Exhibit 1.1
EXECUTION COPY
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 2003-C4
UNDERWRITING AGREEMENT
September 11, 2003
CREDIT SUISSE FIRST BOSTON LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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, in multiple classes,
securities entitled Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-C4. The Depositor
further proposes, subject to the terms and conditions stated in this
underwriting agreement (this "Agreement"), to sell to the underwriters named
in Schedule I hereto (each, an "Underwriter" and, collectively, the
"Underwriters"; provided, however, that if you are the only underwriter named
in Schedule I hereto, then the terms "Underwriter" and "Underwriters" shall
refer solely to you), for whom you act as representative (in such capacity,
the "Representative"), those classes of such securities as are identified on
Schedule II hereto (the classes of securities identified on Schedule II
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 in Section 2(c)). The assets of the Trust (all such
assets collectively, the "Trust Fund") will consist primarily of a segregated
pool of multifamily and commercial mortgage loans (collectively, the "Mortgage
Loans") that will be purchased by the Depositor from Column Financial, Inc.
("Column") and KeyBank National Association ("KeyBank" and, together with
Column, the "Mortgage Loan Sellers"), respectively, pursuant to separate
mortgage loan purchase agreements dated as of September 11, 2003 (each, a
"Mortgage Loan Purchase Agreement"). The Trust will be created, the Mortgage
Loans will be transferred to the Trust, and the Certificates will be issued,
pursuant to a pooling and servicing agreement dated as of September 11, 2003
(the "Pooling and Servicing Agreement"), among the Depositor, KeyCorp Real
Estate Capital Markets, Inc., as master servicer (in such capacity, the
"Master Servicer"), Lennar Partners, Inc., as special servicer (in such
capacity, the "Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A., as
trustee (in such capacity, the "Trustee").
The offering of the Certificates made pursuant to the Registration
Statement (as defined in Section 2(a)) will be made through the Underwriters.
This Agreement provides for the sale of the Certificates to, and the purchase
and offering thereof by, the Underwriters. Schedule I sets forth the aggregate
amount of each class of Certificates that is to be purchased by each
Underwriter. Schedule II
sets forth the classes of the Certificates subject to this Agreement, 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 and the
price at which each class of the Certificates is to be purchased by the
Underwriters from the Depositor. The offering of the Certificates will be
governed by this Agreement.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to the Underwriters 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, as the
Representative, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective; such registration
statement, as amended, exclusive of any related Computational Materials
and ABS Term Sheets (each as defined in Section 8(a) below) previously
filed or to be filed pursuant to Section 5(a) 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 Registration Statement is identified on Schedule II
hereto; 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 (other than any amendment thereof by reason of Rule 429) will
be filed which shall be reasonably disapproved by you, as the
Representative, 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 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;
(c) the Registration Statement (i) on its effective date and on
the date of the then most recently filed Prospectus Supplement (as
defined below in this Section 2(c)) 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
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with the Base Prospectus, the "Prospectus"), 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, (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 loan documents, 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 related
loan documents, the Borrowers, the Mortgaged Properties, Column and/or
KeyBank 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) the information contained in or
omitted from any Computational Materials and/or ABS Term Sheets, 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 Procedures
dated September 11, 2003, as supplemented to the Specified Delivery Date,
and rendered by Ernst & Young 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 Trustee,
authenticated by the Trustee or any other applicable registrar and
delivered in accordance with the Pooling and Servicing Agreement
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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
either of the Mortgage Loan Purchase 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;
(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 either 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, either 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 either 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
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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,
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;
(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;
(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 (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) 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");
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(p) at the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (i) 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, (ii)
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 (iii) 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;
(q) 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;
(r) upon the sale to unaffiliated third parties of Certificates
and/or any other mortgage pass-through certificates of the same series
representing at least 10% of the total fair value of those securities,
the Depositor will, under generally accepted accounting principles,
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;
(s) 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;
(t) 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;
(u) 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;
(v) at the Specified Delivery Date, the respective Classes of
Certificates shall have been assigned ratings no lower than those set
forth in Schedule II hereto by the nationally recognized statistical
rating organizations identified therein (the "Rating Agencies"); and
(w) 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
II hereto, or such later date as shall be mutually acceptable to you, as the
Representative, and the Depositor (such date and time of purchase and sale of
the Certificates being
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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, as set forth on Schedule I hereto, 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. (a) It is understood that the
Underwriters propose to offer and will actively market 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 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.
(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 Xxx 0000
(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, 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 Xxx 0000 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
the Underwriters 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 the Underwriters 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, as the
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Representative, and given you, as the Representative, a reasonable
opportunity to review the same, or if you, as the Representative, shall
have reasonably objected thereto promptly after receipt thereof; the
Depositor shall immediately advise the Underwriters (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 the Underwriters 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 a prospectus is required to be delivered
under the Act in connection with the initial offering of the Certificates
as contemplated by this Agreement, 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 (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 any Underwriter, without
charge, copies of 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 such Underwriter may reasonably
request;
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(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, as the
Representative, 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 as follows: (i) the
Underwriters shall bear 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 (ii) the Depositor, Column and KeyBank, in such
proportions as they may agree, shall bear (A) the costs incident in the
preparation, printing and filing under the Act of the Registration
Statement, any Preliminary Prospectus (as defined in Section 6 below),
each Prospectus and any amendments thereof and supplements and exhibits
thereto, (B) the costs of distributing the Registration Statement as
originally filed and each amendment and post-effective amendment thereof
(including exhibits), any Preliminary Prospectus, each Prospectus and any
amendment or supplement to the Prospectus as provided in this Agreement,
(C) the costs of printing and distributing the Pooling and Servicing
Agreement, (D) the costs of filings, if any, with the National
Association of Securities Dealers, Inc., (E) fees paid to the Rating
Agencies in connection with the rating of the Certificates, (F) the fees
and expenses of qualifying the Certificates under State securities laws
as provided herein, and of preparing and printing, if so requested by any
Underwriter, a preliminary blue sky survey and legal investment survey
concerning the legality of the Certificates as an investment (including
fees and disbursements of counsel to the Underwriters in connection
therewith), and (G) any other costs and expenses incident to the
performance of the Company's obligations under this Agreement; provided
that no Underwriter, in its capacity as an Underwriter, shall be required
to bear more than its own out-of-pocket and/or internally allocated costs
and expenses incurred in connection with the transactions herein
contemplated;
(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 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 initial offering of the Certificates as
contemplated by 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
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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) the Underwriters shall have received from Ernst & Young LLP,
certified public accountants:
(i) letters dated the Specified Delivery Date, 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 you, as the Representative, and your counsel, 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
you, as the Representative, may reasonably request and as are agreed
to by Ernst & Young 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; provided that the letter
dated the Specified Delivery Date need only reconfirm the
statements made in the letter dated the date of the Prospectus
Supplement; and
(ii) one or more letters, dated as appropriate in the
reasonable view of the Depositor and you, as the Representative, and
satisfactory in form and substance to you, as the Representative,
and your counsel, stating in effect that, using the assumptions and
methodology used by the Underwriters, all of which shall be
described in such letter(s), they have recalculated such numbers and
percentages set forth in any ABS Term Sheets and Computational
Materials related to the Certificates as you, as the Representative,
may reasonably request and as are agreed to by Ernst & Young LLP,
compared the results of their calculations to the corresponding
items in such ABS Term Sheets and Computational Materials and found
each such number and percentage set forth in such ABS Term Sheets
and Computational Materials 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 II, the Certificates
subject to this Agreement and offered by means of the Registration
Statement shall be rated the ratings
-10-
specified in Schedule II, and shall not have been lowered or placed
on any credit watch with a negative implication for downgrade;
(d) the Underwriters 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 A and Exhibit B, respectively, attached hereto;
(e) the Underwriters shall have received with respect to the
Depositor a good standing certificate from the Secretary of State of the
State of Delaware, dated not earlier than 10 days prior to the Specified
Delivery Date;
(f) [RESERVED];
(g) the Underwriters shall have received an opinion from Sidley
Xxxxxx Xxxxx & Xxxx LLP, special counsel for the Depositor, dated the
Specified Delivery Date, in substantially the same form as Exhibit D
attached hereto;
(h) the Underwriters shall have received copies of all other
opinions rendered by Sidley Xxxxxx Xxxxx & Xxxx LLP, as special counsel
for the Depositor, to the Rating Agencies in connection with the issuance
of the Certificates, and each such opinion shall be addressed to the
Underwriters or accompanied by a letter signed by Sidley Xxxxxx Xxxxx &
Wood LLP stating that the Underwriters may rely on such opinion as if it
were addressed to them as of date thereof;
(i) the Underwriters shall have received from Sidley Xxxxxx Xxxxx
& Wood LLP, special counsel to the Depositor, a letter, dated the Specified
Delivery Date, substantially in the same form as Exhibit E attached
hereto, regarding certain information in the Registration Statement and
the Prospectus;
(j) the Underwriters shall have received, with respect to each of
the Master Servicer, the Special Servicer and the Trustee, a favorable
opinion of counsel, dated the Specified Delivery Date, addressing: the
valid existence of such party under the laws of its jurisdiction of
organization; the due authorization, execution and delivery of the
Pooling and Servicing Agreement by such party; the enforceability of the
Pooling and Servicing Agreement against such party, subject to such
limitations as are reasonably acceptable to you, as the Representative;
and such other matters as you, as the Representative, may reasonably
request. Counsel rendering each such opinion may express its reliance as
to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of, the parties to the Pooling and Servicing Agreement
and on certificates furnished by public officials and, further, may
assume the due authorization, execution and delivery of the instruments
and documents referred to therein by the parties thereto other than the
party on behalf of which such opinion is being rendered. Each such
opinion need cover only the laws of the State of New York, the laws of
the jurisdiction of organization for the party on behalf of which such
opinion is being rendered and the federal law of the United States;
(k) the Underwriters shall have received such other documents,
certificates and opinions regarding the Master Servicer, the Special
Servicer and the Trustee as you, as the Representative, may reasonably
request;
-11-
(l) the Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by each Mortgage Loan
Seller in connection with its sale of Mortgage Loans to the Depositor,
pursuant to the related Mortgage Loan Purchase Agreement. The
Underwriters shall be entitled to rely on each such certificate executed
and delivered by a Mortgage Loan Seller or any of its officers and
representatives, to the same extent that the Depositor may so rely, and
each such opinion addressed to the Depositor shall also be addressed to
the Underwriters or shall be accompanied by a letter signed by the
counsel that rendered such opinion stating that the Underwriters may rely
on such opinion as if it were addressed to them;
(m) Column and KeyBank shall have sold the Mortgage Loans to the
Depositor, pursuant to the respective Mortgage Loan Purchase Agreements;
and
(n) 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, as the
Representative, and your counsel, and the Underwriters shall have received
such additional information, certificates and documents as you, as the
Representative, may have reasonably requested.
7. Indemnification. (a) The Depositor shall indemnify and hold
harmless each Underwriter, each of its officers and directors and each person,
if any, that controls any Underwriter within the meaning of the Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act") against any
expenses, losses, claims, damages or liabilities, joint or several, to which
such Underwriter or any such officer, director or controlling person may
become subject, under the Act, the Exchange 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 (including, without limitation, insofar
as there is a Depositor Mathematical Error (as defined below) therein, any
Computational Materials or ABS Term Sheets (or any amendments thereof or
supplements thereto) furnished to prospective investors in the Certificates
and made a part of, or incorporated by reference into, the Registration
Statement, any Preliminary Prospectus or the Prospectus (or any amendment
thereof 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, officer, director or controlling person in connection with
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 the Registration Statement or 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 through the Representative specifically for use therein (the
"Underwriters' Information"), (B) arises out of or is based upon an untrue
statement or alleged untrue statement or
-12-
omission or alleged omission made in the Registration Statement or 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, (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 loan documents, the
Mortgaged Properties, the Borrowers, Column and/or KeyBank furnished
electronically or in writing to the Depositor or any Underwriter by Column
and/or KeyBank 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 related loan documents, the Mortgaged
Properties, the Borrowers, Column and/or KeyBank under the headings "Summary
of Prospectus Supplement--The Underlying Mortgage Loans", "Risk Factors--Risks
Related to the Underlying Mortgage Loans" and/or "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 a 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, any Preliminary Prospectus or the Prospectus
(or any amendment thereof or supplement thereto); and provided, further, that
the Depositor shall not be liable to any Underwriter or any such officer,
director or controlling person under the indemnity agreement in this Section
7(a) with respect to any untrue statement in, or omission from, any
Preliminary Prospectus, to the extent that any such expense, loss, claim,
damage or liability of such Underwriter or such officer, director or
controlling person results from the fact that such Underwriter sold
Certificates to a person to whom there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus or a copy of
the Prospectus as then amended or supplemented, the Depositor had previously
furnished copies thereof to such Underwriter, delivery of the Prospectus to
such person was required under applicable law and the Prospectus corrected the
untrue statement in, or omission from, such Preliminary Prospectus.
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 any Underwriter for inclusion in the
Registration Statement, the Prospectus or any Preliminary Prospectus (or any
amendment or supplement thereto): the second sentence of the second paragraph
on the cover of each of the Prospectus Supplement and any Preliminary
Prospectus Supplement; the entire paragraph immediately above the bolded names
of the Underwriters on the cover of each of the Prospectus Supplement and any
Preliminary Prospectus Supplement; the entire subsection entitled "Summary of
Prospectus Supplement--Relevant Parties/Entities--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 by the Depositor or Credit Suisse First
Boston LLC, any Computational Materials or ABS Term Sheet as a result of an
error in the manipulation of, or any calculations based upon, or any
aggregation (other than an
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aggregation made in the Master Tape by a Mortgage Loan Seller) of, the
numerical, financial and/or statistical information regarding the Mortgage
Loans, the Mortgaged Properties, the Borrowers, Column and/or KeyBank
contained in the Master Tape or otherwise provided to the Depositor by Column
and/or KeyBank.
(b) Each Underwriter shall severally, and not jointly, indemnify and
hold harmless the Depositor, each of its officers and directors 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 officer, director or controlling person may
become subject under the Act, the Exchange Act or otherwise, and shall
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Depositor or any such officer, director 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) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Underwriter's Information in any Preliminary Prospectus
Supplement, the Prospectus Supplement or any amendment or supplement thereto
or the omission or alleged omission to state in such Underwriter's Information
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, or (ii) arise out of or are based upon (A) any untrue
statement or alleged untrue statement of any material fact (other than a
Depositor Mathematical Error) contained in any Computational Materials and/or
ABS Term Sheets (or any amendments thereof or supplements thereto) prepared or
developed by such Underwriter and provided by such Underwriter or any other
party to potential investors in the Certificates, or (B) the omission or the
alleged omission to state in any such Computational Materials and/or ABS Term
Sheets (or any amendments thereof or supplements thereto) a material fact
required to be stated therein or which, when any such item is 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 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, (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 related
loan documents, the Mortgaged Properties, the Borrowers, Column or KeyBank
furnished to the Underwriters by the Depositor, Column or KeyBank (the error
in the Master Tape or any such other information concerning the
characteristics of the Mortgage Loans, the related loan documents, the
Mortgaged Properties, the Borrowers, Column or KeyBank or the breach in any of
such representations and warranties that gave rise to such untrue statement or
omission being referred to as a "Collateral Error"), except to the extent that
Column, KeyBank 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") a reasonable time period prior to 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, where such
delivery was required by applicable law, the Prospectus as then amended or
supplemented) at or prior to confirmation of such sale to such person. This
indemnity agreement will be in addition to any liability
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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 suit, action or proceeding (including,
without limitation, any governmental or regulatory investigation), 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 (i) under this Section 7, except to the extent that the indemnified
party's failure to so notify the indemnifying party has materially prejudiced
the indemnifying party, or (ii) otherwise than under this Section 7. In case
any such suit, action or proceeding 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 (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 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 suit, action or
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 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 suit, action or
proceeding or separate but similar or related suits, actions and/or
proceedings 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 suit, action or 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 suit, action or 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 suit, action
-15-
or proceeding that have been asserted against the indemnified party in
such suit, action or proceeding by the other parties to such settlement and
(ii) does not require an admission of fault, culpability or failure to act by
the indemnified party, 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 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 anything herein to the
contrary, 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. 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 0000 Xxx) 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.
-16-
(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 the Exchange 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 Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & 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. 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 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
-17-
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 F or as otherwise reasonably approved by
the Depositor in writing.
(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.
(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 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.
-18-
(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 Section 8(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 Section 8(a) above, 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 subsections
(a), (c), (d) and (f) of this Section 8 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, the non-defaulting Underwriters 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, the Representative 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 Representative 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 9.
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
the Underwriters if at any time on or prior to the Specified Delivery Date (i)
any change, or any development or event involving a prospective
-19-
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 the Representative, 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 436(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 the Representative, 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 banking moratorium declared by U.S. Federal or New York
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 acts 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 the Representative, 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.
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 the Underwriters, the Depositor or any of their respective
officers, directors and controlling persons, 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 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 any of the Underwriters, shall be mailed, delivered or telecopied to
it at Credit Suisse First Boston LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Transactions Advisory Group, Telecopy No.: (212)
325-8278; or, if sent to the Depositor, shall be mailed, delivered or
telecopied to it at Credit Suisse First Boston Mortgage Securities Corp.,
Eleven Madison Avenue, New York, New York 10010, Attention: Xxxxxx Xxxxxx,
Telecopy No.: (000) 000-0000 (with a copy to Xxxxx Xxxxxx, Legal Compliance
Department, Telecopy No. (000) 000-0000); 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; 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.
-20-
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. Representation of Underwriters. The Representative will act for
(and represents that it is authorized to act for) the several Underwriters in
connection with this financing, and any action under this Agreement taken by
the Representative will be binding on all the Underwriters.
15. 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 LAW PRINCIPLES).
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.
-21-
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: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC,
as Representative on behalf of the Underwriters
specified on Schedule I
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
SCHEDULE I
Price
Amounts of (Expressed as
Certificates a Percentage of
Underwriter to be Purchased Par)*
-------------------------------------- ------------------- ------------------
1. Credit Suisse First Boston LLC Class A-1 $ 66,934,000 100.0%
Class A-2 $ 118,226,000 100.5%
Class A-3 $ 89,652,000 100.5%
Class A-4 $ 508,497,000 100.5%
Class B $ 36,765,000 100.5%
Class C $ 16,711,000 100.5%
Class D $ 33,422,000 100.5%
Class E $ 16,711,000 100.5%
2. Greenwich Capital Markets, Inc. Class A-1 $ 0 N/A
Class A-2 $ 0 N/A
Class B $ 0 N/A
Class C $ 0 N/A
Class D $ 0 N/A
Class E $ 0 N/A
3. McDonald Investments 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 B $ 0 N/A
Class C $ 0 N/A
Class D $ 0 N/A
Class E $ 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 September 1, 2003 to, but not including, the Closing
Date.
I-1
SCHEDULE II
Certificates: Commercial Mortgage Pass-Through Certificates, Series 2003-C4,
Class X-0, X-0, X-0, X-0, X, X, X and E.
Closing: 10:00 A.M., September 29, 2003, at the offices of Sidley Xxxxxx
Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Prospectus: Prospectus Supplement dated September 11, 2003 and Base
Prospectus dated September 2, 2003
Registration Statement: The Registration Statement on Form S-3 (No. 333-97955)
Total Principal Amount of Certificates: $886,918,000 (approximate)
Total Principal Amount:
Class A-1 $ 66,934,000
Class A-2 $ 118,226,000
Class A-3 $ 89,652,000
Class A-4 $ 508,497,000
Class B $ 36,765,000
Class C $ 16,711,000
Class D $ 33,422,000
Class E $ 16,711,000
Ratings by Xxxxx'x Investors Service, Inc./Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, 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 Aa3/AA-
Class D A2/A
Class E A3/A-
Initial Pass-Through Rates:
Class A-1 2.6110%
Class A-2 3.9080%
Class A-3 4.7000%
Class A-4 5.1370%
-22-
Class B 5.2530%
Class C 5.3160%
Class D 5.3530%
Class E 5.4097%
EXHIBIT A
Form I of Depositor's Officer's Certificate
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-C4
CERTIFICATE OF ASSISTANT SECRETARY OF
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
I, Xxxxxx X. Xxxxx, 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. Attached hereto as Exhibit A are true and correct copies of
the Restated 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.
2. Attached hereto as Exhibit B 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.
3. The Board of Directors, by unanimous written consent dated
as of June 15, 2003, the "Resolutions"), authorized, among other
things, all actions necessary to accomplish transactions of the type
contemplated by the Pooling and Servicing Agreement dated as of
September 11, 2003 (the "Pooling and Servicing Agreement"), among the
Company, as depositor, KeyCorp Real Estate Capital Markets, Inc., as
master servicer, Lennar Partners, Inc., as special servicer and Xxxxx
Fargo Bank Minnesota, N.A., as trustee, each of the Mortgage Loan
Purchase Agreements referred to in the Pooling and Servicing
Agreement, the Underwriting Agreement dated as of September 11, 2003
(the "Underwriting Agreement"), between the Company and Credit Suisse
First Boston LLC as representative of the underwriters referred to
therein, the Certificate Purchase Agreement dated as of September 11,
2003 (the "Certificate Purchase Agreement"), between the Company and
Credit Suisse First Boston LLC, and to execute and deliver documents
and/or instruments such as the Pooling and Servicing Agreement, the
Mortgage Loan Purchase Agreements, the Underwriting Agreement and the
Certificate Purchase Agreement. Attached hereto as Exhibit C is a true
and correct copy of the Resolutions. 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.
A-1
4. 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
----- ------ ---------
Xxxxx Xxxxxxxxxx Vice President
------------------------
Xxxxxxx X. Xxxxxxx Vice President
------------------------
Capitalized terms used but not defined herein have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
[SIGNATURE PAGE FOLLOWS]
A-2
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of September ___, 2003.
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
A-3
Exhibit A
Restated Certificate of Incorporation and By-laws of
Credit Suisse First Boston Mortgage Securities Corp.
[see attached]
A-4
Exhibit B
Good Standing Certificate of Credit Suisse First Boston Mortgage
Securities Corp.
[see attached]
A-5
Exhibit C
Unanimous Written Consent of Board of Directors of
Credit Suisse First Boston Mortgage Securities Corp.
[see attached]
A-6
EXHIBIT B
Form II of Depositor's Officer's Certificate
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-C4
CERTIFICATE OF THE DEPOSITOR
In connection with the issuance of the Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-C4 (the "Certificates"), pursuant to a Pooling and Servicing
Agreement dated as of September 11, 2003 (the "Pooling and Servicing
Agreement") among Credit Suisse First Boston Mortgage Securities Corp., as
depositor (the "Depositor"), KeyCorp Real Estate Capital Markets, Inc. as
master servicer, Lennar Partners, Inc., as special servicer, and Xxxxx Fargo
Bank Minnesota, N.A. ("Xxxxx Fargo"), as trustee, and the sale of the
Certificates pursuant to the Underwriting Agreement dated as of September 11,
2003 (the "Underwriting Agreement"), between the Depositor and Credit Suisse
First Boston LLC ("CSFB"), as representative for itself, Greenwich Capital
Markets, Inc. and McDonald Investments Inc., and the Certificate Purchase
Agreement dated as of September 11, 2003 (the "Certificate Purchase
Agreement"), between the Depositor and CSFB (collectively, 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 (i) 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 (ii) the
Depositor has, in all materials 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.
Dated: September 29, 2003.
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:
---------------------
Name:
Title: Director
B-1
EXHIBIT C
[RESERVED]
C-2
EXHIBIT D
Form of Opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, Special Counsel
to the Depositor
September 29, 2003
To the Parties Listed on Annex A hereto:
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2003-C4
-------------------------------------------------------------
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. 333-97955) (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 September 11, 2003
(the "Column Mortgage Loan Purchase Agreement"), between
Column, as seller, and the Depositor, as purchaser;
(iii) the sale by KeyBank National Association ("KeyBank"),
and the purchase by the Depositor, of a second
segregated pool of multifamily and commercial mortgage
loans (collectively, the "KeyBank Mortgage Loans"),
pursuant to the Mortgage Loan Purchase Agreement dated
as of September 11, 2003 (the "KeyBank Mortgage Loan
Purchase Agreement"), between KeyBank, as seller, and
the Depositor, as purchaser;
(iv) the creation of a commercial mortgage trust (the
"Trust"), and the issuance of an aggregate
$1,339,373,693 Certificate Principal Balance
of Commercial Mortgage Pass-Through Certificates,
Series 2003-C4 (the "Certificates"), consisting of
multiple classes designated Class A-X, Class A-SP,
Class A-1-A, Class A-1, Class A-2, Class A-3, Class
A-4, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J,
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Page 2
Class K, Class L, Class M, Class N, Class O, Class P,
Class MM, Class R and Class V, pursuant to the Pooling
and Servicing Agreement dated as of September 11, 2003
(the "Pooling and Servicing Agreement"), among the
Depositor, as depositor, KeyCorp Real Estate Capital
Markets, Inc., as master servicer, Lennar Partners, Inc.,
as special servicer, and Xxxxx Fargo Bank Minnesota,
N.A., as trustee (the "Trustee");
(vi) 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 being issued to or at the direction of the
Depositor;
(vii) the sale by the Depositor, and the purchase by Credit
Suisse First Boston LLC ("CSFB LLC"), Greenwich Capital
Markets, Inc. and McDonald Investments Inc.
(collectively, in such capacity, the "Underwriters") of
the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class B,
Class C, Class D and Class E Certificates (collectively,
the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement dated as of September 11, 2003
(the "Underwriting Agreement"), between the Depositor
and CSFB LLC, on behalf of itself and as representative
of the other Underwriters; and
(viii) the sale by the Depositor, and the purchase by CSFB LLC
(in such capacity, the "Initial Purchaser"), of the
Class A-X, Class A-SP, Class A-1-A, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class MM, Class R and Class V
Certificates (collectively, the "Privately Offered
Certificates"), pursuant to the Certificate Purchase
Agreement dated as of September 11, 2003 (the
"Certificate Purchase Agreement"), between the Depositor
and the Initial Purchaser.
This opinion letter is being provided to you pursuant to Section 6(f)
of the Underwriting Agreement. The Pooling and Servicing Agreement, the
Underwriting Agreement, the Certificate Purchase Agreement, the Column
Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan Purchase
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 rendering this opinion letter, we have reviewed:
(i) the Agreements;
(ii) the Registration Statement;
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Page 3
(iii) the Prospectus, dated September 2, 2003, 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 September 11, 2003,
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 September 11,
2003, 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 assumed that (i) the
Depositor has not used any trade names, assumed names and/or prior corporate
names, (ii) the Depositor is organized solely under the laws of the State of
Delaware and the State of Delaware must maintain a public record showing the
Depositor to have been organized, (iii) the Depositor has not changed its form
or jurisdiction of organization since its formation, and (iv) the exact legal
name of the Depositor is as set forth in the copies of the organizational
documents certified to us by the relevant authorities of the State of
Delaware.
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) except as and to the extent expressly
addressed in Opinion Paragraph 1. below, 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 Paragraphs 1. and 10. 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, writ or decree applicable to any such
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Page 4
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) except as and to the extent expressly
addressed in Opinion Paragraphs 6. and 8. below, 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 7. below, 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, (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.
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Page 5
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.
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, the General Corporation Law of the State of Delaware 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 Depositor is duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, with requisite
corporate power and authority to execute and deliver the Agreements
and to perform its obligations thereunder.
2. The Registration Statement has become effective under the
1933 Act.
3. 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.
4. 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.
5. 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.
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Page 6
6. 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.
7. Each of the Pooling and Servicing Agreement, the Column
Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan
Purchase Agreement constitutes a valid, legal and binding agreement of
the Depositor, enforceable against the Depositor in accordance with
its terms.
8. The Certificates have been duly authorized by all necessary
corporate action of the Depositor.
9. 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.
10. 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 organizational documents and do
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.
11. 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 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.
12. 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.
13. The statements set forth in the Prospectus Supplement under
the headings "Description of the Offered Certificates" and "The
Pooling and Servicing Agreement", 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
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Page 7
purport to summarize for prospective investors certain material
provisions of the Certificates and the Pooling and Servicing
Agreement, are accurate in all material respects.
14. 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", "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.
15. 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, as
amended, 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, (C) REMIC III will qualify as a REMIC within the meaning of
the REMIC Provisions, and the REMIC III Regular Interest Certificates
will evidence "regular interests", and the REMIC III Residual Interest
will constitute the sole "residual interest", in REMIC III.
16. 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, as amended.
17. 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 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
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Page 8
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
0000 Xxx.
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,
Annex A
Credit Suisse First Boston Mortgage
Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010-3629
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
D-1
EXHIBIT E
Form of Letter of Sidley Xxxxxx Xxxxx & Xxxx LLP, Special Counsel
to the Depositor
September 29, 2003
To the Parties Listed on Annex A hereto:
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2003-C4
--------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc.
("Column") and 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. 333-97955) (the "Registration Statement")
with the Securities and Exchange Commission (the "Commission"), for
purposes of registering under the Securities Act of 1933, as amended
(the "Securities Act"), certain offerings of mortgage pass-through
certificates evidencing interests in trust funds established by the
Depositor;
(ii) 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 September 11, 2003 (the
"Column Mortgage Loan Purchase Agreement"), between Column, as seller,
and the Depositor, as purchaser;
(iii) the sale by KeyBank National Association
("KeyBank"), and the purchase by the Depositor, of a second segregated
pool of multifamily and commercial mortgage loans (collectively, the
"KeyBank Mortgage Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of September 11, 2003 (the "KeyBank Mortgage Loan
Purchase Agreement" and, together with the Column Mortgage Loan
Purchase Agreement, the "Mortgage Loan Purchase Agreements"), between
KeyBank, as seller, and the Depositor, as purchaser;
(iv) the creation of a commercial mortgage trust (the
"Trust"), and the issuance of an aggregate $1,339,373,693 Certificate
Principal Balance of Commercial Mortgage Pass-Through Certificates,
Series 2003-C4 (the "Certificates"), consisting of multiple classes
designated Class A-X, Class A-SP, Class A-1-A, Class A-1, Class A-2,
Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class MM, Class R and Class V, pursuant to the Pooling and
Servicing Agreement dated as of September 11, 2003 (the "Pooling and
Servicing Agreement"), among the Depositor, as depositor, KeyCorp Real
Estate Capital Markets, Inc., as master servicer, Lennar Partners,
Inc., as special servicer, and Xxxxx Fargo Bank Minnesota, N.A., as
trustee (the "Trustee");
E-1
(vi) 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 being issued to or at the
direction of the Depositor; and
(vii) the sale by the Depositor, and the purchase by
Credit Suisse First Boston LLC ("CSFB LLC"), Greenwich Capital
Markets, Inc. and McDonald Investments Inc. (collectively, in such
capacity, the "Underwriters"), of the Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement dated as of September 11, 2003 (the
"Underwriting Agreement"), between the Depositor and CSFB LLC, on
behalf of itself and as representative of the other Underwriters.
The Pooling and Servicing Agreement, the Underwriting Agreement
and the Mortgage Loan Purchase Agreements 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 the purposes of this letter, we have reviewed: the
Agreements; the Registration Statement; the Prospectus, dated September 2,
2003, 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 September 11, 2003,
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 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 each of 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
each 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 respective Mortgage Loan Purchase Agreements 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, Column and KeyBank, (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.
E-2
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 and Column. 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"). In addition, we
have reviewed the Agreements and certain loan summaries prepared by Column or
an affiliate of Column, or a counsel for either of them, in respect of the
Column Mortgage Loans. 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 has caused 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 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 such Mortgage Loans or (z) any information
contained in or omitted from the computer diskette that accompanies the
Prospectus. 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 and
Column 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 Xxxxxx Xxxxx & Xxxx LLP attorneys currently practicing law with
this firm who have been involved in any material respect in representing the
Depositor and/or Column in connection with the Transactions or who may have
represented Column in the origination of any of the Mortgage Loans. We call to
your attention that, with your knowledge and consent, except as described
above, such Sidley Xxxxxx Xxxxx & Xxxx LLP 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.
E-3
This letter is 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 statements made herein. This 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 (including, without limitation, any
person who acquires Certificates from the persons to whom this letter is
addressed) or transmitted to any other person without our prior consent.
Very truly yours,
E-4
Annex A
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010-3629
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
E-5
EXHIBIT F
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,
Greenwich Capital Markets, Inc. and McDonald Investments 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 the results of 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.
F-1
