CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
DEPOSITOR
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CK6
UNDERWRITING AGREEMENT
December 19, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
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 2001-CK6. 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
December 19, 2001 (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 December 11, 2001 (the "Pooling and Servicing Agreement"), among the
Depositor, Midland Loan Services, Inc., as master servicer (in such capacity,
the "Master Servicer") and special servicer (in such capacity, the "Special
Servicer"), and Xxxxx Fargo Bank Minnesota, N.A., as trustee (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 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
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to be stated therein or necessary to make the statements therein not
misleading; the Base Prospectus and the supplement to the Base Prospectus
prepared pursuant to Section 5(a) below (the "Prospectus Supplement" and,
together with the Base Prospectus, the "Prospectus"), 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 and/or
the Mortgage Loan Sellers contained in or omitted from the Prospectus
Supplement, or any amendment thereof or supplement thereto, under the
headings "Summary of Prospectus Supplement--The Underlying Mortgage Loans",
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and
"Description of the Underlying Mortgage Loans", on Exhibit A-1 or Exhibit
A-2 thereto or on the accompanying diskette, or (D) 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 December 19, 2001, as supplemented to the Specified
Delivery Date, and rendered by Xxxxxx Xxxxxxxx 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;
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(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 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;
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(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 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
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Servicing Agreement have been or will be taken or obtained on or prior to
the Specified Delivery Date;
(n) at the Specified Delivery Date, each of the Mortgage Loans will
meet the criteria for selection described in the Prospectus Supplement;
(o) neither the Depositor nor the Trust Fund is, and neither the sale
of the Certificates in the manner contemplated by the Prospectus nor the
activities of the Trust Fund pursuant to the Pooling and Servicing
Agreement will cause the Depositor or the Trust Fund to be an "investment
company" or under the control of an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and the Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act");
(p) at the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (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 of 10% of the total principal balance of the
Certificates and any other mortgage pass-through certificates of the same
series to unaffiliated third parties, 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;
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(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 in Schedule II hereto (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 herein called the "Specified Delivery Date"). Delivery of
the Certificates will be made in book-entry form through the facilities of The
Depository Trust Company ("DTC"). Each class of Certificates will be represented
by one or more definitive global certificates to be deposited by or on behalf of
the Depositor with DTC. Delivery of the Certificates shall be made to the
several Underwriters against payment by the several Underwriters of the purchase
price for the Certificates to or upon the order of the Depositor by wire
transfer of immediately available funds or by such other method as may be
acceptable to the Depositor.
The Depositor agrees to have the Certificates available for inspection by
the Underwriters in New York, New York, not later than 1:00 p.m. on the business
day prior to the Specified Delivery Date.
4. OFFERING BY UNDERWRITERS. (a) It is understood that the Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Prospectus. It is further understood that the Depositor, in reliance upon Policy
Statement 105, has not filed and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Certificates. As required by Policy Statement 105, each Underwriter
therefore 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 covenants that: (i) it has
not offered or sold and, prior to the date six months after the date of issue of
the offered certificates, will not offer or sell any of the Certificates to
persons in the United Kingdom, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulation Act 1995 (as amended); (ii) it has complied and will comply with all
applicable provisions for the Financial Services Xxx 0000
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with respect to anything done by it in relation to the Certificates in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom such
document may otherwise lawfully be issued or passed on.
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
Representative, 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 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
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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;
(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 the Certificates made by the Underwriters; and
(ii) the Depositor and the Mortgage Loan Sellers, 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
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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 neither Xxxxxxx Xxxxx Xxxxxx Inc. nor McDonald Investments Inc., in
each case, 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 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 Xxxxxx Xxxxxxxx LLP,
certified public accountants, letters dated the date of the Prospectus
Supplement and the date of any preliminary version of the Prospectus
Supplement delivered to prospective investors in the Certificates (a
"Preliminary Prospectus Supplement" and, together with the accompanying
form of the Base Prospectus, a "Preliminary Prospectus"), respectively, and
satisfactory in form and substance to 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 Xxxxxx
Xxxxxxxx LLP, compared the results of their calculations to the
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corresponding items in the Prospectus Supplement and any Preliminary
Prospectus Supplement, respectively, and found each such number and
percentage set forth in the Prospectus Supplement and any Preliminary
Prospectus Supplement, respectively, to be in agreement with the results of
such calculations;
(b) all actions required to be taken and all filings required to be
made by the Depositor under the Act prior to the Specified Delivery Date
shall have been duly taken or made; and prior to the Specified Delivery
Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted, or to the knowledge of the Depositor or any
Underwriter, shall be contemplated by the Commission;
(c) unless otherwise specified in Schedule II, the Certificates
subject to this Agreement and offered by means of the Registration
Statement shall be rated the ratings 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) the Underwriters shall have received an opinion from in-house
counsel to the Depositor, dated the Specified Delivery Date, in
substantially the same form as Exhibit C attached hereto;
(g) the Underwriters shall have received an opinion from Sidley Xxxxxx
Xxxxx & Xxxx, 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, 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 & Xxxx 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, 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,
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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;
(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) the Mortgage Loan Sellers 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
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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 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 and/or the Mortgage Loan
Sellers furnished electronically or in writing to the Depositor or any
Underwriter by any Mortgage Loan Seller in connection with the preparation of
any Preliminary Prospectus or the Prospectus or any amendment thereof or
supplement thereto, or (C) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission (other than a Depositor
Mathematical Error (as defined below)) made in any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment thereof or supplement
thereto) with respect to the Mortgage Loans, the related loan documents, the
Mortgaged Properties, the Borrowers and/or the Mortgage Loan Sellers under the
headings "Summary of Prospectus Supplement--The Underlying Mortgage Loans",
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and/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 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
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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 the Underwriters for inclusion in the
Registration Statement, the Prospectus or any Preliminary Prospectus: the second
sentence of the second paragraph, and the only sentence of the sixth paragraph,
on the cover of each of the Prospectus Supplement and any Preliminary Prospectus
Supplement; the entire subsection entitled "Summary of Prospectus
Supplement--Relevant Parties--Underwriters" in each of the Prospectus Supplement
and any Preliminary Prospectus Supplement; and the first sentence of the fourth
paragraph, and the second sentence of the fifth paragraph, under the heading
"Underwriting" in each of the Prospectus Supplement and any Preliminary
Prospectus Supplement.
A "DEPOSITOR MATHEMATICAL ERROR" consists of any untrue statement or
omission made in the Prospectus Supplement, any Preliminary Prospectus
Supplement or, if it was developed by the Depositor or Credit Suisse First
Boston Corporation, any ABS Term Sheet as a result of an error in the
manipulation of, or any calculations based upon, or any aggregation (other than
an aggregation made in the Master Tape by a Mortgage Loan Seller) of, the
numerical, financial and/or statistical information regarding the Mortgage
Loans, the Mortgaged Properties, the Borrowers and/or the Mortgage Loan Sellers
contained in the Master Tape or otherwise provided to the Depositor by either
Mortgage Loan Seller.
(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
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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 or the Mortgage
Loan Sellers furnished to the Underwriters by the Depositor or any Mortgage Loan
Seller (the error in the Master Tape or any such other information concerning
the characteristics of the Mortgage Loans, the related loan documents, the
Mortgaged Properties, the Borrowers or the Mortgage Loan Sellers or the breach
in such representations and warranties that gave rise to such untrue statement
or omission, a "Collateral Error"), except to the extent that a Mortgage Loan
Seller or the Depositor notified such Underwriter in writing of such Collateral
Error or provided in written or electronic form information superseding or
correcting such Collateral Error (in any case, a "Corrected Collateral Error") 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 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
-15-
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 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
-16-
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.
(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
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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 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
-18-
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.
(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
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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. 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 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
-20-
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 the Underwriters, shall be mailed, delivered or telecopied to Credit Suisse
First Boston Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Transactions Advisory Group, 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., Eleven Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, 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.
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.
-21-
14. REPRESENTATION OF UNDERWRITERS. The Representative will 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.
-22-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon it will become a
binding agreement among the Depositor and the Underwriters in accordance with
its terms. Alternatively, the execution of this Agreement by the Depositor and
its acceptance by or on behalf of the Underwriters may be evidenced by an
exchange of telegraphic or other written communications.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.,
as Depositor
By:
----------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Representative on behalf of the Underwriters specified
on Schedule I
By:
------------------------------
Name:
Title:
-23-
SCHEDULE I
AMOUNTS OF CERTIFICATES
UNDERWRITER TO BE PURCHASED
----------- -----------------------
1. Credit Suisse First Boston Corporation Class A-1 $ 48,782,000
Class A-2 $129,030,000
Class A-3 $488,921,000
Class B $ 39,057,000
Class C $ 14,646,000
Class D $ 26,852,000
Class E $ 14,647,000
2. McDonald Investments Inc. Class A-3 $ 65,000,000
3. Xxxxxxx Xxxxx Barney Inc. Class A-3 $ 25,000,000
I-1
SCHEDULE II
CERTIFICATES: Commercial Mortgage Pass-Through Certificates, Series 2001-CK6,
Class X-0, X-0, X-0, X, X, X and E.
CLOSING: 10:00 A.M., December 27, 2001, at the offices of Sidley Xxxxxx Xxxxx &
Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
PROSPECTUS: Prospectus Supplement dated December 19, 2001 and Base Prospectus
dated December 19, 2001 (Registration Statement No.: 333-53012)
Total Principal Amount of Certificates: $851,935,000 (approximate)
TOTAL PRINCIPAL AMOUNT:
----------------------
Class A-1 $ 48,782,000
Class A-2 $129,030,000
Class A-3 $578,921,000
Class B $ 39,057,000
Class C $ 14,646,000
Class D $ 26,852,000
Class E $ 14,647,000
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 B Aa2/AA
Class C Aa3/AA-
Class D A2/A
Class E A3/A-
II-1
INITIAL PASS-THROUGH RATES:
--------------------------
Class A-1 4.3930%
Class A-2 6.1030%
Class A-3 6.3870%
Class B 6.5820%
Class C 6.7040%
Class D 6.8240%
Class E 6.9420%
PRICE (EXPRESSED AS A PERCENTAGE OF PAR):
----------------------------------------
Class A-1 100.000%
Class A-2 100.500%
Class A-3 100.481%
Class B 100.500%
Class C 100.500%
Class D 100.500%
Class E 100.500%
II-2
EXHIBIT A
FORM I OF DEPOSITOR'S OFFICER'S CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-CK6
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
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
April 20, 2001 (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 December 11, 2001 (the
"Pooling and Servicing Agreement"), between the Company as depositor,
Midland Loan Services, Inc. as master servicer and 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 December 19, 2001 (the "Underwriting
Agreement"), between the Company and Credit Suisse First Boston Corporation
as representative of the underwriters referred to therein, the Certificate
Purchase Agreement dated as of December 19, 2001 (the "Certificate Purchase
Agreement"), between the Company and Credit Suisse First Boston
Corporation, 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.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
December ___, 2001.
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
A-2
EXHIBIT B
FORM II OF DEPOSITOR'S OFFICER'S CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2001-CK6
CERTIFICATE OF THE DEPOSITOR
In connection with the issuance of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2001-CK6
(the "Certificates"), pursuant to a Pooling and Servicing Agreement dated as of
December 11, 2001 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as (the "Depositor"), Midland Loan
Services, Inc., as master servicer and as special servicer, and Xxxxx Fargo Bank
Minnesota, N.A., as trustee, and the sale of the Certificates pursuant to the
Underwriting Agreement dated as of December 19, 2001 (the "Underwriting
Agreement"), between the Depositor and Credit Suisse First Boston Corporation
("CSFB"), on behalf of itself and the other underwriters named therein, and the
Certificate Purchase Agreement dated as of December 19, 2001 (the "Certificate
Purchase Agreement"), between the Depositor and CSFB (together, the Pooling and
Servicing Agreement, the Underwriting Agreement and the Certificate Purchase
Agreement are referred to as the "Agreements"), the Depositor does hereby
certify that (A) the representations and warranties of the Depositor in the
Agreements are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof and (B) the Depositor
has in all material respects complied with all the agreements and satisfied all
the conditions on its part required under the Agreements to be performed or
satisfied at or prior to the date hereof. Capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned to such
terms in the Agreements.
Certified December __, 2001
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:
----------------------------------
Name:
Title:
B-1
Exhibit C
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE DEPOSITOR
December 27, 2001
To the Parties Listed on Annex A hereto
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2001-CK6
Ladies and Gentlemen:
I am a Vice President and Counsel of Credit Suisse First Boston Corporation
("CSFB") and have acted as special counsel to Credit Suisse First Boston
Mortgage Securities Corp., a Delaware corporation (the "Depositor"), in
connection with certain matters relating to: (i) the Depositor's purchase from
Column Financial Inc. ("Column") of certain multifamily and commercial mortgage
loans (collectively, the "Column Mortgage Loans") pursuant to the Mortgage Loan
Purchase Agreement (the "Column Mortgage Loan Purchase Agreement"), dated as of
December 19, 2001, by and between the Depositor and Column; (ii) the Depositor's
purchase from KeyBank National Association ("Keybank" and, together with Column,
the "Mortgage Loan Sellers") of certain multifamily and commercial mortgage
loans (collectively, the "Keybank Mortgage Loans" and, collectively with the
Column Mortgage Loans, the "Mortgage Loans") pursuant to the Mortgage Loan
Purchase Agreement (the "Keybank Mortgage Loan Purchase Agreement" and, together
with the Column Mortgage Loan Purchase Agreement, the "Mortgage Loan Purchase
Agreements"), dated as of December 19, 2001, by and between the Depositor and
KeyBank; (iii) the issuance of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2001-CK6,
consisting of the classes designated as follows: (a) the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D and Class E Certificates (collectively, the
"Public Certificates") which will be sold pursuant to the terms of the
Underwriting Agreement (the "Underwriting Agreement"), dated December 19, 2001,
by and between the Depositor and CSFB, as representative for the several
underwriters named therein, and (b) the Class A-X, Class A-CP, Class F, Class G,
Class GT2, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q, Class NW-SUB, Class R and Class V Certificates (collectively, the
"Private Certificates" and, collectively with the Public Certificates, the
"Certificates") which will be sold pursuant to the terms of the Certificate
Purchase Agreement (the "Certificate Purchase Agreement"), dated December ___,
2001, by and between the Depositor and CSFB; and (iv) the sale by the Depositor
of the Certificates. The Certificates are being issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
December 11, 2001, by and among the Depositor, as depositor, Xxxxx Fargo Bank
Minnesota, N.A., as trustee (the "Trustee"), Midland Loan Services, Inc., as
master servicer (the "Master Servicer") and as special servicer (the "Special
Servicer"). Capitalized terms used and not otherwise defined herein have the
meanings given to them in the Pooling and Servicing Agreement.
C-1
In rendering the opinions set forth below, I have examined and relied upon
the originals, copies or specimens, certified or otherwise identified to my
satisfaction, of the Underwriting Agreement, the Certificate Purchase Agreement,
the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements
(collectively, the "Agreements"), specimen forms of the Certificates, and such
certificates, corporate records and other documents, agreements, instruments and
opinions, as I have deemed appropriate as a basis for the opinions hereinafter
expressed. In connection with such examination, I have assumed the genuineness
of all signatures (other than with respect to the Depositor), the authenticity
of all documents, agreements and instruments submitted to me as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to me as copies or specimens and the
authenticity of the originals of such documents, agreements and instruments
submitted to me as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments I reviewed, to the extent
such matters do not constitute legal conclusions upon which I have been asked to
opine. As to any facts material to such opinions that were not known to me, I
have relied upon statements, certificates and representations of officers and
other representatives of the Depositor, the Mortgage Loan Sellers, CSFB and the
Trustee and of public officials.
Based upon and subject to the foregoing, I am of the opinion that:
17. The Depositor is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with requisite power and
authority to execute and deliver the Agreements and to perform its obligations
thereunder.
18. 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.
19. The Certificates have been duly authorized by all necessary corporate
action of the Depositor.
20. 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 or, to my knowledge, conflict with or result in a
breach or violation of any material indenture agreement or instrument to which
the Depositor is a party or by which it or any of its property is bound, or any
judgment, decree or order applicable to the Depositor, of any New York State or
federal court, regulatory body, administrative agency or other governmental
authority, other than potential conflicts, breaches or violations which
individually and in the aggregate are not reasonably expected to have a material
adverse effect on the ability of the Depositor to enter into and perform its
obligations under the Agreements.
21. To my knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against the Depositor (a)
asserting the invalidity of any of the Agreements or the Certificates, (b)
seeking to prevent the issuance of the Certificates or the consummation of any
of the transactions contemplated by the Agreements or (c) which could
C-2
reasonably be expected to materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability (with
respect to the Depositor) of, the Agreements or the Certificates. For purposes
of the opinion set forth in this paragraph, I have not regarded any legal or
governmental actions, investigations or proceedings to be "threatened" unless
the potential litigant or governmental authority has overtly threatened in
writing to the Depositor a present intention to initiate such proceedings.
I am a member of the Bar of the State of New York and the opinions set
forth above are limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America (in each case without regard to conflicts of laws principles).
I am not licensed to practice law in the State of Delaware, and the opinions in
paragraphs (1), (2) and (3) above as to the General Corporation Law of the State
of Delaware are based solely on standard compilations of the official statutes
of Delaware. I express no opinion as to the effect of the laws of any other
jurisdiction on matters addressed in this letter.
This letter is limited to the matters specifically addressed herein, and I
express no opinion as to any other matters relating to, or which may arise in
connection with, the consummation of the transactions contemplated by the
Agreements.
I am furnishing this letter to you solely for your benefit in connection
with the transactions referred to herein. This letter is not to be relied upon,
used, circulated, quoted or otherwise referred to by any other person or for any
other purpose.
Very truly yours,
C-3
ANNEX A
Credit Suisse First Boston Mortgage Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Column Financial, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Midland Loan Services, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
C-4
EXHIBIT D
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE DEPOSITOR
December 27, 2001
To the Parties Listed on Annex A hereto:
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2001-CK6
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "Depositor") with respect to certain matters in connection
with the following transactions (collectively, the "Transactions"):
(i) the filing by the Depositor of a registration statement on Form
S-3 (No. 333-53012) (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), for purposes of registering under
the Securities Act of 1933, as amended (the "1933 Act"), certain offerings
of mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor;
(ii) the sale by Column Financial Inc. ("Column"), and the purchase by
the Depositor, of a segregated pool of multifamily and commercial mortgage
loans (collectively, the "Column Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement, dated as of December 19, 2001 (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 December 19,
2001 (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 $986,430,065 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK6 (the
"Certificates"), consisting of 24 classes designated Class A-X, Class A-CP,
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class
F, Class G, Class GT2, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class NW-SUB, Class R and Class V, pursuant
to the Pooling and Servicing Agreement dated as of December 11, 2001 (the
"Pooling and Servicing Agreement"), among the Depositor as depositor,
Midland Loan
D-1
Services, Inc., as master servicer and special servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as trustee (the "Trustee");
(v) 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;
(vi) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB Corporation"), Xxxxxxx Xxxxx Xxxxxx Inc.
and McDonald Investments Inc. (collectively, in such capacity, the
"Underwriters") of the Class A-1, Class A-2, Class A-3, Class B, Class C,
Class D and Class E Certificates (collectively, the "Publicly Offered
Certificates"), pursuant to the Underwriting Agreement dated as of December
19, 2001 (the "Underwriting Agreement"), between the Depositor and CSFB
Corporation, as representative of the Underwriters; and
(vii) the sale by the Depositor, and the purchase by CSFB Corporation
(in such capacity, the "Initial Purchaser") of the Class A-X, Class A-CP,
Class F, Class G, Class GT2, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class NW-SUB, Class R and Class V
Certificates (collectively, the "Privately Offered Certificates"), pursuant
to the Certificate Purchase Agreement dated as of December 19, 2001 (the
"Certificate Purchase Agreement"), between the Depositor and the Initial
Purchaser.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the Column Mortgage Loan Purchase Agreement 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 this opinion letter, we have reviewed:
(i) the Agreements;
(ii) the Registration Statement;
(iii) the Prospectus, dated December 19, 2001, relating to publicly
offered mortgage pass-through certificates evidencing interests in trust
funds established by the Depositor (the "Basic Prospectus");
(iv) the Prospectus Supplement, dated December 19, 2001, specifically
relating to the Trust and the Publicly Offered Certificates (the
"Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"); and
(v) the Confidential Offering Circular, dated December 19, 2001,
relating to the Trust and certain classes of the Privately Offered
Certificates (including all exhibits and annexes thereto, the "Confidential
Offering Circular").
D-2
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
contained in the Agreements, (ii) the legal capacity of natural persons, (iii)
the genuineness of all signatures, (iv) the authenticity of all documents
submitted to us as originals, (v) the conformity to authentic originals of all
documents submitted to us as certified, conformed or photostatic copies, (vi)
the due organization of all parties to each of the Agreements and the valid
existence of each such party in good standing under the laws of its jurisdiction
of organization, (vii) except as and to the extent expressly addressed in
Opinion Paragraph 7 below, the power and authority of the parties to each of the
Agreements to enter into, perform under and consummate the transactions
contemplated by such Agreement, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order, writ or decree applicable to any such party or its assets,
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by each of the parties thereto, (ix)
except as and to the extent expressly addressed in Opinion Paragraph 5 below,
the constitution of each of the 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
D-3
constitutes negligence, recklessness or willful or unlawful conduct, (d) any
provision that purports to govern matters of civil procedure, including any such
provision that purports to establish evidentiary standards, to waive objections
to venue or forum, to confer subject matter jurisdiction on any court that would
not otherwise have such jurisdiction or to waive any right to a jury trial, or
(e) any provision that purports to render unenforceable any modification, waiver
or amendment that is not executed in writing, to sever any provision of any
agreement, to appoint any person or entity as the attorney-in-fact of any other
person or entity or to provide that any agreement or any particular provision
thereof is to be governed by or construed in accordance with the laws of any
jurisdiction other than the State of New York; (4) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, fraudulent
conveyance and transfer, moratorium and other similar laws affecting the rights
of creditors or secured parties generally; and (5) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of any provision of any agreement that
purports or is construed to provide indemnification with respect to securities
law violations.
When used in this opinion, the term "knowledge" or words of similar import
mean the actual knowledge of facts or other information of the Sidley Xxxxxx
Xxxxx and Xxxx 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 and,
where expressly referred to below, the federal laws of the United States of
America (in each case without regard to conflicts of law principles). In
addition, we do not express any opinion with respect to (i) the tax, securities
or "doing business" laws of any particular State, including, without limitation,
the State of New York, or (ii) any law, rule or regulation to which the
Depositor may be subject as a result of any other person's or entity's legal or
regulatory status or any such other person's or entity's involvement in the
Transactions. Furthermore, we do not express any opinion with respect to any
matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Registration Statement has become effective under the 1933 Act.
2. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened.
3. The Registration Statement, the Basic Prospectus and the Prospectus
Supplement, as of their respective effective or issue dates (other than the
financial statements, schedules and other financial and statistical
information contained therein or omitted therefrom, as to which we express
no opinion), complied as to form in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations
thereunder.
D-4
4. To our knowledge, there are no material contracts, indentures or
other documents relating to the Publicly Offered Certificates of a
character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto.
5. Each of the Agreements constitutes a valid, legal and binding
agreement of the Depositor, enforceable against the Depositor in accordance
with its terms.
6. The Certificates, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and paid
for in accordance with the Underwriting Agreement and the Certificate
Purchase Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
7. The execution, delivery and performance of the Agreements by the
Depositor will not in any material respect conflict with or result in a
violation of any federal or State of New York statute, rule or regulation
of general applicability in transactions of the type contemplated by the
Agreements.
8. No consent, approval, authorization or order of any federal or
State of New York court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated by the terms
of the Agreements, except such as may be required under the securities laws
of the State of New York and other particular States in connection with the
purchase and the offer and sale of the Certificates by the Underwriters and
the Initial Purchaser, as to which we express no opinion, and except such
as have been obtained.
9. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended. The Trust is not
required to be registered under the Investment Company Act of 1940, as
amended.
10. The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "The Pooling and
Servicing Agreement" in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing
Documents", and in the Confidential Offering Circular under the heading
"Transfer and Exchange; Restrictions", insofar as such statements purport
to summarize certain material provisions of the Certificates and the
Pooling and Servicing Agreement, are accurate in all material respects.
11. The statements set forth in the Prospectus Supplement under the
headings "ERISA Considerations", "Federal Income Tax Consequences" and
"Legal Investment", in the Basic Prospectus under the headings "ERISA
Considerations", "Federal Income Tax Consequences" and "Legal Investment",
and in the Confidential Offering Circular under the headings "Certain ERISA
Considerations", "Certain Federal Income Tax Consequences" and "Legal
Investment", to the extent that they purport to describe certain matters of
federal law or legal conclusions with respect thereto, while not discussing
all possible consequences of an investment in the Certificates to all
investors,
D-5
provide in all material respects an accurate summary of such matters and
conclusions set forth under such headings.
12. As described in the Prospectus Supplement and the Confidential
Offering Circular, (A) the Loan REMIC will qualify as a real estate
mortgage investment conduit (a "REMIC") within the meaning of Sections 860A
through 860G of the Internal Revenue Code of 1986 in effect on the date
hereof (the "REMIC PROVISIONS"), and the Loan REMIC Regular Interest will
constitute a "regular interest" (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 the Loan REMIC, (B) REMIC I will
qualify as a REMIC within the meaning of the REMIC Provisions, and the
REMIC I Regular Interests will constitute "regular interests", and the
REMIC I Residual Interest will constitute the sole "residual interest", in
REMIC I, (C) REMIC II will qualify as a REMIC within the meaning of the
REMIC Provisions, and the REMIC II Regular Interest will constitute a
"regular interest", and the REMIC II Residual Interest will constitute the
sole "residual interest", in REMIC II, (D) REMIC III will qualify as a
REMIC within the meaning of the REMIC Provisions, and the REMIC III Regular
Interests will constitute "regular interests", and the REMIC III Residual
Interest will constitute the sole "residual interest", in REMIC III, and
(E) REMIC IV will qualify as a REMIC within the meaning of the REMIC
Provisions, and the REMIC IV Regular Interest Certificates will constitute
"regular interests", and the REMIC IV Residual Interest will constitute the
sole "residual interest", in REMIC IV.
13. The respective portions of the Trust consisting of Grantor Trust R
and Grantor Trust V will each be classified as a grantor trust under
subpart E, part I of subchapter J of the Internal Revenue Code of 1986.
14. Assuming (a) the accuracy of the respective representations and
warranties of the Initial Purchaser and the Depositor contained in the
Certificate Purchase Agreement, (b) the performance by the Initial
Purchaser and the Depositor of their respective covenants contained in the
Certificate Purchase Agreement, and (c) in the case of each investor that
purchases Privately Offered Certificates from the Initial Purchaser, the
accuracy of the deemed representations and warranties set forth under the
caption "Notice to Investors" in the Confidential Offering Circular, the
offer and sale of the Privately Offered Certificates by the Depositor to
the Initial Purchaser, and by the Initial Purchaser to investors that
purchase from it, in the manner contemplated in the Confidential Offering
Circular, the Certificate Purchase Agreement and the Pooling and Servicing
Agreement, are transactions that do not require registration of the
Privately Offered Certificates under the 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,
D-6
ANNEX A
Credit Suisse First Boston Mortgage
Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
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.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
D-7
EXHIBIT E
FORM OF LETTER OF SIDLEY XXXXXX XXXXX & XXXX,
SPECIAL COUNSEL TO THE DEPOSITOR
December 27, 2001
To the Parties Listed on Annex A hereto:
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2001-CK6
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. 333-53012) (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), for purposes of registering under
the Securities Act of 1933, as amended (the "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 December 19, 2001 (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 December 19,
2001 (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 $986,430,065 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-CK6 (the
"Certificates"), consisting of 24 classes designated Class A-X, Class A-CP,
Class A-1, Class A-2, Class A-3, 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 Q, Class NW-SUB, Class GT2, Class R and Class V, pursuant to
the Pooling and Servicing Agreement dated as of December 11, 2001 (the
"Pooling and Servicing Agreement"), among the Depositor as depositor,
Midland Loan
E-1
Services, Inc., as master servicer and special servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as trustee (the "Trustee");
(v) 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
(vi) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB Corporation"), McDonald Investments Inc.
and Solomon Xxxxx Xxxxxx Inc. (collectively, in such capacity, the
"Underwriters"), of the Class A-1, Class A-2, Class A-3, Class B, Class C,
Class D and Class E Certificates (collectively, the "Publicly Offered
Certificates"), pursuant to the Underwriting Agreement dated as of December
19, 2001 (the "Underwriting Agreement"), between the Depositor and CSFB
Corporation, as representative of the Underwriters.
The Pooling and Servicing Agreement, the Underwriting Agreement, the Column
Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan Purchase
Agreement are collectively referred to herein as the "Agreements". Capitalized
terms not defined herein have the respective meanings set forth in the Pooling
and Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Registration Statement; the Prospectus, dated December 19, 2001, relating to
publicly offered mortgage pass-through certificates evidencing interests in
trust funds established by the Depositor (the "Basic Prospectus"); and the
Prospectus Supplement, dated December 19, 2001, specifically relating to the
Trust and the Publicly Offered Certificates (the "Prospectus Supplement"; and,
together with the Basic Prospectus, the "Prospectus"). In addition, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for rendering this letter; we have obtained such
certificates from and made such inquiries of officers and representatives of the
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for rendering this letter; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in this letter are based. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Agreements, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures, (iv) the
authenticity of all documents submitted to us as originals, (v) the conformity
to authentic originals of all documents submitted to us as certified, conformed
or photostatic copies, (vi) the due organization of all parties to each of the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the due authorization by all
necessary action, and the due execution and delivery, of the Agreements by the
parties thereto, (viii) the constitution of each of the Agreements as the legal,
valid and binding obligation of each party thereto, enforceable against such
party in accordance with its terms, (ix) compliance with the Agreements by the
parties thereto, (x) the conformity, to the requirements of the Column Mortgage
Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase Agreement and the
Pooling and Servicing
E-2
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. 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"), and we have reviewed certain loan
summaries prepared by Column or an affiliate of Column 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 causes us to
believe that (a) the Registration Statement (exclusive of the Excluded
Information therein, as to which we express no view or belief), as of its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or (b) the Prospectus (exclusive of the
Excluded Information therein, as to which we express no view or belief), as of
the date of the Prospectus Supplement or as of the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that we express
no view or belief as to (x) any financial statements, schedules and/or other
numerical, financial or statistical data set forth or referred to therein or
omitted therefrom, (y) any information contained in or omitted from the
Prospectus regarding the nature and characteristics of the KeyBank Mortgage
Loans and/or the Borrowers and Mortgaged Properties relating to the KeyBank
Mortgage Loans or (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 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. We call to your attention that, with your
knowledge and consent, except as described above, such Sidley Xxxxxx Xxxxx &
Xxxx 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
The statements set forth herein are being made to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the views or beliefs expressed herein. This letter is being delivered
solely for the benefit of the persons to which it is addressed in connection
with the Transactions. It may not be quoted, filed with any governmental
authority or other regulatory agency or otherwise circulated or utilized for any
other purpose without our prior written consent.
Very truly yours,
E-4
ANNEX A
Credit Suisse First Boston Mortgage
Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 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 Corporation,
Xxxxxxx Xxxxx Barney 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
