any other matters relating to, or which may arise in
connection with, the consummation of the transactions contemplated by the
Agreements.
I am furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose.
Very truly yours,
A-3
Annex A
Credit Suisse First Boston Mortgage Securities Corp.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT B-1
FORM OF OPINION I OF SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
SPECIAL COUNSEL TO THE DEPOSITOR
June __, 2001
Credit Suisse First Boston ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Mortgage Securities Corp. ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ Investors Service, Inc.
Credit Suisse First Boston Corporation ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
McDonald Investments Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
First Union Securities, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor") with respect to certain matters in connection
with the following transactions (collectively, the "Transactions"):
(i) the filing by the Depositor of a registration statement on form
S-3 (No. 333-53012) (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), for purposes of registering under
the Securities Act of 1933, as amended (the "1933 Act"), certain offerings
of mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor;
(ii) the sale by Column Financial Inc. ("Column"), and the purchase by
the Depositor, of a segregated pool of multifamily and commercial mortgage
loans (collectively, the "Column Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement, dated as of June 12, 2001 (the "Column Mortgage
Loan Purchase Agreement"), between Column as seller and the Depositor as
purchaser;
B-1-1
(iii) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (collectively, the "KeyBank Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of June 12, 2001
(the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank as seller
and the Depositor as purchaser;
(iv) the sale by First Union National Bank ("First Union"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (collectively, the "First Union Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of June 12, 2001
(the "First Union Mortgage Loan Purchase Agreement"), between First Union
as seller and the Depositor as purchaser;
(v) the creation of a commercial mortgage trust (the "Trust"), and the
issuance of an aggregate $1,126,966,710 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK3 (the
"Certificates"), consisting of 21 classes designated Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-3, Class A-4, Class B, Class C, Class D, Class A-X, Class E, Class
F, Class G-1, Class G-2, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class R and Class V, pursuant to the Pooling and Servicing
Agreement dated as of June 1, 2001 (the "Pooling and Servicing Agreement"),
among the Depositor as depositor, KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage, as master servicer and special servicer, and
▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
(vi) the transfer of the Column Mortgage Loans, the KeyBank Mortgage
Loans and the First Union Mortgage Loans (collectively, the "Mortgage
Loans") by the Depositor to the Trust, pursuant to the Pooling and
Servicing Agreement, in exchange for the Certificates being issued to or at
the direction of the Depositor;
(vii) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB"), McDonald Investments Inc., First Union
Securities, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (collectively, in such
capacity, the "Underwriters") of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-4, Class
A-2, Class B, Class C and Class D Certificates (collectively, the "Publicly
Offered Certificates"), pursuant to the Underwriting Agreement dated as of
June 12, 2001 (the "Underwriting Agreement"), between the Depositor and the
Underwriters; and
(viii) the sale by the Depositor, and the purchase by CSFB (in such
capacity, the "Initial Purchaser") of the Class A-X, Class E, Class F,
Class G-1, Class G-2, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class R and Class V Certificates (collectively, the "Privately
Offered Certificates"), pursuant to the Certificate Purchase Agreement
dated as of June 12, 2001 (the "Certificate Purchase Agreement"), between
the Depositor and the Initial Purchaser.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the Column Mortgage Loan Purchase Agreement, the
First Union Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan
▇▇▇▇▇▇▇▇
▇-▇-▇
Agreement are collectively referred to herein as the "Agreements". Capitalized
terms used but not defined herein have the respective meanings set forth in the
Pooling and Servicing Agreement and, to the extent not defined therein, in the
other Agreements.
For purposes of this opinion letter, we have reviewed:
(i) the Agreements;
(ii) the Registration Statement;
(iii) the Prospectus, dated June 5, 2001, relating to publicly offered
mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor (the "Basic Prospectus");
(iv) the Prospectus Supplement, dated June 12, 2001, specifically
relating to the Trust and the Publicly Offered Certificates (the
"Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"); and
(v) the Confidential Offering Circular, dated June 12, 2001, relating
to the Trust and certain classes of the Privately Offered Certificates
(including all exhibits and annexes thereto, the "Confidential Offering
Circular").
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
contained in the Agreements, (ii) the legal capacity of natural persons, (iii)
the genuineness of all signatures, (iv) the authenticity of all documents
submitted to us as originals, (v) the conformity to authentic originals of all
documents submitted to us as certified, conformed or photostatic copies, (vi)
the due organization of all parties to each of the Agreements and the valid
existence of each such party in good standing under the laws of its jurisdiction
of organization, (vii) except as and to the extent expressly addressed in
Opinion Paragraph 7 below, the power and authority of the parties to each of the
Agreements to enter into, perform under and consummate the transactions
contemplated by such Agreement, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order or decree applicable to any such party or its assets, and
without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by each of the parties thereto, (ix)
except as and to the extent expressly addressed in Opinion Paragraph 5 below,
the constitution of each of the
B-1-3
Agreements as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (x) compliance with
the Agreements by all parties thereto and, in the case of the Pooling and
Servicing Agreement, by the registered holders and beneficial owners of the
Certificates, and (xi) the absence of any other agreement that supplements or
otherwise modifies the intentions and agreements of the parties to the
Agreements, as expressed therein.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
When used in this opinion, the term "knowledge" or words of similar import
mean the actual knowledge of facts or other information of the attorneys
currently practicing law with this firm who have been actively involved in any
material respect in representing the Depositor in connection with the
Transactions. In that regard we have conducted no special or independent
investigation of factual matters in connection with this opinion letter.
B-1-4
In rendering this opinion letter, we do not express any opinion concerning
the laws of any jurisdiction other than the laws of the State of New York and,
where expressly referred to below, the federal laws of the United States of
America (in each case without regard to conflicts of law principles). In
addition, we do not express any opinion with respect to (i) the tax, securities
or "doing business" laws of any particular State, including, without limitation,
the State of New York, or (ii) any law, rule or regulation to which the
Depositor may be subject as a result of any other person's or entity's legal or
regulatory status or any such other person's or entity's involvement in the
Transactions. Furthermore, we do not express any opinion with respect to any
matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Registration Statement has become effective under the 1933 Act.
2. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or threatened.
3. The Registration Statement, the Basic Prospectus and the Prospectus
Supplement, as of their respective effective or issue dates (other than the
financial statements, schedules and other financial and statistical information
contained therein or omitted therefrom, as to which we express no opinion),
complied as to form in all material respects with the applicable requirements of
the 1933 Act and the rules and regulations thereunder.
4. To our knowledge, there are no material contracts, indentures or other
documents relating to the Publicly Offered Certificates of a character required
to be described or referred to in the Registration Statement or the Prospectus
Supplement or to be filed as exhibits to the Registration Statement, other than
those described or referred to therein or filed or incorporated by reference as
exhibits thereto.
5. Each of the Agreements constitutes a valid, legal and binding agreement
of the Depositor, enforceable against the Depositor in accordance with its
terms.
6. The Certificates, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and paid for in
accordance with the Underwriting Agreement and the Certificate Purchase
Agreement, will be entitled to the benefits of the Pooling and Servicing
Agreement.
7. The execution, delivery and performance of the Agreements by the
Depositor will not in any material respect conflict with or result in a
violation of any federal or State of New York statute, rule or regulation of
general applicability in transactions of the type contemplated by the
Agreements.
8. No consent, approval, authorization or order of any federal or State of
New York court or governmental agency or body is required for the consummation
by the Depositor of the transactions contemplated by the terms of the
Agreements, except such as may be required under the securities laws of the
State of New York and other particular States in
B-1-5
connection with the purchase and the offer and sale of the Certificates by the
Underwriters and the Initial Purchaser, as to which we express no opinion, and
except such as have been obtained.
9. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended. The Trust is not required to
be registered under the Investment Company Act of 1940, as amended.
10. The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "The Pooling and
Servicing Agreement", and in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing Documents",
and in the Confidential Offering Circular under the heading "Transfer and
Exchange; Restrictions", insofar as such statements purport to summarize certain
material provisions of the Certificates and the Pooling and Servicing Agreement,
are accurate in all material respects.
11. The statements set forth in the Prospectus Supplement under the
headings "ERISA Considerations", "Federal Income Tax Consequences" and "Legal
Investment", in the Basic Prospectus under the headings "ERISA Considerations",
"Federal Income Tax Consequences" and "Legal Investment", and in the
Confidential Offering Circular under the headings "Certain ERISA
Considerations", "Certain Federal Income Tax Consequences" and "Legal
Investment", to the extent that they purport to describe certain matters of
federal law or legal conclusions with respect thereto, while not discussing all
possible consequences of an investment in the Certificates to all investors,
provide in all material respects an accurate summary of such matters and
conclusions set forth under such headings.
12. As described in the Prospectus Supplement and the Confidential Offering
Circular, (A) REMIC I will qualify as a real estate mortgage investment conduit
(a "REMIC") within the meaning of Sections 860A through 860G of the Internal
Revenue Code of 1986 in effect on the date hereof (the "REMIC Provisions"), and
the REMIC I Regular Interests will constitute "regular interests" (as defined in
the REMIC Provisions), and the REMIC I Residual Interest will constitute the
sole "residual interest" (as defined in the REMIC Provisions), in REMIC I, (B)
REMIC II will qualify as a REMIC within the meaning of the REMIC Provisions, and
the REMIC II Regular Interests will constitute "regular interests", and the
REMIC II Residual Interest will constitute the sole "residual interest", in
REMIC II, and (C) REMIC III will qualify as a REMIC within the meaning of the
REMIC Provisions, and the REMIC III Regular Interest Certificates will
constitute "regular interests", and the REMIC III Residual Interest will
constitute the sole "residual interest", in REMIC III.
13. The respective portions of the Trust consisting of Grantor Trust R and
Grantor Trust V will each be classified as a grantor trust under subpart E, part
I of subchapter J of the Internal Revenue Code of 1986.
14. Assuming (a) the accuracy of the respective representations and
warranties of the Initial Purchaser and the Depositor contained in the
Certificate Purchase Agreement, (b) the performance by the Initial Purchaser and
the Depositor of their respective covenants contained in the Certificate
Purchase Agreement, and (c) in the case of each investor that
B-1-6
purchases Privately Offered Certificates from the Initial Purchaser, the
accuracy of the deemed representations and warranties set forth under the
caption "Notice to Investors" in the Confidential Offering Circular, the offer
and sale of the Privately Offered Certificates by the Depositor to the Initial
Purchaser, and by the Initial Purchaser to investors that purchase from it, in
the manner contemplated in the Confidential Offering Circular, the Certificate
Purchase Agreement and the Pooling and Servicing Agreement, are transactions
that do not require registration of the Privately Offered Certificates under the
▇▇▇▇ ▇▇▇.
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION II OF SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
SPECIAL COUNSEL TO THE DEPOSITOR
June 13, 2001
Credit Suisse First Boston ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Mortgage Securities Corp. ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ Investors Service, Inc.
Credit Suisse First Boston Corporation ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
McDonald Investments Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
First Union Securities, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"), Column Financial, Inc. ("Column") and Credit
Suisse First Boston Mortgage Capital LLC ("CSFBMC") with respect to certain
matters in connection with the following transactions (collectively the
"Transactions"):
(i) the sale by CSFBMC, and the purchase by Column, of a segregated
pool of multifamily and commercial mortgage loans (collectively, the
"CSFBMC Mortgage Loans"), pursuant to a ▇▇▇▇ of Sale dated as of June 12,
2001 (the "CSFBMC ▇▇▇▇ of Sale") and a Seller's Warranty Certificate dated
as of June 12, 2001 (the "CFSMMC Warranty Certificate" and together with
the CSFBMC ▇▇▇▇ of Sale, the "CSFBMC Sale Documents"), each executed by
CSFBMC as seller in favor of and Column as purchaser (such Transaction, the
"CSFBMC Sale");
(ii) the sale by Column, and the purchase by the Depositor, of the
CSFBMC Mortgage Loans and certain other multifamily and commercial mortgage
loans (the CSFBMC Mortgage Loans and such other mortgage loans,
collectively, the "Column Mortgage Loans"), pursuant to the Mortgage Loan
Purchase Agreement dated as of
▇-▇-▇
▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇ "Column Mortgage Loan Purchase Agreement"), between
Column as seller and the Depositor as purchaser (such Transaction, the
"Column Sale");
(iii) the sale by KeyBank National Association ("KeyBank"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (collectively, the "KeyBank Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of June 12, 2001
(the "KeyBank Mortgage Loan Purchase Agreement"), between KeyBank as seller
and the Depositor as purchaser (such Transaction, the "KeyBank Sale");
(iv) the sale by First Union National Bank ("First Union"), and the
purchase by the Depositor, of a segregated pool of multifamily and
commercial mortgage loans (collectively, the "First Union Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated as of June 12, 2001
(the "First Union Mortgage Loan Purchase Agreement"), between First Union
as seller and the Depositor as purchaser (such Transaction, the "First
Union Sale");
(v) the creation of a commercial mortgage trust (the "Trust"), and the
issuance of an aggregate $1,126,966,710 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK3 (the
"Certificates"), consisting of 21 classes designated Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-3, Class A-4, Class B, Class C, Class D, Class A-X., Class E, Class
F, Class G-1, Class G-2, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class R and Class V, pursuant to the Pooling and Servicing
Agreement dated as of June 12, 2001 (the "Pooling and Servicing
Agreement"), among the Depositor as depositor, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer and special
servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee (the "Trustee");
(vi) the transfer of the Column Mortgage Loans, the KeyBank Mortgage
Loans and the First Union Mortgage Loans (collectively, the "Mortgage
Loans") by the Depositor to the Trust, pursuant to the Pooling and
Servicing Agreement, in exchange for the Certificates being issued to or at
the direction of the Depositor (such Transaction, the "Transfer to the
Trust");
(vii) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB"), McDonald Investments Inc., First Union
Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (collectively, in such
capacity, the "Underwriters") of the Class A-1, Class A-2, Class B, Class C
and Class D Certificates (collectively, the "Publicly Offered
Certificates"), pursuant to the Underwriting Agreement dated as of June 12,
2001 (the "Underwriting Agreement"), between the Depositor and the
Underwriters; and
(viii) the sale by the Depositor, and the purchase by CSFB (in such
capacity, the "Initial Purchaser") of the Class A-X, Class E, Class F,
Class G-1, Class G-2, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class R and Class V Certificates (collectively, the "Privately
Offered Certificates"), pursuant to the Certificate ▇▇▇▇▇▇▇▇
▇-▇-▇
Agreement dated as of June 12, 2001 (the "Certificate Purchase Agreement"),
between the Depositor and the Initial Purchaser.
(ix) The Pooling and Servicing Agreement, the Underwriting Agreement,
the Certificate Purchase Agreement, the CSFBMC Sale Documents, the Column
Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase
Agreement, the CSFBMC Sale Documents and the First Union Mortgage Loan
Purchase Agreement are collectively referred to herein as the "Agreements".
Capitalized terms not defined herein have the respective meanings set forth
in the Pooling and Servicing Agreement and, to the extent not defined
therein, in the other Agreements.
We have been asked by our clients to provide our opinion to you as to
whether:
(i) in connection with any bankruptcy proceedings instituted by or on
behalf of CSFBMC under the Federal Bankruptcy Code, as amended (Title 11 of
the United States Code) (the "Bankruptcy Code"), the CSFBMC Sale would be
treated by a court as a true sale of the CSFBMC Mortgage Loans from CSFBMC
to Column rather than as a loan secured by the CSFBC Mortgage Loans, such
that the CSFBMC Mortgage Loans would not, on such basis, constitute
property of CSFBMC's estate under Section 541(a)(1) of the Bankruptcy Code
or property of CSFBMC subject to the automatic stay provisions of Section
362(a) of the Bankruptcy Code that would be applicable to the property of
CSFBMC in such a proceeding;
(ii) in connection with any bankruptcy proceedings instituted by or on
behalf of Column under the Bankruptcy Code, the Column Sale would be
treated by a court as a true sale of the Column Mortgage Loans from Column
to the Depositor rather than as a loan secured by the Column Mortgage
Loans, such that the Column Mortgage Loans would not, on such basis,
constitute property of Column's estate under Section 541(a)(1) of the
Bankruptcy Code or property of Column subject to the automatic stay
provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of Column in such a proceeding; and
(iii) in connection with any bankruptcy proceedings instituted by or
on behalf of the Depositor under the Bankruptcy Code, the Transfer to the
Trust would be treated by a court as an absolute transfer of the Mortgage
Loans from the Depositor to the Trust rather than as a loan secured by the
Mortgage Loans, such that the Mortgage Loans would not, on such basis,
constitute property of the Depositor's estate under Section 541(a)(1) of
the Bankruptcy Code or property of the Depositor subject to the automatic
stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of the Depositor in such a proceeding.
For purposes of this opinion letter, we have reviewed the following
documents and all exhibits thereto (collectively, the "Relevant Documents"):
(i) the Agreements;
B-2-3
(ii) a certificate of CSFBMC regarding the CSFBMC Sale, a copy of
which is attached hereto;
(iii) a certificate of Column regarding the Column Sale, a copy of
which is attached hereto;
(iv) a certificate of the Depositor regarding the Transfer to the
Trust, a copy of which is attached hereto; and
(v) a certificate of CSFB regarding its sales of the Certificates
purchased by it, a copy of which is attached hereto.
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
underlying the assumptions set forth below or that are otherwise factually
relevant to the opinions expressed herein and contained in the Relevant
Documents, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed or photostatic copies, (vi) the due organization
of all parties to each of the Agreements and the valid existence of each such
party in good standing under the laws of its jurisdiction of organization, (vii)
the power and authority of the parties to each of the Agreements to enter into,
perform under and consummate the transactions contemplated by such Agreement,
without any resulting conflict with or violation of the organizational documents
of any such party or with or of any law, rule, regulation, order or decree
applicable to any such party or its assets, and without any resulting default
under or breach of any other agreement or instrument by which any such party is
bound or which is applicable to it or its assets, (viii) the due authorization
by all necessary action, and the due execution and delivery, of the Agreements
by the parties thereto, (ix) the constitution of each Agreement as the legal,
valid and binding obligation of each party thereto, enforceable against such
party in accordance with its terms, (x) compliance with the Agreements by all
parties thereto, and (xi) the conformity, to the requirements of the CSFBMC Sale
Documents, the Column Mortgage Loan Purchase Agreement, the KeyBank Mortgage
Loan Purchase Agreement, the First Union Mortgage Loan Purchase Agreement and
the Pooling and Servicing Agreement, of the Mortgage Notes, the Mortgages and
the other documents delivered to the Trustee by, on behalf of or at the
direction of CSFBMC, Column, KeyBank, First Union and/or the Depositor.
B-2-4
In addition, we have assumed that the following statements are true and the
following actions (except as otherwise indicated) have occurred on the date
hereof based upon representations or other provisions in the Relevant Documents:
1. CSFB either has sold, or is actively attempting and expects to sell, to
third parties unrelated to Column, the Depositor or any of their affiliates,
substantially all of the Certificates acquired by CSFB pursuant to the
Underwriting Agreement and the Certificate Purchase Agreement.
2. The CSFBMC Sale, the Column Sale and the Transfer to the Trust and the
sale of the Certificates by the Depositor to the Underwriters and the Initial
Purchaser, as provided in the Agreements, are contemporaneous exchanges in which
CSFBMC, Column and the Depositor, respectively, receive new value and
consideration constituting reasonably equivalent value and fair consideration.
3. Following the CSFBMC Sale, the Column Sale and the Transfer to the
Trust, none of CSFBMC, Column or the Depositor has the right to unilaterally
modify or alter the terms of such Transactions. The consideration received by
CSFBMC in connection with the CSFBMC Sale, by Column in connection with the
Column Sale and by the Depositor in connection with its sales of the
Certificates to the Underwriters and the Initial Purchaser are, in each case,
fixed and not subject to adjustment following the Closing Date.
4. No provision exists whereby the terms of the Certificates, the Pooling
and Servicing Agreement, the Column Mortgage Loan Purchase Agreement or the
CSFBMC Sale Documents may be unilaterally modified by CSFBMC, Column or the
Depositor following the CSFBMC Sale, the Column Sale and the Transfer to the
Trust.
5. Pursuant to the CSFBMC Sale Documents, it is the intention of CSFBMC and
Column that the CSFBMC Sale constitute a sale by CSFBMC to Column of all of
CSFBMC's right, title and interest in and to the CSFBMC Mortgage Loans. Pursuant
to the Column Mortgage Loan Purchase Agreement, it is the intention of Column
and the Depositor that the Column Sale constitute a sale by Column to the
Depositor of all of Column's right, title and interest in and to the Column
Mortgage Loans. Pursuant to the Pooling and Servicing Agreement, it is the
intention of the Depositor and the Trustee that the Transfer to the Trust
constitute an absolute transfer by the Depositor to the Trust of all of the
Depositor's right, title and interest in and to the Mortgage Loans. Pursuant to
the CSFBMC Sale Documents, CSFBMC will treat the CSFBMC Sale as a sale (as
opposed to a secured loan under generally accepted accounting principles in the
United States ("GAAP"), pursuant to the Column Mortgage Loan Purchase Agreement
and/or the Pooling and Servicing Agreement, each of Column and the Depositor
will treat the Column Sale as a sale (as opposed to a secured loan) under GAAP,
and pursuant to the Pooling and Servicing Agreement, the Underwriting Agreement
and/or the Certificate Purchase Agreement, the Depositor will treat the Transfer
to the Trust and the sale of the Certificates by the Depositor to the
Underwriters and the Initial Purchaser as a sale (as opposed to a secured loan)
under GAAP.
B-2-5
6. After the completion of the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column, the Depositor or any of their
affiliates has (i) the right to repurchase or otherwise to cause the
reconveyance to itself of any Mortgage Loan or (ii) any obligation to repurchase
or otherwise remove any Mortgage Loan from the Trust (other than (a) in the case
of CSFBMC in connection with a material breach of certain representations,
warranties and covenants made by such party with respect to each CSFBMC Mortgage
Loan in the CSFMBC Warranty Certificate and (b) in the case of Column, in
connection with a material breach of certain representations, warranties and
covenants made by such party with respect to each Column Mortgage Loan, in the
Column Mortgage Loan Purchase Agreement.
7. There is no agreement, arrangement or understanding, written or
otherwise (including, without limitation, with respect to the CSFBMC Sale,
Column Sale or the Transfer to the Trust), that supplements or otherwise
modifies the intentions and agreements of the parties to the Agreements, as
expressed therein.
8. After the completion of the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or the Depositor will take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
9. Immediately before the CSFBMC Sale, CSFBMC owned the CSFBMC Mortgage
Loans free and clear of any adverse claims or other interests. Immediately
before the Column Sale, Column owned the Column Mortgage Loans (other than the
CSFBMC Mortgage Loans) free and clear of any adverse claims or other interests.
Immediately before the KeyBank Sale, KeyBank owned the KeyBank Mortgage Loans
free and clear of any adverse claims or other interests. Immediately before the
First Union Sale, First Union owned the First Union Mortgage Loans free and
clear of any adverse claims or other interests. In connection with the KeyBank
Sale, KeyBank will have validly and effectively conveyed to the Depositor all
legal and beneficial ownership in and to each KeyBank Mortgage Loan free and
clear of any pledge, lien, charge, security interest or other encumbrance. In
connection with the First Union Sale, First Union will have validly and
effectively conveyed to the Depositor all legal and beneficial ownership in and
to each First Union Mortgage Loan free and clear of any pledge, lien, charge,
security interest or other encumbrance. The Depositor has not transferred and
will not transfer its right, title and interest in and to any Mortgage Loan
except to the Trustee as contemplated by the Pooling and Servicing Agreement
(except insofar as the sale of the Certificates by the Depositor to the
Underwriter, and the Initial Purchaser may be construed as a transfer of
beneficial interests in the Mortgage Loans). No adverse claims or other
interests with respect to any Mortgage Loan were created by or through the
Depositor, except as contemplated by the Agreements.
10. Each of CSFBMC and Column has taken all actions required under
applicable law to effectuate the CSFBMC Sale. Each of Column and the Depositor
has taken all actions required under applicable law to effectuate the Column
Sale. Each of the Depositor and the Trustee has taken (or the Pooling and
Servicing Agreement provides that, within a reasonable time period following the
Closing Date, each of them will be required to take) all actions required under
applicable law to effectuate the Transfer to the Trust.
B-2-6
11. In connection with the CSFBMC Sale, the Column Sale and the Transfer to
the Trust, none of CSFBMC, Column or the Depositor had any intent to hinder,
delay or defraud its present or future creditors.
12. After giving effect to the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, the value of the assets of each of CSFBMC, Column and the
Depositor, respectively, either taken at their present fair salable value or at
fair valuation, exceeded the amount of the debts and obligations, including
contingent and unliquidated debts and obligations, of CSFBMC, Column and the
Depositor, respectively.
13. After giving effect to the CSFBMC Sale, the Column Sale and the
Transfer to the Trust, none of CSFBMC, Column or the Depositor was left with
unreasonably small assets or capital with which to engage in and conduct its
business.
14. After giving effect to the CSFBMC Sale, Column Sale and the Transfer to
the Trust, none of CSFBMC, Column or the Depositor intends to, or believes that
it will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
There is limited judicial authority relating to the issue of when a
transaction styled as a sale of assets or an absolute transfer of assets
constitutes a true sale or an absolute transfer, as the case may be, as opposed
to a secured loan, and we have not located any controlling precedent for the
transactions described herein. However, the existing case law indicates that an
analysis of a purported true sale or absolute transfer should examine the intent
of the parties as well as the economic consequences of the transaction to
determine whether they are consistent with characterization as a true sale or
absolute transfer, as the case may be. Some of the most important factors
relevant to this economic analysis include (i) whether the buyer or transferee
has assumed the risks inherent in the ownership of the assets purportedly sold
or transferred (i.e., whether the risk of loss has been borne by the buyer or
transferee), (ii) the presence (or absence) of a fixed consideration that is not
subject to further adjustment, given in connection with the purchase or
transfer, (iii) the level of recourse (if any) that the buyer or transferee has
against the seller or transferor, (iv) whether the buyer's or transferee's
rights in the acquired assets could be extinguished by repayment of a debt owed
by the seller or transferor or by the recovery of the consideration (if any)
given in connection with the purchase or transfer and (v) in what circumstances
(if any) the seller or transferor has the right or the obligation to repurchase
or otherwise reacquire the assets or any interest therein.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the Bankruptcy Code and the law of the State of New York to
the extent that it may be applicable thereunder. We do not express any opinion
on any matter not expressly addressed below.
Based upon and subject to the foregoing, the further qualifications set
forth below, and the reasoned analysis of analogous case law (although there is
no precedent directly on point), it is our opinion that:
B-2-7
1. In connection with any bankruptcy proceedings instituted by or on behalf
of CSFBMC under the Bankruptcy Code, the CSFBMC Sale would be treated by a court
as a true sale of the CSFBMC Mortgage Loans from CSFBMC to Column, rather than
as a loan secured by the CSFBMC Mortgage Loans, such that the CSFBMC Mortgage
Loans would not, on such basis, constitute property of CSFBMC's estate under
Section 541(a)(1) of the Bankruptcy Code or property of CSFBMC subject to the
automatic stay provisions of Section 362(a) of the Bankruptcy Code that would be
applicable to the property of CSFBMC in such a proceeding.
2. In connection with any bankruptcy proceedings instituted by or on behalf
of Column under the Bankruptcy Code, the Column Sale would be treated by a court
as a true sale of the Column Mortgage Loans from Column to the Depositor, rather
than as a loan secured by the Column Mortgage Loans, such that the Column
Mortgage Loans would not, on such basis, constitute property of Column's estate
under Section 541(a)(1) of the Bankruptcy Code or property of Column subject to
the automatic stay provisions of Section 362(a) of the Bankruptcy Code that
would be applicable to the property of Column in such a proceeding.
3. In connection with any bankruptcy proceedings instituted by or on behalf
of the Depositor under the Bankruptcy Code, the Transfer to the Trust would be
treated by a court as an absolute transfer of the Mortgage Loans from the
Depositor to the Trust, rather than as a loan secured by the Mortgage Loans,
such that the Mortgage Loans would not, on such basis, constitute property of
the Depositor's estate under section 541(a)(1) of the Bankruptcy Code or
property of the Depositor subject to the automatic stay provisions of Section
362(a) of the Bankruptcy Code that would be applicable to the property of the
Depositor in such a proceeding.
The foregoing opinions are subject to the qualifications that (i) the
assumptions set forth herein are and continue to be true in all respects
relevant to this opinion, (ii) there are no additional facts that would affect
the validity of the assumptions set forth herein or upon which this opinion is
based, (iii) any claim contrary to or inconsistent with any opinion expressed
herein made in any judicial proceeding will be opposed and litigated to a final
resolution by one or more persons or entities with standing to do so, (iv) such
case is properly presented and argued, and (v) the law is properly applied.
The foregoing opinions are not intended to be a guaranty as to what a
particular court would actually hold, but an opinion as to the decision a court
should reach if the issue were properly presented to it and the court followed
what we believe to be the applicable legal principles. In that regard, you
should be aware that bankruptcy opinions are subject to inherent limitations
because of the pervasive equity powers of bankruptcy courts, the overriding goal
of reorganization to which other legal rights and policies may be subordinated,
the potential relevance to the exercise of judicial discretion of future-arising
facts and circumstances and the nature of the bankruptcy process.(1)
--------------
(1) In that regard, we note the Memorandum Opinion dated February 5, 2001,
issued by the bankruptcy court in In re: LTV Steel Company, Inc., et al., U.S.
Bankr. Ct., Northern District of Ohio, Case No. 00-43866 (the "LTV Memorandum
Opinion"). The LTV Memorandum Opinion arose in a case in which the debtor, LTV
Steel Company
B-2-8
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior written consent.
Very truly yours,
--------------------------------------------------------------------------------
("LTV" or the "Debtor"), had entered into securitization arrangements with
respect both to its inventory and its accounts receivable, selling its inventory
to one special purpose subsidiary and its accounts receivable to another special
purpose entity. (Neither special purpose entity was made a debtor in the jointly
administered Chapter 11 filings of LTV and its subsidiaries.) The Debtor filed a
motion seeking use of the cash collections from the securitized assets on the
basis that the sales were nothing more than disguised financings and the Debtor
and the agent for the financial institutions that invested in the two
securitizations agreed to an interim order for the use of such cash collateral
(the "Interim Order"). The Interim Order, among other things, (i) required the
securitization investors, on an interim basis until the true sale issue could be
decided, to turn over to LTV the cash proceeds of the securitized inventory and
accounts receivable and (ii) purported to provide "adequate protection" to the
securitization investors (treating them, in effect, as secured creditors) in the
form of liens on LTV's accounts receivable and inventory and weekly interest
payments at the non-default contract rate.
The LTV Memorandum Opinion was issued in response to the motion of one of
the investors in the accounts receivable securitization to modify the Interim
Order, in part on the basis that the receivables transferred in the accounts
receivable securitization were not property of the Debtor's estate. The
bankruptcy court, while not determining the "fact-intensive issue" as to whether
the inventory and receivables transferred were property of the estate (which
determination required further discovery and an evidentiary hearing), did find
that LTV "...has at least some equitable interest in the inventory and
receivables, and that this interest is property of the Debtor's estate ...
sufficient to support the entry of the interim cash collateral order." (LTV
Memorandum Opinion at p. 14). The court based its decision in large part on its
view of the equities of the case. The court noted in particular that failure to
enter the interim cash collateral order "...would put an immediate end to
Debtor's business, would put thousands of people out of work, would deprive
100,000 retirees of needed medical benefits, and would have more far reaching
economic effects on the geographic areas where Debtor does business" (LTV
Memorandum Opinion, pp. 14 - 15), while the Interim Order protected the
securitization financing parties by its adequate protection provisions.
The Debtor and the securitization investors subsequently settled their
dispute over the terms of the Interim Order and the bankruptcy court therefore
never made a final determination as to whether the assets transferred in the two
securitizations were property of LTV's estate. The bankruptcy court did not cite
case law or other support for the proposition that a party that has sold
accounts receivable, inventory or other property, retains an equitable interest
in that property, and the bankruptcy court's finding that LTV retained such an
interest could be read narrowly as one court's attempt to maintain the status
quo pending a determination of the issue on the merits. Nonetheless, the LTV
Memorandum Opinion serves as an example of the pervasive equity powers of
bankruptcy courts, and the importance that such courts may ascribe to the goal
of reorganization when faced with a dispute as to whether a transfer of assets
integral to the ongoing operation of the debtor's business constitutes a true
sale or a secured loan, particularly where the transfer is documented in a
transaction deemed significant and complex by the court.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF LETTER OF SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, SPECIAL COUNSEL TO THE DEPOSITOR
March 16, 2001
Credit Suisse First Boston ▇▇▇▇▇▇▇, Lynch, Pierce,
Mortgage Securities Corp. ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Eleven Madison Avenue 4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
Eleven Madison Avenue ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK1
---------------------------------------------------------------
Ladies and Gentlemen:
We have, with the knowledge and consent of all the parties involved, acted
as special counsel to Column Financial, Inc. ("Column"), Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor"), Credit Suisse First Boston
Corporation ("CSFB"), McDonald Investments Inc. ("McDonald"), Merrill, Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("Merrill") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
("SSBI") with respect to certain matters in connection with the following
transactions (collectively, the "Transactions"):
1. the filing by the Depositor of a registration statement on Form S-3 (No.
333-53012) (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission"), for purposes of registering under the Securities
▇▇▇ ▇▇▇▇, as amended (the "Securities Act"), certain offerings of commercial
mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor;
2. the sale by Column, and the purchase by the Depositor, of a segregated
pool of multifamily and commercial mortgage loans (collectively, the "Column
Mortgage Loans"), pursuant to the Mortgage Loan Purchase Agreement dated as of
March 5, 2001 (the "Column Mortgage Loan Purchase Agreement"), between Column as
seller and the Depositor as purchaser;
B-3-1
3. the sale by KeyBank National Association ("KeyBank"), and the purchase
by the Depositor, of a segregated pool of multifamily and commercial mortgage
loans (the "KeyBank Mortgage Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of March 5, 2001 (the "KeyBank Mortgage Loan Purchase
Agreement"), between KeyBank as seller and the Depositor as purchaser;
4. the creation of a commercial mortgage trust (the "Trust"), and the
issuance of an aggregate $997,140,787 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK1 (the
"Certificates"), consisting of 21 classes designated Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class A-X, Class A-CP, Class A-Y, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class R and Class V, pursuant to the Pooling and Servicing Agreement dated as of
March 1, 2001 (the "Pooling and Servicing Agreement"), among the Depositor as
depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage, as master servicer, ORIX Real Estate Capital Markets, LLC, as special
servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N. A., as trustee (in such capacity,
the "Trustee");
5. the transfer of the Column Mortgage Loans and the KeyBank Mortgage Loans
(collectively, the "Mortgage Loans") by the Depositor to the Trust, pursuant to
the Pooling and Servicing Agreement, in exchange for the Certificates; and
6. the sale by the Depositor, and the purchase by CSFB, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and SSBI (collectively, in such capacity, the "Underwriters"), of the Class A-1,
Class A-2, Class A-3, Class B, Class C and Class D Certificates (collectively,
the "Publicly Offered Certificates"), pursuant to the Underwriting Agreement
dated as of March 5, 2001 (the "Underwriting Agreement"), between the Depositor
and the Underwriters.
The Pooling and Servicing Agreement, the Underwriting Agreement, the Column
Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan Purchase
Agreement are collectively referred to herein as the "Agreements". Capitalized
terms not defined herein have the respective meanings set forth in the Pooling
and Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Registration Statement; the Prospectus, dated March 5, 2001, relating to
publicly offered mortgage pass-through certificates evidencing interests in
trust funds established by the Depositor (the "Basic Prospectus"); and the
Prospectus Supplement, dated March 5, 2001, specifically relating to the Trust
and the Publicly Offered Certificates (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"). In addition, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for rendering this letter; we have obtained such
certificates from and made such inquiries of officers and representatives of the
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for rendering this letter; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in
B-3-2
this letter are based. We have also assumed (i) the truthfulness and accuracy of
each of the representations and warranties as to factual matters contained in
the Agreements, (ii) the legal capacity of natural persons, (iii) the
genuineness of all signatures, (iv) the authenticity of all documents submitted
to us as originals, (v) the conformity to authentic originals of all documents
submitted to us as certified, conformed or photostatic copies, (vi) the due
organization of all parties to each of the Agreements and the valid existence of
each such party in good standing under the laws of its jurisdiction of
organization, (vii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by the parties thereto, (viii) the
constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (ix) compliance with the Agreements by the parties thereto, (x)
the conformity, to the requirements of the Column Mortgage Loan Purchase
Agreement, the KeyBank Mortgage Loan Purchase Agreement and the Pooling and
Servicing Agreement, of the Mortgage Notes, the Mortgages and the other
documents delivered to the Trustee by, on behalf of, or at the direction of, the
Depositor and Column, (xi) the conformity of the text of each document filed
with the Commission through the Commission's Electronic Data Gathering, Analysis
and Retrieval System to the printed documents reviewed by us, and (xii) the
absence of any other agreement that supplements or otherwise modifies the
intentions and agreements of the parties to the Agreements, as expressed
therein. In making the statements set forth below, we do not express any view
concerning the laws of any jurisdiction other than the federal laws of the
United States of America.
We are delivering this letter in our capacity as special counsel to the
Depositor, Column and the Underwriters. In the course of our acting in such
capacity, we have generally reviewed and discussed with certain representatives
of the Depositor, Column, the Underwriters and the other parties to the
Agreements and their respective counsel (in addition to us) the information set
forth in the Registration Statement and the Prospectus, other than any documents
or information included therein solely by incorporation by reference (all such
documents and information so incorporated by reference shall be referred to
herein as the "Excluded Information"), and we have reviewed certain loan
summaries prepared by Column in respect of the Column Mortgage Loans originated
by Column, Union Capital Investments, LLC ("Union Capital") or Credit Suisse
First Boston Mortgage Capital LLC ("CSFBMC") and, in the case of the Crystal
Pavilion/▇▇▇▇▇ Building Mortgage Loan and the nine largest Column Mortgage Loans
(by Cut-off Date Balance) to be included in the Trust, selected provisions of
the related Mortgage Note, the related Mortgage and certain other related
Mortgage Loan Documents. While we have made no independent check or verification
of, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, nothing has come to our attention
that causes us to believe that (a) the Registration Statement (exclusive of the
Excluded Information therein, as to which we express no view or belief), as of
its effective date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (b) the Prospectus (exclusive of the
Excluded Information therein, as to which we express no view or belief), as of
the date of the Prospectus Supplement or as of the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that we express
no view or belief as to (x) any financial statements, schedules
B-3-3
and/or other numerical, financial or statistical data set forth or referred to
therein or omitted therefrom, (y) any information contained in or omitted from
the Prospectus regarding the nature and characteristics of the KeyBank Mortgage
Loans and/or the Borrowers and Mortgaged Properties relating to the KeyBank
Mortgage Loans or (2) any information contained in or omitted from the
Prospectus regarding the nature and characteristics of the Column Mortgage Loans
acquired from KeyBank and/or the Borrowers and Mortgaged Properties relating to
such Column Mortgage Loans. In that connection, we advise you that we have
relied, to the extent that we may properly do so in the discharge of our
professional responsibilities as experienced securities law practitioners, upon
the judgment and statements of officers and representatives of the Depositor,
Column and the Underwriters in connection with the determination of materiality.
When used in this letter, the term "attention" or words of similar import
mean the conscious awareness of facts or other information of the Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ attorneys currently practicing law with this firm who have been
involved in any material respect in representing any of the Depositor, Column or
the Underwriters in connection with the Transactions. We call to your attention
that, with your knowledge and consent, except as described above, such Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ attorneys have not examined or otherwise reviewed any of the
Mortgage Files, any particular documents contained in such files or any other
documents with respect to the Mortgage Loans for purposes of delivering this
letter.
The statements set forth herein are being made to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the views or belief expressed herein. This letter is being delivered
solely for the benefit of the persons to which it is addressed in connection
with the Transactions. It may not be quoted, filed with any governmental
authority or other regulatory agency or otherwise circulated or utilized for any
other purpose without our prior written consent.
Very truly yours,
B-3-4
EXHIBIT C
FORM OF OPINION OF IN-HOUSE COUNSEL TO COLUMN FINANCIAL, INC.
June __, 2001
To the Parties Listed on Annex A hereto
Re Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
----------------------------------------------------------------
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston Corporation
("CSFB") and have acted as special counsel to Column Financial, Inc. (the
"Mortgage Loan Seller") in connection with certain matters relating to: (i) its
sale to Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor")
of certain multifamily and commercial mortgage loans pursuant to that certain
(the "Mortgage Loan Purchase Agreement"), dated as of June 12, 2001, by and
between the Depositor and the Mortgage Loan Seller and (ii) its providing
indemnities to the Depositor, CSFB, McDonald Investments Inc. ("McDonald"),
First Union Securities, Inc. ("FUS") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. ("SSBI") as
set forth in the Indemnification Agreement (the "Indemnification Agreement"),
dated June 12, 2001, by and among the Mortgage Loan Seller, the Depositor, CSFB,
McDonald, FUS and SSBI. Capitalized terms used and not otherwise defined herein
have the meanings given to them in the Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, I have examined and relied upon
originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Indemnification Agreement and the Mortgage Loan Purchase
Agreement (together, the "Agreements"), and such certificates, corporate records
and other documents, agreements, instruments and opinions, as I have deemed
appropriate as a basis for the opinions hereinafter expressed. In connection
with such examination, I have assumed the genuineness of all signatures (other
than with respect to the Mortgage Loan Seller), the authenticity of all
documents, agreements and instruments submitted to me as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to me as copies or specimens and the
authenticity of the originals of such documents, agreements and instruments
submitted to me as copies or specimens and the accuracy of the matters set forth
in the documents, agreements and instruments I reviewed, to the extent such
matters do not constitute legal conclusions upon which I have been asked to
opine. As to any facts material to such opinions that were not known to me, I
have relied upon statements, certificates and representations of officers and
other representatives of the Depositor, the Mortgage Loan Seller and of public
officials.
C-1
Based upon and subject to the foregoing, I am of the opinion that:
1. The Mortgage Loan Seller is incorporated, validly existing and in good
standing under the laws of the State of Delaware, with requisite power and
authority to execute and deliver the Agreements, and to perform its obligations
thereunder.
2. The execution, delivery and performance of the Agreements have been duly
authorized by the Mortgage Loan Seller and the Agreements have been duly
executed and delivered by the Mortgage Loan Seller.
3. The execution and delivery by the Mortgage Loan Seller of the
Agreements, the performance by the Mortgage Loan Seller of its obligations under
the Agreements and the consummation by the Mortgage Loan Seller of the
transactions therein contemplated, do not conflict with or result in a breach or
violation of the Mortgage Loan Seller's certificate of incorporation or bylaws
or, to my knowledge, conflict with or result in a breach or violation of any
material indenture, agreement or instrument to which the Mortgage Loan Seller is
a party or by which it or any of its property is bound, or any judgment, decree
or order applicable to the Mortgage Loan Seller, of any New York State or
federal court, regulatory body, administrative agency or other governmental
authority, other than potential conflicts, breaches or violations which
individually and in the aggregate are not reasonably expected to have a material
adverse effect on the ability of the Mortgage Loan Seller to perform its
obligations under the Agreements.
4. To my knowledge, there is no legal or governmental action, investigation
or proceeding pending or threatened against the Mortgage Loan Seller (a)
asserting the invalidity of any of the Agreements, (b) seeking to prevent the
consummation of any of the transactions contemplated by the Agreements or (c)
which would materially and adversely affect the performance by the Mortgage Loan
Seller of its obligations under, or the validity or enforceability (with respect
to the Mortgage Loan Seller) of, the Agreements. For purposes of the opinion set
forth in this paragraph, I have not regarded any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential litigant
or governmental authority has manifested to the Mortgage Loan Seller a present
intention to initiate such proceedings.
I am a member of the Bar of the State of New York and this opinion is
limited to the laws of the State of New York, the General Corporation Law of the
State of Delaware and the federal laws of the United States of America (in each
case without regard to conflicts of laws principles). I am not licensed to
practice law in the State of Delaware, and the opinions in paragraph (1) above
as to the Delaware General Corporation Law is based solely on standard
compilations of the official statutes of Delaware. I express no opinion as to
the effect of the laws of any other jurisdiction on matters addressed in this
opinion.
This opinion is limited to the matters specifically addressed herein, and I
express no opinion as to any other matters relating to, or which may arise in
connection with, the consummation of the transaction contemplated by the
Agreements.
C-2
I am furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose.
Very truly yours,
C-3
Annex A
Credit Suisse First Boston Mortgage Securities Corp.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
C-4
EXHIBIT D
FORM OF OPINION OF SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
SPECIAL COUNSEL TO COLUMN FINANCIAL, INC.
June 13, 2001
Credit Suisse First Boston ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Mortgage Securities Corp. ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ Investors Service, Inc.
Credit Suisse First Boston Corporation ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments Inc. Fitch, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Union Securities, Inc. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
One First Union Center ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("Column") with
respect to certain matters in connection with the sale by Column, and the
purchase by Credit Suisse First Boston Mortgage Securities Corp. ("CSFBMSC"), of
a segregated pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement dated as of
June 12, 2001 (the "Agreement"), between Column and CSFBMSC.
This opinion letter is being provided to you pursuant to Section 7(vii) of
the Agreement. Capitalized terms that are used, but not defined, herein have the
respective meanings set forth in, or otherwise assigned to them pursuant to, the
Agreement.
D-1
For purposes of this opinion letter, we have reviewed the Agreement. In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreement and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
contained in the Agreement, (ii) the legal capacity of natural persons, (iii)
the genuineness of all signatures, (iv) the authenticity of all documents
submitted to us as originals, (v) the conformity to authentic originals of all
documents submitted to us as certified, conformed or photostatic copies, (vi)
the due organization of each of the parties to the Agreement and the valid
existence of each such party in good standing under the laws of its jurisdiction
of organization, (vii) except to the extent expressly addressed by our opinions
below, the power and authority of all parties to the Agreement to enter into,
perform under and consummate the transactions contemplated by the Agreement,
without any resulting conflict with or violation of the organizational documents
of any such party or with or of any law, rule, regulation, order or decree
applicable to any such party or its assets, and without any resulting default
under or breach of any other agreement or instrument by which any such party is
bound or which is applicable to it or its assets, (viii) the due authorization
by all necessary action, and the due execution and delivery, of the Agreement by
the parties thereto, (ix) except to the extent expressly addressed below, the
constitution of the Agreement as the legal, valid and binding obligation of each
party thereto, enforceable against such party in accordance with its terms, and
(x) the absence of any other agreement that supplements or otherwise modifies
the intentions and agreements of the parties to the Agreement, as expressed
therein.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any
D-2
act or omission on its part that constitutes negligence, recklessness or willful
or unlawful conduct, (d) any provision that purports to govern matters of civil
procedure, including any such provision that purports to establish evidentiary
standards, to waive objections to venue or forum, to confer subject matter
jurisdiction on any court that would not otherwise have such jurisdiction or to
waive any right to a jury trial, or (e) any provision that purports to render
unenforceable any modification, waiver or amendment that is not executed in
writing, to sever any provision of any agreement, to appoint any person or
entity as the attorney-in-fact of any other person or entity or to provide that
any agreement or any particular provision thereof is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of any agreement that purports or is construed to provide
indemnification with respect to securities law violations.
In rendering this opinion letter, we do not express any opinion concerning
the laws of any jurisdiction other than the laws of the State of New York and,
where expressly referred to below, the federal laws of the United States of
America (without regard to conflicts of law principles). In addition, we do not
express any opinion with respect to (i) the tax, securities or "doing business"
laws of any particular jurisdiction, including, without limitation, the State of
New York, or (ii) any law, rule or regulation to which Column may be subject as
a result of any other person's or entity's legal or regulatory status or any
such other person's or entity's involvement in the transactions contemplated by
the Agreement. Furthermore, we do not express any opinion with respect to any
matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Agreement constitutes a valid, legal and binding agreement of
Column, enforceable against Column in accordance with its terms.
2. No consent, approval, authorization or order of any federal or State of
New York court or governmental agency or body is required for the consummation
by Column of the transactions contemplated by the Agreement, except for those
consents, approvals, authorizations or orders that previously have been
obtained.
3. Column's execution, delivery and performance of the Agreement will not
in any material respect conflict with or result in a material violation of with
or result in a material violation of any federal or State of New York statute or
regulation of general applicability in transactions of the type contemplated by
the Agreement.
D-3
The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the closing of Column's sale of
the Mortgage Loans to CSFBMSC, pursuant to the Agreement, and may not be relied
on in any manner for any other purpose or by any other person or transmitted to
any other person without our prior consent.
Very truly yours,
D-4
EXHIBIT E
FORM OF OPINION OF IN-HOUSE COUNSEL TO KEYBANK NATIONAL ASSOCIATION,
THE MASTER SERVICER AND THE SPECIAL SERVICER
June 13, 2001
▇▇▇▇▇'▇ Investors Service, Inc. Fitch, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
McDonald Investments Inc. ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation Credit Suisse First Boston Mortgage
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Securities Corp.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor First Union Securities, Inc.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Riverfront Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp. Series 2001-CK3
--------------------------------------------------------------------
Ladies and Gentlemen:
As Senior Vice President and Associate General Counsel of KeyBank National
Association, a national banking association (the "Bank"), I have acted as
counsel to the Bank and to its affiliate KeyCorp Real Estate Capital Markets,
Inc. (the "Corporation"), in connection with the negotiation, execution and
delivery by the Bank and the Corporation of the agreements listed below.
In that regard, I or attorneys working under my direction have examined and
relied upon originals or copies, certified or otherwise identified to my
satisfaction as being true copies of all such records of the Bank and the
Corporation, all such agreements, certificates and other documents as I have
deemed necessary as a basis for the opinions set forth herein, including the
following agreements executed in connection with the above referenced
securities:
1. The Mortgage Loan Purchase Agreement between the Bank and Credit Suisse
First Boston Mortgage Securities Corp. ("CSFBMSC");
E-1
2. The Pooling and Servicing Agreement among the Corporation, as Master
Servicer and Special Servicer, CSFBMSC, as Depositor, and ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as Trustee; and
3. The Indemnification Agreement among the Bank, CSFBMSC, First Union
Securities, Inc., McDonald Investments Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc. and
Credit Suisse First Boston Corporation.
The agreements listed in items 1 through 3 above are collectively
referenced herein as the "Agreements."
In such examination, I or such attorneys working under my direction have
assumed the genuineness of all signatures other than those signatures for the
Bank and the Corporation, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as certified or
photostatic copies. I or such attorneys have investigated such questions of law
for the purpose of rendering these opinions as I have deemed necessary.
Based on the foregoing, and subject to the limitations and qualifications
set forth below, I am of the opinion that:
(a) the Bank has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with corporate power and authority to own its properties
and to conduct its business as now conducted by it and to enter into and
perform its obligations under the Agreements it is a party to;
(b) the Corporation has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Ohio;
(c) the Corporation has the corporate power and authority to own its
properties and to conduct its business as now conducted by it and to enter
into and perform its obligations under the Agreements it is a party to;
(d) the Agreements to which it is a party have been duly and validly
authorized, executed and delivered by each of the Bank and the Corporation;
(e) neither the execution and delivery by the Bank of the Agreements
it is a party to, nor the consummation by the Bank of the transactions
contemplated by such Agreements, nor the performance by the Bank of its
obligations thereunder will result in a material breach or violation of, or
constitute a material default under (i) the Articles of Association or
by-laws, as amended, of the Bank, (ii) the terms of applicable current
provisions of statutory law or regulation, (iii) any existing obligation of
the Bank under any indenture, agreement, or instrument actually known to
me, after reasonable investigation, which breach, violation or default
would reasonably be expected to have a material adverse effect on the
condition of the Bank, financial or otherwise, or adversely affect the
transactions contemplated by, or the Bank's performance of its obligations
E-2
under, the Agreements to which the Bank is a party, or (iv) the terms of
any order, writ, judgement or decree actually known to me after reasonable
investigation, issued by a court of competent jurisdiction and specifically
directed to the Bank or its property;
(f) neither the execution and delivery by the Corporation of the
Agreements it is a party to, nor the consummation by the Corporation of the
transactions contemplated by such Agreements, nor the performance by the
Corporation of its obligations thereunder will result in a material breach
or violation of, or constitute a material default under (i) the Articles of
Incorporation or by-laws, as amended, of the Corporation, (ii) the terms of
applicable current provisions of statutory law or regulation, (iii) any
existing obligation of the Corporation under any indenture, agreement, or
instrument actually known to me, after reasonable investigation, which
breach, violation or default would reasonably be expected to have a
material adverse effect on the condition of the Corporation, financial or
otherwise, or adversely affect the transactions contemplated by, or the
Corporation's performance of its obligations under, the Agreements to which
the Corporation is a party, or (iv) the terms of any order, writ, judgement
or decree actually known to me after reasonable investigation, issued by a
court of competent jurisdiction and specifically directed to the
Corporation or its property;
(g) no consent, approval or authorization of, or filing with, any
governmental agency or body is required of either the Bank or the
Corporation in connection with its execution, delivery and performance of
the Agreements to which it is a party, except such consents, approvals or
authorizations as have been obtained or such filings as have been made; and
(h) to my actual knowledge, after reasonable investigation, there are
no actions, proceedings or investigations pending or threatened against the
Bank or the Corporation before any court, administrative agency, or
tribunal (i) asserting the invalidity of any of the Agreements, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by any of the Agreements, or (iii) that could reasonably be expected to
materially and adversely affect the enforceability of any of the Agreements
against the Bank or the Corporation, as the case may be, or the ability of
the Bank or the Corporation, as the case may be, to perform its obligations
thereunder.
For purposes of this opinion letter, I have assumed that (i) the Agreements
have been duly executed and delivered by all parties thereto (other than the
Bank and/or the Corporation, as the case may be) and are valid and binding upon
and enforceable against such parties (other than the Bank and/or the
Corporation, as the case may be), subject to applicable bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and (ii) there has been no mutual mistake of fact or misunderstanding, fraud,
duress, or undue influence.
The opinions expressed above are limited to Federal law and the laws of the
State of Ohio.
E-3
This opinion is rendered solely to the addressees hereof, for their use in
connection with the transactions contemplated herein and may not be relied upon
for any other purpose or by any other person.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and
Associate General Counsel
E-4
EXHIBIT F-1
FORM OF OPINION OF ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.,
SPECIAL COUNSEL TO KEYBANK NATIONAL ASSOCIATION
June 13, 2001
Credit Suisse First Boston Corporation ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Mortgage ▇▇▇▇▇'▇ Investors Service, Inc.
Securities Corp. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Union Securities, Inc. Fitch, Inc.
One First Union Center One State Street Plaza, 31st Floor
Charlotte, North Carolina 28288-1075 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments Inc. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association, a
national banking association ("Key"), in connection with the following
transactions (collectively, the "Transactions"):
(i) the sale by Key, and the purchase by Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor") (such Transaction, the "Sale"),
of certain multifamily and commercial mortgage loans (the "Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of June 12, 2001 (the "Loan Purchase Agreement"), between Key as seller
and the Depositor as purchaser;
(ii) the creation of a common law trust (the "Trust") and the issuance
of Commercial Mortgage Pass-Through Certificates, Series 2001-CK3 (the
"Certificates"), pursuant to that certain Pooling and Servicing Agreement,
dated as of June 1, 2001 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, KeyCorp Real
F-1-1
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as master
servicer and special servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A. as
trustee (the "Trustee"); and
(iii) the transfer of the Mortgage Loans by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement in exchange for the
issuance of the Certificates at the direction of the Depositor.
The Loan Purchase Agreement and the Pooling and Servicing Agreement are
collectively referred to herein as the "Agreements". Capitalized terms not
defined in this letter have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the Loan Purchase
Agreement.
Under the terms of the Loan Purchase Agreement, Key will sell to the
Depositor, without recourse (except to the extent specified therein), all right,
title and interest of Key in and to the Mortgage Loans and the proceeds thereof.
Pursuant to the Pooling and Servicing Agreement, the Depositor will transfer the
Mortgage Loans to the Trustee, and the Trust will issue the Certificates
representing interests in the Trust. The following twenty-one classes of
Certificates representing beneficial interests in the Trust Fund will be issued
pursuant to the Pooling and Servicing Agreement: Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G-1, Class
G-2, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class A-X,
Class R, and Class V.
You have requested our opinion whether, in the event that the Federal
Deposit Insurance Corporation (the "FDIC") were appointed as conservator or
receiver for Key pursuant to Section 11(c) of the Federal Deposit Insurance Act
(the "FDIA"), the transfer of the Mortgage Loans by Key to the Depositor
pursuant to the Loan Purchase Agreement would be enforceable against Key
notwithstanding the appointment of the FDIC as conservator or receiver of Key.
ASSUMPTIONS OF FACT
In connection with this opinion, we have reviewed the Agreements and a
certificate, dated the date hereof, of an officer of Key (the "Key
Certificate"), which certifies, to the best of such person's knowledge, inter
alia, as to certain of the matters in the immediately succeeding paragraph as of
the date hereof. This opinion is based solely upon our review of the Agreements
and such other documents, and such other investigations of law and fact, as we
have deemed necessary or advisable in connection with this opinion. Our opinion
is limited to the specific issues of federal law addressed and is further
limited in all respects, except as otherwise stated, to the facts assumed. We
express no opinion as to any other matter.
In rendering the opinions set forth herein, we have relied upon, and
assumed, without independent investigation or inquiry, the following to be true
at all relevant times:
(a) All representations and warranties set out in the Agreements, and
all statements in the Key Certificate and the certificates relating to the
Agreements or furnished in connection with the Transactions pertaining to
the transfer of the Mortgage Loans pursuant to the Agreements, are true and
correct.
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(b) All signatures are genuine, all natural persons have the legal
capacity to execute and deliver the documents signed by them, all documents
submitted to us as originals are authentic and all documents submitted to
us as certified or photostatic copies conform in all respects to the
original documents.
(c) Each of the Agreements has been duly authorized, executed and
delivered by, and constitutes the legal, valid and binding obligation of
all parties thereto, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, conservatorship, fraudulent
transfer, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (2) general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
(d) The execution, delivery and performance of the Agreements by the
parties thereto do not violate any applicable law. All notices to, filings
with, and approvals of, all applicable governmental or regulatory
authorities required for the execution and delivery by Key, the Depositor,
and the Trustee of the Agreements and the performance by Key, the
Depositor, and the Trustee thereof have been obtained or made, and are in
full force and effect.
(e) Each of Key and the Depositor has taken all actions required under
applicable law to effectuate the transfer of the Mortgage Loans.
(f) There are no agreements or courses of prior dealing between any of
the parties that would alter the relationships set forth in the Agreements.
(g) The Depositor, Key, and the Trustee will at all times and in all
respects that are material to the opinions expressed in this letter comply
with all material provisions of the Agreements, as applicable.
(h) Key is a national banking association, the deposits of which are
insured by the FDIC pursuant to the provisions of the FDIA.
(i) As of the date of this opinion, Key has not violated any law or
regulation and is not in an unsafe or unsound condition that would
constitute a basis for the appointment of a conservator or receiver
pursuant to the FDIA.
(j) Key received adequate consideration for the transfer to the
Depositor of the Mortgage Loans pursuant to the Loan Purchase Agreement.
(k) Each of Key, the Depositor, and the Trustee did not and will not
(i) execute the Agreements or any other agreement to which it is a party in
connection with the Transactions or (ii) otherwise effectuate or consummate
any transfer of the Mortgage Loans pursuant to the Agreements or any other
agreement, in any case:
(1) in contemplation of Key's or the Depositor's insolvency;
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(2) with a view to preferring one creditor of Key or the
Depositor over another or to preventing the application of Key's or
the Depositor's assets in the manner required by applicable law or
regulations;
(3) after Key or the Depositor committed an act of insolvency; or
(4) with any intent to hinder, delay, or defraud Key or the
Depositor or any of their respective creditors.
(l) The execution, delivery and performance of each of the Agreements
and the Transactions constitute bona fide and arm's length transactions and
were and are undertaken in the ordinary course of business of the parties
to such Agreements.
(m) The Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, and Class A-X Certificates are, as of the date hereof, each rated
in one of the four highest categories assigned to long-term debt or in an
equivalent short-term category by Fitch and Moody's.
(n) It is the stated intention of Key and the Depositor, as set forth
in Section 11 of the Loan Purchase Agreement, to treat the transfer of the
Mortgage Loans by Key to the Depositor pursuant to the Loan Purchase
Agreement as a sale, and not a secured borrowing, including for accounting
purposes.
(o) All of the requirements of generally accepted accounting
principles for treating the transfer of the Mortgage Loans as a sale have
been satisfied (other than the "legal isolation" condition).
(p) Key is and shall remain a separate and distinct entity from, and
shall not commingle its assets with those of, the Depositor, the Trustee
and/or the Trust. Key does not control, is not controlled by, and is not
under common control with, directly or indirectly, the Depositor or the
Trustee.
(q) The Depositor is a Delaware corporation and is a "special purpose
entity" (as defined in 12 C.F.R. ss. 360.6(a)(5)) and, as such, is
primarily engaged in acquiring and holding (or transferring to another
"special purpose entity") financial assets, and in activities related or
incidental thereto, in connection with the issuance of beneficial interests
by the Depositor (or by another "special purpose entity" that acquires
financial assets directly or indirectly from the Depositor).
OPINION EXPRESSED
Based on the reasoning and subject to the assumptions, qualifications and
limitations set forth in this letter, it is our opinion that in a properly
presented and decided case, a court would hold that the FDIC, if appointed as
receiver or conservator of Key pursuant to Section 11(c) of the FDIA:
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(a) could not, in the exercise of its authority under 12 U.S.C. ss.
1821(e), reclaim, recover, or recharacterize as property of Key or the
receivership the Mortgage Loans that have been transferred by Key to the
Depositor pursuant to the Loan Purchase Agreement; and
(b) could not seek to avoid the Loan Purchase Agreement under 12
U.S.C. ss. 1823(e).
We wish to point out that we are giving no opinion (i) as to whether the
transfer of the Mortgage Loans by Key to the Depositor and, in turn, by the
Depositor to the Trust is a true sale or absolute conveyance, (ii) as to the
perfection or priority of any ownership interest or security interest in the
Mortgage Loans, (iii) concerning any law other than the federal laws of the
United States of America, or (iv) concerning any matter not expressly addressed
in this letter.
DISCUSSION
In an insolvency proceeding for Key, the United States Bankruptcy Code (the
"Bankruptcy Code") would not apply.(2) Therefore, neither the provisions of the
Bankruptcy Code that impact the right of a secured creditor to liquidate
collateral nor the provisions of Section 547 of the Bankruptcy Code concerning
"preferential" transfers would apply in the event of the insolvency of Key. The
FDIC is authorized under Sections 11(c)(1) and (2) of the FDIA to accept
appointment as conservator, and is required to be appointed as receiver, for a
federal savings bank such as Key.
Our opinions above rely on the FDIC's rule regarding the treatment by the
FDIC, as receiver or conservator of an insured depository institution, of
financial assets transferred by the institution in connection with a
securitization or participation (the "Rule").(3) As of the date of this opinion,
the Rule has not been modified or repealed, and we are not aware of any reported
judicial decision that questions the validity of the Rule.
For the Sale to be covered by the Rule, the Sale must involve the (1)
transfer of financial assets (2) in connection with a securitization or
participation.(4) The first element is satisfied because the Sale is a transfer
of the Mortgage Loans, each of which "conveys to one entity a contractual right
to receive cash" and therefore qualifies as a "financial asset."(5)
The second element requires a determination of whether the Sale is "in
connection with a securitization or participation."(6) In our analysis we are
relying on the Rule's treatment of transfers in connection with a
securitization. We have found no case law that interprets the phrase "in
connection with a securitization" under the Rule. The Rule states that a
"securitization" means the issuance by a special purpose entity of beneficial
interests, the most
-------------
(2) 11 U.S.C. ss.ss.109(b)(2) and (d).
(3) See Treatment by the FDIC as Conservator or Receiver of Financial Assets
Transferred by an Insured Depository Institution in Connection With a
Securitization or Participation, 65 Fed. Reg. 49,189 (2000) (codified at 12
C.F.R. ss. 360.6).
(4) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(b)).
(5) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R.ss.360.6(a)(2)).
(6) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R.ss.360.6(b)).
F-1-5
senior class of which is rated in one of the four highest rating categories by
one or more nationally recognized statistical rating organizations or which are
sold in transactions not involving any public offering or in transactions exempt
from registration pursuant to Regulation S under the Securities Act.(7)
The Sale is an integral part of the Transactions and is entered into for
the sole purpose of effectuating the Transactions under the Pooling and
Servicing Agreement. In connection with the Transactions, pursuant to the Loan
Purchase Agreement Key will transfer the Mortgage Loans to the Depositor, which
we have assumed to be a "special purpose entity" under the Rule. Pursuant to the
Pooling and Servicing Agreement, the Depositor will then immediately sell the
Mortgage Loans to the Trust, and the Trust will contemporaneously issue
beneficial interests in the form of the Certificates for public and private
sale. Key and the Depositor will engage in the Sale transaction for the sole
purpose of effectuating the creation of the Trust and the issuance of the
Certificates pursuant to the Pooling and Servicing Agreement. For these reasons,
we believe that a court would hold that the Sale is "in connection with" the
Transactions.
For the Transactions to constitute a "securitization" under the Rule, the
Trust must be a "special purpose entity," as defined by the Rule. The Rule
defines "special purpose entity" to mean:
a trust . . . or other entity demonstrably distinct from
the insured depository institution that is primarily
engaged in acquiring and holding (or transferring to
another special purpose entity) financial assets, and in
activities related or incidental thereto, in connection
with the issuance by such special purpose entity (or by
another special purpose entity that acquires financial
assets directly or indirectly from such special purpose
entity) of beneficial interests.(8)
The Trust is a trust established upon effectuation of the Transactions
under the laws of New York pursuant to the Pooling and Servicing Agreement. Key
does not control, is not controlled by, nor is it under common control with, the
Trustee or the Trust. Although a subsidiary of Key will act as the master and
special servicer of the Trust's assets for the benefit of the Trustee and the
Certificateholders, the ultimate decision-making authority permitted under the
Pooling and Servicing Agreement is vested in the Trustee and the
Certificateholders or is otherwise limited or dictated by the terms of the
Pooling and Servicing Agreement, as set forth in the Pooling and Servicing
Agreement. Key will not share in the ownership of any of the principal assets of
the Trust. Neither Key nor the Trust will commingle any of its assets with the
other. Moreover, the documents evidencing the principal assets of the Trust, the
Mortgage Notes and related Mortgage Files, will be assigned to and physically
delivered into the possession of the Trustee, or a custodian appointed by the
Trustee (which custodian may not, as set forth in the Pooling and Servicing
Agreement, be Key or an affiliate of Key). Although the Rule does not provide
any guidance regarding the circumstances under which a special purpose entity is
-----------
(7) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R. ss.360.6(a)(4)(i)).
(8) 65 Fed. Reg. 49,192 (2000) (codified at 12 C.F.R. ss.360.6(a)(5)).
F-1-6
"demonstrably distinct" from a depository institution, we believe that the facts
set forth above demonstrate that the Trust is an entity distinct from Key.
The Trust will be primarily engaged in acquiring and holding financial
assets and in activities related or incidental thereto, in connection with the
issuance of beneficial interests, which in this case are the Certificates. The
Certificates fall within the Rule's definition of "beneficial interests" because
they will be issued by the Trust and will entitle the Certificateholders to
receive payments that depend primarily on the cash flow from the Mortgage Loans
owned by the Trust. For the foregoing reasons, the Trust appears to satisfy the
definition of a "special purpose entity" under the Rule.
The other requirement for the Transactions to constitute a securitization
under the Rule is also met because the most senior class of securities issued in
the Transactions are rated in one of the four highest categories assigned to
long-term debt or in an equivalent short-term category by Fitch and ▇▇▇▇▇'▇,
which are nationally recognized statistical rating organizations.(9) Although
the Rule does not define the phrase "nationally recognized statistical rating
organizations," this phrase is used by the FDIC, other bank regulatory agencies
and the Securities and Exchange Commission in several regulations, is defined by
the Securities and Exchange Commission in several regulations and is defined by
the Securities and Exchange Commission at 17 C.F.R. ss. 240.150c3-1(c)(2)(vi)(F)
as including Fitch and Moody's, the two agencies rating the most senior classes
of securities in the Transactions. Although the Rule does not expressly adopt
that definition, we believe that a court would hold that Fitch and ▇▇▇▇▇'▇ are
nationally recognized statistical rating organizations, either on the basis of
the Securities and Exchange Commission's rule or otherwise.
OTHER QUALIFICATIONS
The foregoing opinion is subject to the following qualifications:
1. If Key were to become a debtor under the FDIA and the FDIC were to
assert that the beneficial interest in and legal title to the Mortgage Loans
were part of Key's estate, we express no opinion as to how long the Trust would
be denied possession of the Mortgage Loans in Key's possession before the
validity of such an assertion could be finally decided. We also express no
opinion as to whether, if the FDIC were to assert that the beneficial interest
in and legal title to the Mortgage Loans were part of Key's receivership estate,
a court would permit Key to use collections of the Mortgage Loans in Key's
possession without the consent of the Trustee either before deciding the issue
or pending appeal after a decision adverse to the Trust.
2. We express no opinion as to the availability or effect of a preliminary
injunction, temporary restraining order or other such temporary relief affording
delay pending a determination on the merits; by such reservation, however, we do
not imply that we have undertaken any analysis to determine whether any such
equitable relief would ultimately be available to prevent enforcement of the
transaction.
-----------
(9) 65 Fed. Reg. 49,191 (2000) (codified at 12 C.F.R. ss.360.6(a)(4)(i)).
F-1-7
3. We express no opinion with respect to the power of the FDIC, as receiver
or conservator, to disaffirm or repudiate any agreement (including, but not
limited to, the Loan Purchase Agreement) to the extent it imposes continuing
obligations or duties upon Key in receivership or conservatorship.
4. We express no opinion herein as to whether any transfer or obligation is
avoidable as a preference or fraudulent transfer.
5. The opinions are subject to the effect of general principles of equity,
including (without limitation) concepts of materiality, reasonableness, good
faith and fair dealing, and other similar doctrines affecting the enforceability
of agreements generally (regardless of whether considered in a proceeding in
equity or at law).
6. We express no opinion as to compliance or the effect of noncompliance by
the Trustee with any state or federal laws or regulations applicable to it in
connection with the transactions described in the Pooling and Servicing
Agreement.
7. We express no opinion with respect to the enforceability of any Mortgage
Loan or the existence of any claims, rights, defenses, counterclaims or
objections in favor of the mortgagor thereon that can be asserted against or are
effective against Key, the Depositor, the Trustee or the Certificateholders. We
note that unless the mortgagor with respect to a Mortgage Loan has received
notice of the assignment thereof (such notice not being contemplated by the Loan
Purchase Agreement), bona fide payments made by such mortgagor to Key or a
second assignee of such Mortgage Loan shall discharge such mortgagor's
obligations to the extent of such payment, and such payment will only be
recoverable from Key or, in certain cases, from such second assignee, as the
case may be.
8. We have assumed that there are no agreements (other than the Agreements)
prohibiting, restricting or conditioning the assignment of any portion of the
Mortgage Notes.
9. We express no opinion as to the ability of the FDIC, as conservator or
receiver, to transfer the Loan Purchase Agreement without any approval or
consent of the parties, pursuant to 12 U.S.C. ss.1821(d)(2)(G).
The foregoing analysis and its conclusions are premised upon, and limited
to, the law and the structure of the proposed Transactions in effect as of the
date of this letter. We do not assume responsibility for updating this opinion
letter as of any date subsequent to the date of this opinion letter, and assume
no responsibility for advising you of (i) the discovery subsequent to the date
of this opinion letter of factual information not previously known to us
pertaining to the events occurring prior to the date of this opinion letter or
(ii) the amendment or repeal of the Rule after the date of this opinion letter.
Furthermore, we note that a court's decision regarding matters upon which we
opine herein is based on the court's own analysis and interpretation of the
factual evidence before the court, and applicable legal principles.
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This opinion is solely for the benefit of the addressees and should not
relied on by any other person. It is rendered solely in connection with the
Transactions. It may not be quoted, in whole or in part, or otherwise referred
to or used by you for any purpose, nor may copies hereof be delivered to any
other person (except to parties involved in the Transactions and their counsel
as part of the closing set related to the Transactions) without our prior
written consent.
Very truly yours,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
F-1-9
EXHIBIT F-2
FORM OF LETTER OF ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.,
SPECIAL COUNSEL TO KEYBANK NATIONAL ASSOCIATION
June 13, 2001
Credit Suisse First Boston Mortgage ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Securities Corp. ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Union Securities, Inc. Fitch, Inc.
One First Union Center One State Street Plaza, 31st Floor
Charlotte, North Carolina 28288-1075 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments Inc. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass Through Certificates, Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to KeyBank National Association
("KeyBank") and KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage ("KRECM"), in connection with the Pooling and Servicing Agreement
("Pooling and Servicing Agreement") dated as of June 1, 2001, among Credit
Suisse First Boston Mortgage Securities Corp. as Depositor (the "Depositor"),
KRECM as Master Servicer and Special Servicer, and ▇▇▇▇▇ Fargo Bank Minnesota,
N.A. as Trustee, and in connection with the Mortgage Loan Purchase Agreement
("Loan Purchase Agreement") dated as of June 12, 2001, among KeyBank as Seller
and the Depositor as Purchaser.
This letter is delivered to you at the request of KeyBank pursuant to the
Loan Purchase Agreement, the Underwriting Agreement ("Underwriting Agreement")
dated June 12, 2001, among the Depositor, Credit Suisse First Boston Corporation
("CSFB"), First Union Securities, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and McDonald
Investments Inc. as Underwriters (in such capacity, collectively, the
"Underwriters") and pursuant to the Certificate Purchase
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Agreement ("Certificate Purchase Agreement") dated June 12, 2001, between the
Depositor and CSFB.
The Certificates to be issued by the Depositor pursuant to the Pooling and
Servicing Agreement are divided into classes. The Certificates of Classes ▇-▇,
▇-▇, ▇-▇, ▇-▇, ▇, ▇ and D (collectively, the "Publicly Offered Certificates")
will be sold to the Underwriters pursuant to the Underwriting Agreement and
offered for sale to the public pursuant to a prospectus dated June 5, 2001
("Base Prospectus"), as supplemented by a prospectus supplement dated June 12,
2001 ("Prospectus Supplement" and along with the Base Prospectus, the
"Prospectus"). The Certificates of Classes E, F, G-1, ▇-▇, ▇, ▇, ▇, ▇, ▇, ▇, ▇,
▇-▇, R and V (the "Privately Offered Certificates" and along with the Publicly
Offered Certificates, the "Certificates") will be sold to CSFB pursuant to the
Certificate Purchase Agreement. CSFB will offer the Privately Offered
Certificates pursuant to a confidential offering circular dated June 12, 2001
(the "Confidential Offering Circular"). Capitalized terms not otherwise defined
herein are defined as set forth in the Underwriting Agreement or the Pooling and
Servicing Agreement, as applicable.
The purpose of our professional engagement was to advise with respect to
legal matters and not to determine or verify facts. Many of the determinations
involved in the preparation of the Prospectus Supplement and the Confidential
Offering Circular were factual. We have not independently verified, do not make
any representation as to, and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus
Supplement or the Confidential Offering Circular.
In connection with the delivery of this letter, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of the
Prospectus, the Confidential Offering Circular, the Loan Purchase Agreement, the
Pooling and Servicing Agreement, and other such documents and records as we have
deemed relevant or necessary as the basis for the views expressed in this
letter. We have obtained such certificates from and made such inquiries of
officers and other representatives of KeyBank and KRECM as we have deemed
relevant or necessary as the basis of the views expressed in this letter. We
have relied upon and assumed the accuracy of, such other documents and records,
such certificates and the statements made in response to such inquiries, with
respect to the factual matters upon which the views expressed in this letter are
based.
We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the Loan
Purchase Agreement and the Pooling and Servicing Agreement and underlying the
assumptions set forth below or that are otherwise factually relevant to the
opinions expressed in this letter, (ii) the legal capacity of natural persons,
(iii) the genuineness of all signatures (except for the signatures of officers
of KRECM and KeyBank) and the authenticity of all documents submitted to us as
originals, (iv) the conformity to the originals of all documents submitted to us
as certified, conformed or photostatic copies, (v) the due authorization by all
necessary action, and the due execution and delivery, of each of the Loan
Purchase Agreement and the Pooling and Servicing Agreement by the parties
thereto and the constitution of each of the Loan Purchase Agreement and the
Pooling and Servicing Agreement as the legal, valid and binding obligations of
each party thereto,
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enforceable against such party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, liquidation, and similar laws relating to or affecting the
enforceability of creditors' rights generally, the effect of general equitable
principals (in equity or at law), and the availability of equitable remedies,
(vi) the compliance with the relevant provisions of each of the Loan Purchase
Agreement and the Pooling and Servicing Agreement by the parties thereto, (vii)
the conformity, to the requirements of each of the Loan Purchase Agreement and
the Pooling and Servicing Agreement, of the Mortgage Loan Documents delivered to
the Depositor by KeyBank, (viii) the absence of any agreement that supplements
or otherwise modifies the agreements expressed in each of the Loan Purchase
Agreement and the Pooling and Servicing Agreement, and (ix) the conformity of
the text of each document filed with the Securities Exchange Commission through
the ▇▇▇▇▇ system to the printed documents reviewed by us. In rendering this
letter, we do not express any view concerning the laws of any jurisdiction other
than the federal laws of the United States of America.
In the course of acting as special counsel to KeyBank and KRECM we have
responded to inquiries from time to time by KeyBank's closing coordinators,
reviewed title insurance commitments and surveys and prepared most of the loan
documents for a majority of the Mortgage Loans (as defined in the Loan Purchase
Agreement) originated by KeyBank. In connection with the preparation of the
Prospectus Supplement and the Confidential Offering Circular, we met in
conferences and participated in telephone conversations with officers and
employees of KeyBank and KRECM and counsel, officers and other representatives
of the Depositor, the Underwriters, CSFB and the other Mortgage Loan Sellers,
during which conferences and telephone conversations the contents of the
Prospectus Supplement and the Confidential Offering Circular were discussed. We
have not independently undertaken any procedures that were intended or likely to
elicit information concerning the accuracy, completeness or fairness of the
statements made in the Prospectus Supplement or the Confidential Offering
Circular. On the basis of the foregoing and subject to the limitations set forth
herein, nothing has come to our attention to cause us to believe that either the
Prospectus Supplement or the Confidential Offering Circular, as of their
respective dates or as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that we have not been requested to and we do not make any
comment in this paragraph with respect to (i) financial statements, schedules or
other accounting, financial, or statistical data or other information of that
nature contained in or omitted from the Prospectus Supplement or the
Confidential Offering Circular, or (ii) information contained in the computer
diskette or the CD-ROM accompanying the Prospectus Supplement which we assume,
but have not verified, does not vary from and is not different in any way from
the information contained in the Prospectus Supplement). In that connection, we
advise you that we have, as to materiality, relied to the extent we deemed
appropriate on the judgment of officers and other representatives of KeyBank,
KRECM and their affiliates. In addition, in that connection we call to your
attention that, with your knowledge and consent, we have not (except as
described above) examined or otherwise reviewed any of the Mortgage Files in
connection with the transactions contemplated by the Pooling and Servicing
Agreement and the Loan Purchase Agreement (collectively, the
F-2-3
"Transactions"), any particular documents contained in such files or any other
documents with respect to the Mortgage Loans.
Whenever a statement herein is qualified by the phrase "come to our
attention," it is intended to indicate that, during the course of our
representation of KeyBank or KRECM, no information that would give us current
actual knowledge of the inaccuracy of such statement has come to the attention
of those attorneys currently in this firm who have been actively involved in
representing KRECM or KeyBank in connection with the Transactions or in
connection with the origination of any of the Mortgage Loans being sold as part
of the Transactions. However, we have not undertaken any independent
investigation to determine the accuracy of any such statement, and any limited
inquiry undertaken by us during the preparation of this letter should not be
regarded as such an investigation; no inference as to our knowledge of any
matters bearing on the accuracy of any such statement should be drawn from the
fact of our representation of KRECM or KeyBank.
This letter is solely for the benefit of the addressees and may not be
relied upon or used by, circulated, filed with any governmental authority or
other regulatory agency, quoted or referred to, nor may copies hereof be
delivered to, any other person (except to the parties involved in the
Transactions and their respective counsel as part of the closing set related to
the Transactions) without our prior written approval. We disclaim any obligation
to update this letter for events occurring or coming to our attention after the
date hereof, notwithstanding that such changes may affect the views or beliefs
expressed in this letter.
Very truly yours,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
F-2-4
EXHIBIT G
FORM OF OPINION OF PHILLIPS, LYTLE, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇,
SPECIAL COUNSEL TO KEYBANK NATIONAL ASSOCIATION, THE MASTER SERVICER
AND THE SPECIAL SERVICER
June 13, 2001
Credit Suisse First Boston Corporation ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Mortgage ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Securities Corp. ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Union Securities Fitch, Inc.
One First Union Center ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. McDonald Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement among Credit Suisse First Boston
Mortgage Securities Corp., as Depositor ("Depositor"), KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage, as Master
Servicer and Special Servicer and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Trustee dated as of June 1, 2001 ("PSA") and Mortgage Loan Purchase
Agreement between KeyBank National Association, as Seller and
Depositor, as Purchaser dated as of June 12, 2001 ("MLPA" and together
with the PSA, the "Agreements")
----------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special local counsel to KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage ("Company"), as Master Servicer and
Special Servicer in connection with the execution and delivery of the PSA, and
to KeyBank National Association ("KeyBank"), as Seller in connection with the
execution and delivery of the MLPA.
In connection with rendering our opinion, we have reviewed the PSA and the
MLPA and have made such investigations of law as we have deemed necessary or
appropriate to enable us to render this opinion. As to facts material to our
opinion we have, when relevant facts
G-1
were not independently established, relied upon the representations of the
Company and KeyBank in the Agreements.
In rendering the opinions expressed herein, we have assumed (i) the
genuineness of all signatures by each party; (ii) the authenticity of all
documents submitted to us as originals; (iii) the conformity to original
documents of all documents submitted to us as conformed or photostatic copies;
(iv) the conformity in all material respects of the final executed form of the
Agreements with the versions submitted to us in draft form on June 12, 2001; (v)
the due formation and valid existence of the parties to the Agreements; and (vi)
the due authorization, execution and delivery of the Agreements by the parties
thereto, and their power and authority (including the obtaining of all necessary
permits, licenses and approvals) to execute and perform each of the Agreements.
Based upon the foregoing assumptions and subject to the qualifications
hereinafter set forth, it is our opinion that, as of the date hereof:
1. The PSA constitutes the legal, valid and binding contract and agreement
of the Company and is enforceable in accordance with its terms.
2. The MLPA constitutes the legal, valid and binding contract and agreement
of KeyBank and is enforceable in accordance with its terms.
Our opinions concerning the enforceability of the Agreements are subject to
the qualification that:
(a) enforceability may be limited by or subject to (i) state and/or
federal bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies; (ii) an implied duty of good
faith; and (iii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(b) certain provisions of the Agreements may be unenforceable in whole
or in part, although the inclusion of such provisions does not render any
of the Agreements invalid as a whole, and the Agreements contain legally
adequate provisions for enforcing the other obligations of the parties
thereunder and for the practical realization of the principal rights and
benefits purported to be afforded thereby, subject to the economic
consequences of any judicial, administrative, or other procedural delay in
connection with such enforcement and realization.
In connection with servicing by the Company of mortgages on residential
property located in New York State, we point out that Section 6-k of the New
York Banking Law imposes certain obligations on mortgagees with respect to
casualty insurance escrow accounts, and Section 254 of the New York Real
Property Law imposes certain restrictions on the right of the mortgagee to
retain casualty insurance proceeds.
We express no opinion as to the applicability to, or effect on, the
transactions contemplated by either of the Agreements of any federal or state
securities law.
G-2
We are qualified to practice law in the State of New York and we do not
purport to be experts on, or to express any opinion herein concerning, any
matter governed by the laws of any jurisdiction other than the laws of the State
of New York and the federal law of the United States. This letter is furnished
to you solely for your benefit in connection with the transactions contemplated
by the Agreements. This opinion is not to be publicly filed, used, circulated,
quoted or otherwise relied upon by any other person or entity or, for any other
purpose, without our prior written consent.
Very truly yours,
G-3
EXHIBIT H
FORM OF OPINION OF IN-HOUSE COUNSEL TO FIRST UNION NATIONAL BANK
June 13, 2001
To: Persons on Annex A Hereto
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
I am a Vice President and Assistant General Counsel of First Union
Corporation, and in that capacity I have acted as counsel to First Union
National Bank (the "Seller"), in connection with the sale of mortgage loans (the
"Mortgage Loans") by the Seller to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor"), pursuant to a Mortgage Loan Purchase
Agreement, dated as of June 13, 2001 (the "Mortgage Loan Purchase Agreement"),
between the Seller and the Depositor, and an Indemnification Agreement, dated as
of June 13, 2001, by and among the Seller and the Underwriters (as defined
therein) (together with the Mortgage Loan Purchase Agreement, the "Agreements").
Capitalized terms used but not defined herein have the meanings set forth in the
Mortgage Loan Purchase Agreement or in agreements referred to therein.
In rendering this opinion letter, I have examined such documents as I have
deemed necessary. As to matters of fact, I have examined and relied upon
representations of the Seller contained in the Agreements and, where I have
deemed appropriate, representations or certifications of parties to the
Agreements or public officials. I have assumed the authenticity of all documents
submitted to me as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all documents
submitted to me as copies. I have assumed, except as to the Seller, that all
parties had the corporate power and authority to enter into and perform all
obligations thereunder. As to such parties, I also have assumed the due
authorization by all requisite corporate action, the due execution and delivery
and the enforceability of such documents. I have further assumed the conformity
of the Mortgage Loans and related documents to the requirements of the
Agreements and that there is not, and will not be, any other agreement that
materially supplements or otherwise modifies the agreements expressed in the
Agreements.
I am admitted to the Bar of the State of Maryland and in rendering this
opinion, I do not express any opinion concerning any law other than the laws of
the State of Maryland and the federal laws of the United States. I do not
express any opinion concerning the application of the "doing business" laws or
any federal or state securities laws. In addition, I do not express any opinion
on any issue not expressly addressed below.
Based upon and subject to the foregoing, I am of the opinion that:
H-1
1. The Seller is a national banking association duly organized and validly
existing under the laws of the United States of America and has the requisite
corporate power to own its properties, to conduct its business as presently
conducted by it, to own the Mortgage Loans, to transfer and convey the Mortgage
Loans to the Depositor and to enter into and perform its obligations under the
Agreements.
2. The Agreements have been duly authorized, executed and delivered by the
Seller.
3. No consent, approval, authorization or order of any state or federal
court or governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by the Agreements except for those
consents, approvals, authorizations or orders that previously have been
obtained, as may be required under federal or state securities laws, and such
real estate filings as may be required in connection with the transfer of the
Mortgage Loans and the other matters contemplated under the Agreements.
4. Neither the transfer of the Mortgage Loans as provided in the Mortgage
Loan Purchase Agreement, nor the fulfillment of the terms of or the consummation
of any other of the transactions contemplated by the Agreements, will result in
a breach of any term or provision in the articles of association or by-laws of
the Seller or, to my knowledge, will conflict with, result in a breach of or
constitute a default under (a) any order of any state or federal court,
regulatory body, administrative agency or other governmental body having
jurisdiction over the Seller, or (b) any other document or agreement to which
the Seller is a party or by which it is bound.
5. To my knowledge, there are no actions, proceedings or investigations
pending or threatened against the Seller before any state or federal court,
administrative agency or other tribunal (a) asserting the invalidity of either
Agreement, (b) seeking to prevent the consummation of any of the transactions
contemplated in the Agreements, or (c) that might materially and adversely
affect the performance by the Seller of its obligations under, or the validity
or enforceability of, either Agreement.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person is entitled to rely hereon. Copies of this letter
may not be furnished to any other person, nor may any portion of this letter be
quoted, circulated or referred to in any other document.
Very truly yours,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Assistant General Counsel
H-2
ANNEX A
Credit Suisse First Boston
Mortgage Securities Corp.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ Investor Services, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
H-3
EXHIBIT I-1
FORM OF OPINION I OF CADWALADER ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇,
SPECIAL COUNSEL TO FIRST UNION NATIONAL BANK
June 13, 2001
Addressees listed on Schedule A
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to First Union National Bank ("FUNB") in
connection with the transfer of certain mortgage loans held by FUNB (the "FUNB
Mortgage Loans") to Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor") pursuant to that certain Mortgage Loan Purchase Agreement dated as
of June 13, 2001 (the "FUNB Purchase Agreement"). The Depositor will transfer
the FUNB Mortgage Loans along with mortgage loans the Depositor acquires from
KeyBank National Association and Column Financial, Inc. (collectively with the
FUNB Mortgage Loans, the "Mortgage Loans"), to a commercial mortgage trust (the
"Trust"). The Trust will issue the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2001-CK3
(the "Certificates"). The Certificates will represent, in the aggregate, the
entire beneficial ownership interest in a separate trust fund (the "Trust
Fund"), the property of which is primarily comprised of the Mortgage Loans.
The Certificates are being issued to the Depositor pursuant to that certain
Pooling and Servicing Agreement, dated as of June 1, 2001 (the "Pooling and
Servicing Agreement"), by and among the Depositor, as depositor, KeyCorp Real
Estate Capital Markets Inc. d/b/a Key Commercial Mortgage, as master servicer
and special servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., a national banking
association, as trustee (the "Trustee"). The Depositor will sell the Class A-1,
Class A-2, Class A-3, Class A-4, Class B, Class C and Class D Certificates (the
"Public Certificates") to Credit Suisse First Boston Corporation, McDonald
Investments Inc., First Union Securities, Inc. (an affiliate of FUNB) and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (collectively, the "Underwriters") pursuant to that
certain Underwriting Agreement dated as of June 12, 2001 (the "Underwriting
Agreement"). The Depositor will also sell the Class A-X, E, F, ▇-▇, ▇-▇, ▇, ▇,
▇, ▇, ▇, ▇, ▇, ▇ and V Certificates (the "Private Certificates" and together
with the Public Certificates, the "Certificates") to Credit Suisse First Boston
Corporation (the "Certificate Purchaser") pursuant to that certain Certificate
Purchase Agreement dated as of June 12, 2001 (the "Certificate Purchase
Agreement"). The Public Certificates will be publicly offered by the
Underwriters pursuant to that certain Prospectus, dated as of June 5, 2001 and
Prospectus Supplement, dated June 12, 2001 (collectively, the "Prospectus"). The
Private Certificates will be privately offered by the Certificate Purchaser
pursuant to that certain Confidential Offering Circular (the "Confidential
Offering Circular") dated June 12, 2001.
I-1-1
You have requested our opinion as to whether, under present reported
decisional authority and statutes applicable to federal insolvency cases: if the
Federal Deposit Insurance Corporation (the "FDIC") were to be appointed receiver
or conservator for FUNB pursuant to the Federal Deposit Insurance Act, as
amended (the "FDIA"),(10) a court which acted reasonably and correctly applied
the law to the facts as set forth herein, after full consideration of all
relevant factors, would hold that the Rule (as defined herein) applies to the
transfer of the FUNB Mortgage Loans such that the FDIC could not exercise its
authority under 12 U.S.C. 1821(e) to reclaim, recover, or recharacterize as
property of FUNB the FUNB Mortgage Loans.
FACTS AND ASSUMPTIONS
In rendering this opinion, we have examined and relied upon originals or
copies, certified or otherwise identified to our satisfaction, of such
certificates, corporate or other records, and other documents as we have deemed
appropriate for the purpose of rendering this opinion. We have examined and
relied upon, among other things, the FUNB Purchase Agreement, the Pooling and
Servicing Agreement, the Underwriting Agreement, the Prospectus and the
Confidential Offering Circular (collectively, the "Applicable Documents") and
the certificates, opinions, agreements and other documents (including exhibits
thereto) delivered in connection with the issuance and sale of the Certificates.
We have assumed that no party to any of the Applicable Documents has
entered into any agreement or understanding, either written or oral,
inconsistent with the terms of any of the Applicable Documents or the
assumptions or discussion in this opinion or that is otherwise related to the
subject matter of any of the Applicable Documents, or which otherwise pertains
to the transfer of the FUNB Mortgage Loans from FUNB to the Depositor pursuant
to the FUNB Purchase Agreement other than as expressly set forth in such
documents or in this opinion. Capitalized terms that are not defined herein
shall have the same meanings as in the Pooling and Servicing Agreement.
We have assumed and relied upon the genuineness and due authorization of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies,
and the authenticity of the originals of all documents submitted to us as
copies.
The opinions expressed herein are based upon and subject to the assumed
compliance by FUNB and the Depositor at all relevant times, with the facts and
assumptions set forth herein. We have been advised of the following facts by
FUNB and the Depositor. In rendering our opinion, we have relied upon certain
factual representations, warranties and covenants material to this opinion which
are set forth in the Applicable Documents and on the certificates of officers or
representatives of FUNB and the Depositor in which they represent that the
applicable facts and assumptions set forth herein are accurate. We have not made
any independent inquiry with regard to the accuracy of the matters stated in
such certificates or in the documents reviewed. In rendering our opinions, and
based on the documents referenced above, we have assumed that the facts and
assumptions outlined below are correct.
-----------
(10) 12 U.S.C. ▇▇.▇▇. 1811 et seq.
I-1-2
FUNB is the owner of the FUNB Mortgage Loans, having originated or acquired
such Mortgage Loans prior to the date hereof. On the date hereof, the following
simultaneous transactions will occur:
1. Pursuant to the FUNB Purchase Agreement, FUNB will sell, transfer
and assign all of its respective right, title and interest in and to the
FUNB Mortgage Loans to, or at the direction of, the Depositor and will
deliver possession of the notes evidencing the FUNB Mortgage Loans to, or
at the direction of, the Depositor. As provided in the FUNB Purchase
Agreement, FUNB and the Depositor will take in a timely manner all
necessary steps under all applicable laws to convey and to perfect the
conveyance of the title to the FUNB Mortgage Loans to or upon the direction
of the Depositor. The consideration received by FUNB pursuant to the FUNB
Purchase Agreement represents the fair market value of the FUNB Mortgage
Loans and is comparable to the terms that would apply to a similar
transaction between other unaffiliated third parties.
2. Pursuant to the Pooling and Servicing Agreement, the Depositor will
transfer and assign to the Trustee, for the benefit of the holders of
Certificates, all of its right, title and interest in and to the Mortgage
Loans and will deliver or cause to be delivered possession of the notes
evidencing the Mortgage Loans to the Trustee in exchange for the
Certificates. The Depositor and the Trustee will take in a timely manner
all necessary steps under all applicable laws to convey and to perfect the
conveyance of the title to the Mortgage Loans to the Trustee. Specifically,
as required under the Pooling and Servicing Agreement, the notes evidencing
the Mortgage Loans will be endorsed and delivered to the Trustee and an
assignment of the Mortgage Loans sufficient under all applicable laws and
the terms of the Pooling and Servicing Agreement to effect the conveyance
and assignment of and transfer to the Trustee will be prepared in favor of,
and delivered to, the Trustee. The consideration received by the Depositor
pursuant to the Pooling and Servicing Agreement (i.e., the Certificates)
represents the fair market value of the Mortgage Loans and is comparable to
the terms that would apply to a similar transaction between unaffiliated
third parties.
3. Pursuant to the Underwriting Agreement and the Certificate Purchase
Agreement, the Depositor will transfer the Public Certificates to the
Underwriters and the Private Certificates to the Certificate Purchaser for
a cash consideration representing the fair market value of the Certificates
that is comparable to the terms that would apply to a similar transaction
between unaffiliated third parties. The Underwriters and the Certificate
Purchaser will transfer the Certificates that have been sold to the
purchasers thereof. The Underwriters and the Certificate Purchaser intend
to sell or transfer all of the Certificates to parties that are
unaffiliated with FUNB (the "Investors").
The Pooling and Servicing Agreement provides for the issuance of the
Certificates, which collectively evidence a 100 percent ownership interest in
the Trust Fund. The Trust Fund is comprised of the Mortgage Loans together with
certain other related contract rights and amounts held by or on behalf of the
Master Servicer, the Special Servicer or the Trustee from time to time in
certain related collection and/or distribution accounts, certain funds of the
borrowers to be held by or on behalf of the Master Servicer, the Special
Servicer or the Trustee
I-1-3
from time to time in certain related reserve accounts, certain insurance
policies relating to such Mortgage Loans and any property acquired in respect of
such Mortgage Loans by foreclosure or deed in lieu of foreclosure.
FUNB and the Depositor intend, and the Applicable Documents indicate, that
the transfer of the FUNB Mortgage Loans from FUNB to the Depositor (the
"Transfer") pursuant to the FUNB Purchase Agreement, followed by the transfer of
the Certificates to Investors to be a sale from FUNB to the Depositor. FUNB and
the Depositor intend to treat the Transfer as a sale for accounting and tax
purposes. The purchase price for the FUNB Mortgage Loans reflects the good faith
determinations of FUNB and the Depositor of the fair market value of the FUNB
Mortgage Loans and is equal to the price that the parties believe would be paid
in a sale of the FUNB Mortgage Loans between other unaffiliated entities. No
provision exists whereby such consideration may be modified subsequent to
closing and FUNB will have no obligation to repay such consideration, or
interest thereon, to the Depositor.
FUNB will receive the entire consideration for the FUNB Mortgage Loans on
the date hereof. The Transfer was not made to or for the benefit of a creditor
of FUNB and was not made for or on account of an antecedent debt owed by FUNB
before the Transfer was made. At the time the Transfer was made, FUNB was not
indebted to the Depositor.
Pursuant to the FUNB Purchase Agreement, FUNB irrevocably transfers and
relinquishes all rights with respect to the FUNB Mortgage Loans and,
specifically, has no right to sell, pledge, or otherwise dispose of such
Mortgage Loans once transferred to the Depositor. The Depositor is free to deal
with the FUNB Mortgage Loans as its property prior to the transfer of the FUNB
Mortgage Loans to the Trustee. Pursuant to the FUNB Purchase Agreement, FUNB
transfers the FUNB Mortgage Loans without recourse and has no obligation to
deliver other property to the Depositor, the Trustee or the purchasers of
Certificates either in substitution for or in addition to such Mortgage Loans in
the event of a credit loss or decline in value of such Mortgage Loans. There are
no documents, instruments or understandings between or among the Depositor,
FUNB, or any of their affiliates in respect of the FUNB Mortgage Loans other
than as set forth in the Applicable Documents.
FUNB conveys the First Union Mortgage Loans in the ordinary course of
business and neither in contemplation of insolvency nor with an intent to
hinder, delay or defraud its creditors, the FDIC, any receiver or conservator
for FUNB or any other banking agency or with a view to the preference of one or
more of its creditors to the exclusion in whole or in part of others. FUNB has
not committed an act of insolvency nor did it transfer the FUNB Mortgage Loans
in contemplation thereof or with a view to prevent the application of their
respective assets in the manner described in the FDIA or other applicable
federal or state law.
The Transfer represents a bona fide transaction, and the Investors are not
insiders or affiliates of FUNB. The FUNB Purchase Agreement will be, and will
have been continuously from the time of its execution, an official record of
FUNB. Such agreement will be available for inspection by the FDIC and other
federal or state regulatory authorities having jurisdiction over the assets and
affairs of any bank. FUNB has determined that the sale of the FUNB Mortgage
Loans represents a practicable and reasonable course of action to improve the
financial position
I-1-4
of FUNB without impairing the rights of its creditors. The Board of Directors
(or a Committee thereof) of FUNB has adopted resolutions approving the FUNB
Purchase Agreement and the sale of the FUNB Mortgage Loans, and such resolutions
have been reflected in the minutes of the meeting at which such transactions
were approved.
Neither FUNB nor any of its affiliates will own, hold or have any direct
interest in the Mortgage Loans subsequent to the consummation of the Transfer
and the transfer of the Certificates to investors. The Depositor has no right or
obligation to transfer the FUNB Mortgage Loans back to FUNB, and FUNB has no
right or obligation to reacquire any of FUNB Mortgage Loans subsequent to the
Transfer.(11) Consequently, FUNB has transferred the benefits and risks of
ownership of the FUNB Mortgage Loans to the Depositor.
FUNB has not transferred the FUNB Mortgage Loans in contemplation of
insolvency or with a design to prefer one or more creditors to the exclusion in
whole or in part of others or with an intent to hinder, delay or defraud any of
its creditors.
The assets of FUNB are now, and are intended to be, sufficient to pay the
ongoing business expenses of FUNB as they are incurred and to discharge all of
its liabilities in the event that the business of FUNB is required to be
liquidated.
The property remaining in the hands of FUNB immediately after giving effect
to the Transfer is not an unreasonably small amount of capital for the business
in which FUNB is engaged.
We further assume that the Depositor, the Trustee or other appropriate
party in interest would actively oppose any attempt to recharacterize as
property of the receivership or conservatorship estate of FUNB the FUNB Mortgage
Loans under the FDIA.
DISCUSSION
Were the FDIC to be appointed receiver or conservator for FUNB pursuant to
the FDIA, the FDIC could not reclaim, recover, or recharacterize as property of
FUNB the FUNB Mortgage Loans, after giving effect to the transfer of the
Certificates to the investors, if the transfer by FUNB constituted an
irrevocable sale to the Depositor. The FDIA provides for the appointment of the
FDIC as receiver or conservator for FDIC-insured banking institutions under
certain circumstances. Upon the appointment of the FDIC as receiver or
conservator for a failed institution, the FDIC succeeds to "all rights, titles,
powers and privileges of the [failed institution] . . . with respect to the
institution and the assets of the institution . . . ." 12 U.S.C. ss. 1821(d)(2).
Accordingly, and pursuant to section 1821(d)(2), the FDIC as receiver or
----------
(11) FUNB makes certain representations and warranties regarding the FUNB
Mortgage Loans and, under certain circumstances, may be obligated to repurchase
Mortgage Loans or substitute new loans due to a breach of any such
representation or warranty. However, such obligation is limited, and any
repurchase or substitute Mortgage Loans pursuant to this obligation would result
from the FUNB Mortgage Loans not being of the quality represented, not from a
decline in the value of or future payment defaults on the FUNB Mortgage Loans
and does not give FUNB a general right to repurchase or otherwise reacquire the
FUNB Mortgage Loans or to reclaim any of the benefits of its ownership.
I-1-5
conservator would have only the rights in and to the FUNB Mortgage Loans that
FUNB had under the FUNB Purchase Agreement. 12 U.S.C. ss. 1821(d)(2)(A).
The FDIA accords the FDIC the power to modify contracts entered into by the
failed institution. Under ss. 1821(e)(1) the FDIC may disaffirm or repudiate any
contract--
(A) to which the institution is a party;
(B) the performance of which the conservator or receiver, in the
conservator's or receiver's discretion, determines to be burdensome; and
(C) the disaffirmance or repudiation of which the conservator or
receiver determines, in the conservator's or receiver's discretion, will
promote the orderly administration of the institution's affairs.
Although the FDIC retains the power to disaffirm or repudiate contracts, we
do not believe such power could or would be employed to repudiate the FUNB
Purchase Agreement in such a manner as to allow the FDIC to acquire the FUNB
Mortgage Loans. The contract has been materially completed. The only remaining
obligation FUNB has under the FUNB Purchase Agreement is to repurchase certain
Mortgage Loans if there was a breach of a representation or warranty concerning
the character of a particular FUNB Mortgage Loan. While the FDIC may have the
right to repudiate the repurchase obligation as burdensome, it has no authority
under the FDIA to compel turnover of assets previously sold for fair value.(12)
Such a turnover, which could not be accomplished without payment for such
Mortgage Loans,(13) would also be inconsistent with the obligation of the FDIC
as liquidator to dispose of assets(14) and the FDIC as conservator to "carry on
the business of the institution."(15)
The FDIC has affirmatively limited its broad powers to disaffirm or
repudiate contracts with the issuance of a rule entitled "Treatment by the
Federal Deposit Insurance Corporation as conservator or receiver of financial
assets transferred in connection with a securitization or participation" found
at 12 C.F.R. ss. 360.6 (the "Rule"). Under ss. 360.6(b), the FDIC will not use
its authority to disaffirm or repudiate contracts to reclaim, recover, or
recharacterize property of the insured institution transferred as part of a
securitization or a loan participation.(16) Securitizations are defined in ss.
360.6(a)(4) of the Rule as:(17)
----------
(12) See 12 U.S.C. ss. 1821 (e)(ii).
(13) Compare the FDIA with the Bankruptcy Code, which authorizes, in Section
550, a bankruptcy trustee to recover avoided transfers. See also 12
U.S.C. ▇▇.▇▇. 1821(e)(8)(c)(i) and (D)(i).
(14) See 12 U.S.C. ▇▇.▇▇. 1821(C)(2)(A)(ii) and (d)(2)(E).
(15) See 12 U.S.C. ss. 1821(d)(2)(D)(ii).
(16) However, under ss. 360.6(d) the FDIC retains the right to disaffirm or
repudiate any contract that imposes continuing obligations and duties of the
insured institution, which in the conservator's or receiver's estimation is
burdensome, and when such disaffirmance or repudiation would promote the orderly
administration of the institution's affairs.
I-1-6
the issuance by a special purpose entity of beneficial
interests, (i) the most senior class of which at the time
of issuance is rated in one of the four highest categories
assigned to long-term debt or in an equivalent short-term
category (within either of which there may be subcategories
or gradations indicating relative standing) by one or more
nationally recognized statistical rating organizations, or
(ii) which are sold in transactions by an issuer not
involving any public offering for purposes of Section 4 of
the Securities Act of 1933, as amended or in transactions
exempt from registration under such Act pursuant to
Regulation S thereunder (or any successor regulation).
The Depositor meets the FDIC's definition of a special purpose entity. It
has a distinct standing at law and is primarily engaged in acquiring, holding,
or transferring financial assets to another special purpose entity in connection
with the issuance of beneficial interests by a special purpose entity. The FUNB
Mortgage Loans transferred from FUNB to the Depositor constitute financial
assets. The Certificates issued by the Trust are beneficial interests, the most
senior of which are rated investment grade as required by the Rule.
Consequently, the present transaction meets the threshold qualifications for
protection under the Rule.
Additional requirements of the Rule are that the transaction must meet the
criteria for a sale under generally accepted accounting principles, the
transaction documents must reflect an intent of the parties for it to be a sale,
and the financial institution must receive adequate consideration at the time
the transfer was made. As confirmed by its accountants, FUNB is transferring the
FUNB Mortgage Loans to the Depositor in accordance with the generally accepted
accounting principles of the Financial Accounting Standards Board for a sale.
The intent of the parties to consummate a sale is also reflected in the
documents and the consideration received at the time of the transfer is
adequate. Consequently, the transfer of the FUNB Mortgage Loans by FUNB would be
protected under the Rule without regard to whether the FDIC has the power to
obtain the FUNB Mortgage Loans.
We have also found no substantial authority analyzing circumstances in
which a sale of assets by a bank was recharacterized as a financing upon such
bank's insolvency. Based on cases considering a sale of participation interests
in loans, we believe, however, that any such analysis would be substantially the
same as that utilized by courts considering the issue in circumstances in which
the transferor was a debtor under the Bankruptcy Code. These cases are discussed
below.
While courts ultimately look to the economic substance of a transaction to
determine whether it constitutes a sale or a pledge, the judicial analysis has
typically proceeded on a case-by-case basis. The cases have not developed a
prescribed formula which can be applied in a mechanical fashion. Rather, as the
Third Circuit explained in a leading case, courts
----------
(17) Beneficial interests are defined in ss. 360.6(a) of the Rule as, "debt or
equity (or mixed) interests or obligations issued by a special purpose entity
that entitle their holders to receive payments that depend primarily on the cash
flow from financial assets owned by the special purpose entity."
I-1-7
"have examined the parties' practices, objectives, business activities and
relationships and determined whether the transaction was a sale or a secured
loan only after analysis of the evidence as to the true nature of the
transaction." Major's Furniture Mart, Inc. v. Castle Credit Corporation, Inc.,
602 F.2d 538, 545 (3d Cir. 1979). The determination of the "true nature" of a
transaction is thus usually based on an analysis of the facts and circumstances
present in the particular transaction, rather than on the application of
consistently applied or well-established legal doctrines. In re Golden Plan of
California, Inc., 829 ▇.▇▇ ▇▇▇, ▇▇▇ (▇▇▇ ▇▇▇. ▇▇▇▇). See also Sarf ▇. ▇▇▇▇ (In
re ▇▇▇▇▇ ▇▇▇▇ Corp.), 38 B.R. 571, 576 (Bankr. S.D.N.Y. 1984) (true sale
determination should be "based upon an examination of the substance of the
documents in the context of the surrounding transaction").
Moreover, the published cases generally involve relatively small-scale
commercial transactions or consumer claims whose fact patterns are not closely
analogous to the transaction at issue here. While a few cases have addressed
secondary market transactions in mortgage loans, no published decision has
addressed the "true sale" issue in the context of a securitization or a transfer
of assets to a special purpose entity and a subsequent transfer by such special
purpose entity.(18)
The reported decisions indicate that no single factor or combination of
factors is dispositive and, due to the "facts and circumstances" nature of the
analysis, are not conclusive as to the relative weight to be accorded to the
factors that are present in this transaction. We also note that the cases are
not uniform in their treatment of the factors considered. For example, six cases
involving a similar fact pattern produced inconsistent results. In two cases,
the original sale characterization of the transaction was upheld while four
cases recharacterized a purported sale as a financing. Compare In re Lemons &
Assocs., Inc., ▇▇ .▇. ▇▇▇ (▇▇▇▇▇. D. Nev. 1986) (transfer of mortgage loan
participations treated as a sale notwithstanding that return to transferee not
related to return on transferred asset and transferee's ability to put
transferred assets back to transferor) and ▇▇▇▇▇ v. Army Moral Support Fund (In
re ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Asset Mgt. Corp.), 67 B.R. 557 (D. N.J. 1986)
(sale treatment for repurchase agreement upheld notwithstanding transfer of
asset at arbitrary, not fair market prices, payment by transferee to transferor
not related to value of transferred asset, obligation to reverse the transfer on
a specified date and full recourse to transferor for default on underlying
asset) with In re Coronet Capital Co., 142 B.R. 78 (Bankr. S.D. N.Y. 1992)
(transfer of participation treated as financing arrangement; return to
transferees not related to return on transferred assets); Fireman's Fund Ins.
Cos. ▇. ▇▇▇▇▇▇ (In re The ▇▇▇▇▇▇▇ Co.), 813 F.2d 266 (9th Cir. 1987)
-----------
(18) However, we note that on February 5, 2001, the United States Bankruptcy
Court for the Northern District of Ohio entered an order refusing to modify an
interim cash collateral order that treated inventory and receivables sold by a
chapter 11 debtor to two special purpose subsidiaries, not in chapter 11, as
property of the debtor's estate. In re LTV Steel Company, case no ▇▇▇▇▇▇▇
(Bankr. N.D. Ohio). In the February 5 opinion, the court states, "To suggest
that Debtor lacks some ownership interest in products that it creates with its
own labor, as well as the proceeds to be derived from that labor, is difficult
to accept." The LTV interim order does not alter our conclusion that a court
would find the Transfers to be sales. In LTV, all of the debtor's operating
assets were sold to the special purpose subsidiaries and, by virtue of debtor's
bankruptcy, all proceeds of the receivables should have been applied to repay
the borrowings of the subsidiary. Accordingly, LTV would have had no ability to
continue its operations and, as the court observed, 17,500 employees would have
lost their jobs and 100,000 retirees would have lost medical and other benefits.
Here, FUNB is not placing all of its operating assets in the securitization, but
is making a one-time sale of financial assets which are commonly sold in the
secondary market.
I-1-8
(same); ▇▇▇▇▇ v. Major Funding Corp. (In re Major Funding Corp.), 82 B.R. 443
(Bankr. S.D. Tex. 1987) (same); and In re S.O.A.W. Enter., Inc., 32 B.R. 279
(Bankr. W.D. Tex. 1983) (same). (19) In addition, in certain decisions,
transactions with facts which are also present in this transaction were
characterized as loans, but we believe that those cases are distinguishable in
the context of this transaction.
The existing case law thus does not provide consistently applied general
principles with which to analyze all of the factors present in this
transaction.(20)
We do note that courts accord respect to the stated intent of the parties
and tend to defer to the structure selected by the parties, unless the structure
of the transaction is clearly inconsistent with that stated intent, or unless
giving effect to the structure of the transaction would result in an evasion of
public policy or perpetrate an injustice on one of the parties.(21) Several
cases have expressly articulated this concept, stating that in transactions
between sophisticated parties which have elements of both loan and sale, the
stated intent of the parties is the "controlling consideration." In re ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Asset Mgt. Corp., 67 B.R. at 597. See also ▇▇▇▇▇▇▇▇▇ v.
Madison Nat'l Bank of Washington, D.C., 89 B.R. 274, 277 (D.D.C. 1988) (language
of agreement demonstrating an intent to create an absolute assignment supported
the finding of a sale despite the presence of countervailing factors); Lyon v.
▇▇-▇▇▇▇ Corp., 239 A.2d 819 (Super. Ct. Pa. 1967) (same). But see In re The
▇▇▇▇▇▇▇ Co., 813 F.2d at 272 ("Simply calling transactions `sales' does not make
them so. Labels cannot change the true nature of the underlying transactions");
In re ▇▇▇▇▇▇ ▇▇▇▇▇▇ Hat Co., 482 F.2d 937, 940 (2d Cir. 1973) ("courts will
determine the true nature of a security transaction, and will not be prevented
---------
(19) In Lemons, Major Funding, Coronet Capital, S.O.A.W. and ▇▇▇▇▇▇▇, the
debtors were mortgage brokers which had assigned nterests in mortgage loan to
various investors, including individuals. The transactions were documented and
advertised to potential investors as sales, but the investors were promised a
fixed return on their investment regardless of the rate on, or performance of,
the assigned loan
(20) We note in particular the case of In re Best Products Co., Inc., 157 B.R.
222 (Bankr. S.D. N.Y. 1993), in which the court applied a "substance over form"
analysis to "collapse" a transaction in which a subsidiary served as a financing
vehicle for its parent. In Best Products, a secured creditor had required the
parent/"true" borrower to assign its rights as tenant under a ground lease to a
"shell" subsidiary and to enter into a sublease with the subsidiary, which was
to serve as the "technical" borrower. The structure was established to permit
the creditor to "get around" stringent antideficiency rules under California law
by taking a security interest in the ground lease and the sublease payments. Id.
at 230. The parties also ignored the structure by causing the parent to make its
"sublease" payments, to which the creditor was looking as the source of debt
service payments, directly to the creditor. Id. Accordingly, the court set aside
the sublease and deemed the transaction a loan to the parent.
We believe Best Products to be distinguishable. The court found, "The
sub-lease was entered into between parent and subsidiary to facilitate a loan to
[the parent] from [the creditor]. Without [the parent's] significant presence,
[the creditor] would not have loaned the subsidiary $2.2 million." Id. The
critical distinction in this transaction, however, is that FUNB has no liability
for the cash flow upon which the Certificateholders are relying. Indeed, the
structure of the instant transaction renders such entities' creditworthiness not
material to the Certificateholders receiving payments on the Certificates
(except to the limited extent that FUNB Mortgage Loan must be repurchased).
(21) In the similar context of sale-and-leaseback transactions involving realty,
courts have required a "showing by clear and convincing evidence . . . that the
transaction should be deemed a disguised financing transaction" before they will
exercise their power to "look through form to substance in determining the true
nature of a transaction." In re Omne Partners II, 67 B.R. 793, 795 (Bankr.
D.N.H. 1986) (quoting Fox ▇. ▇▇▇▇ Iron & Metal Co., 25 B.R. 674, 688 (Bankr.
S.D. Cal. 1981) and Pepper ▇. ▇▇▇▇▇▇, ▇▇▇ ▇.▇. ▇▇▇, 304 (1939) (internal
quotations omitted)).
I-1-9
from exercising their function of judicial review by the form of words the
parties may have chosen"); In re Evergreen Valley Resort, Inc., 23 B.R. 659, 661
(Bankr. D. Me. 1982) ("the label attached to the transaction by the parties does
not control"). In this regard, we note that the relevant parties intend the
Transfer to be a sale for accounting and tax purposes and that there is no
attempt to evade public policy or accomplish an objective which would be
prohibited if the Transfer were a financing.
A comparison of the factors present in the Transfer with the factors
generally considered by courts in a bankruptcy context supports the conclusion
that the Transfer constitute a sale rather than a pledge and that the FUNB
Mortgage Loans would not be the property of the receivership or conservatorship
estate of FUNB.
The economic substance of the Transfer, after giving effect to the transfer
of the Certificates to the investors, is a sale. We note, for example, that
there is a complete and irrevocable transfer of the rewards and risks of
ownership of the FUNB Mortgage Loans. FUNB has relinquished all rights with
respect to the FUNB Mortgage Loans. Specifically, FUNB will have no right to
sell, pledge or otherwise dispose of the FUNB Mortgage Loans. Any change in the
value of the FUNB Mortgage Loans, whether due to changes in interest rates or
otherwise, would not be for the benefit or loss of FUNB.
Further, although the breach of certain representations and warranties
relative to the FUNB Mortgage Loans by FUNB may require it to repurchase one or
more FUNB Mortgage Loans or substitute a conforming loan, such obligation is
limited and any repurchase of or substitution of such FUNB Mortgage Loans
pursuant to this obligation would result from the FUNB Mortgage Loans not being
of the quality represented, not from a decline in value of or future payment
defaults on the FUNB Mortgage Loans, and does not give FUNB any general right to
repurchase or otherwise reacquire the FUNB Mortgage Loans or to reclaim any of
the benefits of ownership. This limited repurchase obligation and substitution
right is not controlled by FUNB and, accordingly, does not confer on FUNB any
opportunity to capture the benefits of ownership of the FUNB Mortgage Loans.
In addition, we note that FUNB will receive the entire consideration for
the FUNB Mortgage Loans at the closing and that such consideration represents
the fair market value for such FUNB Mortgage Loans. There will not be any
post-closing adjustment of the purchase price and FUNB has no right or
obligation to transfer additional property to the Depositor. In these
circumstances, FUNB has relinquished the benefits and risk associated with
ownership of the FUNB Mortgage Loans.
These factors, and the other aspects of the transaction, indicate that the
Transfer constitutes a sale rather than a pledge.
CONCLUSION
Based on the foregoing facts, advice, representations, statements, and
assumptions being correct at all relevant times, and based on the discussion and
analysis above, it is our opinion that, under present reported decisional
authority and statutes applicable to federal
I-1-10
insolvency cases, and in a properly presented case: If the FDIC were to be
appointed receiver or conservator for FUNB pursuant to the FDIA, a court which
acted reasonably and correctly applied the law to the facts as set forth herein
after full consideration of all relevant factors would hold that the Rule
applies to the transfer of the FUNB Mortgage Loans such that the FDIC could not
exercise its authority under 12 U.S.C. 1821(e) to reclaim, recover, or
recharacterize as property of FUNB the FUNB Mortgage Loans.
QUALIFICATIONS
The foregoing opinion assumes that the facts, representations, statements,
and assumptions set forth above will be those that exist at the time a federal
court considers the issues.
While we believe that our opinion respecting the nature of the Transfer is
supported by sound analysis of existing law, we have found no statutes or
reported judicial authority that discuss directly whether transfers such as the
Transfer would be treated as sales or pledges and have found no reported
judicial authority which has considered a transaction containing all the
material facts and circumstances that are present in the Transfer. In rendering
our opinion, we have thus relied on cases discussing certain of the facts and
circumstances that are present in the Transfer and cases discussing more
generally whether the transfer of an asset was a transfer of ownership or a
transfer of a more limited interest. Accordingly, our opinion is not based on
directly controlling precedent but rather on what we believe to be a sound
analysis of existing authorities. Also, the analysis of the nature of the
Transfer and opinion thereon contained herein are based on general principles of
law derived from a review of a significant body of case law and are not based on
the laws of any particular state. Therefore, no opinion is rendered as to the
laws of any jurisdiction other than the laws of the United States of America and
we express no opinion as to the laws of any state or jurisdiction, other than
the present laws of the state of New York as and to the extent we believe they
may be applied or given effect by a federal court having jurisdiction of the
proceeding of FUNB. Whether any particular transfer is a sale or a pledge will
be generally a matter of state law and may be governed by the laws of a
particular state. Most cases determining the matter in a context of a federal
bankruptcy case, however, are decided on the basis of general principles of law
and an analysis of the economic substance of the transaction.
We express no opinion with respect to whether, if FUNB were to become the
subject of a receivership or conservatorship proceeding under the FDIA, the FUNB
Mortgage Loans which have been repurchased or otherwise acquired by FUNB, either
due to a breach of certain representations or warranties relating to the FUNB
Mortgage Loans or otherwise, would be property of FUNB's receivership or
conservatorship estate.
We express no opinion with respect to whether, if FUNB were to become the
subject of a receivership or conservatorship proceeding under the FDIA, the
Transfer would be avoided by the court as a fraudulent conveyance or based on
other similar theories under the FDIA or applicable state law.
I-1-11
We express no opinion as to the availability or effect of a preliminary
injunction, temporary restraining order or other such temporary relief, or
equitable remedies.
The opinions expressed above are limited to the present federal laws of the
United States of America and the present laws of the state of New York, as and
to the extent we believe they may be applied or given effect by a federal court
having jurisdiction over the FDIA proceeding of FUNB's receivership or
conservatorship estate and to present judicial interpretations thereof.
The opinions expressed herein are not a guaranty as to what any particular
court would actually hold, but an opinion as to the decision a court would reach
if the issues are competently presented to it and the court followed existing
precedent as to legal and equitable principles applicable in bankruptcy cases.
In this regard, we note that legal opinions on insolvency matters unavoidably
have inherent limitations that generally do not exist in respect of other issues
on which opinions to third parties are typically given. These inherent
limitations exist primarily because of the pervasive equity powers of the
courts, the overriding goal of reorganization and depositor protection, as
applicable, to which other legal rights and policies may be subordinated, the
potential relevance to the exercise of judicial discretion of future arising
facts and circumstances, and the nature of the bankruptcy and insolvency
process. The recipients of this opinion should take these limitations into
account in analyzing the insolvency risks associated with the transactions
described herein.
The opinions expressed above are given to you solely for your own benefit,
are not binding on any court, and may not be quoted in whole or in part or
otherwise referred to in any legal opinion, document, or other report to be
furnished to another person or entity without our prior written consent.
Very truly yours,
I-1-12
SCHEDULE A
Credit Suisse First Boston Corporation First Union Securities, Inc.
Eleven Madison Avenue First Union Capital Markets Group
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
McDonald Investments Inc. ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fitch Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
I-1-13
FIRST UNION NATIONAL BANK
OFFICER'S CERTIFICATE
In connection with the insolvency opinion dated June [__], 2001 (the
"Opinion") to be delivered to Fitch, Inc., ▇▇▇▇▇'▇ Investors Service, Inc.,
Credit Suisse First Boston Corporation, McDonald Investments Inc., First Union
Securities, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
by Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, in connection with the issuance of Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3 pursuant to that certain
Pooling and Servicing Agreement, dated as of June 1, 2001, by and among Credit
Suisse First Boston Mortgage Securities Corp, as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer and
special servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A. as trustee, the
undersigned hereby certifies that, to the best of his knowledge after due
inquiry and review of the Opinion:
1. The undersigned understands that Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ is
relying on this Certificate in connection with the execution and delivery of the
Opinion.
2. The facts and assumptions contained in the section of the Opinion
entitled "Facts and Assumptions" insofar as they pertain to the undersigned are
true and correct as of the date hereof.
3. The undersigned has no reason to believe that any statement or fact
expressed in the section of the Opinion entitled "Facts and Assumptions" is
untrue, inaccurate or incomplete.
4. I have been duly authorized to execute this Certificate on behalf of
First Union National Bank.
Dated: June [__], 2001 FIRST UNION NATIONAL BANK
By:
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
I-1-14
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
OFFICER'S CERTIFICATE
In connection with the insolvency opinion dated June [__], 2001 (the
"Opinion") to be delivered to Fitch, Inc., ▇▇▇▇▇'▇ Investors Service, Inc.,
Credit Suisse First Boston Corporation, McDonald Investments Inc., First Union
Securities, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.
by Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, in connection with the issuance of Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3 pursuant to that certain
Pooling and Servicing Agreement, dated as of June 1, 2001, by and among Credit
Suisse First Boston Mortgage Securities Corp, as depositor, KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer and
special servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A. as trustee, the
undersigned hereby certifies that he is the duly elected or appointed, qualified
and acting Vice President of the Company, and certifies further that:
1. He has made such investigation, including discussions with other
responsible officers of the Company, as is necessary to enable him to deliver
this certificate.
2. The Company, to the best of its knowledge, did not (i) execute the FUNB
Purchase Agreement, (ii) take from FUNB an assignment of the FUNB Mortgage
Loans, or (iii) otherwise effectuate or consummate any transfer pursuant to the
FUNB Purchase Agreement:
(a) in contemplation by Credit Suisse First Boston Mortgage Securities
Corp of FUNB's insolvency;
(b) after FUNB committed an act of insolvency;
(c) with intent to hinder, delay or defraud FUNB or its creditors;
(d) with a view to preferring one creditor of FUNB over another; or
(e) with a view to preventing the application of FUNB's assets in the
manner required by applicable law or regulations.
3. Credit Suisse First Boston Mortgage Securities Corp's agreements
expressed in the FUNB Purchase Agreement resulted from arm's-length bona fide
negotiations on the part of the Company.
I-2-1
All capitalized terms used herein and not otherwise defined herein
shall have the same meaning herein as in the Opinion.
Dated: June __, 2001 CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:
--------------------------
Name:
Title:
EXHIBIT I-2
FORM OF OPINION II OF CADWALADER ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇,
SPECIAL COUNSEL TO FIRST UNION NATIONAL BANK
June 13, 2001
Addressees Listed on Schedule A
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to First Union National Bank, a national
banking association (the "Mortgage Loan Seller"), in connection with the
Mortgage Loan Purchase Agreement, dated as of June 12, 2001 (the "Mortgage Loan
Purchase Agreement"), between Credit Suisse First Boston Mortgage Securities
Corp. (the "Depositor") and the Mortgage Loan Seller. Capitalized terms used
herein but not defined herein have the respective meanings given to them in the
Mortgage Loan Purchase Agreement. We are rendering this opinion letter to you at
the request of the Mortgage Loan Seller pursuant to Section 7(vii) of the
Mortgage Loan Purchase Agreement.
In rendering the opinions set forth below, we have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Mortgage Loan Purchase Agreement, and such certificates,
corporate and public records, agreements and instruments and other documents,
including, among other things, the documents delivered on the date hereof, as we
have deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to any facts
material to such opinions that were not known to us, we have relied upon
statements and representations of officers and other representatives of the
Mortgage Loan Seller, the Depositor and of public officials. Except as expressly
set forth herein, we have not undertaken any independent investigation
(including, without limitation, conducting any review, search or investigation
of any public files, records or dockets) to determine the existence or absence
of the facts that are material to our opinions, and no inference as to our
knowledge concerning such facts should be drawn from our reliance on the
representations of the Mortgage Loan Seller in connection with the preparation
and delivery of this letter.
We have also assumed that all documents, agreements and instruments have
been duly authorized, executed and delivered by all parties thereto, that all
such parties had the power
I-2-1
and legal right to execute and deliver all such documents, agreements and
instruments, and (other than with respect to the Mortgage Loan Seller) that such
documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and, to the extent expressly referred to in
this opinion letter, the federal laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Mortgage Loan Purchase Agreement constitutes a legal, valid and binding
agreement of the Mortgage Loan Seller, enforceable against the Mortgage Loan
Seller in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, receivership or
other laws relating to or affecting creditors' rights generally, and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of rights with
respect to indemnification and contribution obligations and provisions (a)
purporting to waive or limit rights to trial by jury, oral amendments to written
agreements or rights of set off or (b) relating to submission to jurisdiction,
venue or service of process, may be limited by applicable law or considerations
of public policy.
We are furnishing this opinion letter to you solely for your benefit in
connection with the transactions referred to herein. This opinion letter is not
to be relied upon, used, circulated, quoted or otherwise referred to by any
other person or entity or for any other purpose without our prior written
consent. In addition, we disclaim any obligation to update this opinion for
changes in fact or law, or otherwise.
Very truly yours,
I-2-2
SCHEDULE A
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fitch, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston
Mortgage Securities Corp.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Key Corp Real Estate Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, Minnesota, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
I-2-3
EXHIBIT I-3
FORM OF LETTER OF CADWALADER ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇,
SPECIAL COUNSEL TO FIRST UNION NATIONAL BANK
June 13, 2001
Addressees Listed on Schedule A
Re Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
----------------------------------------------------------------
Ladies and Gentlemen:
We are rendering this letter pursuant to (i) Section 7(ix) of the Mortgage
Loan Purchase and Sale Agreement, dated as of June 12, 2001, (the "Mortgage Loan
Purchase Agreement"), between First Union National Bank (the "Seller") and
Credit Suisse First Boston Mortgage Securities Corp. (the "Company"), relating
to the sale by the Seller and the purchase by the Company of certain commercial
and multifamily mortgage loans (the "First Union Mortgage Loans") and (ii)
Section 6(l) of the Underwriting Agreement dated June 12, 2001 (the
"Underwriting Agreement"), among the Company, First Union Securities, Inc.
("FUSI"), Credit Suisse First Boston Corporation ("CSFBC"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. ("SSB") and McDonald Investments Inc. (together with FUSI, CSFBC and SSB,
the "Underwriters") relating to the sale by the Company and the purchase by the
Underwriters of the Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C
and Class D Certificates (the "Offered Certificates"). The Class A-X, Class E,
Class F, Class G-1, Class G-2, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class R and Class V Certificates (the "Non-offered
Certificates") are being sold pursuant to a Certificate Purchase Agreement by
and between the Company and CSFBC. The Offered Certificates and Non-offered
Certificates are being issued pursuant to a Pooling and Servicing Agreement,
dated as of June 1, 2001 (the "Pooling and Servicing Agreement"), among the
Company, KeyCorp Real Estate Capital Markets, Inc., as master servicer and as
special servicer and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee. Capitalized
terms used herein but not defined herein have the respective meanings given them
in the Mortgage Loan Purchase Agreement.
We have acted as special counsel to the Seller in connection with the
aforementioned transaction, and have been asked by the Seller to deliver this
letter with respect to the Company's Prospectus, dated June 5, 2001 (the "Base
Prospectus"), as supplemented by the Prospectus Supplement, dated June 12, 2001,
relating to the Offered Certificates (collectively with the Base Prospectus, the
"Prospectus"), solely with respect to the information contained therein relating
to the First Union Mortgage Loans, which Prospectus is included as an exhibit to
the Confidential Offering Circular, dated June 12, 2001, relating to the
Non-offered Certificates.
We assume, for purposes of this letter, the conformity of the text of the
Prospectus filed with the Securities and Exchange Commission (the "Commission")
through the
I-3-1
Commission's Electronic Data Gathering, Analysis and Retrieval System to the
printed Prospectus reviewed by us. This letter is also limited to the actual
knowledge, without independent investigation, of any lawyer in our firm actively
involved in the transactions contemplated by the Mortgage Loan Purchase
Agreement.
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Prospectus, and we do not
pass upon such information or assume any responsibility therefor. In particular,
without limiting the generality of the foregoing and with your consent, we have
not reviewed any files relating to the First Union Mortgage Loans including,
without limitation, any documents prepared or delivered in connection with the
origination, modification or assignment of the First Union Mortgage Loans,
except: (1) the First Union Mortgage Loans identified on Exhibit A hereto that
we reviewed pursuant to our transaction due diligence and (2) the First Union
Mortgage Loans identified on Exhibit B hereto where we acted as counsel to the
lender. However, in the course of our review of the Prospectus, we have attended
certain conferences and participated in conversations with representatives of
the Seller, representatives of the Company, and the Company's independent public
accountants. On the basis of the information which we gained in the course of
the representation referred to above and our examination of the documents
referred to above, considered in light of our understanding of applicable law
and the experience we have gained through our practice, nothing has come to our
attention in the course of our review of the Prospectus which causes us to
believe that, as of the date of the Prospectus or as of the date hereof, 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 the light of the circumstances under which they were
made, not misleading; it being understood that we express no view as to (a) any
information incorporated by reference in the Prospectus, (b) the adequacy or
accuracy of (i) the financial, numerical, statistical or quantitative
information included in the Prospectus or (ii) any information contained in any
computer disk, CD-ROM or other electronic media accompanying the Prospectus
Supplement, or (c) any information in the Prospectus other than information
describing the First Union Mortgage Loans.
We are furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or entity
or for any other purpose without our prior written consent. In addition, we
disclaim any obligation to update this opinion for changes in fact or law, or
otherwise.
Very truly yours,
I-3-2
EXHIBIT A
Loan Number Loan Name
----------- ---------------------------
100474 Colony West Apartments
100430 Cambridge Towers Apartments
100329 Palm Garden Apartments
100363 Sabal Palms Apartments
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇-▇-▇
EXHIBIT B
Loan Number Loan Name
----------- -------------------------
100462 Cimarron Apartments
100464 Las Brisas Apartments
100463 ▇▇▇▇▇▇▇ Gables Apartments
I-3-4
SCHEDULE A
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
McDonald Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION I OF COUNSEL TO THE TRUSTEE
Credit Suisse First Boston KeyCorp Real Estate Capital Markets, Inc.
Mortgage Securities Corp. d/b/a/ Key Commercial Mortgage
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fitch, Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
McDonald Investments Inc. Credit Suisse First Boston Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to ▇▇▇▇▇ Fargo Bank Minnesota, N. A., a
national banking association, in its role as trustee (the "Trustee") in
connection with the issuance of the above referenced Certificates (the
"Certificates") pursuant to the Pooling and Servicing Agreement, dated as of
June 1, 2001, among Credit Suisse First Boston Mortgage Securities Corp., as
depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage, as master servicer and special servicer, and the Trustee (the
"Agreement"). All capitalized terms used herein and not defined shall have the
meanings assigned to them in the Agreement.
In connection with rendering this opinion letter, we have examined the
Agreement and such other documents as we have deemed necessary. As to certain
factual matters, we have relied, to the extent we have deemed proper, on
statements in the Agreement and certificates of, or other documents obtained
from, officers or representatives of the Trustee or other parties to the
Agreement or public officials. In rendering this opinion letter, we have also
assumed, without independent investigation (i) the authenticity of all documents
submitted to us as originals, the genuineness of signatures on all original
documents, the legal capacity of natural persons and the conformity to the
originals of all documents submitted to us as certified, conformed, photographic
or telecopied copies; (ii) the conformity to the requirements of the Agreement,
of the Mortgage Notes, the Mortgages and other documents delivered or caused to
be delivered to the Trustee by or on behalf of the Depositor; (iii) the
performance by all parties to the Agreement in accordance with their covenants
and agreements made therein; (iv) that the representations and warranties set
forth in the Agreement are true and correct, as to factual
J-1-1
matters; (v) that the Trustee has been duly organized and is validly existing
under the laws of the United States of America; (vi) that the execution,
delivery and performance of the Agreement by the Trustee do not conflict with or
violate any of the Trustee's organizational documents or by-laws or any
provision of any order, writ, judgment, injunction, decree, agreement,
determination or award applicable to the Trustee, do not violate any statute,
law or regulation of the United States of America and do not require any
authorization, approval or other action by, or notice to or filings with, any
governmental authority or regulatory body of the United States of America, other
than those that have been duly obtained or made and are in full force and
effect; (vii) that the Agreement has been duly authorized, executed and
delivered by, and constitutes the legal, valid and binding obligations of the
parties thereto (other than the Trustee); (viii) that the Agreement is duly
authorized, executed and delivered by the Trustee; (ix) that the Agreement is
executed and delivered in the form examined by us; and (x) that there is not any
agreement that materially supplements or otherwise modifies the agreements
expressed in the Agreement.
Certain attorneys of this Firm are members of the bar of the State of New
York. In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of New York, nor do we express any
opinion concerning the application of the "doing business" laws of any
jurisdiction (including New York) or the obligation of the Trustee to obtain any
authorization, consent, approval or license of, give notice to, or register
with, or take any other action with respect to any governmental or regulatory
authority or agency. We have made no independent investigations as to, or passed
on, the operation of the Trust or the sale of the Certificates in New York or in
any other state or the characterization of the Certificates or the Trust for
federal or state tax law purposes. We do not express any opinion on any issue
not expressly addressed below.
Based upon the foregoing and subject to the assumptions, limitations and
qualifications herein, it is our opinion that the Agreement constitutes a valid,
legal and binding agreement of the Trustee, enforceable against the Trustee in
accordance with its terms.
However, we express no opinion as to any of the following: (i) the effect
on enforceability of (a) any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting the rights of
creditors generally as they may be applied in the context of a national banking
association, or (b) general principles of equity, including (without limitation)
concepts of materiality, reasonableness, public policy, good faith, fair dealing
and the possible unavailability of specific performance or injunctive relief
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); (ii) any federal or state securities law; (iii) the
enforceability of any indemnity, contribution, set off or judgment currency
provisions; (iv) any law, rule, regulation, ordinance, code, guideline or
similar provision of law of any county, municipality or similar political
subdivision or any agency or instrumentality thereof; (v) any law, rule or
regulation (a) the violation of which would not have a material adverse effect
on the Trustee or (b) to which the Trustee may be subject as a result of any
other person's legal or regulatory status or any such other person's involvement
in the transactions contemplated by the Agreement; (vi) clauses relating to
severability or similar clauses; (vii) any clause stating that rights and
remedies of any party are cumulative and may be enforced in addition to any
other right or remedy and that the election of a particular remedy does not
preclude recourse to one or more remedies; (viii) the
J-1-2
availability of the defense of inconvenient forum in any action or proceeding in
any court sitting in the State of New York arising out of or relating to any
matter under the Agreement; (ix) the effectiveness of any waiver of venue or
waiver of jury trial; (x) any agreement to the sole jurisdiction of any court or
to the jurisdiction of a Federal court to the extent of the lack of subject
matter or diversity jurisdiction, or to the exclusive jurisdiction of any court;
(xi) any provision of the Agreement (a) restricting access to legal or equitable
remedies, (b) providing that the Agreement may only be amended, modified or
waived in writing, or (c) waiving rights or remedies which, as a matter of law,
cannot be waived; or (xii) usury.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document.
Very truly yours,
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
J-1-3
EXHIBIT J-2
FORM OF OPINION II OF COUNSEL TO THE TRUSTEE
June 13, 2001
Credit Suisse First Boston Mortgage KeyCorp Real Estate Capital Markets, Inc.
Securities Corp. D/b/a/ Key Commercial Mortgage
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fitch, Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Union Capital Investments LLC McDonald Investments Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
First Union National Bank Credit Suisse First Boston Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
KeyBank National Association Column Financial, Inc.
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates Series 2001-CK3
---------------------------------------------------------------
Ladies and Gentlemen:
I am Senior Counsel of ▇▇▇▇▇ Fargo & Company, the parent corporation of
▇▇▇▇▇ Fargo Bank Minnesota, N.A., a national banking association ("▇▇▇▇▇
Fargo"), and have been requested by ▇▇▇▇▇ Fargo to give this opinion in
connection with the Pooling and Servicing Agreement dated as of June 1, 2001
(the "Agreement"), among Credit Suisse First Boston Mortgage Securities Corp.,
as depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a/ Key Commercial
Mortgage, as master servicer and special servicer, and the Trustee relating to
the issuance of the above-referenced certificates (the "Certificates").
Capitalized terms used herein but not defined herein have the meanings given to
them in the Agreement.
In rendering the opinions set forth below, I have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Agreement and such certificates, corporate and public
records, agreements and instruments and other documents, including, among other
things, the documents delivered on the Closing Date, as I have deemed
appropriate as a basis for the opinions expressed below. In such examination, I
J-2-1
have assumed the genuineness of all signatures (other than ▇▇▇▇▇ Fargo), the
authenticity of all documents, agreements and instruments submitted to me as
originals, the conformity to original documents, agreements and instruments of
all documents, agreements and instruments submitted to me as copies or
specimens, the authenticity of the originals of all documents, agreements and
instruments submitted to me as copies or specimens, and the accuracy of the
matters set forth in the documents, agreements and instruments I reviewed. As to
any facts material to such opinions that were not known to me, I have relied
upon statements and representations of officers and other representatives of
▇▇▇▇▇ Fargo.
Based upon the foregoing, I am of the opinion that:
1. ▇▇▇▇▇ Fargo has been duly incorporated and is validly existing as a
national banking association and is duly qualified to do business and in good
standing under the laws of each jurisdiction in which the performance of its
duties under the Agreement would require such qualification and has the
requisite power and authority to execute, deliver and perform its obligations
under the Agreement.
2. The Agreement has been duly authorized, executed and delivered by ▇▇▇▇▇
Fargo and, assuming valid execution and delivery thereof by the other parties
thereto, the Agreement constitutes a valid and legally binding agreement of
▇▇▇▇▇ Fargo, enforceable against ▇▇▇▇▇ Fargo in accordance with its terms,
subject to bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights generally and to
general equity principles regardless of whether such enforcement is considered
in a proceeding at law or in equity.
3. No consent, approval, authorization or order of any Minnesota or federal
court or governmental agency or body is required for the consummation by ▇▇▇▇▇
Fargo of the transactions contemplated by the terms of the Agreement except any
such as may be required under the blue sky laws of any jurisdiction in
connection with the offering, sale or acquisition of the Certificates, any
recordations of the assignments of the mortgage loans evidenced by the
Certificates pursuant to the Agreement that have not yet been completed and any
approvals as have been obtained.
4. The consummation of the transactions contemplated by the terms of the
Agreement does not conflict with or result in a breach or violation of any
material term or provision of, or constitute a default under, (i) the articles
of incorporation or bylaws of ▇▇▇▇▇ Fargo, (ii) to my knowledge, any indenture
or other agreement or instrument to which ▇▇▇▇▇ Fargo is a party or by which it
is bound, (iii) any Minnesota or federal statute or regulation applicable to
▇▇▇▇▇ Fargo or (iv) any order known to me of any Minnesota or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over ▇▇▇▇▇ Fargo.
5. To the best of my knowledge after due inquiry, there are no legal or
governmental actions, investigations or proceedings pending to which ▇▇▇▇▇ Fargo
is a party, or threatened against ▇▇▇▇▇ Fargo (a) asserting the invalidity of
the Agreement or (b) which might materially and adversely affect the performance
by ▇▇▇▇▇ Fargo of its obligations under, or the
J-2-2
validity or enforceability of, the Agreement. For purposes of the foregoing, I
have not regarded any legal or governmental actions, investigations or
proceedings to be "threatened" unless the potential litigant or governmental
authority has manifested to a member of the law department of ▇▇▇▇▇ Fargo &
Company a present intention to initiate such proceedings.
I am admitted to practice law in the State of Minnesota. The opinions
expressed herein are limited to the present laws of the State of Minnesota and
the Federal laws of the United States. For purposes of the opinion expressed in
numbered paragraph 2 above with respect to the enforceability of the Agreement,
I have assumed that the laws of the State of New York are the same as the laws
of the State of Minnesota.
This letter is delivered to, and for the use of, the above addressees in
connection with the Agreement. This letter may not be delivered to any other
party for any purpose, and the opinions expressed herein may not be relied on by
any other party except upon my written consent.
Very truly yours,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Counsel
J-2-3
EXHIBIT K-1
FORM I OF DEPOSITOR'S OFFICER'S CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CK3
CERTIFICATE OF ASSISTANT SECRETARY OF
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
I, ▇▇▇▇▇▇ ▇▇▇▇▇, hereby certify that I am a duly appointed Assistant
Secretary of Credit Suisse First Boston Mortgage Securities Corp. (the
"Company"), and further certify as follows:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
2. To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Company are pending or contemplated.
3. Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Company and his genuine signature is set
forth opposite his name:
NAME OFFICE SIGNATURE
---- ------ ---------
-------------------------- -------------------- ----------------------------
-------------------------- -------------------- ----------------------------
4. Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Company, which Certificate of
Incorporation and By-Laws are, on the date hereof, and have been at all times
since the formation of the Company, in full force and effect.
5. Attached hereto as Exhibit II is a certificate of good standing of the
Company issued by the Secretary of State of the State of Delaware within ten
(10) days of the date hereof and no event (including, without limitation, any
act or omission on the part of the Company) has occurred since the date thereof
which has affected the good standing of the Company under the laws of the State
of Delaware.
6. The Board of Directors, by unanimous written consent dated ________,
2001 (the "Resolutions"), authorized all actions necessary to accomplish the
issuance and sale of the Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through
K-1-1
Certificates, Series 2001-CK3. The Resolutions are attached hereto as Exhibit
III. The Resolutions have not been amended, modified, annulled or revoked since
they were adopted, and are in full force and effect as of the date hereof, and
the instruments authorized in the Resolutions were executed pursuant thereto and
in compliance therewith.
Capitalized terms used but not defined herein have the respective meanings
assigned to them in the Pooling and Servicing Agreement, dated as of June 1,
2001, among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage, as
master servicer and as special servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A.,
as trustee.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
June , 2001.
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Secretary
K-1-2
EXHIBIT K-2
FORM II OF DEPOSITOR'S OFFICER'S CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK3
CERTIFICATE OF THE DEPOSITOR
In connection with the issuance of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2001-CK3
(the "Certificates"), pursuant to a Pooling and Servicing Agreement dated as of
June 1, 2001 (the "Pooling and Servicing Agreement"), among Credit Suisse First
Boston Mortgage Securities Corp., as (the "Depositor"), KeyCorp Real Estate
Capital Markets, Inc. d/b/a Key Commercial Mortgage as master servicer and as
special servicer, and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee, and the sale
of the Certificates pursuant to the Underwriting Agreement dated as of June ___,
2001 (the "Underwriting Agreement"), between the Depositor, Credit Suisse First
Boston Corporation ("CSFB"), McDonald Investments Inc. ("McDonald"), First Union
Securities, Inc. ("FUS") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SSBI"; and, together
with CSFB, McDonald and FUS, the "Underwriters"), and the Certificate Purchase
Agreement dated as of June ___, 2001 (the "Certificate Purchase Agreement"),
between the Depositor and CSFB (together, the Pooling and Servicing Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement are referred
to as the "Agreements"), the Depositor does hereby certify that (A) the
representations and warranties of the Depositor in the Agreements are true and
correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof and (B) the Depositor has in all material
respects complied with all the agreements and satisfied all the conditions on
its part required under the Agreements to be performed or satisfied at or prior
to the date hereof. Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to such terms in the Agreements.
Certified June , 2001
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:
------------------------------
Name:
Title:
K-2-1
EXHIBIT L
FORM OF TRUSTEE'S OFFICER'S CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK3
CERTIFICATE OF TRUSTEE
I, ______________________, a Vice President of ▇▇▇▇▇ Fargo Bank Minnesota,
N.A. ("▇▇▇▇▇ Fargo"), the trustee under the Pooling and Servicing Agreement,
dated as of June ___, 2001 (the "Agreement"), between Credit Suisse First Boston
Mortgage Securities Corp., as Depositor, KeyCorp Real Estate Capital Markets
Inc. d/b/a Key Commercial Mortgage, as Master Servicer and Special Servicer, and
▇▇▇▇▇ Fargo, as Trustee, hereby certify the following information. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Agreement.
(a) ▇▇▇▇▇ Fargo is the Trustee under the Agreement.
(b) The Agreement has been duly executed and acknowledged on behalf of the
Trustee by ____________________, [Vice President], its authorized signatory, and
the Agreement has been duly delivered on behalf of the Trustee.
(c) Attached hereto as Exhibits A, B, and C respectively, are true and
correct copies of the Organization Certificate, amended By-Laws and Resolutions
of the Board of Directors of ▇▇▇▇▇ Fargo, each of which is in full force and
effect on the date hereof.
(d) The signature set forth below, opposite the name and title of the
above-mentioned officer of the Trustee, is her authentic and genuine signature.
OFFICE NAME SIGNATURE
------ ---- ---------
-------------------------- -------------------- ----------------------------
-------------------------- -------------------- ----------------------------
(e) The officer named in paragraph (d) above was at the time of the acts
referred to in paragraph (b) above and (f) below, and is at the date hereof,
duly appointed, qualified and acting as an officer of the Trustee, and is duly
authorized to perform such acts, and the signature on the Agreement is her true
signature.
(f) The Certificates dated the date hereof and provided for by the
Agreement have been authenticated, on behalf of the trust created by the
Agreement, by authorized officers of the Trustee.
L-1
(g) The Certificates have on or before this date been delivered, by the
Trustee, to or on the order of the Depositor.
Dated: June ___, 2001
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Trustee
By:
------------------------------
Name:
Title:
L-2
EXHIBIT M
FORM OF MASTER SERVICER'S AND SPECIAL SERVICER'S OFFICER'S CERTIFICATE
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
OFFICER'S CERTIFICATE
The undersigned, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a Senior Vice President of KeyCorp Real
Estate Capital Markets, Inc. (the "Corporation"), in connection with the Pooling
and Servicing Agreement dated as of June 1, 2001 (the "Pooling and Servicing
Agreement"), by and among the Corporation, Credit Suisse First Boston Mortgage
Securities Corp. and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee (unless
otherwise indicated, defined terms used herein shall have the meanings assigned
to them in the Pooling and Servicing Agreement), hereby certifies that, to the
best of his knowledge, after reasonable investigation:
1. The undersigned has carefully examined the Prospectus Supplement and
nothing has come to the attention of the undersigned that would lead
the undersigned to believe that the statements in the Prospectus
Supplement relating to the Corporation and its operations contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
2. The representations and warranties made by the Corporation in the
Pooling and Servicing Agreement were true and correct in all material
respects as of the date of the Pooling and Servicing Agreement and are
true and correct in all material respects as of the date hereof.
3. The Corporation has in all material respects complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied under the Pooling and Servicing Agreement on or
prior to the Closing Date.
IN WITNESS WHEREOF, the above named officer has hereunto signed his name.
Dated: June __, 2001
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
M-1
EXHIBIT N
FORM OF COMPUTATIONAL MATERIAL/ABS TERM SHEET LEGEND
Under no circumstances shall the information presented herein constitute an
offer to sell or the solicitation of an offer to buy any security nor shall
there be any sale of securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
for an exemption from such registration under the securities laws of such
jurisdiction. You have requested that Credit Suisse First Boston Corporation,
First Union Securities, Inc., McDonald Investments Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc. (collectively, the "Underwriters") provide to you information in connection
with your consideration of the purchase of certain securities described herein.
The attached information is being provided to you for informative purposes only
in response to your specific request. By accepting this material the recipient
agrees that it will not distribute or provide the material to any other person.
The information contained herein has been compiled by the Underwriters from
sources which the Underwriters believe to be reasonably reliable. However, the
Underwriters make no representation or warranty as to the accuracy or
completeness of such information and you must make your own determination as to
whether the information is appropriate and responsive to your request. Any
investment decision with respect to the securities described herein should be
based solely on your own due diligence with respect to the securities and the
mortgage loans referred to herein and only upon your review of the final
prospectus and prospectus supplement for the securities. This information may
not be delivered by you to any other person without the Underwriters' prior
written consent. The Underwriters may from time to time perform investment
banking services for or solicit investment banking business from any company
named in the information herein. The Underwriters and/or their employees may
from time to time have a long or short position in any contract or security
discussed herein. Information contained in this material is current as of the
date appearing on this material only. Information in this material regarding any
assets backing any securities discussed herein supercedes all prior information
regarding such assets. All information in this term sheet whether regarding the
assets backing any securities discussed herein or otherwise will be superseded
by the information contained in any final prospectus and prospectus supplement
for any securities actually sold to you.
N-1