Execution Copy
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
UNDERWRITING AGREEMENT
----------------------
August 11, 2004
CREDIT SUISSE FIRST BOSTON LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PNC CAPITAL MARKETS, INC.
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation (the "Depositor"), proposes to form one or more real estate
mortgage investment conduits (the "Trust"), which will issue securities entitled
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2004-C3 (such series of securities, the
"Series 2004-C3 Securities"). The Depositor further proposes, subject to the
terms and conditions stated in this underwriting agreement (this "Agreement"),
to sell to you, as underwriters (the "Underwriters" and, individually, an
"Underwriter"), those classes of the Series 2004-C3 Securities as are identified
on Schedule I hereto (the classes of securities identified on Schedule I hereto,
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 174
fixed rate mortgage loans, secured by 191 multifamily and commercial properties
(collectively, the "Mortgage Loans") that will be purchased by the Depositor
from Column Financial, Inc. (the "Column Mortgage Loan Seller") and PNC Bank,
National Association (the "PNC Bank Mortgage Loan Seller" and together with the
Column Mortgage Loan Seller, the "Mortgage Loan Sellers"), pursuant to those
certain Mortgage Loan Purchase Agreements, each dated as of August 11, 2004 (the
"Mortgage Loan Purchase Agreements"), and will (except in one case) be serviced
by Midland Loan Services, Inc., as master servicer (the "Master Servicer") and
Clarion Partners, LLC, as special servicer (the "Special Servicer"), pursuant to
that certain Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of August 1, 2004, by and among the Depositor, the Master
Servicer, the Special Servicer and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee") and custodian, and certain related property to be conveyed to the
Trust by the Depositor (the "Trust Fund"). The Mortgage Loans will be
transferred to the Trust, and the Certificates will be issued pursuant to the
Pooling and Servicing Agreement.
The offering of the Certificates made pursuant to the Registration
Statement (as defined below) will be made through you as underwriters. Schedule
I shall specify the principal or notional balance of each class of the
Certificates to be issued and any terms thereof not otherwise specified in the
Pooling and Servicing Agreement, the classes of Certificates subject to this
Agreement, the price at which such Certificates are to be purchased by the
Underwriters from the Depositor, the aggregate amount of Certificates to be
purchased by you and the initial public offering price or the method by which
the price at which such Certificates are to be sold will be determined. The
offering of the Certificates will be governed by this Agreement.
2. Representations and Warranties of the Depositor.
The Depositor represents and warrants to you as of the date hereof as
follows:
(a) a registration statement on Form S-3, including a prospectus and
such amendments thereto as may have been required to the date hereof, relating
to the Certificates and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "Act"), in the
form heretofore delivered to you, has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective; such
registration statement, as amended (excluding any related Computational
Materials and ABS Term Sheets (each as defined in Section 8(a) below) previously
filed or to be filed and any Computational Materials and ABS Term Sheets
relating to securities other than the Certificates), and the prospectus relating
to the sale of the Certificates offered thereby by the Depositor and
constituting a part of such registration statement, as such prospectus is from
time to time amended or supplemented (including any prospectus filed with the
Commission pursuant to Rule 424(b) of the rules and regulations of the
Commission (the "Rules and Regulations") under the Act), are respectively
referred to herein as the "Registration Statement" and the "Base Prospectus";
the conditions to the use of a registration statement on Form S-3 under the Act,
as set forth in the General Instructions to Form S-3, and the conditions of Rule
415 under the Act have been satisfied with respect to the Registration
Statement; and no other amendment to the Registration Statement will be filed
which shall have been reasonably disapproved by you promptly after reasonable
notice thereof;
(b) there is no request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional information;
the Commission has not issued any stop order suspending the effectiveness of the
Registration Statement and the Depositor is not aware of any proceeding for that
purpose having been instituted or threatened; and there has been no notification
with respect to the suspension of the qualification for sale of the Certificates
for sale in any jurisdiction or any proceeding for such purpose having been
instituted or threatened;
(c) the Registration Statement (i) on its effective date and on the
date of the then most recently filed Prospectus Supplement conformed in all
respects to the requirements of the Act
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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, the preliminary prospectus supplement, as amended or
supplemented (including any computer diskettes delivered as part of such
preliminary prospectus supplement) (the "Preliminary Prospectus Supplement") and
the prospectus supplement, as amended or supplemented (including any computer
diskettes delivered as part of such prospectus supplement) (the "Prospectus
Supplement"), to the Base Prospectus prepared pursuant to Section 5(a) below
(the Prospectus Supplement, together with the Base Prospectus, the
"Prospectus"), on the date hereof and on the Specified Delivery Date will
conform in all respects to the requirements of the Act and the Rules and
Regulations thereunder and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
foregoing does not apply to statements in or omissions from either the
Registration Statement or the Prospectus to the extent based upon and in
conformity with (A) written information furnished to the Depositor by any
Underwriter specifically for use therein, and (B) the Mortgage Loan Seller's
Information (collectively as defined in each of the Seller Indemnification
Agreements (as defined herein)) and the Indemnitor's Information (as defined in
the Additional Indemnification Agreement (as defined herein)); provided,
further, that the Depositor makes no representations and warranties as to the
information contained in or omitted from any Current Report (as defined in
Section 8(a) below), or in any amendment or supplement thereto, incorporated by
reference in the Registration Statement or the Prospectus;
(d) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as
described in the Prospectus, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Depositor, and is conducting its business so as to comply in all material
respects with the applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business;
(e) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the Specified
Delivery Date (as defined herein), to the description thereof contained in the
Registration Statement and the Prospectus; and the Certificates, on the date
hereof, will have been duly and validly authorized and, when such Certificates
are duly and validly executed by the Depositor or the Trustee, authenticated by
the Trustee and delivered in accordance with the Pooling and Servicing Agreement
and delivered and paid for as provided herein, will be validly issued and
outstanding and entitled to the benefits 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
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material adverse effect on the performance by the Depositor of its obligations
under this Agreement, the Pooling and Servicing Agreement, the Certificates or
any of the Mortgage Loan Purchase Agreements; 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, any 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, (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;
(g) 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;
(h) 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;
(i) the Depositor possesses all material licenses, certificates,
authorizations 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, authorization 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;
(j) 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, 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
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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;
(k) this Agreement has been duly authorized, executed and delivered by
the Depositor;
(l) on the Specified Delivery Date, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements will have been duly authorized,
executed and delivered by the Depositor and will be valid and binding agreements
of the Depositor, enforceable against the Depositor in accordance with 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 organization, or of any court, governmental
agency or body or official (except with respect to the state securities or "blue
sky" laws of various jurisdictions) required in connection with the valid and
proper authorization, issuance and sale of the Certificates pursuant to this
Agreement and the Pooling and Servicing Agreement have been or will be taken or
obtained on or prior to the Specified Delivery Date;
(n) at the Specified Delivery Date, each of the Mortgage Loans will
meet the criteria for selection described in the Prospectus Supplement;
(o) 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 under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"); (p) at the
time of the execution and delivery of the Pooling and Servicing Agreement, the
Depositor (A) except as disclosed in the Prospectus, will convey to the Trustee,
or cause to be conveyed to the Trustee, all of the Depositor's right, title and
interest in and to the Mortgage Loans being transferred to the Trustee pursuant
to the Pooling and Servicing Agreement, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively "Liens") granted by or imposed upon the Depositor, (B) will not
have assigned to any 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 to be transferred 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. The consideration
received by the Depositor upon the sale of the Certificates to the Underwriters
will constitute reasonably equivalent value and fair consideration for the
Certificates. 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. 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;
(r) 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; and
(s) 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. Delivery of and payment
for the Certificates will be made at such place and at such time as shall be
specified in Schedule I or at such other time thereafter as set forth in
Schedule I or as you and the Depositor shall agree upon, each such time being
hereinafter referred to as a "Specified Delivery Date." Delivery of such
Certificates shall be made by the Depositor to the Underwriters against payment
of the purchase price specified in Schedule I in same day funds wired to such
bank as may be designated by the Depositor, or by such other manner of payment
as may be agreed upon by the Depositor and you. Unless otherwise provided for,
the Certificates to be so delivered will be in definitive, fully registered
form, in such denominations and registered in such names as you request, and
will be made available for checking and packaging at the office of Credit Suisse
First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at some
other location specified by the Underwriters at least 48 hours prior to
delivery), at least 24 hours prior to the Specified Delivery Date.
4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Certificates subject to this Agreement for sale to the public as set forth in
the Prospectus.
(b) Each Underwriter represents, warrants and agrees that: (i) it has
not sold or offered the Certificates in the United Kingdom, and it has not
delivered or communicated the Prospectus or any other invitation or inducement
to buy or participate in the Certificates in the United Kingdom, except to
persons who (A) have professional experience of participating in unregulated
collective investment schemes and of matters relating to investments falling
within both Article 14(5) of the Financial Services and Markets Act 2000
(Promotion of Collective Investment Schemes) (Exemptions) Order 2001 (the "CIS
Order") and Article 19(5) of the Financial Services and Markets Act (Financial
Promotion) Order 2001 (the "FP order") or (B) fall within Article 22(2)(a)
through (d) ("high net worth companies, unincorporated associations,
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etc.") of the CIS Order and Article 49(2)(a) though (d) of the FP Order; and
(ii) it has complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 with respect to anything done by it in
relation to the Certificates in, from or otherwise involving the United Kingdom.
5. Covenants of the Depositor. The Depositor covenants and agrees with
you that:
(a) the Depositor has prepared and/or shall prepare a Prospectus
Supplement setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Base Prospectus, the price at which
such Certificates are to be purchased by the Underwriters from the Depositor,
either the initial public offering price or the method by which the price at
which such Certificates are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as you and the
Depositor deem appropriate in connection with the offering of such Certificates,
but the Depositor shall not file any amendments to the Registration Statement as
in effect with respect to the Certificates, 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 has been filed or has become or will become effective or
any supplement to the Prospectus or any amended Prospectus, in each case
relating to the Certificates specified in Schedule I has been filed and will
furnish you with copies thereof, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any additional
information relating to the Certificates and (iii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Certificates or of any proceedings or examinations that may lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or "blue sky" law, as soon as the Depositor
is advised thereof, and shall use its best efforts to prevent the issuance of
any such order or communication and to obtain as soon as possible its lifting,
if issued. Subject to the Underwriters' compliance with their obligations set
forth in Section 8 below and receipt by the Depositor of a letter from Xxxxx &
Young, LLP satisfactory in form and substance to the Depositor, to the effect
that such accountants have performed certain specified procedures, all of which
have been agreed to by the Depositor, as a result of which they have determined
that the information included in the Computational Materials and ABS Term Sheets
provided by the Underwriters to the Depositor for filing on Form 8-K pursuant to
Section 8 and this subsection (a), and that the accountants have examined in
accordance with such agreed upon procedures, is accurate except as to such
matters that are not deemed by the Depositor to be material, the Depositor shall
file with the Commission a Current Report on Form 8-K including any
Computational Materials and ABS Term Sheets provided to it by any Underwriter
pursuant to Section 8 below not later than the date on which such Current Report
is required to be filed with the Commission;
(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
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the Rules and Regulations, the Depositor shall prepare and file with the
Commission, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance;
(c) the Depositor shall make generally available to the holders of the
Certificates (the "Certificateholders"), in each case as soon as practicable,
earning statements covering (i) a period of 12 months beginning not later than
the first day of the related 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 Trustee to furnish or make available, within a reasonable time after
the end of each calendar year, to each holder of a Certificate at any time
during such year, such information as the Depositor deems necessary or desirable
to assist Certificateholders in preparing their federal income tax returns;
(d) the Depositor shall furnish to you copies of the Registration
Statement, the Prospectus, and all amendments and supplements to such documents
relating to the Certificates, in each case as soon as available and in such
quantities as you reasonably request as long as the Depositor is required to
deliver the Prospectus under the Act in connection with the sale of the
Certificates; provided that any such documents requested by you on a date that
is more than nine (9) months after the Closing Date shall be provided at your
expense;
(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 Depositor shall, while the Certificates are outstanding;
(i) furnish to you, within 90 days after the close of each fiscal
year, appropriate annual financial statements of the Trust, certified
by a nationally recognized firm of independent public accountants, in
such form as to disclose its financial condition at the end of, and the
results of its operations for, such fiscal year;
(ii) furnish to you, as soon as available, copies of all reports
filed with the Commission and copies of each notice published or mailed
to holders of the Certificates pursuant to the Pooling and Servicing
Agreement; and
(iii) furnish to you such other information with respect to the
Trust or its financial condition or results of operations, as you may
reasonably request, including but not limited to information necessary
or appropriate to the maintenance of a secondary market in the
Certificates; and
(g) as between itself and the Underwriters, the Depositor will pay all
expenses incidental to the performance of its obligations under this Agreement,
including without
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limitation (i) expenses of preparing, printing and reproducing the Prospectus,
the Pooling and Servicing Agreement and the Certificates, (ii) the fees charged
by Xxxxx'x Investors Service, Inc. ("Moody's") and Xxxxx, Inc. ("Fitch" and
together with Moody's, the "Rating Agencies") for rating the Certificates, (iii)
the fees and expenses of the Trustee and any agent of the Trustee and the fees
and disbursements of counsel for the Trustee in connection with the Pooling and
Servicing Agreement and the Certificates, and (iv) all other costs and expenses
incidental to the performance by the Depositor of its obligations hereunder that
are not otherwise specifically provided for in this subsection. It is understood
that, except as provided in this subsection (g) and in Section 10 below, each
Underwriter will pay all of its own expenses including all out-of-pocket and/or
internally allocated costs and expenses incurred by them in connection with the
transaction herein contemplated, including, without limitation, fees and
expenses of their counsel, any transfer taxes on the Certificates and the
expenses of any advertising of the offering of the Certificates made by the
Underwriters; 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 obligations
of the Underwriters to purchase and pay for 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 hereof, 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 a letter from Xxxxx & Young LLP dated the
date hereof and, if requested by you, dated the Specified Delivery Date, each in
the forms heretofore agreed to;
(b) all actions required to be taken and all filings required to be
made by the Depositor under the Act prior to the Specified Delivery Date shall
have been duly taken or made; and prior to the Specified Delivery Date, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or to the
knowledge of the Depositor or any Underwriter, shall be contemplated by the
Commission;
(c) unless otherwise specified in Schedule I, the Certificates subject
to this Agreement and offered by means of the Registration Statement shall be
rated the ratings specified in Schedule I, and shall not have been lowered or
placed on any credit watch with a negative implication for downgrade;
(d) you shall have received opinions of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP
special counsel to the Depositor and Credit Suisse First Boston LLC, dated the
Specified Delivery Date, in substantially in the form agreed to on or prior to
such date;
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(e) you shall have received an opinion of special counsel to each
Mortgage Loan Seller, dated the Specified Delivery Date, in the form agreed to
on or prior to such date;
(f) you shall have received an opinion of counsel to the Trustee, dated
the Specified Delivery Date, in the form agreed to on or prior to such date,
which shall also be addressed to the Rating Agencies, the Depositor and the
Trustee or shall be accompanied by a reliance letter addressed to such parties;
(g) you shall have received an opinion of counsel of each Master
Servicer, dated the Specified Delivery Date, in the form agreed to on or prior
to such date;
(h) you shall have received an opinion of counsel of each Special
Servicer, dated the Specified Delivery Date, in the form agreed to on or prior
to such date;
(i) you shall have received letters, dated the Specified Delivery Date,
from counsel rendering opinions to the Rating Agencies, to the effect that you
may rely upon their opinion to such Rating Agencies, as if such opinion were
rendered to you, or such opinions shall be addressed to you;
(j) you shall have received a certificate or certificates signed by
such of the principal executive, financial and accounting officers of the
Depositor as you may request, dated the Specified Delivery Date, in the form
agreed to on or prior to such date;
(k) 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 the form agreed to on or prior to such date;
(l) you shall have received a certificate of the Master Servicer,
signed by one or more duly authorized officers of the Master Servicer, dated the
Specified Delivery Date, in the form agreed to on or prior to such date;
(m) you shall have received a certificate of the Special Servicer,
signed by one or more duly authorized officers of the Special Servicer, dated
the Specified Delivery Date, in the form agreed to on or prior to such date;
(n) the Mortgage Loan Sellers shall have sold the Mortgage Loans to the
Depositor pursuant to the Mortgage Loan Purchase Agreements; and
(o) you shall have received such other documents, certificates, letters
and opinions as you may reasonably request.
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,
to which such Underwriter or such officer, director or controlling person may
become subject under the Act, the Exchange Act or otherwise, and shall reimburse
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any legal or other expenses reasonably incurred by such Underwriter 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 or (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Preliminary Prospectus Supplement, the Prospectus Supplement or the Base
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; 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 (x) arises out of or is based upon any such untrue
statement or alleged untrue statement in, or omission or alleged omission from,
any such documents in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of an Underwriter specifically for
use therein (the "Underwriters' Information"), (y) is indemnified for by any of
(i) the Column Mortgage Loan Seller pursuant to the Indemnification Agreement,
dated August 11, 2004, between the Column Mortgage Loan Seller, the Depositor,
CSFB LLC, in its capacity as purchaser of those classes of Series 2004-C3
Securities being privately offered (in such capacity, the "Initial Purchaser"),
and the Underwriters, (ii) the PNC Bank Mortgage Loan Seller pursuant to the
Indemnification Agreement, dated August 11, 2004, between the PNC Bank Mortgage
Loan Seller, the Depositor, the Initial Purchaser and the Underwriters (the
indemnification agreements identified in the preceding clauses (i) and (ii),
collectively, the "Seller Indemnification Agreements"), or (iii) KeyBank
National Association pursuant to the Indemnification Agreement, dated August 11,
2004, between KeyBank National Association, the Depositor, the Initial Purchaser
and the Underwriters (the "Additional Indemnification Agreement"), or (z) is
caused by any untrue statement or alleged untrue statement contained in, or any
omission or alleged omission from, any Computational Materials or ABS Term
Sheets (when read together with the Prospectus) so long as such untrue statement
or alleged untrue statement contained in, or any omission or alleged omission
from, any Computational Materials or ABS Term Sheets is not also contained in
the Prospectus; provided, further, that the indemnity with respect to the
Prospectus shall not inure to the benefit of the Underwriters if information
that corrected any untrue statement or omission of a material fact contained in
or excluded from the Preliminary Prospectus Supplement or the Base Prospectus
delivered therewith was furnished to the Underwriters prior to the Closing Date
and the person asserting any such loss, claim, damage or liability did not
receive a copy of a final Prospectus (or, any supplement thereto) that corrected
such untrue statement or omission of a material fact contained in the
Preliminary Prospectus Supplement or the Base Prospectus delivered therewith at
or prior to the confirmation of the sale of the Certificates, if delivery of a
prospectus relating to the Certificates was required to be delivered by such
Underwriters under the Act. The Depositor acknowledges that the following
statements constitute the only Underwriters' Information furnished in writing by
or on behalf of the Underwriters for inclusion in the Prospectus: the first
sentence of the sixth paragraph on the cover of the Prospectus; the sub-heading
"Summary of Prospectus Supplement--Relevant Parties/Entities--Underwriters"; and
the first sentence of the fourth paragraph, and the second sentence of the fifth
paragraph under the heading "Underwriting" in
11
the Prospectus. This indemnity agreement shall be in addition to any liability
which the Depositor may otherwise have.
(b) Each Underwriter shall severally, and not jointly, indemnify and
hold harmless the Depositor, each of its directors, each of its officers who has
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of the Act or the Exchange Act against any
expenses, losses, claims, damages or liabilities to which the Depositor or any
such director, officer or controlling person may become subject under the Act,
the Exchange Act or otherwise, and shall reimburse any legal or other expenses
reasonably incurred by the Depositor or any such director, officer or
controlling person in connection with investigating or defending any such
expense, loss, claim, damage, liability or action, in each case insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of any material fact contained in 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, in the case of clauses (i) and (ii) to the extent, but only to the
extent, that any such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with
Underwriters' Information or (iii)(A) any untrue statement or alleged untrue
statement of any material fact contained in the Computational Materials or ABS
Term Sheets that such Underwriter prepared or (B) the omission or the alleged
omission to state a material fact in the Computational Materials or ABS Term
Sheets (when read together with the Prospectus) required to be stated therein or
necessary to make the statements therein not misleading, other than, in the case
of clauses (iii)(A) and (iii)(B), any untrue statement, alleged untrue
statement, omission or alleged omission (including those of a quantitative
nature) resulting from information regarding Mortgage Loans provided by a
Mortgage Loan Seller and used for purposes of preparing the Computational
Materials or ABS Term Sheets or any other errors in such Computational Materials
or ABS Term Sheets to the extent such error resulted from such information.
Notwithstanding the foregoing, the indemnity provided in clause (iii) in the
immediately preceding sentence will apply only if such misstatement or omission
was not also a misstatement or omission in the Prospectus Supplement. This
indemnity agreement shall be in addition to any liability that such Underwriter
may otherwise have.
(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 under Section 7(a) and (b),
except to the extent that such omission to notify materially prejudices the
indemnifying party or relieve it from any liability that it may have other than
under this Agreement. In case any such action is brought against any indemnified
party, after such indemnifying party has been notified of the commencement
thereof, such indemnifying party shall be entitled to participate therein (at
its own expense), and, to the extent that it may wish, shall be entitled to
assume the defense thereof
12
(jointly with any other indemnifying party similarly notified) with counsel
reasonably satisfactory to such indemnified party (which shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election to so assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel, (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
designate within a reasonable period of time counsel reasonably satisfactory to
the indemnified party (in which case the fees and expenses shall be paid by the
indemnifying party as incurred by the indemnified 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. 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 (i)
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 and
(ii) does not require an admission of fault by the indemnified party, without
the consent of the indemnified party.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 7 or is insufficient in respect of any liabilities
referred to therein (on grounds of public policy or otherwise), the parties
entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, 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 not only the relative
benefits received by the Depositor on the one hand and such Underwriter on the
other from the offering of the Certificates but also 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
13
entity for such purpose). Notwithstanding the provisions of this subsection (d),
each Underwriter shall not be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions and other fees
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 such 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 losses, claims, damages or other liabilities referred to in this Section 7
shall be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) 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 such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of any
Underwriter and to each person, if any, who controls any Underwriter within the
meaning of the Act or the Exchange 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 or Exchange Act.
(h) Each Underwriter will indemnify and hold harmless the other
Underwriters and each person, if any, who controls such Underwriters within the
meaning of either the Act or the Exchange Act (the "Non-Indemnifying
Underwriters") from and against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which the Non-Indemnifying Underwriters
becomes subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, common law or otherwise, insofar as such expenses,
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of material fact contained in any
Computational Materials, ABS Term Sheets or other written materials developed
by, mailed or otherwise transmitted by such indemnifying Underwriter, or any
member of its selling group, in connection with the Certificates or in any
revision or amendment thereof or supplement thereto, other than any untrue
statement (including any of a
14
quantitative nature) resulting from information regarding the Mortgage Loans
provided by the Mortgage Loan Sellers and used for purposes of preparing such
computational or other written materials or any other errors reflected in such
materials to the extent such error resulted from such information. This
agreement will be in addition to any liability that any Underwriter may
otherwise have.
8. Computational Materials.
(a) The Underwriters agree to provide to the Depositor not later than
10:30 a.m., New York time, on the Business Day before the date on which a
Current Report on Form 8-K is required to be filed by the Depositor with the
Commission pursuant to the No-Action Letters (as defined below) (each, a
"Current Report") five complete copies of all materials that have been provided
by the Underwriters to prospective investors in the Certificates and that
constitute (i) "Computational Materials" within the meaning of the no-action
letter dated May 20, 1994 and issued by the Division of Corporation Finance of
the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx &
Co. Incorporated and Xxxxxx Structured Asset Corporation and the no-action
letter dated May 27, 1994 and issued by the Division of Corporation Finance of
the Commission to the Public Securities Association (together, the "Xxxxxx
Letters") and (ii) "ABS Term Sheets" within the meaning of the no-action letter
dated February 17, 1995 and issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together with the Xxxxxx
Letters, the "No-Action Letters"), and the Underwriters acknowledge that the
filing of such materials is a condition of relief granted in such letter (such
materials, the "Computational Materials" and the "ABS Term Sheets,"
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. Neither Underwriter shall provide to any investor or prospective
investor in the Certificates any Computational Materials or ABS Term Sheets on
or after the day on which Computational Materials or ABS Term Sheets are
required to be provided to the Depositor pursuant to this subsection (a) (other
than copies of Computational Materials or ABS Term Sheets previously submitted
to the Depositor in accordance with this subsection (a)) for filing pursuant to
Section 5(a), unless such Computational Materials or ABS Term Sheets are
preceded or accompanied by the delivery of a Prospectus to such investor or
prospective investor.
(b) As of the date of this Agreement and as of the Specified Delivery
Date, each of the Underwriters represents and warrants to, and agrees with, the
Depositor and with each other Underwriter that: (i) the Computational Materials
and ABS Term Sheets furnished to the Depositor pursuant to Section 8(a) above,
if any, constitute (either in original, aggregated or consolidated form) all of
the materials furnished to prospective investors by such Underwriter that is
required to be filed with the Commission with respect to the Certificates in
accordance with the No-Action Letters, and such Computational Materials and ABS
Term Sheets comply with the requirements of the No-Action Letters; (ii) on the
date any such Computational
15
Materials and ABS Term Sheets with respect to such Certificates (or any written
or electronic materials furnished to prospective investors on which such
Computational Materials and ABS Term Sheets are based) were last furnished to
each prospective investor and on the date of delivery thereof to the Depositor
pursuant to Section 8(a) above and on such Specified Delivery Date, such
Computational Materials and ABS Term Sheets (or materials) were accurate in all
material respects when read in conjunction with the Prospectus (taking into
account the assumptions explicitly set forth in the Computational Materials),
except to the extent of any errors therein that are caused by errors in the
Mortgage Loan Seller's Information; (iii) such Underwriter will not represent to
potential investors that any Computational Materials and ABS Term Sheets were
prepared or disseminated by 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 A. 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 error contained in the Mortgage
Loan Seller's Information.
(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 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 final
Mortgage Loans or the Mortgage Loan Seller's Information in any material respect
or were based on Certificate structuring terms that were revised 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 final Mortgage Loan Seller's Information and structuring assumptions, shall
circulate such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated orally to the
Underwriters they would purchase all or any portion of the Certificates, and
shall include such revised Computational Materials or ABS Term Sheets (marked
"as revised") in the materials delivered to the Depositor pursuant to Section
8(a) above.
(d) If, within the period during which the Prospectus relating to the
Certificates is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of the
Depositor or the related Underwriter, to contain a material error or omission,
such Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected Computational
Materials or ABS Term Sheets to all recipients of the prior versions thereof
that either indicated orally to such Underwriter they would purchase all or any
portion of the Certificates, or actually purchased all or any portion thereof,
and shall deliver copies of such corrected Computational Materials or ABS Term
Sheets (marked, "as corrected") to the Depositor for filing with the Commission
in a subsequent Form 8-K submission (subject to the Depositor's obtaining an
accountant's comfort letter in respect of such corrected Computational Materials
and ABS Term
16
Sheets, which the parties acknowledge shall be at the expense of the related
Mortgage Loan Seller). 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 contained any material error or omission and each Underwriter agrees to
promptly notify the Depositor of any such material error or omission of which
such Underwriter becomes aware. Notwithstanding the foregoing, the Underwriters
make no representation or warranty as to whether any Computational Materials or
ABS Term Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials or ABS Term Sheets are based)
included or will include any inaccurate statement resulting directly from any
error contained in the Mortgage Loan Seller's Information.
(e) Each Underwriter shall be deemed to have represented, as of the
Specified Delivery Date, that, except for Computational Materials and ABS Term
Sheets provided to the Depositor pursuant to subsection (a) above, such
Underwriter did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Certificates
that is required to be filed with the Commission in accordance with the
No-Action Letters, and each Underwriter shall separately provide the Depositor
with a certification to that effect on the Specified Delivery Date.
(f) In the event of any delay in the delivery by either Underwriter to
the Depositor of Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (a) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 5(a), the
Depositor shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Specified Delivery Date and to
take other appropriate actions in each case as necessary in order to allow the
Depositor to comply with its agreement set forth in Section 5(a) to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(g) Each Underwriter further represents and warrants that, if and to
the extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in clauses (c),
(d) and (f) above have been satisfied with respect thereto.
9. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Certificates hereunder and the aggregate principal
amount of Certificates that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of
Certificates to be purchased hereunder, Credit Suisse First Boston LLC may make
arrangements satisfactory to the Depositor for the purchase of such Certificates
by other persons, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters 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
Credit Suisse First Boston LLC ("CSFB LLC") 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 10.
As used in this Agreement, the term "Underwriter" includes
17
any person substituted for an 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 the Underwriters to purchase on the Specified
Delivery Date the Certificates described in Schedule I shall be terminable by
CSFB LLC if at any time on or prior to the Specified Delivery Date (i) any
change, or any development or event involving a prospective change in the
condition (financial or other), business, properties or results of operations of
the Depositor or the Trust which, in the judgment of a majority in interest of
the Underwriters (based on Underwriting obligations) including CSFB LLC, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Certificates; (ii) any downgrading in the rating of any of the Certificates by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 43 6(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any of the
Certificates (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters including CSFB LLC,
be likely to prejudice materially the success of the proposed issue, sale or
distribution of the Certificates, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any Certificates on any relevant exchange or in the over-the-counter
market; (v) any general moratorium on commercial banking activities declared by
any Federal or New York State authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States; or (vii)
any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including CSFB LLC, the effect of any
such attack, outbreak, escalation, act, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the public offering
or the sale of any payment for the Certificates.
(c) If any Underwriter terminates its obligations under this Agreement
in accordance with Section 10(a), the Depositor shall reimburse such Underwriter
for all reasonable out-of pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by such
Underwriter in connection with the proposed purchase and sale of the
Certificates.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Depositor and of the several
18
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 their respective 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 in
Schedule I is not consummated, the Depositor shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(g) above, and the
obligations of the Depositor and such Underwriters pursuant to Section 7 above
shall remain in effect.
12. Obligations of Column Financial, Inc. Column Financial, Inc. agrees
with the Underwriters, for the sole and exclusive benefit of the Underwriters
and each of their respective officers, directors and any other person, if any,
who controls the Underwriters within the meaning of the Act or the Exchange Act
and not for the benefit of any assignee thereof or any other person or persons
dealing with the Underwriters, to indemnify and hold harmless the Underwriters
against any failure by the Depositor to perform its obligations to the
Underwriters and their officers, directors and control persons pursuant to
Section 7(a) hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to Credit Suisse First Boston LLC, shall be mailed, delivered or telecopied
to it at Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx Xxxxxx, Esq., Legal
Compliance Department, Telecopy No.: (000) 000-0000; if sent to PNC Capital
Markets, Inc., shall be mailed, delivered or telecopied to it at PNC Capital
Markets, Inc., One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxxxx Xxxxxx, Telecopy No.: (000) 000-0000, with a copy to Xxxxxxx
Xxxxxxxx, Telecopy No.: (000) 000-0000; if sent to Xxxxxxx, Xxxxx & Co., shall
be mailed, delivered or telecopied to it at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxxxxx, Telecopy No.: (000) 000-0000; or if sent to the
Depositor, shall be mailed, delivered or telecopied to it at Credit Suisse First
Boston Mortgage Securities Corp., Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx Xxxxxx, Esq., Legal
Compliance Department, Telecopy No.: (000) 000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 7 shall be mailed, delivered or
telegraphed to such Underwriter at the address furnished by it.
14. 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.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Depositor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Depositor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written communications.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
20
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 LLC,
as Underwriter
By:
--------------------------------------------------
Name:
Title:
PNC CAPITAL MARKETS, INC.,
as Underwriter
By:
--------------------------------------------------
Name:
Title
XXXXXXX, XXXXX & CO.,
as Underwriter
By:
--------------------------------------------------
(Xxxxxxx, Xxxxx & Co.)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Acknowledged and agreed solely as to Section 12:
COLUMN FINANCIAL, INC.
By:
--------------------------------------------------
Name:
Title
SCHEDULE I
Prospectus: Prospectus Supplement dated August 11, 2004 and Base Prospectus
dated May 14, 2004 (Registration Statement No.:333-116258)
Aggregate Principal Amount of Offered Certificates: $1,504,183,000
(approximate)
AMOUNTS OF PRICE
CERTIFICATES (EXPRESSED AS
UNDERWRITER TO BE PURCHASED A PERCENTAGE OF PAR)*
------------------------------------------- -------------------- -------------------------
1. Credit Suisse First Boston LLC Class A-1 $ 10,000,000 100.0000%
Class A-2 $ 61,126,000 100.5000%
Class A-3 $ 209,402,000 100.5000%
Class A-4 $ 102,918,000 100.5000%
Class A-5 $ 694,474,000 100.5000%
Class A-1-A $ 338,144,000 100.5000%
Class B $ 45,084,000 100.5000%
Class C $ 14,345,000 100.5000%
Class D $ 28,690,000 100.5000%
2. PNC Capital Markets, Inc. Class A-1 $ 0 N.A.
Class A-2 $ 0 N.A.
Class A-3 $ 0 N.A.
Class A-4 $ 0 N.A.
Class A-5 $ 0 N.A.
Class A-1-A $ 0 N.A.
Class B $ 0 N.A.
Class C $ 0 N.A.
Class D $ 0 N.A.
3. Xxxxxxx, Xxxxx & Co. Class A-1 $ 0 N.A.
Class A-2 $ 0 N.A.
Class A-3 $ 0 N.A.
Class A-4 $ 0 N.A.
Class A-5 $ 0 N.A.
Class A-1-A $ 0 N.A.
Class B $ 0 N.A.
Class C $ 0 N.A.
Class D $ 0 N.A.
--------------------
* Exclusive of accrued interest. The price of each class of Certificates shall
include interest at the related initial pass-through rate from and including
August 1, 2004 to, but not including, the Closing Date.
I-1
Ratings (Xxxxx'x/Fitch):
-----------------------
Class A-1 Aaa/AAA
Class A-2 Aaa/AAA
Class A-3 Aaa/AAA
Class A-4 Aaa/AAA
Class A-5 Aaa/AAA
Class A-1-A Aaa/AAA
Class B Aa2/AA
Class C Aa3/AA-
Class D A2/A
Initial Pass-Through Rates:
--------------------------
Class A-1 2.3580%
Class A-2 3.9130%
Class A-3 4.3020%
Class A-4 4.8350%
Class A-5 5.1130%
Class A-1-A 4.8840%
Class B 5.2040%
Class C 5.2430%
Class D 5.3120%
EXHIBIT A
---------
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 LLC, PNC
Capital Markets, Inc. and Xxxxxxx, Xxxxx & Co. (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 SUPERCEDED BY THE INFORMATION
CONTAINED IN ANY FINAL PROSPECTUS AND PROSPECTUS SUPPLEMENT FOR ANY SECURITIES
ACTUALLY SOLD TO YOU.
B-1
