Exhibit 4.2
This Agreement (the "Sale and Purchase Agreement"), dated as of
[___________], 200_, by and between CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation (the "Depositor"), and
[_________________________], a Delaware [___________] (the "Seller").
W I T N E S S E T H:
WHEREAS, Exhibit A attached hereto and made a part hereof lists certain
residential mortgage loans (the "Mortgage Loans") owned by the Seller that the
Seller desires to sell to the Depositor and that the Depositor desires to
purchase;
WHEREAS, it is the intention of the Seller and the Depositor that
simultaneously with the Seller's conveyance of the Mortgage Loans to the
Depositor on the Closing Date, the Depositor shall deposit the Mortgage Loans in
trust pursuant to a Pooling and Servicing Agreement to be dated as of
[______________, 200_] (the "Pooling and Servicing Agreement"), to be entered
into by and among the Depositor, as depositor, the Seller, as seller and
servicer (the Seller or the "Servicer") and [_________________], as trustee (the
"Trustee");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article:
"Agreement" means this Sale and Purchase Agreement, as amended or
supplemented in accordance with the provisions hereof.
"Closing Date" shall have the meaning ascribed thereto in Section 2.01(c).
"Commission" means the United States Securities and Exchange Commission.
"Cut-Off Date" [___________ 1, 200_].
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"List of Mortgage Loans" shall have the meaning ascribed thereto in Section
2.01(b).
"Mortgage Loan Information" shall have the meaning ascribed thereto in
Section 4.14(a)(i).
"Prospectus" means the Prospectus, dated [__________, 200_], relating to
the offering by the Depositor from time to time of its Mortgage-Backed
Pass-Through Certificates (Issuable in Series) in the form in which it was or
will be filed with the Securities Exchange Commission pursuant to Rule 424(b)
under the Securities Act with respect to the offer and sale of the Offered
Certificates.
"Prospectus Supplement" means the Prospectus Supplement, dated [__________,
200_], relating to the offering of the Certificates in the form in which it was
or will be filed with the Commission pursuant to Rule 424(b) under the
Securities Act with respect to the offer and sale of the Offered Certificates.
"Registration Statement" means that certain registration statement on Form
S-3, as amended (Registration No. 333-______) relating to the offering by the
Depositor from time to time of its Mortgage-Backed Pass-Through Certificates
(Issuable in Series) as heretofore declared effective by the Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means [_____________], in its capacity as Seller of the
Mortgage Loans under this Agreement and any successor thereto, whether through
merger, consolidation, purchase and assumption thereof or by purchase or
acquisition all or substantially all of its assets or otherwise.
Capitalized terms used herein that are not otherwise defined shall have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement.
ARTICLE TWO
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
Section 2.01. Agreement to Purchase. (a) Subject to the terms and
conditions of this Agreement, the Seller agrees to sell, and the Depositor
agrees to purchase on the Closing Date, the Mortgage Loans.
(b) Subject to Section 2.07, the Depositor and the Seller have agreed upon
which of the Seller's loans are to be purchased by the Depositor on the Closing
Date pursuant to this Agreement, and the Seller has prepared a schedule (the
"List of Mortgage Loans") setting forth all of the Mortgage Loans to be
purchased under this Agreement, which schedule is attached hereto as Exhibit A.
(c) The closing for the purchase and sale of the Mortgage Loans shall take
place at the offices of [______________], at 10:00 a.m., New York time, on
[____________, 200_] or such other place and time as the parties shall agree
(such time being herein referred to as the "Closing Date").
Section 2.02. Purchase Price. On the Closing Date, as full consideration
for the Seller's sale of the Mortgage Loans to the Depositor, the Depositor will
deliver to the Seller (i) an amount in cash equal to $[___________], all payable
by wire transfer of same day funds [and
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(ii) the Class R-I Certificates and the Class R-II Certificates to be issued
pursuant to the Pooling and Servicing Agreement].
Section 2.03. Conveyance of Mortgage Loans; Possession of Mortgage Files.
On the Closing Date, the Seller shall sell, transfer, assign, set over and
convey to the Depositor, without recourse but subject to the terms of this
Agreement, all right, title and interest in and to the Mortgage Loans and the
other assets relating thereto. Upon payment of the purchase price for such
Mortgage Loans as provided in Section 2.02 of this Agreement, the Seller shall
have hereby, and shall be deemed to have, sold, transferred, assigned, set over
and conveyed such Mortgage Loans and the other related assets. Upon the sale of
such Mortgage Loans, the ownership of each related Note, each related Mortgage
and the contents of the related Loan File shall immediately vest in the
Depositor and the ownership of all related records and documents with respect to
each Mortgage Loan prepared by or which come into the possession of the Seller
shall immediately vest in the Depositor. The contents of any Loan File in the
possession of the Seller at any time after such sale, and any scheduled payments
of principal and interest on the Mortgage Loans due after the Cut-Off Date and
received by the Seller, shall be held in trust by the Seller for the benefit of
the Depositor as the owner thereof, and shall be promptly delivered by the
Seller to or upon the order of the Depositor.
Pursuant to the Pooling and Servicing Agreement, the Depositor shall, on
the Closing Date, assign all of its right, title and interest in and to the
Purchased Loans and the other Purchased Assets and the Seller's right to
exercise the remedies created by Section 4 of the Loan Sale Agreement to the
Trustee for the benefit of the Holders of the Certificates.
Section 2.04. Delivery of Mortgage Loan Documents. On or prior to the
Closing Date, the Seller shall deliver to the Trustee (as assignee of the
Depositor pursuant to the Pooling and Servicing Agreement) the Loan File
Documents, as described in the related Pooling and Servicing Agreement.
All original documents relating to the Mortgage Loans that are not
delivered to the Trustee (as assignee of the Depositor pursuant to the Pooling
and Servicing Agreement) as required by this Section 2.04 are and shall be held
by the Seller in trust for the benefit of the Trustee on behalf of the related
Holders of the Certificates. In the event that any such original document is
required pursuant to the terms of this Section 2.04 to be a part of a Loan File,
such document shall be delivered promptly to the Trustee (as assignee of the
Depositor pursuant to the Pooling and Servicing Agreement).
From and after the sale of the Mortgage Loans to the Depositor pursuant
hereto, to the extent that the Seller retains legal title of record to any
Mortgage Loans prior to the vesting of legal title in the Trustee (as assignee
of the Depositor pursuant to the Pooling and Servicing Agreement), such title
shall be retained in trust for the Depositor as the owner of the Mortgage Loans
and the Trustee, as the Depositor's assignee.
Section 2.05. Transfer of Mortgage Loans; Assignment of Agreement. The
Depositor has the right to assign its interest under this Agreement to the
Trustee as may be required to effect the purposes of the Pooling and Servicing
Agreement, without further notice to, or consent of, the Seller, and the Trustee
shall succeed to such of the rights and obligations of
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the Depositor hereunder as shall be so assigned. The Depositor shall, pursuant
to the Pooling and Servicing Agreement, assign all of its right, title and
interest in and to the Mortgage Loans and the related assets to the Trustee for
the benefit of the Holders of the Certificates.
Section 2.06. Books and Records. The sale of each Mortgage Loan shall be
reflected on the Seller's balance sheet and other financial statements as a sale
of assets by the Seller for accounting purposes and for tax purposes. The Seller
shall be responsible for maintaining, and shall maintain, a complete set of
books and records for each Mortgage Loan which shall be clearly marked to
reflect the ownership of each Mortgage Loan by the Trustee for the benefit of
the Holders of the Certificates.
Section 2.07. Cost of Delivery of Documents. The costs relating to the
delivery of the documents specified in this Article Two in connection with the
Mortgage Loans shall be borne by the Seller.
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ARTICLE THREE
COVENANTS
The Seller covenants with the Depositor as follows:
(a) The Seller shall cooperate with the Depositor and the firm of
independent certified public accountants retained with respect to the issuance
of the Certificates in making available all information and taking all steps
reasonably necessary to permit the accountants' letters required hereunder to be
delivered within the times set for delivery herein.
(b) The Seller hereby agrees to do all acts, transactions, and things and
to execute and deliver all agreements, documents, instruments, and papers by and
on behalf of the Seller as the Depositor or its counsel may reasonably request
in order to consummate the transfer of the Mortgage Loans to the Depositor and
the subsequent transfer thereof to the Trustee, and the rating, issuance and
sale of the Certificates.
(c) The Seller hereby agrees to arrange separately to pay to the Trustee
all of the Trustee's fees and expenses in connection with the transactions
contemplated by the Pooling and Servicing Agreement subject to existing
agreements to which the Seller assented at an earlier date. For the avoidance of
doubt, the parties hereto acknowledge that it is the intention of the parties
that the Depositor shall not pay any of the Trustee's fees and expenses in
connection with the transactions contemplated by the Pooling and Servicing
Agreement.
ARTICLE FOUR
MISCELLANEOUS
Section 4.01. Conditions of Depositor's Obligations. The obligations of the
Depositor to purchase the Mortgage Loans will be subject to the satisfaction on
the Closing Date of the following conditions. Upon payment of the purchase price
for the Mortgage Loans, such conditions shall be deemed satisfied or waived.
(a) Each of the obligations of the Seller required to be performed by it on
or prior to the Closing Date pursuant to the terms of this Agreement and the
Pooling and Servicing Agreement shall have been duly performed and complied with
in all material respects and all of the representations and warranties of the
Seller under this Agreement and the Pooling and Servicing Agreement shall be
true and correct in all material respects as of the Closing Date and no event
shall have occurred which, with notice or the passage of time, would constitute
a default under this Agreement or the Pooling and Servicing Agreement, and the
Depositor shall have received a certificate to the effect of the foregoing
signed by an authorized officer of the Seller.
(b) The Depositor shall have received a letter dated the date of this
Agreement, in form and substance reasonably acceptable to the Depositor and its
counsel, prepared by [__________________], independent certified public
accountants, regarding the
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numerical information contained in the Prospectus Supplement under the captions
"Certain Yield and Prepayment Considerations" and "The Mortgage Loan Pools."
(c) The Mortgage Loans will be reasonably acceptable to the Depositor, in
its sole discretion.
(d) The Depositor shall have received the following additional closing
documents, in form and substance satisfactory to the Depositor and its counsel:
(i) the List of Mortgage Loans;
(ii) the Pooling and Servicing Agreement, dated as of [___________, 200_],
and the Underwriting Agreement, dated as of [_____________, 200_] (the
"Underwriting Agreement"), between the Depositor and Credit Suisse First Boston
Corporation and all documents required thereunder, duly executed and delivered
by each of the parties thereto other than the Depositor;
(iii)an officer's certificate of an officer of the Seller, dated as of the
Closing Date, in the form of Exhibit B hereto, and attached thereto resolutions
of the board of directors and a copy of the charter and by-laws;
(iv) an officer's certificate of an officer of the Seller that the
representations and warranties of the Seller and Servicer herein and in the
Pooling and Servicing Agreement are true and correct as of the date of this
Agreement;
(v) a copy of the Seller's charter and all amendments, revisions, and
supplements thereof, certified by an officer of such entity;
(vi) an opinion of the counsel for the Seller as to various corporate
matters substantially in the form attached hereto as Exhibit C (it being agreed
that the opinion shall expressly provide that the Trustee shall be entitled to
rely on the opinion);
(vii)letters from the Rating Agencies that they have assigned ratings to
the Certificates as described in the Prospectus Supplement;
(viii) an opinion of counsel for the Trustee in form and substance
acceptable to the Depositor, its counsel, and each Rating Agency (it being
agreed that the opinion shall expressly provide that the Seller shall be
entitled to rely on the opinion); and
(ix) an opinion or opinions of counsel for the Servicer, in form and
substance acceptable to the Depositor, its counsel, and each Rating Agency.
(e) All documents contemplated by this Agreement and the Pooling and
Servicing Agreement shall be satisfactory in form and substance to the Depositor
and its counsel.
(f) The Seller shall have furnished the Depositor with such other
certificates of its officers or others and such other documents or opinions as
the Depositor or its counsel may reasonably request.
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Section 4.02. Conditions of Seller's Obligations. The obligations of the
Seller under this Agreement shall be subject to the satisfaction, on the Closing
Date, of the following conditions:
(a) Each of the obligations of the Depositor required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
and the Pooling and Servicing Agreement shall have been duly performed and
complied with and all of the representations and warranties of the Depositor
contained in this Agreement and the Pooling and Servicing Agreement shall be
true and correct as of the Closing Date and the Seller shall have received a
certificate to that effect signed by an authorized officer of the Depositor.
(b) The Seller shall have received the Pooling and Servicing
Agreement, and all documents required thereunder, in each case executed by
the Depositor as applicable.
Section 4.03. Termination of Depositor's Obligations. The Depositor may
terminate its obligations hereunder by notice to the Seller at any time before
delivery of and payment of the purchase price for the Mortgage Loans if: (i) any
of the conditions described in Section 4.01 are not satisfied when and as
provided therein; (ii) there shall have been the entry of a decree or order by a
court or agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Seller or the Servicer, or for the winding up
or liquidation of the affairs of the Seller or the Servicer; (iii) there shall
have been the consent by the Seller or the Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Seller or the Servicer or relating to substantially all of the property of
the Seller or the Servicer; or (iv) the Underwriter terminates its obligations
under the Underwriting Agreement (except as a result of a failure solely due to
a matter within the reasonable control of the Depositor). The termination of the
Depositor's obligations hereunder shall not terminate the Depositor's rights
hereunder or its right to exercise any remedy available to it at law or in
equity.
Section 4.04. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by registered mail, postage prepaid, or transmitted by
facsimile and confirmed by a similar mailed writing, if to the Depositor,
addressed to the Depositor at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or to such other address as the Depositor may designate in writing to the
Seller, and if to the Seller, addressed to the Seller at
[_____________________], Attention: [___________________], or to such other
address as the Seller may designate in writing to the Depositor.
Section 4.05. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement which is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such
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prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction as to
any Mortgage Loan shall not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 4.06. Agreement of Seller. The Seller agrees to execute and deliver
such instruments and take such actions as the Depositor may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement.
Section 4.07. Survival. The parties to this Agreement agree that the
representations, warranties and agreements made by each of them herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed to
be relied upon by the other party hereto, notwithstanding any investigation
heretofore or hereafter made by such other party or on such other party's
behalf, and that the representations, warranties and agreements made by the
parties hereto in this Agreement or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans.
Section 4.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 4.09. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as expressly permitted by the terms
hereof, this Agreement may not be assigned, pledged or hypothecated by any party
hereto to a third party without the written consent of the other party to this
Agreement; provided, however, that the Depositor may assign its rights hereunder
to the Trustee on behalf of the Trust without the consent of the Seller.
Section 4.10. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York (without
regard to conflicts of laws principles), and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
Section 4.11. Confirmation of Intent. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans by the Seller to the
Depositor as contemplated by this Agreement be, and be treated for all purposes
as, a sale by the Seller to the Depositor of the Mortgage Loans. It is, further,
not the intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to the Depositor to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans are held to continue to be property of the
Seller then: (a) this Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the Uniform Commercial Code; (b) the
transfer of the Mortgage Loans provided for herein shall be deemed to be a grant
by the Seller to the Depositor of a security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
on the Mortgage Loans in accordance with the terms thereof and all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property; (c) the possession by the
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Depositor of Notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the Uniform Commercial Code; and (d) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Depositor for the purpose of perfecting
such security interest under applicable law. Any assignment of the interest of
the Depositor pursuant to any provision hereof shall also be deemed to be an
assignment of any security interest created hereby. The Seller and the Depositor
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement.
Section 4.12. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 4.13. Costs. In connection with the transactions contemplated under
this Agreement and the Pooling and Servicing Agreement, the Seller shall
promptly pay (or shall promptly reimburse the Depositor to the extent that the
Depositor shall have paid or otherwise incurred): (a) the fees and disbursements
of the Depositor's counsel up to $[____], plus disbursements up to $[_____]; (b)
the fees of each Rating Agency as separately agreed; (c) any of the fees of the
Trustee as separately agreed and the reasonable fees and disbursements of the
Trustee's counsel up to $[_____]; (d) reasonable expenses incurred in connection
with printing the Prospectus, the Prospectus Supplement, any amendment or
supplement thereto, any preliminary prospectus and the Certificates; (e) fees
and expenses relating to the filing of documents with the Commission relating to
the Offered Certificates (including without limitation periodic reports under
the Exchange Act); and (f) the shelf registration amortization fee (which fee
shall equal [1/33rd of 1%] of the amount of the Offered Certificates) paid in
connection with the issuance of Certificates. For the avoidance of doubt, the
parties hereto acknowledge that it is the intention of the parties that the
Depositor shall not pay any of the Trustee's fees and expenses in connection
with the transactions contemplated by the Pooling and Servicing Agreement. All
other costs and expenses in connection with the transactions contemplated
hereunder shall be borne by the party incurring such expenses.
Section 4.14. Indemnification. (a) (i) The Seller agrees to indemnify and
hold harmless the Depositor, each of its directors, each of its officers who
have signed the Registration Statement, and each of its directors and each
person or entity who controls the Depositor or any such person, within the
meaning of Section 15 of the Securities Act, against any and all losses, claims,
damages or liabilities, joint and several, to which the Depositor or any such
person or entity may become subject, under the Securities Act or otherwise, and
will reimburse the Depositor and each such controlling person for any legal or
other expenses incurred by the Depositor or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
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statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement under the headings ["Risk Factors--Risks Associated with
the Mortgage Loans" and "The Mortgage Loan Pools"; the "Seller"; the Servicer]
(such information, the "Mortgage Loan Information") or any amendment or
supplement to the Prospectus Supplement relating to the Mortgage Loan
Information, the Seller or the Servicer, or the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements in the Prospectus Supplement or any amendment or supplement
to the Prospectus Supplement approved in writing by the Seller, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Seller will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Prospectus Supplement or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Seller by the
Underwriter or the Depositor specifically for use therein. This indemnity
agreement will be in addition to any liability which the Seller may otherwise
have.
(ii) The Seller agrees to indemnify and to hold the Depositor harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, fees and expenses that the
Depositor may sustain in any way related to the failure of the Seller to perform
its duties in compliance with the terms of this Agreement. The Seller shall
immediately notify the Depositor if a claim is made by a third party with
respect to this Agreement, and the Seller shall assume the defense of any such
claim and pay all expenses in connection therewith, including reasonable counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against the Depositor in respect of such claim. Pursuant to the
Pooling and Servicing Agreement, the Trustee shall reimburse the Seller in
accordance with the Pooling and Servicing Agreement for all amounts advanced by
the Seller pursuant to the preceding sentence except when the claim relates
directly to the failure of the Seller to perform its duties in compliance with
the terms of this Agreement.
(b) The Depositor agrees to indemnify and hold harmless the Seller, each of
its directors and each person or entity who controls the Seller or any such
person, within the meaning of Section 15 of the Securities Act, against any and
all losses, claims, damages or liabilities, joint and several, to which the
Seller or any such person or entity may become subject, under the Securities Act
or otherwise, and will reimburse the Seller and any such director or controlling
person for any legal or other expenses incurred by such party or any such
director or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, the Prospectus
Supplement, any amendment or supplement to the Prospectus, the Prospectus
Supplement or the omission or the 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, but
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission is other than a statement or omission relating to
the information set forth in subsection (a)(i) of this Section 4.14. This
indemnity agreement will be in addition to any liability which the Depositor may
otherwise have.
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(c) The Seller shall in addition indemnify and hold harmless the Depositor
for any losses, claims, damages, or liabilities to which it becomes subject in
connection with the use in connection with the offering for resale of the
Offered Certificates of any materials which would constitute "computational
materials", "collateral term sheets" or "structural term sheets" (collectively,
"Computational Materials") under the Commission's "no-action letter" definitions
of such terms as of the date hereof, except to the extent that any such losses,
claims, damages or liabilities result from the negligence of the Depositor in
the preparation of such Computational Materials. The Depositor shall indemnify
and hold harmless the Seller for any losses, claims, damages or liabilities
which result from the negligence of the Depositor in the preparation of such
Computational Materials, provided that in no event shall the Depositor be liable
to the Seller under this paragraph (c) in an amount in excess of the Depositor's
resale profit on its sale of the Offered Certificates or the underwriter's fee,
whichever is greater.
(d) Promptly after receipt by an indemnified party under this Section 4.14
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 4.14, notify the indemnifying party in writing of the commencement
thereof, but the omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability which the indemnifying party may have
to any indemnified party hereunder except to the extent such indemnifying party
has been prejudiced thereby. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. After notice from the indemnifying party to such indemnified
party of its election to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 4.14 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it that are different
from or additional to those available to the indemnifying party and would raise
a potential conflict, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. The indemnifying party shall not be liable for the expenses of more
than one separate counsel.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the preceding
parts of this Section 4.14 is for any reason held to be unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or
subsection (b) of this Section 4.14 in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof); provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered (i) the relative benefits received by the Seller on the one hand,
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and the Depositor on the other, from the offering of the Certificates or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, the
relative benefits described in clause (i) as well as the relative faults of the
Seller and the Depositor, taking into account the Seller's and the Depositor's
relative knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Seller and the Depositor agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation. For purposes of this Section 4.14, each director of the Depositor,
each officer of the Depositor who signed the Registration Statement, and each
person, if any, who controls the Depositor within the meaning of Section 15 of
the Securities Act, shall have the same rights to contribution as the Depositor,
and each director of Seller, and each person, if any, who controls the Seller
within the meaning of Section 15 of the Securities Act, shall have the same
rights to contribution as the Seller.
Section 4.15. Miscellaneous. (i) This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof, (ii) this
Agreement may be amended from time to time by the Seller and the Depositor by
written agreement, without notice to or consent of the related Holders to cure
any ambiguity, to correct or supplement any provisions herein, to comply with
any changes in the Code, or to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement; provided, however, that such action shall not,
as evidenced by an Officer's Certificate, at the expense of the party requesting
the change, delivered to the Trustee, adversely affect in any material respect
the interests of any Holder; and provided further, that no such amendment shall
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or change the rights or
obligations of any other party hereto without the consent of such party, (iii)
this Agreement may be amended from time to time by the Seller and the Depositor
with the consent of the Required Certificateholders for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment shall be made unless the Trustee
receives an Officer's Certificate, that such change will not reduce in any
manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, and (iv) it shall not be necessary
for the consent of any Holder under this Section to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof.
[Signatures Commence on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
by their respective officers thereunto duly authorized as of the date first
above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By:________________________________
Name:
Title:
[_____________________________]
By:________________________________
Name:
Title:
13
EXHIBIT A
LIST OF MORTGAGE LOANS
[See Schedule 1 to the
Loan Sale Agreement]
14
EXHIBIT B
OFFICER'S CERTIFICATE OF
THE SELLER
15
EXHIBIT C
OPINION OF COUNSEL TO
THE SELLER
16
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS....................................................... 1
Section 1.01. Definitions........................................ 1
ARTICLE TWO
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS................... 2
Section 2.01. Agreement to Purchase.............................. 2
Section 2.02. Purchase Price..................................... 3
Section 2.03. Conveyance of Mortgage Loans; Possession of
Mortgage Files................................... 3
Section 2.04. Delivery of Mortgage Loan Documents................ 3
Section 2.05. Transfer of Mortgage Loans; Assignment of
Agreement........................................ 4
Section 2.06. Books and Records.................................. 4
Section 2.07. Cost of Delivery of Documents...................... 4
ARTICLE THREE
COVENANTS......................................................... 5
ARTICLE FOUR
MISCELLANEOUS..................................................... 5
Section 4.01. Conditions of Depositor's Obligations.............. 5
Section 4.02. Conditions of Seller's Obligations................. 7
Section 4.03. Termination of Depositor's Obligations............. 7
Section 4.04. Notices............................................ 8
Section 4.05. Severability of Provisions......................... 8
Section 4.06. Agreement of Seller................................ 8
Section 4.07. Survival........................................... 8
Section 4.08. Effect of Headings and Table of Contents........... 8
17
Section 4.09. Successors and Assigns............................. 8
Section 4.10. Governing Law...................................... 9
Section 4.11. Confirmation of Intent............................. 9
Section 4.12. Execution in Counterparts.......................... 9
Section 4.13. Costs.............................................. 9
Section 4.14. Indemnification....................................10
Section 4.15. Miscellaneous......................................13
Exhibits
--------
Exhibit A - List of Mortgage Loans
Exhibit B - Officer's Certificate of the Seller
Exhibit C - Opinion of Counsel to the Seller
