EXHIBIT 1.1
Exhibit 1.1
EXECUTION VERSION
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 2004-C1
UNDERWRITING AGREEMENT
----------------------
February 26, 2004
CREDIT SUISSE FIRST BOSTON LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PNC CAPITAL MARKETS, INC.
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
MCDONALD INVESTMENTS INC.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
WAMU CAPITAL CORP.
0000 0xx Xxxxxx, XXX 0000
Xxxxxxx, Xxxxxxxxxx 00000
XXXXXX BROTHERS INC.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation (the "Depositor"), proposes to form one or more real
estate mortgage investment conduits (the "Trust"), which will issue securities
entitled Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2004-C1 (such series of securities,
the "Series 2004-C1 Securities"). The Depositor further proposes, subject to
the terms and conditions stated in this underwriting agreement (this
"Agreement"), to sell to you, as underwriters (the "Underwriters" and,
individually, an "Underwriter"), those classes of the Series 2004-C1
Securities as are identified on Schedule I hereto (the classes of securities
identified on Schedule I hereto, collectively, the "Certificates"). Each
Certificate will evidence a fractional undivided, percentage interest or
beneficial interest in the Trust. The terms on which the Trust will issue the
Certificates will be specified in the Prospectus (as defined herein). The
property of the Trust will consist of a pool of 262 fixed rate mortgage loans,
secured by 283 multifamily and commercial properties (collectively, the
"Mortgage Loans") that will be purchased by the
Depositor from Column Financial, Inc. (the "Column Mortgage Loan Seller"), PNC
Bank, National Association (the "PNC Bank Mortgage Loan Seller"), KeyBank
National Association (the "KeyBank Mortgage Loan Seller") and NCB, FSB (the
"NCB Mortgage Loan Seller" and together with the Column Mortgage Loan Seller,
the PNC Bank Mortgage Loan Seller and the KeyBank Mortgage Loan Seller, the
"Mortgage Loan Sellers"), pursuant to those certain Mortgage Loan Purchase
Agreements, each dated as of February 26, 2004 (the "Mortgage Loan Purchase
Agreements"), and will (except in two cases) be serviced by Midland Loan
Services, Inc., KeyCorp Real Estate Capital Markets, Inc. and NCB, FSB as
master servicers (collectively, the "Master Servicers"), and Lennar Partners,
Inc. and National Consumer Cooperative Bank as special servicer (together, the
"Special Servicers"), pursuant to that certain Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of March 11, 2004, by and
among the Depositor, the Master Servicers, the Special Servicers and Xxxxx
Fargo Bank, N.A., as trustee (the "Trustee") and custodian, and certain
related property to be conveyed to the Trust by the Depositor (the "Trust
Fund"). The Mortgage Loans will be transferred to the Trust, and the
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
The offering of the Certificates made pursuant to the Registration
Statement (as defined below) will be made through you as underwriters.
Schedule I shall specify the principal or notional balance of each class of
the Certificates to be issued and any terms thereof not otherwise specified in
the Pooling and Servicing Agreement, the classes of Certificates subject to
this Agreement, the price at which such Certificates are to be purchased by
the Underwriters from the Depositor, the aggregate amount of Certificates to
be purchased by you and the initial public offering price or the method by
which the price at which such Certificates are to be sold will be determined.
The offering of the Certificates will be governed by this Agreement.
2. Representations and Warranties of the Depositor.
The Depositor represents and warrants to you as of the date hereof as
follows:
(a) a registration statement on Form S-3, including a prospectus and such
amendments thereto as may have been required to the date hereof, relating to
the Certificates and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "Act"), in the form
heretofore delivered to you, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective; such registration
statement, as amended (excluding any related Computational Materials and ABS
Term Sheets (each as defined in Section 8(a) below) previously filed or to be
filed and any Computational Materials and ABS Term Sheets relating to
securities other than the Certificates), and the prospectus relating to the
sale of the Certificates offered thereby by the Depositor and constituting a
part of such registration statement, as such prospectus is from time to time
amended or supplemented (including any prospectus filed with the Commission
pursuant to Rule 424(b) of the rules and regulations of the Commission (the
"Rules and Regulations") under the Act), are respectively referred to herein
as the "Registration Statement" and the "Base Prospectus"; the conditions to
the use of a registration statement on Form S-3 under the Act, as set forth in
the General Instructions to Form S-3, and the conditions of Rule 415 under the
Act have been satisfied with respect to the Registration Statement; and no
other amendment to the Registration Statement will be filed which shall have
been reasonably disapproved by you promptly after reasonable notice thereof;
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(b) there is no request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional
information; the Commission has not issued any stop order suspending the
effectiveness of the Registration Statement and the Depositor is not aware of
any proceeding for that purpose having been instituted or threatened; and
there has been no notification with respect to the suspension of the
qualification for sale of the Certificates for sale in any jurisdiction or any
proceeding for such purpose having been instituted or threatened;
(c) the Registration Statement (i) on its effective date and on the date
of the then most recently filed Prospectus Supplement conformed in all
respects to the requirements of the Act and the Rules and Regulations
thereunder and did not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and (ii) on the date hereof will conform
in all respects to the requirements of the Act and the Rules and Regulations
thereunder and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; the Base Prospectus, the
preliminary prospectus supplement, as amended or supplemented (including any
computer diskettes delivered as part of such preliminary prospectus
supplement) (the "Preliminary Prospectus Supplement") and the prospectus
supplement, as amended or supplemented (including any computer diskettes
delivered as part of such prospectus supplement) (the "Prospectus
Supplement"), to the Base Prospectus prepared pursuant to Section 5(a) below
(the Prospectus Supplement, together with the Base Prospectus, the
"Prospectus"), on the date hereof and on the Specified Delivery Date will
conform in all respects to the requirements of the Act and the Rules and
Regulations thereunder and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
foregoing does not apply to statements in or omissions from either the
Registration Statement or the Prospectus to the extent based upon and in
conformity with (A) written information furnished to the Depositor by any
Underwriter specifically for use therein, and (B) the Mortgage Loan Seller's
Information (collectively as defined in each of the Indemnification Agreements
(as defined herein)); provided, further, that the Depositor makes no
representations and warranties as to the information contained in or omitted
from any Current Report (as defined in Section 8(a) below), or in any
amendment or supplement thereto, incorporated by reference in the Registration
Statement or the Prospectus;
(d) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its business
as described in the Prospectus, is duly qualified as a foreign corporation in
good standing in all jurisdictions in which the ownership or lease of its
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect
on the Depositor, and is conducting its business so as to comply in all
material respects with the applicable statutes, ordinances, rules and
regulations of the jurisdictions in which it is conducting business;
(e) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the Specified
Delivery Date (as defined herein), to the description thereof contained in the
Registration Statement and the Prospectus;
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and the Certificates, on the date hereof, will have been duly and validly
authorized and, when such Certificates are duly and validly executed by the
Depositor or the Trustee, authenticated by the Trustee and delivered in
accordance with the Pooling and Servicing Agreement and delivered and paid for
as provided herein, will be validly issued and outstanding and entitled to the
benefits afforded by the Pooling and Servicing Agreement;
(f) the Depositor is not in violation of its certificate of incorporation
or by-laws or in default under any agreement, indenture or instrument the
effect of which violation or default would be material and adverse to the
Depositor or which violation or default would have a material adverse effect
on the performance by the Depositor of its obligations under this Agreement,
the Pooling and Servicing Agreement, the Certificates or any of the Mortgage
Loan Purchase Agreements; there are no actions or proceedings against, or
investigations of, the Depositor pending, or, to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement, any of the Mortgage Loan Purchase Agreements or the
Certificates, (ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement, (iii)
which might materially and adversely affect the performance by the Depositor
of its obligations under, or the validity or enforceability against the
Depositor of, this Agreement, the Pooling and Servicing Agreement, any of the
Mortgage Loan Purchase Agreements or the Certificates or (iv) seeking to
affect adversely the federal income tax attributes of the Certificates
described in the Prospectus;
(g) there has not been any material adverse change in the business
operations, financial condition, properties or assets of the Depositor since
the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Depositor to perform its
obligations under this Agreement, the Pooling and Servicing Agreement or any
of the Mortgage Loan Purchase Agreements;
(h) there are no contracts, indentures or other documents of a character
required by the Act or by the rules and regulations thereunder to be described
or referred to in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which have not been so described or
referred to therein or so filed or incorporated by reference as exhibits
thereto;
(i) the Depositor possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated
by it, and the Depositor has not received any notice of proceedings relating
to the revocation or modification of any such license, certificate,
authorization or permit which, singly or in the aggregate, if the subject of
any unfavorable decision, ruling or finding, would materially and adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Depositor;
(j) the issue and sale of the Certificates and the compliance by the
Depositor with all of the provisions of the Certificates, this Agreement and
the Pooling and Servicing Agreement, and the execution and delivery by the
Depositor of this Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreements are within the corporate power of the
Depositor and have been, or will have been, duly authorized by all necessary
corporate action on
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the part of the Depositor; and neither the execution and delivery by the
Depositor of such instruments, nor the consummation by the Depositor of the
transactions herein or therein contemplated, nor the compliance by the
Depositor with the provisions hereof or thereof, will (A) conflict with or
result in a breach of, or constitute a default under, any of the provisions of
the certificate of incorporation or by-laws of the Depositor, (B) conflict
with any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Depositor or its properties, (C)
conflict with any of the provisions of any indenture, mortgage, contract or
other instrument to which the Depositor is a party or by which it is bound or
(D) except as contemplated by the Pooling and Servicing Agreement, result in
the creation or imposition of any lien, charge or encumbrance upon any of its
property or assets pursuant to the terms of any such indenture, mortgage,
contract or other instrument;
(k) this Agreement has been duly authorized, executed and delivered by
the Depositor;
(l) on the Specified Delivery Date, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements will have been duly authorized,
executed and delivered by the Depositor and will be valid and binding
agreements of the Depositor, enforceable against the Depositor in accordance
with their respective terms, except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity);
(m) all approvals, authorizations, consents, orders or other actions of
any person, corporation or other organization, or of any court, governmental
agency or body or official (except with respect to the state securities or
"blue sky" laws of various jurisdictions) required in connection with the
valid and proper authorization, issuance and sale of the Certificates pursuant
to this Agreement and the Pooling and Servicing Agreement have been or will be
taken or obtained on or prior to the Specified Delivery Date;
(n) at the Specified Delivery Date, each of the Mortgage Loans will meet
the criteria for selection described in the Prospectus Supplement;
(o) neither the Depositor nor the Trust Fund is, and neither the sale of
the Certificates in the manner contemplated by the Prospectus nor the
activities of the Trust Fund pursuant to the Pooling and Servicing Agreement
will cause the Depositor or the Trust Fund to be an "investment company" or
under the control of an "investment company" as such terms are defined under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
and the Pooling and Servicing Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act");
(p) at the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) except as disclosed in the Prospectus,
will convey to the Trustee, or cause to be conveyed to the Trustee, all of the
Depositor's right, title and interest in and to the Mortgage Loans being
transferred to the Trustee pursuant to the Pooling and Servicing Agreement,
free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively "Liens") granted by or imposed
upon the Depositor, (B) will not have
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assigned to any person any of its right, title or interest in the Mortgage
Loans or in the Pooling and Servicing Agreement or the Certificates, and (C)
will have the power and authority to transfer or cause to be transferred the
Mortgage Loans to the Trustee and to sell the Certificates to the
Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired ownership of all of
the Depositor's right, title and interest in and to the Mortgage Loans except
to the extent disclosed in the Prospectus, and upon delivery to the
Underwriters of the Certificates pursuant hereto, each Underwriter will have
good title to the Certificates purchased by such Underwriter, in each case
free of Liens granted by or imposed upon the Depositor;
(q) under generally accepted accounting principles and for federal income
tax purposes, the Depositor will report the transfer of the Mortgage Loans to
the Trustee in exchange for the Certificates and the sale of the Certificates
to the Underwriters pursuant to this Agreement as a sale of the interest in
the Mortgage Loans evidenced by the Certificates. The consideration received
by the Depositor upon the sale of the Certificates to the Underwriters will
constitute reasonably equivalent value and fair consideration for the
Certificates. The Depositor will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Certificates to the
Underwriters. The Depositor is not selling the Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the creditors
of the Depositor;
(r) at the Specified Delivery Date, the respective classes of
Certificates shall have been assigned ratings no lower than those set forth in
Schedule I hereto by the nationally recognized statistical rating
organizations identified in Schedule I hereto; and
(s) any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and Servicing
Agreement and the Certificates payable by the Depositor (other than income
taxes) have been paid or will be paid at or prior to the Specified Delivery
Date.
3. Purchase, Sale and Delivery of Certificates. Delivery of and payment
for the Certificates will be made at such place and at such time as shall be
specified in Schedule I or at such other time thereafter as set forth in
Schedule I or as you and the Depositor shall agree upon, each such time being
hereinafter referred to as a "Specified Delivery Date." Delivery of such
Certificates shall be made by the Depositor to the Underwriters against
payment of the purchase price specified in Schedule I in same day funds wired
to such bank as may be designated by the Depositor, or by such other manner of
payment as may be agreed upon by the Depositor and you. Unless otherwise
provided for, the Certificates to be so delivered will be in definitive, fully
registered form, in such denominations and registered in such names as you
request, and will be made available for checking and packaging at the office
of Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (or at some other location specified by the Underwriters at least 48
hours prior to delivery), at least 24 hours prior to the Specified Delivery
Date.
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4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Certificates subject to this Agreement for sale to the public as set forth in
the Prospectus.
(b) Each Underwriter represents, warrants and agrees that: (i) it has not
sold or offered the Certificates in the United Kingdom, and it has not
delivered or communicated the Prospectus or any other invitation or inducement
to buy or participate in the Certificates in the United Kingdom, except to
persons who (A) have professional experience of participating in unregulated
collective investment schemes and of matters relating to investments falling
within both Article 14(5) of the Financial Services and Markets Act 2000
(Promotion of Collective Investment Schemes) (Exemptions) Order 2001 (the "CIS
Order") and Article 19(5) of the Financial Services and Markets Act (Financial
Promotion) Order 2001 (the "FP order") or (B) fall within Article 22(2)(a)
through (d) ("high net worth companies, unincorporated associations, etc.") of
the CIS Order and Article 49(2)(a) though (d) of the FP Order; and (ii) it has
complied and will comply with all applicable provisions of the Financial
Services and Markets Act 2000 with respect to anything done by it in relation
to the Certificates in, from or otherwise involving the United Kingdom.
5. Covenants of the Depositor. The Depositor covenants and agrees with
you that:
(a) the Depositor has prepared and/or shall prepare a Prospectus
Supplement setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Base Prospectus, the price at
which such Certificates are to be purchased by the Underwriters from the
Depositor, either the initial public offering price or the method by which the
price at which such Certificates are to be sold will be determined, the
selling concessions and reallowances, if any, and such other information as
you and the Depositor deem appropriate in connection with the offering of such
Certificates, but the Depositor shall not file any amendments to the
Registration Statement as in effect with respect to the Certificates, or any
amendments or supplements to the Prospectus, unless it has first delivered
copies of such amendments or supplements to you and given you a reasonable
opportunity to review the same or if you have reasonably objected thereto
promptly after receipt thereof; the Depositor shall immediately advise you or
your counsel (i) when notice is received from the Commission that any
post-effective amendment to the Registration Statement has been filed or has
become or will become effective or any supplement to the Prospectus or any
amended Prospectus, in each case relating to the Certificates specified in
Schedule I has been filed and will furnish you with copies thereof, (ii) of
any request by the Commission for any amendment of the Registration Statement
or the Prospectus or for any additional information relating to the
Certificates and (iii) of any order or communication suspending or preventing,
or threatening to suspend or prevent, the offer and sale of the Certificates
or of any proceedings or examinations that may lead to such an order or
communication, whether by or of the Commission or any authority administering
any state securities or "blue sky" law, as soon as the Depositor is advised
thereof, and shall use its best efforts to prevent the issuance of any such
order or communication and to obtain as soon as possible its lifting, if
issued. Subject to the Underwriters' compliance with their obligations set
forth in Section 8 below and receipt by the Depositor of a letter from Xxxxx &
Xxxxx, LLP satisfactory in form and substance to the Depositor, to the effect
that such accountants have performed certain specified procedures, all of
which have been agreed to by the Depositor, as a
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result of which they have determined that the information included in the
Computational Materials and ABS Term Sheets provided by the Underwriters to
the Depositor for filing on Form 8-K pursuant to Section 8 and this subsection
(a), and that the accountants have examined in accordance with such agreed
upon procedures, is accurate except as to such matters that are not deemed by
the Depositor to be material, the Depositor shall file with the Commission a
Current Report on Form 8-K including any Computational Materials and ABS Term
Sheets provided to it by any Underwriter pursuant to Section 8 below not later
than the date on which such Current Report is required to be filed with the
Commission;
(b) if, at any time when the Prospectus is required to be delivered under
the Act, any event occurs as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with the
Act or the Rules and Regulations, the Depositor shall prepare and file with
the Commission, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance;
(c) the Depositor shall make generally available to the holders of the
Certificates (the "Certificateholders"), in each case as soon as practicable,
earning statements covering (i) a period of 12 months beginning not later than
the first day of the related Trust's fiscal quarter next following the
effective date of the Registration Statement and (ii) a period of 12 months
beginning no later than the first day of the Trust's fiscal quarter next
following the date hereof which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 of the Commission with respect to the Certificates.
The Depositor shall cause the Trustee to furnish or make available, within a
reasonable time after the end of each calendar year, to each holder of a
Certificate at any time during such year, such information as the Depositor
deems necessary or desirable to assist Certificateholders in preparing their
federal income tax returns;
(d) the Depositor shall furnish to you copies of the Registration
Statement, the Prospectus, and all amendments and supplements to such
documents relating to the Certificates, in each case as soon as available and
in such quantities as you reasonably request as long as the Depositor is
required to deliver the Prospectus under the Act in connection with the sale
of the Certificates; provided that any such documents requested by you on a
date that is more than nine (9) months after the Closing Date shall be
provided at your expense;
(e) the Depositor shall arrange for the qualification of the Certificates
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as you designate and shall continue such
qualifications in effect so long as required for the distribution; provided,
however, that neither the Depositor nor the Trust shall be required to qualify
to do business in any jurisdiction where it is now not qualified or to take
any action which would subject it to general or unlimited service of process
in any jurisdiction in which it is now not subject to service of process;
(f) the Depositor shall, while the Certificates are outstanding;
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(i) furnish to you, within 90 days after the close of each fiscal
year, appropriate annual financial statements of the Trust, certified by
a nationally recognized firm of independent public accountants, in such
form as to disclose its financial condition at the end of, and the
results of its operations for, such fiscal year;
(ii) furnish to you, as soon as available, copies of all reports
filed with the Commission and copies of each notice published or mailed
to holders of the Certificates pursuant to the Pooling and Servicing
Agreement; and
(iii) furnish to you such other information with respect to the
Trust or its financial condition or results of operations, as you may
reasonably request, including but not limited to information necessary or
appropriate to the maintenance of a secondary market in the Certificates;
and
(g) as between itself and the Underwriters, the Depositor will pay all
expenses incidental to the performance of its obligations under this
Agreement, including without limitation (i) expenses of preparing, printing
and reproducing the Prospectus, the Pooling and Servicing Agreement and the
Certificates, (ii) the fees charged by Xxxxx'x Investors Service, Inc.
("Xxxxx'x") and Standard & Poor's Rating Services ("S&P" and together with
Xxxxx'x, the "Rating Agencies") for rating the Certificates, (iii) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Pooling and
Servicing Agreement and the Certificates, and (iv) all other costs and
expenses incidental to the performance by the Depositor of its obligations
hereunder that are not otherwise specifically provided for in this subsection.
It is understood that, except as provided in this subsection (g) and in
Section 10 below, each Underwriter will pay all of its own expenses including
all out-of-pocket and/or internally allocated costs and expenses incurred by
them in connection with the transaction herein contemplated, including,
without limitation, fees and expenses of their counsel, any transfer taxes on
the Certificates and the expenses of any advertising of the offering of the
Certificates made by the Underwriters; and
(h) during the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Depositor shall file, or cause the Trustee to file on behalf of
the Trust, on a timely and complete basis, all documents that are required to
be filed by the related Trust with the Commission pursuant to Sections 13, 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Certificates subject to this
Agreement will be subject to the accuracy of the representations and
warranties on the part of the Depositor as of the date hereof and the
Specified Delivery Date, to the accuracy of the statements of the Depositor
made pursuant to the provisions hereof, to the performance by the Depositor in
all material respects of its obligations hereunder and to the following
additional conditions precedent:
(a) you shall have received a letter from Xxxxx & Young LLP dated the
date hereof and, if requested by you, dated the Specified Delivery Date, each
in the forms heretofore agreed to;
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(b) all actions required to be taken and all filings required to be made
by the Depositor under the Act prior to the Specified Delivery Date shall have
been duly taken or made; and prior to the Specified Delivery Date, no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted, or
to the knowledge of the Depositor or any Underwriter, shall be contemplated by
the Commission;
(c) unless otherwise specified in Schedule I, the Certificates subject to
this Agreement and offered by means of the Registration Statement shall be
rated the ratings specified in Schedule I, and shall not have been lowered or
placed on any credit watch with a negative implication for downgrade;
(d) you shall have received opinions of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP
special counsel to the Depositor and Credit Suisse First Boston LLC, dated the
Specified Delivery Date, in substantially in the form agreed to on or prior to
such date;
(e) you shall have received an opinion of special counsel to each
Mortgage Loan Seller, dated the Specified Delivery Date, in the form agreed to
on or prior to such date;
(f) you shall have received an opinion of counsel to the Trustee, dated
the Specified Delivery Date, in the form agreed to on or prior to such date,
which shall also be addressed to the Rating Agencies, the Depositor and the
Trustee or shall be accompanied by a reliance letter addressed to such
parties;
(g) you shall have received an opinion of counsel of each Master
Servicer, dated the Specified Delivery Date, in the form agreed to on or prior
to such date;
(h) you shall have received an opinion of counsel of each Special
Servicer, dated the Specified Delivery Date, in the form agreed to on or prior
to such date;
(i) you shall have received letters, dated the Specified Delivery Date,
from counsel rendering opinions to the Rating Agencies, to the effect that you
may rely upon their opinion to such Rating Agencies, as if such opinion were
rendered to you, or such opinions shall be addressed to you;
(j) you shall have received a certificate or certificates signed by such
of the principal executive, financial and accounting officers of the Depositor
as you may request, dated the Specified Delivery Date, in the form agreed to
on or prior to such date;
(k) you shall have received a certificate of the Trustee, signed by one
or more duly authorized officers of the Trustee, dated the Specified Delivery
Date, in the form agreed to on or prior to such date;
(l) you shall have received a certificate of the Master Servicer, signed
by one or more duly authorized officers of the Master Servicer, dated the
Specified Delivery Date, in the form agreed to on or prior to such date;
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(m) you shall have received a certificate of the Special Servicer, signed
by one or more duly authorized officers of the Special Servicer, dated the
Specified Delivery Date, in the form agreed to on or prior to such date;
(n) the Mortgage Loan Sellers shall have sold the Mortgage Loans to the
Depositor pursuant to the Mortgage Loan Purchase Agreements; and
(o) you shall have received such other documents, certificates, letters
and opinions as you may reasonably request.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter,
each of its officers and each of its directors and each person, if any, that
controls any Underwriter within the meaning of the Act or the Exchange Act
against any expenses, losses, claims, damages or liabilities, joint or
several, to which such Underwriter or such officer, director or controlling
person may become subject under the Act, the Exchange Act or otherwise, and
shall reimburse any legal or other expenses reasonably incurred by such
Underwriter or any such director, officer, or controlling person in connection
with investigating or defending any such expense, loss, claim, damage,
liability or action, in each case insofar as such expenses, losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of any material fact contained in the Preliminary Prospectus
Supplement, the Prospectus Supplement or the Base Prospectus or any amendment
or supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the Depositor shall not be liable in
any such case to the extent that any such expense, loss, claim, damage or
liability (x) arises out of or is based upon any such untrue statement or
alleged untrue statement in, or omission or alleged omission from, any such
documents in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of an Underwriter specifically for
use therein (the "Underwriters' Information"), (y) is indemnified for by any
of (i) the Column Mortgage Loan Seller pursuant to the Indemnification
Agreement, dated February 26, 2004, between the Column Mortgage Loan Seller,
the Depositor, CSFB LLC, in its capacity as purchaser of those classes of
Series 2004-C1 Securities being privately offered (in such capacity, the
"Initial Purchaser"), and the Underwriters, (ii) the PNC Bank Mortgage Loan
Seller pursuant to the Indemnification Agreement, dated February 26, 2004,
between the PNC Bank Mortgage Loan Seller, the Depositor, the Initial
Purchaser and the Underwriters, (iii) the KeyBank Mortgage Loan Seller
pursuant to either of those two Indemnification Agreements, each dated
February 26, 2004, and each between the KeyBank Mortgage Loan Seller, the
Depositor, the Initial Purchaser and the Underwriters, or (iv) the NCB
Mortgage Loan Seller pursuant to the Indemnification Agreement, dated February
26, 2004, between the NCB Mortgage Loan Seller, the Depositor, the Initial
Purchaser and the Underwriters (the indemnification agreements identified in
the preceding clauses (i), (ii), (iii) and (iv), collectively, the
"Indemnification Agreements"), or (z) is caused by any untrue statement or
alleged untrue
11
statement contained in, or any omission or alleged omission from, any
Computational Materials or ABS Term Sheets (when read together with the
Prospectus) so long as such untrue statement or alleged untrue statement
contained in, or any omission or alleged omission from, any Computational
Materials or ABS Term Sheets is not also contained in the Prospectus;
provided, further, that the indemnity with respect to the Prospectus shall not
inure to the benefit of the Underwriters if information that corrected any
untrue statement or omission of a material fact contained in or excluded from
the Preliminary Prospectus Supplement or the Base Prospectus delivered
therewith was furnished to the Underwriters prior to the Closing Date and the
person asserting any such loss, claim, damage or liability did not receive a
copy of a final Prospectus (or, any supplement thereto) that corrected such
untrue statement or omission of a material fact contained in the Preliminary
Prospectus Supplement or the Base Prospectus delivered therewith at or prior
to the confirmation of the sale of the Certificates, if delivery of a
prospectus relating to the Certificates was required to be delivered by such
Underwriters under the Act. The Depositor acknowledges that the following
statements constitute the only Underwriters' Information furnished in writing
by or on behalf of the Underwriters for inclusion in the Prospectus: the first
sentence of the sixth paragraph on the cover of the Prospectus; the
sub-heading "Summary of Prospectus Supplement--Relevant
Parties/Entities--Underwriters"; and the first sentence of the fourth
paragraph, and the second sentence of the fifth paragraph under the heading
"Underwriting" in the Prospectus. This indemnity agreement shall be in
addition to any liability which the Depositor may otherwise have.
(b) Each Underwriter shall severally, and not jointly, indemnify and hold
harmless the Depositor, each of its directors, each of its officers who has
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of the Act or the Exchange Act against any
expenses, losses, claims, damages or liabilities to which the Depositor or any
such director, officer or controlling person may become subject under the Act,
the Exchange Act or otherwise, and shall reimburse any legal or other expenses
reasonably incurred by the Depositor or any such director, officer or
controlling person in connection with investigating or defending any such
expense, loss, claim, damage, liability or action, in each case insofar as
such expenses, losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement
or any amendment or supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) any untrue statement or
alleged untrue statement of any material fact contained in the Prospectus or
any amendment or supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, in the case of clauses (i) and (ii) to the extent,
but only to the extent, that any such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with Underwriters' Information or (iii)(A) any untrue statement or
alleged untrue statement of any material fact contained in the Computational
Materials or ABS Term Sheets that such Underwriter prepared or (B) the
omission or the alleged omission to state a material fact in the Computational
Materials or ABS Term Sheets (when read together with the Prospectus) required
to be stated therein or necessary to make the statements therein not
misleading, other than, in the case of clauses (iii)(A) and (iii)(B), any
untrue statement, alleged untrue statement, omission or alleged omission
(including those of a quantitative nature) resulting from information
regarding Mortgage Loans provided by
12
a Mortgage Loan Seller and used for purposes of preparing the Computational
Materials or ABS Term Sheets or any other errors in such Computational
Materials or ABS Term Sheets to the extent such error resulted from such
information. Notwithstanding the foregoing, the indemnity provided in clause
(iii) in the immediately preceding sentence will apply only if such
misstatement or omission was not also a misstatement or omission in the
Prospectus Supplement. This indemnity agreement shall be in addition to any
liability that such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party of the commencement thereof; but
the omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party under Section 7(a) and
(b), except to the extent that such omission to notify materially prejudices
the indemnifying party or relieve it from any liability that it may have other
than under this Agreement. In case any such action is brought against any
indemnified party, after such indemnifying party has been notified of the
commencement thereof, such indemnifying party shall be entitled to participate
therein (at its own expense), and, to the extent that it may wish, shall be
entitled to assume the defense thereof (jointly with any other indemnifying
party similarly notified) with counsel reasonably satisfactory to such
indemnified party (which shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election to so assume the
defense thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In any such proceeding,
any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
agreed to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them or (iii) the indemnifying party shall have failed to designate
within a reasonable period of time counsel reasonably satisfactory to the
indemnified party (in which case the fees and expenses shall be paid as
incurred by the indemnifying party). In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition
to any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations
or circumstances. An indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent. However, if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. If an indemnifying
party assumes the defense of any proceeding, it shall be entitled to settle
such proceeding with the consent of the indemnified party or, if such
settlement (i) provides for an unconditional release of the indemnified party
in connection with all matters relating to the proceeding that have been
asserted against the indemnified party in such proceeding by the other parties
to such settlement and (ii) does not require an admission of fault by the
indemnified party, without the consent of the indemnified party.
13
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 7 or is insufficient in respect of any liabilities
referred to therein (on grounds of public policy or otherwise), the parties
entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent that
contribution is not permitted under Section 11(f) of the Act. In determining
the amount of contribution to which the respective parties are entitled, there
shall be considered the relative benefits received by the Depositor on the one
hand and each Underwriter on the other from the offering of the Certificates
subject to this Agreement (taking into account the portion of the proceeds of
the offering realized by each). In the event contribution according to the
foregoing sentence is not permitted by law, in determining the amount of
contribution to which the respective parties are entitled, there shall be
considered not only the relative benefits received by the Depositor on the one
hand and such Underwriter on the other from the offering of the Certificates
but also the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission and any other equitable
considerations appropriate under the circumstances. The Depositor and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose). Notwithstanding the
provisions of this subsection (d), each Underwriter shall not be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions and other fees received by such Underwriter in
connection with the offering of the Certificates exceeds the amount of damages
that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. The
obligations of the Underwriters in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and not
joint.
(e) The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or other liabilities referred to in this Section 7
shall be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne
by the indemnifying party hereunder, the party which received such payment
shall promptly refund the amount so paid to the party which made such payment.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 7 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any indemnified party at
law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor,
any Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
any Underwriter and to each person, if any, who
14
controls any Underwriter within the meaning of the Act or the Exchange Act;
and the obligations of the Underwriters under this Section 7 shall be in
addition to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Depositor and to each person, if any, who controls the
Depositor within the meaning of the Act or Exchange Act.
(h) Each Underwriter will indemnify and hold harmless the other
Underwriters and each person, if any, who controls such Underwriters within
the meaning of either the Act or the Exchange Act (the "Non-Indemnifying
Underwriters") from and against any and all expenses, losses, claims, damages
or liabilities, joint or several, to which the Non-Indemnifying Underwriters
becomes subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, common law or otherwise, insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of material fact
contained in any Computational Materials, ABS Term Sheets or other written
materials developed by, mailed or otherwise transmitted by such indemnifying
Underwriter, or any member of its selling group, in connection with the
Certificates or in any revision or amendment thereof or supplement thereto,
other than any untrue statement (including any of a quantitative nature)
resulting from information regarding the Mortgage Loans provided by the
Mortgage Loan Sellers and used for purposes of preparing such computational or
other written materials or any other errors reflected in such materials to the
extent such error resulted from such information. This agreement will be in
addition to any liability that any Underwriter may otherwise have.
8. Computational Materials.
(a) The Underwriters agree to provide to the Depositor not later than
10:30 a.m., New York time, on the Business Day before the date on which a
Current Report on Form 8-K is required to be filed by the Depositor with the
Commission pursuant to the No-Action Letters (as defined below) (each, a
"Current Report") five complete copies of all materials that have been
provided by the Underwriters to prospective investors in the Certificates and
that constitute (i) "Computational Materials" within the meaning of the
no-action letter dated May 20, 1994 and issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation and the
no-action letter dated May 27, 1994 and issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"Xxxxxx Letters") and (ii) "ABS Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 and issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together with the Xxxxxx Letters, the "No-Action Letters"), and the
Underwriters acknowledge that the filing of such materials is a condition of
relief granted in such letter (such materials, the "Computational Materials"
and the "ABS Term Sheets," respectively); provided, however, that any ABS Term
Sheets are subject to the review and approval of the Depositor prior to their
distribution to any prospective investors, and a copy of all such ABS Term
Sheets and Computational Materials as are delivered to prospective investors
shall, in addition to the foregoing delivery requirements, be delivered to the
Depositor simultaneously with delivery thereof to prospective investors. Each
delivery of Computational Materials and ABS Term Sheets to the Depositor
pursuant to this Section 8(a) shall be effected by delivering four copies of
such materials to counsel for the Depositor on behalf of the
15
Depositor and one copy of such materials to the Depositor. Neither Underwriter
shall provide to any investor or prospective investor in the Certificates any
Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials or ABS Term Sheets are required to be provided to the
Depositor pursuant to this subsection (a) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the Depositor in
accordance with this subsection (a)) for filing pursuant to Section 5(a),
unless such Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or prospective
investor.
(b) As of the date of this Agreement and as of the Specified Delivery
Date, each of the Underwriters represents and warrants to, and agrees with,
the Depositor and with each other Underwriter that: (i) the Computational
Materials and ABS Term Sheets furnished to the Depositor pursuant to Section
8(a) above, if any, constitute (either in original, aggregated or consolidated
form) all of the materials furnished to prospective investors by such
Underwriter that is required to be filed with the Commission with respect to
the Certificates in accordance with the No-Action Letters, and such
Computational Materials and ABS Term Sheets comply with the requirements of
the No-Action Letters; (ii) on the date any such Computational Materials and
ABS Term Sheets with respect to such Certificates (or any written or
electronic materials furnished to prospective investors on which such
Computational Materials and ABS Term Sheets are based) were last furnished to
each prospective investor and on the date of delivery thereof to the Depositor
pursuant to Section 8(a) above and on such Specified Delivery Date, such
Computational Materials and ABS Term Sheets (or materials) were accurate in
all material respects when read in conjunction with the Prospectus (taking
into account the assumptions explicitly set forth in the Computational
Materials), except to the extent of any errors therein that are caused by
errors in the Mortgage Loan Seller's Information; (iii) such Underwriter will
not represent to potential investors that any Computational Materials and ABS
Term Sheets were prepared or disseminated by the Depositor; and (iv) all
Computational Materials and ABS Term Sheets (or underlying materials
distributed to prospective investors on which the Computational Materials and
ABS Term Sheets were based) shall bear a legend substantially in the form of
Exhibit A. Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials and ABS
Term Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials and ABS Term Sheets are based),
if any, included or will include any inaccurate statement resulting directly
from any error contained in the Mortgage Loan Seller's Information.
(c) All information included in the Computational Materials and ABS Term
Sheets shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided that the Computational Materials and
ABS Term Sheets may include information based on alternative methodologies or
assumptions if specified therein. In the event that any Computational
Materials and ABS Term Sheets that are required to be filed were based on
assumptions with respect to the Mortgage Loans that are incorrect or that
differ from the final Mortgage Loans or the Mortgage Loan Seller's Information
in any material respect or were based on Certificate structuring terms that
were revised in any material respect prior to the printing of the Prospectus,
the Underwriters shall prepare revised Computational Materials or ABS Term
Sheets, as the case may be, based on the final Mortgage Loan Seller's
Information and structuring assumptions,
16
shall circulate such revised Computational Materials and ABS Term Sheets to
all recipients of the preliminary versions thereof that indicated orally to
the Underwriters they would purchase all or any portion of the Certificates,
and shall include such revised Computational Materials or ABS Term Sheets
(marked "as revised") in the materials delivered to the Depositor pursuant to
Section 8(a) above.
(d) If, within the period during which the Prospectus relating to the
Certificates is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of the
Depositor or the related Underwriter, to contain a material error or omission,
such Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected Computational
Materials or ABS Term Sheets to all recipients of the prior versions thereof
that either indicated orally to such Underwriter they would purchase all or
any portion of the Certificates, or actually purchased all or any portion
thereof, and shall deliver copies of such corrected Computational Materials or
ABS Term Sheets (marked, "as corrected") to the Depositor for filing with the
Commission in a subsequent Form 8-K submission (subject to the Depositor's
obtaining an accountant's comfort letter in respect of such corrected
Computational Materials and ABS Term Sheets, which the parties acknowledge
shall be at the expense of the related Mortgage Loan Seller). As of the date
that any Underwriter disseminates any Computational Materials or ABS Term
Sheets, such Underwriter shall not have any knowledge or reason to believe
that such Computational Materials or ABS Term Sheets contained any material
error or omission and each Underwriter agrees to promptly notify the Depositor
of any such material error or omission of which such Underwriter becomes
aware. Notwithstanding the foregoing, the Underwriters make no representation
or warranty as to whether any Computational Materials or ABS Term Sheets (or
any written or electronic materials furnished to prospective investors on
which the Computational Materials or ABS Term Sheets are based) included or
will include any inaccurate statement resulting directly from any error
contained in the Mortgage Loan Seller's Information.
(e) Each Underwriter shall be deemed to have represented, as of the
Specified Delivery Date, that, except for Computational Materials and ABS Term
Sheets provided to the Depositor pursuant to subsection (a) above, such
Underwriter did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Certificates
that is required to be filed with the Commission in accordance with the
No-Action Letters, and each Underwriter shall separately provide the Depositor
with a certification to that effect on the Specified Delivery Date.
(f) In the event of any delay in the delivery by either Underwriter to
the Depositor of Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (a) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 5(a), the
Depositor shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Specified Delivery Date and to
take other appropriate actions in each case as necessary in order to allow the
Depositor to comply with its agreement set forth in Section 5(a) to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(g) Each Underwriter further represents and warrants that, if and to the
extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets
17
prior to the date hereof in connection with the offering of the Certificates,
all of the conditions set forth in clauses (c), (d) and (f) above have been
satisfied with respect thereto.
9. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Certificates hereunder and the aggregate principal
amount of Certificates that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of
Certificates to be purchased hereunder, Credit Suisse First Boston LLC may
make arrangements satisfactory to the Depositor for the purchase of such
Certificates by other persons, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated to purchase
the Certificates that such defaulting Underwriter agreed but failed to
purchase hereunder. If any Underwriter so defaults and the aggregate principal
amount of Certificates with respect to which such default occurs exceeds 10%
of the total principal amount of Certificates to be purchased hereunder and
arrangements satisfactory to Credit Suisse First Boston LLC ("CSFB LLC") and
the Depositor for the purchase of such Certificates by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Depositor,
except as provided in Section 10. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
10. Termination of the Obligations of the Underwriters. (a) Any
Underwriter may terminate its obligations under this Agreement by notice to
the Depositor at any time at or prior to the Specified Delivery Date if the
sale of the Certificates provided for herein is not consummated because of any
failure or refusal on the part of the Depositor to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Depositor shall be unable to perform its obligations under this Agreement.
(b) The obligations of the Underwriters to purchase on the Specified
Delivery Date the Certificates described in Schedule I shall be terminable by
CSFB LLC if at any time on or prior to the Specified Delivery Date (i) any
change, or any development or event involving a prospective change in the
condition (financial or other), business, properties or results of operations
of the Depositor or the Trust which, in the judgment of a majority in interest
of the Underwriters (based on Underwriting obligations) including CSFB LLC, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Certificates; (ii) any downgrading in the rating of any of the Certificates by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 43 6(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any of the
Certificates (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would,
in the judgment of a majority in interest of the Underwriters including CSFB
LLC, be likely to prejudice materially the success of the proposed issue, sale
or distribution of the Certificates, whether in the primary market or in
respect of dealings in the secondary market; (iv) any material suspension or
material limitation of trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any Certificates on any relevant exchange or in the
over-the-counter market; (v) any
18
general moratorium on commercial banking activities declared by any Federal or
New York State authorities; (vi) any major disruption of settlements of
securities or clearance services in the United States; or (vii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters including CSFB LLC, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering
or the sale of any payment for the Certificates.
(c) If any Underwriter terminates its obligations under this Agreement in
accordance with Section 10(a), the Depositor shall reimburse such Underwriter
for all reasonable out-of pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by such
Underwriter in connection with the proposed purchase and sale of the
Certificates.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by
the Depositor and of the several Underwriters set forth in or made pursuant to
this Agreement shall remain in full force and effect, regardless of any
investigation or statement as to the results thereof made by or on behalf of
such Underwriters, the Depositor or any of their respective officers or
directors or any controlling person, and shall survive delivery of and payment
of the related Certificates.
If this Agreement is terminated pursuant to Section 10 above or if for
any reason the purchase by the Underwriters of the Certificates described in
Schedule I is not consummated, the Depositor shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(g) above, and
the obligations of the Depositor and such Underwriters pursuant to Section 7
above shall remain in effect.
12. Obligations of Column Financial, Inc. Column Financial, Inc. agrees
with the Underwriters, for the sole and exclusive benefit of the Underwriters
and each of their respective officers, directors and any other person, if any,
who controls the Underwriters within the meaning of the Act or the Exchange
Act and not for the benefit of any assignee thereof or any other person or
persons dealing with the Underwriters, to indemnify and hold harmless the
Underwriters against any failure by the Depositor to perform its obligations
to the Underwriters and their officers, directors and control persons pursuant
to Section 7(a) hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to Credit Suisse First Boston LLC, shall be mailed, delivered or
telecopied to it at Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx Xxxxxx,
Esq., Legal Compliance Department, Telecopy No.: (000) 000-0000; if sent to
WaMu Capital Corp., shall be mailed, delivered or telecopied to it at WaMu
Capital Corp., 0000 Xxxxx Xxxxxx, XXX 0000, Xxxxxxx, XX 00000, Attention:
Compliance, Telecopy No. (000) 000-0000, with a copy to Xxxxxxx Xxxxxxx, Esq.
Legal Department, Telecopy No. (000) 000-0000; if sent to PNC Capital Markets,
Inc., shall be mailed, delivered or telecopied to it at PNC Capital Markets,
Inc., One PNC Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxxx XxXxxxxx, Telecopy No.: (000) 000-0000, with a copy to Xxxxxxx
Xxxxxxxx, Telecopy No.: (000) 000-0000; if sent to McDonald Investments, Inc.,
shall be mailed,
19
delivered or telecopied to it at McDonald Investments Inc., 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: Xxx Xxxxxxxx, Telecopy No.: (216)
443-3801; if sent to Xxxxxx Brothers Inc., shall be mailed, delivered or
telecopied to it at Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 0xx xxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxx Xxxx, Telecopy No.: (000) 000-0000, with a
copy to Xxxxx Xxxxxxx, Telecopy No.: (000) 000-0000; or if sent to the
Depositor, shall be mailed, delivered or telecopied to it at Credit Suisse
First Boston Mortgage Securities Corp., Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx Xxxxxx, Esq., Legal
Compliance Department, Telecopy No.: (000) 000-0000; provided, however, that
any notice to an Underwriter pursuant to Section 7 shall be mailed, delivered
or telegraphed to such Underwriter at the address furnished by it.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 above,
and their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Certificates from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it
will become a binding agreement among the Depositor and the several
Underwriters in accordance with its terms. Alternatively, the execution of
this Agreement by the Depositor and its acceptance by or on behalf of the
Underwriters may be evidenced by an exchange of telegraphic or other written
communications.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
20
Very truly yours,
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:/s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC,
as Underwriter
By:/s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
PNC CAPITAL MARKETS, INC.,
as Underwriter
By:/s/ Xxxx XxXxxxxx
--------------------------------
Name: Xxxx XxXxxxxx
Title: Managing Director
MCDONALD INVESTMENTS INC.,
as Underwriter
By:/s/ X.X. Xxxxxxxx XXX
--------------------------------
Name: X.X. Xxxxxxxx XXX
Title: Managing Director
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
WAMU CAPITAL CORP.,
as Underwriter
By:/s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: COO
XXXXXX BROTHERS INC.
as Underwriter
By:/s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Acknowledged and agreed solely as to Section 12:
COLUMN FINANCIAL, INC.
By:/s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
----------
Prospectus: Prospectus Supplement dated February 26, 2004 and Base Prospectus
dated February 26, 2004 (Registration Statement No.:333-97955)
Aggregate Principal Amount of Offered Certificates: $1,449,059,000
(approximate)
Amounts of Price
Certificates (Expressed as
Underwriter to be Purchased a Percentage of Par)*
-------------------------------------- -------------------------- --------------------------
1. Credit Suisse First Boston LLC Class A-1 $ 84,226,000 100.00%
Class A-2 $ 260,312,000 100.50%
Class A-3 $ 156,544,000 100.50%
Class A-4 $ 885,151,000 100.50%
Class B $ 44,586,000 100.50%
Class C $ 18,240,000 100.50%
2. PNC Capital Markets, Inc. Class A-1 $ 0 N/A
Class A-2 $ 0 N/A
Class A-3 $ 0 N/A
Class A-4 $ 0 N/A
Class B $ 0 N/A
Class C $ 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
4. WaMu Capital Corp. 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
5. Xxxxxx Brothers 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
--------------------
* Exclusive of accrued interest. The price of each class of Certificates
shall include interest at the related initial pass-through rate from and
including March 1, 2004 to, but not including, the Closing Date.
I-1
Ratings (Xxxxx'x/S&P):
---------------------
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-
Initial Pass-Through Rates:
--------------------------
Class A-1 2.2540%
Class A-2 3.5160%
Class A-3 4.3210%
Class A-4 4.7500%
Class B 4.8550%
Class C 4.8870%
I-2
EXHIBIT A
---------
Form of Computational Material/ABS Term Sheet Legend
Under no circumstances shall the information presented herein constitute an
offer to sell or the solicitation of an offer to buy any security nor shall
there be any sale of securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
for an exemption from such registration under the securities laws of such
jurisdiction. You have requested that Credit Suisse First Boston LLC, PNC
Capital Markets, Inc., McDonald Investments Inc., WaMu Capital Corp. and
Xxxxxx Brothers Inc. (collectively the "Underwriters") provide to you
information in connection with your consideration of the purchase of certain
securities described herein. The attached information is being provided to you
for informative purposes only in response to your specific request. By
accepting this material the recipient agrees that it will not distribute or
provide the material to any other person. The information contained herein has
been compiled by the Underwriters from sources which the Underwriters believe
to be reasonably reliable. However, the Underwriters make no representation or
warranty as to the accuracy or completeness of such information and you must
make your own determination as to whether the information is appropriate and
responsive to your request. Any investment decision with respect to the
securities described herein should be based solely on your own due diligence
with respect to the securities and the mortgage loans referred to herein and
only upon your review of the final prospectus and prospectus supplement for
the securities. This information may not be delivered by you to any other
person without the Underwriters' prior written consent. The Underwriters may
from time to time perform investment banking services for or solicit
investment banking business from any company named in the information herein.
The Underwriters and/or their employees may from time to time have a long or
short position in any contract or security discussed herein. Information
contained in this material is current as of the date appearing on this
material only. Information in this material regarding any assets backing any
securities discussed herein supercedes all prior information regarding such
assets. All information in this term sheet, whether regarding the assets
backing any securities discussed herein or otherwise, will be superceded by
the information contained in any final prospectus and prospectus supplement
for any securities actually sold to you.
A-1
