EXHIBIT 1.1
EXECUTION COPY
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
DEPOSITOR
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-CKS4
UNDERWRITING AGREEMENT
October 17, 2002
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 2002-CKS4. 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"), KeyBank
National Association ("KEYBANK") and Salomon Brothers Realty Corp. ("SBRC" and,
together with Column and Keybank, the "MORTGAGE LOAN SELLERS"), respectively,
pursuant to separate mortgage loan purchase agreements dated as of October 17,
2002 (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 October 11,
2002 (the "POOLING AND SERVICING AGREEMENT"), among the Depositor, KeyCorp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage, as master servicer
(in such capacity, the "MASTER SERVICER"), Lennar Partners, Inc., as special
servicer (in such capacity, the "SPECIAL SERVICER"), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (in such capacity, the "TRUSTEE").
The offering of the Certificates made pursuant to the Registration
Statement (as defined in SECTION 2(a)) will be made through the Underwriters.
This Agreement provides for the sale of the Certificates to, and the purchase
and offering thereof by, the Underwriters. SCHEDULE I sets forth the
aggregate amount of each class of Certificates that is to be purchased by each
Underwriter. SCHEDULE II sets forth the classes of the Certificates subject to
this Agreement, the principal balance of each class of the Certificates to be
issued and any terms thereof not otherwise specified in the Pooling and
Servicing Agreement and the price at which each class of the Certificates is to
be purchased by the Underwriters from the Depositor. The offering of the
Certificates will be governed by this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor
represents and warrants to the Underwriters as of the date hereof as follows:
(a) a registration statement on Form S-3, including a
prospectus and such amendments thereto as may have been required to the
date hereof, relating to the Certificates and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of 1933,
as amended (the "ACT"), in the form heretofore delivered to you, as the
Representative, has been filed with the Securities and Exchange Commission
(the "COMMISSION") and has become effective; such registration statement,
as amended, exclusive of any related Computational Materials and ABS Term
Sheets (each as defined in SECTION 8(a) below) previously filed or to be
filed pursuant to SECTION 5(a) and any Computational Materials and ABS Term
Sheets relating to securities other than the Certificates), and the
prospectus relating to the sale of the Certificates offered thereby by the
Depositor and constituting a part of such registration statement, as such
prospectus is from time to time amended or supplemented (including any
prospectus filed with the Commission pursuant to Rule 424(b) of the rules
and regulations of the Commission (the "RULES AND REGULATIONS") under the
Act), are respectively referred to herein as the "REGISTRATION STATEMENT"
and the "BASE PROSPECTUS"; the Registration Statement is identified on
SCHEDULE II hereto; the conditions to the use of a registration statement
on Form S-3 under the Act, as set forth in the General Instructions to Form
S-3, and the conditions of Rule 415 under the Act have been satisfied with
respect to the Registration Statement; and no other amendment to the
Registration Statement (other than any amendment thereof by reason of Rule
429) will be filed which shall be reasonably disapproved by you, as the
Representative, promptly after reasonable notice thereof;
(b) there is no request by the Commission for any further
amendment of the Registration Statement or the Prospectus or for any
additional information; the Commission has not issued any stop order
suspending the effectiveness of the Registration Statement; and the
Depositor is not aware of any proceeding for that purpose having been
instituted or threatened; and the Depositor has not received notification
with respect to the suspension of the qualification of the Certificates for
sale in any jurisdiction or with respect to any initiation or threat of any
proceeding for such purpose;
(c) the Registration Statement (i) on its effective date
and on the date of the then most recently filed Prospectus Supplement (as
defined below in this SECTION 2(c)) conformed in all respects to the
requirements of the Act and the Rules and Regulations thereunder and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) on the date hereof will conform
in all respects to the requirements of the Act and the Rules and
Regulations thereunder and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Base Prospectus and the supplement to the Base
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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 October 17, 2002, as supplemented to the Specified
Delivery Date, and rendered by Ernst & Young;
(d) the Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its assets and
conduct its business as described in the Prospectus and now conducted by
it, is duly qualified as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Depositor, and is conducting its business so as to comply in all material
respects with the applicable statutes, ordinances, rules and regulations of
the jurisdictions in which it is conducting business;
(e) the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreements and the Certificates conform, or will conform as of the
Specified Delivery Date, to the description thereof contained in the
Registration Statement and the Prospectus; and the Certificates, on the
Specified Delivery Date, will be duly and validly authorized and, when such
Certificates are duly and validly executed by the Trustee, authenticated by
the Trustee or any
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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, any of the Mortgage Loan Purchase Agreements or the
Certificates, (ii) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement,
the Pooling and Servicing Agreement or any 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, any of the Mortgage Loan Purchase Agreements or the
Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Certificates described in the Prospectus;
(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 any of the Mortgage Loan Purchase Agreements;
(i) there are no contracts, indentures or other documents
of a character required by the Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement
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which have not been so described or referred to therein or so filed or
incorporated by reference as exhibits thereto;
(j) the Depositor possesses all material licenses,
certificates, authorizations or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct the
business now operated by it, and the Depositor has not received any notice
of proceedings relating to the revocation or modification of any such
license, certificate, authorization or permit which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or finding,
would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Depositor;
(k) this Agreement has been duly authorized, executed and
delivered by the Depositor; and, assuming due authorization, execution and
delivery hereof by the other parties hereto, this Agreement constitutes a
legal, valid and binding obligation of the Depositor, enforceable against
the Depositor in accordance with the terms hereof, subject to (i)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, (ii) general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity), and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
which purport or are construed to provide indemnification from liabilities
under applicable securities laws;
(l) on the Specified Delivery Date, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements will have
been duly authorized, executed and delivered by the Depositor and will be
legal, valid and binding agreements of the Depositor, enforceable against
the Depositor in accordance with their respective terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(m) all approvals, authorizations, consents, orders or
other actions of any person, corporation or other organizations, or of any
court, governmental agency or body or official (except with respect to the
state securities or "blue sky" laws of various jurisdictions) required in
connection with the valid and proper authorization, issuance, offering and
sale of the Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement have been or will be taken or obtained on or prior to
the Specified Delivery Date;
(n) at the Specified Delivery Date, each of the Mortgage
Loans will meet the criteria for selection described in the Prospectus
Supplement;
(o) neither the Depositor nor the Trust Fund is, and
neither the sale of the Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Depositor or the Trust Fund to be an
"investment company" or under the control of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended
(the "INVESTMENT COMPANY ACT"); and the Pooling and Servicing Agreement is
not required to be qualified under the Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT");
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(p) at the time of the execution and delivery of the
Pooling and Servicing Agreement, the Depositor (i) except as disclosed in
the Prospectus, will convey to the Trustee, or cause to be conveyed to the
Trustee, all of the Depositor's right, title and interest in and to the
Mortgage Loans being transferred to the Trustee pursuant to the Pooling and
Servicing Agreement, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
"LIENS") granted by or imposed upon the Depositor, (ii) will not have
assigned to any other person any of its right, title or interest in the
Mortgage Loans or in the Pooling and Servicing Agreement or the
Certificates, and (iii) will have the power and authority to transfer or
cause the transfer of the Mortgage Loans to the Trustee and to sell the
Certificates to the Underwriters;
(q) upon execution and delivery of the Pooling and
Servicing Agreement by the Trustee, the Trustee will have acquired
ownership of all of the Depositor's right, title and interest in and to the
Mortgage Loans except to the extent disclosed in the Prospectus, and upon
delivery to the Underwriters of the Certificates pursuant hereto, each
Underwriter will have good title to the Certificates purchased by such
Underwriter, in each case free of Liens granted by or imposed upon the
Depositor;
(r) upon the sale 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;
(u) the Depositor is not selling the Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the
creditors of the Depositor;
(v) at the Specified Delivery Date, the respective Classes
of Certificates shall have been assigned ratings no lower than those set
forth in SCHEDULE II hereto by the nationally recognized statistical rating
organizations identified therein (the "RATING AGENCIES"); and
(w) any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement, the
Pooling and Servicing Agreement and the Certificates payable by the
Depositor (other than income taxes) have been paid or will be paid at or
prior to the Specified Delivery Date.
3. PURCHASE, SALE AND DELIVERY OF CERTIFICATES. The closing for
the purchase and sale of the Certificates contemplated hereby (the "CLOSING"),
shall be made at the date, location and time of delivery set forth in SCHEDULE
II hereto, or such later date as shall be mutually acceptable to you, as the
Representative, and the Depositor (such date and time of purchase and sale of
the Certificates being
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herein called the "SPECIFIED DELIVERY DATE"). Delivery of the Certificates will
be made in book-entry form through the facilities of The Depository Trust
Company ("DTC"). Each class of Certificates will be represented by one or more
definitive global certificates to be deposited by or on behalf of the Depositor
with DTC. Delivery of the Certificates shall be made to the several Underwriters
against payment by the several Underwriters of the purchase price for the
Certificates, as set forth on SCHEDULE I hereto, to or upon the order of the
Depositor by wire transfer of immediately available funds or by such other
method as may be acceptable to the Depositor.
The Depositor agrees to have the Certificates available for inspection by
the Underwriters in New York, New York, not later than 1:00 p.m. on the business
day prior to the Specified Delivery Date.
4. OFFERING BY UNDERWRITERS. (a) It is understood that the
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus. It is further understood that the Depositor, in
reliance upon Policy Statement 105, has not filed and will not file an offering
statement pursuant to Section 352-e of the General Business Law of the State of
New York with respect to the Certificates. As required by Policy Statement 105,
each Underwriter therefore covenants and agrees with the Depositor that sales of
the Certificates made by such Underwriter in the State of New York will be made
only to institutional investors within the meaning of Policy Statement 105.
(b) Each Underwriter represents, warrants and agrees that: (i) it
has not sold or offered the Certificates in the United Kingdom, and it has not
delivered or communicated the Prospectus or any other invitation or inducement
to buy or participate in the Certificates in the United Kingdom, except to
persons who (A) have professional experience of participating in unregulated
collective investment schemes and of matters relating to investments falling
within both Article 14(5) of the Financial Services Markets Xxx 0000 (Promotion
of Collective Investment Schemes) (Exemptions) Order 2001 (the "CIS ORDER") and
Article 19(5) of the Financial Services and Markets Act (Financial Promotion)
Order 2001 (the "FP ORDER") or (B) fall within Article 22(2)(a) through (d)
("high net worth companies, unincorporated associations, etc.") of the CIS Order
and Article 49(2)(a) though (d) of the FP Order; and (ii) it has complied and
will comply with all applicable provisions of the Financial Services and Markets
Xxx 0000 with respect to anything done by it in relation to the Certificates in,
from or otherwise involving the United Kingdom.
5. COVENANTS OF THE DEPOSITOR. The Depositor covenants and agrees
with the Underwriters that:
(a) the Depositor has prepared and/or shall prepare (and
shall file with the Commission pursuant to Rule 424 under the Act) a
prospectus supplement setting forth the amount of Certificates covered
thereby and the terms thereof not otherwise specified in the Base
Prospectus, the price at which such Certificates are to be purchased by the
Underwriters from the Depositor, either the initial public offering price
or the method by which the price at which such Certificates are to be sold
will be determined, the selling concessions and reallowances, if any, and
such other information as the Underwriters and the Depositor deem
appropriate in connection with the offering of such Certificates, but the
Depositor shall not file any amendments to the Registration Statement as in
effect with respect to the Certificates (other than an amendment by reason
of Rule 429 under the Act), or any amendments or supplements to the
Prospectus, unless it has first delivered copies of such amendments or
supplements to you, as the Representative, and given you a reasonable
opportunity to review the same, or if you have
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reasonably objected thereto promptly after receipt thereof; the Depositor
shall immediately advise the Underwriters (i) when notice is received from
the Commission that any post-effective amendment to the Registration
Statement (other than an amendment by reason of Rule 429 under the Act) has
been filed or has become or will become effective or any supplement to the
Prospectus or any amended Prospectus, in each case relating to the
Certificates specified in SCHEDULE I has been filed and will furnish the
Underwriters with copies thereof, (ii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for any
additional information relating to the Certificates and (iii) of any order
or communication suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Certificates or of any proceedings or
examinations that may lead to such an order or communication, whether by or
of the Commission or any authority administering any state securities or
"blue sky" law, as soon as the Depositor is advised thereof, and shall use
its best efforts to prevent the issuance of any such order or communication
and to obtain as soon as possible its lifting, if issued. Subject to the
Underwriters' compliance with their obligations set forth in SECTION 8
below, the Depositor shall file with the Commission a Current Report on
Form 8-K including any Computational Materials and ABS Term Sheets provided
to it by any Underwriter pursuant to SECTION 8 below not later than the
date on which such Current Report is required to be filed with the
Commission;
(b) if, at any time when a prospectus is required to be
delivered under the Act in connection with the initial offering of the
Certificates as contemplated by this Agreement, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with
the Act or the Rules and Regulations, the Depositor shall prepare and file
with the Commission, at its expense and subject to CLAUSE (a) above, an
amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance;
(c) the Depositor shall make generally available to the
holders of the Certificates (the "CERTIFICATEHOLDERS"), in each case as
soon as practicable, earning statements covering (i) a period of 12 months
beginning not later than the first day of the Trust's fiscal quarter next
following the effective date of the Registration Statement and (ii) a
period of 12 months beginning no later than the first day of the Trust's
fiscal quarter next following the date hereof, which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission with
respect to the Certificates. The Depositor shall cause the Pooling and
Servicing Agreement to require the Trustee to furnish or make available,
within a reasonable time after the end of each calendar year, to each
holder of a Certificate at any time during such year, such information as
the Depositor deems necessary or desirable to assist Certificateholders in
preparing their federal income tax returns;
(d) the Depositor shall furnish to any Underwriter, without
charge, copies of the Prospectus, and all amendments and supplements to
such documents relating to the Certificates, in each case as soon as
available and in such quantities as such Underwriter may reasonably
request;
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(e) the Depositor shall arrange for the qualification of
the Certificates for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you, as the
Representative, designate and shall continue such qualifications in effect
so long as required for the distribution; PROVIDED, HOWEVER, that neither
the Depositor nor the Trust shall be required to qualify to do business in
any jurisdiction where it is now not qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process;
(f) the costs and expenses incurred in connection with the
transactions herein contemplated shall be allocated as follows: (i) the
Underwriters shall bear all out-of-pocket and/or internally allocated costs
and expenses incurred by them in connection with the transaction herein
contemplated, including, without limitation, fees and expenses of their
counsel, any transfer taxes on the Certificates and the expenses of any
advertising of the offering of the Certificates made by the Underwriters;
and (ii) the Depositor 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 Agreement, (C) the costs of printing and
distributing the Pooling and Servicing Agreement, (D) the costs of filings,
if any, with the National Association of Securities Dealers, Inc., (E) fees
paid to the Rating Agencies in connection with the rating of the
Certificates, (F) the fees and expenses of qualifying the Certificates
under State securities laws as provided herein, and of preparing and
printing, if so requested by any Underwriter, a preliminary blue sky survey
and legal investment survey concerning the legality of the Certificates as
an investment (including fees and disbursements of counsel to the
Underwriters in connection therewith), and (G) any other costs and expenses
incident to the performance of the Company's obligations under this
Agreement; PROVIDED that no Underwriter, in its capacity as an Underwriter,
shall be required to bear more than its own out-of-pocket and/or internally
allocated costs and expenses incurred in connection with the transactions
herein contemplated;
(g) to the extent that the Pooling and Servicing Agreement
provides that the Underwriters are to receive any notices or reports, or
have any other rights thereunder, the Depositor will cause the Pooling and
Servicing Agreement to provide that the Underwriters are to be third-party
beneficiaries and that it may not be amended in any manner that would
materially adversely affect such rights of the Underwriters without their
consent; and
(h) during the period when a prospectus is required by law
to be delivered in connection with the initial offering of the Certificates
as contemplated by this Agreement, the Depositor shall file, or cause the
Trustee to file on behalf of the Trust, on a timely and complete basis, all
documents that are required to be filed by the related Trust with the
Commission pursuant to Sections 13, 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT").
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligation of each Underwriter to purchase and pay for its allotment of the
Certificates subject to this Agreement will be
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subject to the accuracy of the representations and warranties on the part of the
Depositor as of the date hereof and the Specified Delivery Date, to the accuracy
of the statements of the Depositor made pursuant to the provisions thereof, to
the performance by the Depositor in all material respects of its obligations
hereunder and to the following additional conditions precedent:
(a) the Underwriters shall have received from Ernst &
Young, certified public accountants:
(i) letters dated the Specified Delivery Date, the
date of the Prospectus Supplement and the date of any preliminary
version of the Prospectus Supplement delivered to prospective
investors in the Certificates (a "PRELIMINARY PROSPECTUS SUPPLEMENT"
and, together with the accompanying form of the Base Prospectus, a
"PRELIMINARY PROSPECTUS"), respectively, and satisfactory in form and
substance to you, as the Representative, and your counsel, stating in
effect that, using the assumptions and methodology used by the
Depositor, all of which shall be described in such letters, they have
recalculated such numbers and percentages set forth in the Prospectus
Supplement and any Preliminary Prospectus Supplement as you, as the
Representative, may reasonably request and as are agreed to by Ernst &
Young, compared the results of their calculations to the corresponding
items in the Prospectus Supplement and any Preliminary Prospectus
Supplement, respectively, and found each such number and percentage
set forth in the Prospectus Supplement and any Preliminary Prospectus
Supplement, respectively, to be in agreement with the results of such
calculations; PROVIDED that the letter dated the Specified Delivery
Date need only reconfirm the statements made in the letter dated the
date of the Prospectus Supplement; and
(ii) one or more letters, dated as appropriate in the
reasonable view of the Depositor and you, as the Representative, and
satisfactory in form and substance to you, as the Representative, and
your counsel, stating in effect that, using the assumptions and
methodology used by the Underwriters, all of which shall be described
in such letter(s), they have recalculated such numbers and percentages
set forth in any ABS Term Sheets and Computational Materials related
to the Certificates as you, as the Representative, may reasonably
request and as are agreed to by Ernst & Young, compared the results of
their calculations to the corresponding items in such ABS Term Sheets
and Computational Materials and found each such number and percentage
set forth in such ABS Term Sheets and Computational Materials to be in
agreement with the results of such calculations;
(b) all actions required to be taken and all filings
required to be made by the Depositor under the Act prior to the Specified
Delivery Date shall have been duly taken or made; and prior to the
Specified Delivery Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Depositor or
any Underwriter, shall be contemplated by the Commission;
(c) unless otherwise specified in SCHEDULE II, the
Certificates subject to this Agreement and offered by means of the
Registration Statement shall be rated the ratings
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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 LLP, special counsel for the Depositor, dated
the Specified Delivery Date, in substantially the same form as EXHIBIT D
attached hereto;
(h) the Underwriters shall have received copies of all
other opinions rendered by Sidley Xxxxxx Xxxxx & Xxxx LLP, as special
counsel for the Depositor, to the Rating Agencies in connection with the
issuance of the Certificates, and each such opinion shall be addressed to
the Underwriters or accompanied by a letter signed by Sidley Xxxxxx Xxxxx &
Wood LLP stating that the Underwriters may rely on such opinion as if it
were addressed to them as of date thereof;
(i) the Underwriters shall have received from Sidley Xxxxxx
Xxxxx & Xxxx LLP, special counsel to the Depositor, a letter, dated the
Specified Delivery Date, substantially in the same form as EXHIBIT E
attached hereto, regarding certain information in the Registration
Statement and the Prospectus;
(j) the Underwriters shall have received, with respect to
each of the Master Servicer, the Special Servicer and the Trustee, a
favorable opinion of counsel, dated the Specified Delivery Date,
addressing: the valid existence of such party under the laws of its
jurisdiction of organization; the due authorization, execution and delivery
of the Pooling and Servicing Agreement by such party; the enforceability of
the Pooling and Servicing Agreement against such party, subject to such
limitations as are reasonably acceptable to you, as the Representative; and
such other matters as you, as the Representative, may reasonably request.
Counsel rendering each such opinion may express its reliance as to factual
matters on representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives of,
the parties to the Pooling and Servicing Agreement and on certificates
furnished by public officials and, further, may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the party on behalf
of which such opinion is being rendered. Each such opinion need cover only
the laws of the State of New York, the laws of the jurisdiction of
organization for the party on behalf of which such opinion is being
rendered and the federal law of the United States;
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(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 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
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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 a Depositor Mathematical Error) made
in any Computational Materials or ABS Term Sheets (or any amendments thereof or
supplements thereto) furnished to prospective investors and made a part of, or
incorporated by reference into, the Registration Statement, any Preliminary
Prospectus or the Prospectus (or any amendment thereof or supplement thereto);
and PROVIDED, FURTHER, that the Depositor shall not be liable to any Underwriter
or any such officer, director or controlling person under the indemnity
agreement in this SECTION 7(a) with respect to any untrue statement in, or
omission from, any Preliminary Prospectus, to the extent that any such expense,
loss, claim, damage or liability of such Underwriter or such officer, director
or controlling person results from the fact that such Underwriter sold
Certificates to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or a copy of the
Prospectus as then amended or supplemented, the Depositor had previously
furnished copies thereof to such Underwriter, delivery of the Prospectus to such
person was required under applicable law and the Prospectus corrected the untrue
statement in, or omission from, such Preliminary Prospectus.
The Depositor and the Underwriters acknowledge that the following
statements constitute the only Underwriters' Information furnished in writing or
electronically by or on behalf of any Underwriter for inclusion in the
Registration Statement, the Prospectus or any Preliminary Prospectus (or any
amendment or supplement thereto): the second sentence of the second paragraph on
the cover of each of the Prospectus Supplement and any Preliminary Prospectus
Supplement; the fifth, sixth and seventh sentences of the subsection entitled
"Summary of Prospectus Supplement--Relevant Parties/Entities--Underwriters" in
each of the Prospectus Supplement and any Preliminary Prospectus Supplement; and
the first sentence of the fourth paragraph, and the second sentence of the fifth
paragraph, under the heading "Underwriting" in each of the Prospectus Supplement
and any Preliminary Prospectus Supplement.
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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 Computational Materials or ABS Term Sheet as a result of
an error in the manipulation of, or any calculations based upon, or any
aggregation (other than an 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 any 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 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 any of such representations and warranties that
gave rise to such untrue statement or omission being referred to as a
"COLLATERAL ERROR"), except to the extent that 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,
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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 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
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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 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
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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
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
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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
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
-18-
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 accordance with SECTION 8(a) above, the Depositor shall have the
right to delay the release of the Prospectus to investors or to the
Underwriters, to delay the Specified Delivery Date and to take other appropriate
actions in each case as necessary in order to allow the Depositor to comply with
its agreement set forth in SECTION 5(a) to file the Computational Materials and
ABS Term Sheets by the time specified therein.
(g) Each Underwriter further represents and warrants that, if and
to the extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in SUBSECTIONS
(a), (c), (d) and (f) of this SECTION 8 have been satisfied with respect
thereto.
(h) Computational Materials and ABS Term Sheets may be distributed
by the Underwriter through electronic means in accordance with SEC Release No.
33-7233 or other applicable laws or regulations.
9. DEFAULT OF UNDERWRITERS. If any Underwriter defaults in its
obligations to purchase Certificates hereunder and the aggregate principal
amount of Certificates that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of
Certificates to be purchased hereunder, the non-defaulting Underwriters may make
arrangements satisfactory to the Depositor for the purchase of such Certificates
by other persons, but if no such arrangements are made by the Specified Delivery
Date, the Representative shall be obligated to purchase the Certificates that
such defaulting Underwriter agreed but failed to purchase hereunder. If any
Underwriter so defaults and the aggregate principal amount of Certificates with
respect to which such default occurs exceeds 10% of the total principal amount
of Certificates to be purchased hereunder and arrangements satisfactory to the
Representative and the Depositor for the purchase of such Certificates by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Depositor, except as provided in SECTION 5(f) and SECTION 7. As used in this
Agreement, the term "UNDERWRITER" includes any person substituted for a
Underwriter under this SECTION 9. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. TERMINATION OF THE OBLIGATIONS OF THE UNDERWRITERS. (a) Any
Underwriter may terminate its obligations under this Agreement by notice to the
Depositor, at any time at or prior to the Specified Delivery Date if the sale of
the Certificates provided for herein is not consummated because of any failure
or refusal on the part of the Depositor to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Depositor
shall be unable to perform its obligations under this Agreement.
-19-
(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 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.: (212)
325-8278; or, if sent to the Depositor, shall be mailed, delivered or telecopied
to it at Credit Suisse First Boston Mortgage Securities Corp., Eleven 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.
-20-
13. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in SECTION 7 above, and
their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Certificates from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. REPRESENTATION OF UNDERWRITERS. The Representative will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding on all the
Underwriters.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES).
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
-21-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon it will become a
binding agreement among the Depositor and the Underwriters in accordance with
its terms. Alternatively, the execution of this Agreement by the Depositor and
its acceptance by or on behalf of the Underwriters may be evidenced by an
exchange of telegraphic or other written communications.
Very truly yours,
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
AMOUNTS OF PRICE
CERTIFICATES (EXPRESSED AS
UNDERWRITER TO BE PURCHASED A PERCENTAGE OF PAR)*
------------------------------------------- --------------- ---------------------
1. Credit Suisse First Boston Corporation Class A-1 $ 0 N/A
Class A-2 $ 708,445,000 100.5%
Class B $ 46,072,000 100.5%
Class C $ 18,429,000 100.5%
Class D $ 30,714,000 100.5%
Class E $ 16,893,000 100.5%
2. Xxxxxx Brothers Inc. Class A-1 $ 0 N/A
Class A-2 $ 0 N/A
Class B $ 0 N/A
Class C $ 0 N/A
Class D $ 0 N/A
Class E $ 0 N/A
3. McDonald Investments Inc. Class A-1 $ 0 N/A
Class A-2 $ 0 N/A
Class B $ 0 N/A
Class C $ 0 N/A
Class D $ 0 N/A
Class E $ 0 N/A
4. Xxxxxxx Xxxxx Xxxxxx Inc. Class A-1 $ 268,276,000 100.5%
Class A-2 $ 0 N/A
Class B $ 0 N/A
Class C $ 0 N/A
Class D $ 0 N/A
Class E $ 0 N/A
----------
* Exclusive of accrued interest. The price of each class of Certificates
shall include interest at the related initial pass-through rate from and
including October 1, 2002 to, but not including, the Closing Date.
I-1
SCHEDULE II
CERTIFICATES: Commercial Mortgage Pass-Through Certificates, Series 2002-CKS4,
Class X-0, X-0, X, X, X and E.
CLOSING: 10:00 A.M., October 29, 2002, at the offices of Sidley Xxxxxx
Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
PROSPECTUS: Prospectus Supplement dated October 22, 2002 and Base Prospectus
dated October 22, 2002
REGISTRATION STATEMENT: Individually and collectively, as the context may
require, the Registration Statement on Form S-3 (No.
333-53012) and, from and after October 22, 2002, the
Registration Statement on Form S-3 (No. 333-97955)
TOTAL PRINCIPAL AMOUNT OF CERTIFICATES: $1,088,829,000 (approximate)
TOTAL PRINCIPAL AMOUNT:
Class A-1 $ 268,276,000
Class A-2 $ 708,445,000
Class B $ 46,072,000
Class C $ 18,429,000
Class D $ 30,714,000
Class E $ 16,893,000
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 B Aa2/AA
Class C Aa3/AA-
Class D A2/A
Class E A3/A-
INITIAL PASS-THROUGH RATES:
Class A-1 4.485%
Class A-2 5.183%
Class B 5.333%
Class C 5.394%
Class D 5.453%
Class E 5.532%
EXHIBIT A
FORM I OF DEPOSITOR'S OFFICER'S CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-CKS4
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 October 11, 2002 (the
"POOLING AND SERVICING AGREEMENT"), between the Company as depositor,
KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as
master servicer, Lennar Partners, Inc. as special servicer and
Xxxxx Fargo Bank Minnesota, N.A. as trustee, each of the Mortgage Loan
Purchase Agreements referred to in the Pooling and Servicing Agreement, the
Underwriting Agreement dated as of October 17, 2002 (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 October 17, 2002 (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.
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
October ___, 2002.
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
SAB&W DRAFT
OCTOBER 28, 0000
XXXXXX XXXXXX XXXXX & XXXX LLP
CHICAGO 000 XXXXXXX XXXXXX BEIJING
---- XXX XXXX, XXX XXXX 00000 ----
DALLAS TELEPHONE 000 000 0000 GENEVA
---- FACSIMILE 212 839 5599 ----
LOS ANGELES xxx.xxxxxx.xxx HONG KONG
---- ----
SAN FRANCISCO FOUNDED 1866 LONDON
---- ----
WASHINGTON, D.C. SHANGHAI
----
SINGAPORE
----
TOKYO
EXHIBIT B
FORM II OF DEPOSITOR'S OFFICER'S CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2002-CKS4
CERTIFICATE OF THE DEPOSITOR
In connection with the issuance of the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CKS4 (the "CERTIFICATES"), pursuant to a Pooling and Servicing Agreement
dated as of October 11, 2002 (the "POOLING AND SERVICING AGREEMENT"), among
Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"DEPOSITOR"), KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as master servicer, Lennar Partners, Inc. 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 October 17, 2002 (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 October 17, 2002 (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 October ___, 2002
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
By:
--------------------------------
Name:
Title:
EXHIBIT C
FORM OF OPINION OF IN-HOUSE COUNSEL TO THE DEPOSITOR
October 29, 2002
To the Parties Listed on Annex A hereto
Re: Credit Suisse First Boston Mortgage Securities Corp.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-CKS4
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
October 17, 2002, by and between the Depositor and Column; (ii) the Depositor's
purchase from KeyBank National Association ("KEYBANK") of certain multifamily
and commercial mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the
Mortgage Loan Purchase Agreement (the "KEYBANK MORTGAGE LOAN PURCHASE
AGREEMENT"), dated as of October 17, 2002, by and between the Depositor and
KeyBank; (iii) the Depositor's purchase from Salomon Brothers Realty Corp.
("SBRC") of certain multifamily and commercial mortgage loans (collectively, the
"SBRC MORTGAGE LOANS" and, together with the Column Mortgage Loans and KeyBank
Mortgage Loans the "MORTGAGE LOANS"), pursuant to the Mortgage Loan Purchase
Agreement (the "SBRC MORTGAGE LOAN PURCHASE AGREEMENT" and, together with the
Column Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan Purchase
Agreement, the
"MORTGAGE LOAN PURCHASE AGREEMENTS"), dated as of October 17, 2002, by and
between the Depositor and SBRC; (iv) the issuance of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CKS4, consisting of the classes designated as follows: (a) the Class X-0,
Xxxxx X-0, 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 October 17, 2002,
by and between the Depositor and CSFB, as representative for the several
underwriters named therein, and (b) the Class A-X, Class A-SP, Class APM, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q, 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 October 17,
2002, by and between the Depositor and CSFB; and (vii) the sale by the Depositor
of the Public Certificates and the Private Certificates. The Certificates are
being issued pursuant to a Pooling and Servicing Agreement (the "POOLING AND
SERVICING AGREEMENT"), dated as of October 11, 2002, by and among the Depositor
as depositor, KeyCorp Real Estate Capital Markets, Inc. d/b/a Key Commercial
Mortgage as master servicer, Lennar Partners, Inc. as special servicer and Xxxxx
Fargo Bank Minnesota, N.A. as trustee (the "TRUSTEE"). Capitalized terms used
and not otherwise defined herein have the meanings given to them in the Pooling
and Servicing Agreement.
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:
1. 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.
2. 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.
3. The Certificates have been duly authorized by all
necessary corporate action of the Depositor.
4. 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.
5. 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 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,
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
KeyBank National Association
Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Salomon Brothers Realty Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
KeyCorp Real Estate Capital Markets, Inc.
d/b/a Key Commercial Mortgage
000 Xxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Lennar Partners, Inc.
000 Xxxxxxxxx 000xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 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
EXHIBIT D
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX LLP, SPECIAL COUNSEL TO THE
DEPOSITOR
October 29, 2002
To the Parties Listed on Annex A hereto:
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2002-CKS4
Ladies and Gentlemen:
We have acted as special counsel to Credit Suisse First Boston Mortgage
Securities Corp. (the "DEPOSITOR") with respect to certain matters in connection
with the following transactions (collectively, the "TRANSACTIONS"):
(i) the filing by the Depositor of a registration statement on
Form S-3 (No. 333-97955) (the "REGISTRATION STATEMENT") with
the Securities and Exchange Commission (the "COMMISSION"), for
purposes of registering under the Securities Act of 1933, as
amended (the "1933 ACT"), certain offerings of mortgage
pass-through certificates evidencing interests in trust funds
established by the Depositor;
(ii) the sale by Column Financial, Inc. ("COLUMN"), and the
purchase by the Depositor, of a segregated pool of multifamily
and commercial mortgage loans (collectively, the "COLUMN
MORTGAGE LOANS"), pursuant to the Mortgage Loan Purchase
Agreement, dated as of October 17, 2002 (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 October 17, 2002 (the "KEYBANK
MORTGAGE LOAN PURCHASE AGREEMENT"), between KeyBank as seller
and the Depositor as purchaser;
(iv) the sale by Salomon Brothers Realty Corp. ("SBRC"), and the
purchase by the Depositor, of a third segregated pool of
multifamily and commercial mortgage loans (collectively, the
"SBRC MORTGAGE Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of October 17, 2002 (the "SBRC MORTGAGE
LOAN PURCHASE AGREEMENT"), between SBRC as seller and the
Depositor as purchaser;
(v) the creation of a commercial mortgage trust (the "TRUST"), and
the issuance of an aggregate $1,233,581,046 Certificate
Principal Balance of Commercial Mortgage Pass-Through
Certificates, Series 2002-CKS4 (the "CERTIFICATES"),
consisting of 22 classes designated Class A-X, Class A-SP,
Class APM, Class A-1, Class A-2, 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 R and Class
V, pursuant to the Pooling and Servicing Agreement dated as of
October 11, 2002 (the "POOLING AND SERVICING AGREEMENT"),
among the Depositor as depositor, KeyCorp Real Estate Capital
Markets, Inc. d/b/a Key Commercial Mortgage as master
servicer, Lennar Partners, Inc. as special servicer and Xxxxx
Fargo Bank Minnesota, N.A. as trustee (the "TRUSTEE");
(vi) the transfer of the Column Mortgage Loans, the KeyBank
Mortgage Loans and the SBRC Mortgage Loans (collectively, the
"MORTGAGE LOANS") by the Depositor to the Trust, pursuant to
the Pooling and Servicing Agreement, in exchange for the
Certificates being issued to or at the direction of the
Depositor;
(vii) the sale by the Depositor, and the purchase by Credit Suisse
First Boston Corporation ("CSFB CORPORATION"), Xxxxxxx Xxxxx
Barney Inc., McDonald Investments Inc. and Xxxxxx Brothers
Inc. (collectively, in such capacity, the "UNDERWRITERS") of
the Class X-0, Xxxxx X-0, Class B, Class C, Class D and Class
E Certificates (collectively, the "PUBLICLY OFFERED
CERTIFICATES"), pursuant to the Underwriting Agreement dated
as of October 17, 2002 (the "UNDERWRITING AGREEMENT"), between
the
Depositor and CSFB Corporation, as representative of the
Underwriters; and
(viii) the sale by the Depositor, and the purchase by CSFB
Corporation (in such capacity, the "INITIAL PURCHASER"), of
the Class A-X, Class A-SP, Class APM, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q, Class R and Class V Certificates (collectively,
the "PRIVATELY OFFERED CERTIFICATES"), pursuant to the
Certificate Purchase Agreement dated as of October 17, 2002
(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, the
KeyBank Mortgage Loan Purchase Agreement and the SBRC 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 October 22, 2002, 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 October 22, 2002,
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 October 22, 2002,
relating to the Trust and certain classes of the Privately
Offered Certificates (including all exhibits and annexes
thereto, the "CONFIDENTIAL OFFERING CIRCULAR").
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials
as we have deemed relevant or necessary as the basis for such opinions; and we
have relied upon, and assumed the accuracy of, such other documents and records,
such certificates and the statements made in response to such inquiries, with
respect to the factual matters upon which the opinions contained herein are
based.
In rendering this opinion letter, we have 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 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 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.
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", "Federal Income Tax Consequences" and "Legal Investment",
to the extent that they purport to describe certain matters of federal law
or legal conclusions with respect thereto, while not discussing all
possible consequences of an investment in the Certificates to all
investors, provide in all material respects an accurate summary of such
matters and conclusions set forth under such headings.
12. As described in the Prospectus Supplement and the Confidential
Offering Circular, (A) REMIC I will qualify as a real estate mortgage
investment conduit (a "REMIC") within the meaning of Sections 860A through
860G of the Internal Revenue Code of 1986, as amended, in effect on the
date hereof (the "REMIC PROVISIONS"), and the REMIC I Regular Interests
will constitute 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 REMIC I, (B) REMIC II
will qualify as a REMIC within the meaning of the REMIC Provisions, and the
REMIC II Regular Interests will constitute "regular interests", and the
REMIC II Residual Interest will constitute the sole "residual interest", in
REMIC II, (C) REMIC III will qualify as a REMIC within the meaning of the
REMIC Provisions, and the REMIC III Regular Interest Certificates will
evidence "regular interests", and the REMIC III Residual Interest will
constitute the sole "residual interest", in REMIC III.
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, as amended.
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,
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
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT E
FORM OF LETTER OF SIDLEY XXXXXX XXXXX & XXXX LLP, SPECIAL COUNSEL TO THE
DEPOSITOR
October 29, 2002
To the Parties Listed on Annex A hereto:
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2002-CKS4
Ladies and Gentlemen:
We have acted as special counsel to Column Financial, Inc. ("COLUMN"),
Salomon Brothers Realty Corp. ("SBRC") and Credit Suisse First Boston Mortgage
Securities Corp. (the "DEPOSITOR") with respect to certain matters in connection
with the following transactions (collectively, the "TRANSACTIONS"):
(i) the filing by the Depositor of a registration statement
on Form S-3 (No. 333-97955) (the "REGISTRATION STATEMENT") with the
Securities and Exchange Commission (the "COMMISSION"), for purposes of
registering under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), certain offerings of mortgage pass-through certificates evidencing
interests in trust funds established by the Depositor;
(ii) the sale by Column, and the purchase by the Depositor,
of a segregated pool of multifamily and commercial mortgage loans
(collectively, the "COLUMN MORTGAGE LOANS"), pursuant to the Mortgage Loan
Purchase Agreement, dated as of October 17, 2002 (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 October 17, 2002 (the "KEYBANK MORTGAGE LOAN PURCHASE AGREEMENT"),
between KeyBank as seller and the Depositor as purchaser;
(iv) the sale by SBRC, and the purchase by the Depositor, of
a third segregated pool of multifamily and commercial mortgage loans
(collectively, the "SBRC MORTGAGE LOANS"), pursuant to the Mortgage Loan
Purchase Agreement dated as of October 17, 2002 (the "SBRC MORTGAGE LOAN
PURCHASE AGREEMENT"), between SBRC as seller and the Depositor as
purchaser;
(v) the creation of a commercial mortgage trust (the
"TRUST"), and the issuance of an aggregate $1,233,581,046 Certificate
Principal Balance of Commercial Mortgage Pass-Through Certificates, Series
2002-CKS4 (the "CERTIFICATES"), consisting of 22 classes designated Class
A-X, Class A-SP, Class APM, Class A-1, Class A-2, 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 R and Class V, pursuant to the
Pooling and Servicing Agreement dated as of October 11, 2002 (the "POOLING
AND SERVICING AGREEMENT"), among the Depositor as depositor, Key Corp Real
Estate Capital Markets, Inc. d/b/a Key Commercial Mortgage as master
servicer, Lennar Partners, Inc. as special servicer and Xxxxx Fargo Bank
Minnesota, N.A. as trustee (the "TRUSTEE");
(vi) the transfer of the Column Mortgage Loans, the KeyBank
Mortgage Loans and the SBRC Mortgage Loans (collectively, the "MORTGAGE
LOANS") by the Depositor to the Trust, pursuant to the Pooling and
Servicing Agreement, in exchange for the Certificates being issued to or at
the direction of the Depositor; and
(vii) the sale by the Depositor, and the purchase by Credit
Suisse First Boston Corporation ("CSFB CORPORATION"), McDonald Investments
Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxxx Brothers Inc. (collectively, in
such capacity, the "UNDERWRITERS") of the Class X-0, Xxxxx X-0, Class B,
Class C, Class D and Class E Certificates (collectively, the "PUBLICLY
OFFERED CERTIFICATES"), pursuant to the Underwriting Agreement dated as of
October 17, 2002 (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, the KeyBank Mortgage Loan Purchase
Agreement and the SBRC 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 the purposes of this letter, we have reviewed: the Agreements; the
Registration Statement; the Prospectus, dated October 22, 2002, 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 October 22, 2002, 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, the SBRC
Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement, of the
Mortgage Notes, the Mortgages and the other documents delivered to the Trustee
by, on behalf of, or at the direction of, the Depositor, Column, Keybank and
SBRC, (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, Column and SBRC. 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, or a
counsel for either of them, in respect of the Column Mortgage Loans and certain
loan summaries prepared by SBRC or an affiliate of SBRC, or a counsel for either
of them, in respect of the SBRC Mortgage Loans. While we have made no
independent check or verification of, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing, nothing
has come to our attention that has caused us to believe that (a) the
Registration Statement (exclusive of the Excluded Information therein, as to
which we express no view or belief), as of its effective date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (b) the Prospectus (exclusive of the Excluded Information therein, as to
which we express no view or belief), as of the date of the Prospectus Supplement
or as of the date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that we express no view or belief as to (x) any
financial statements, schedules and/or other numerical, financial or statistical
data set forth or referred to therein or omitted therefrom, (y) any information
contained in or omitted from the Prospectus regarding the nature and
characteristics of the KeyBank Mortgage Loans and/or the Borrowers and Mortgaged
Properties relating to such Mortgage Loans or (z) any information contained in
or omitted from the computer diskette that accompanies the Prospectus. In that
connection, we advise you that we have relied, to the extent that we may
properly do so in the discharge of our professional responsibilities as
experienced securities law practitioners, upon the judgment and statements of
officers and representatives of the Depositor, Column and SBRC in connection
with the determination of materiality.
When used in this letter, the term "attention" or words of similar
import mean the conscious awareness of facts or other information of the Sidley
Xxxxxx Xxxxx & Xxxx LLP attorneys currently practicing law with this firm who
have been involved in any material respect in representing the Depositor, Column
and/or SBRC in connection with the Transactions or who may have represented
Column and/or SBRC in the origination of any of the Mortgage Loans. We call to
your attention that, with your knowledge and consent, except as described above,
such Sidley Xxxxxx Xxxxx & Xxxx LLP attorneys have not examined or otherwise
reviewed any of the Mortgage Files, any particular documents contained in such
files or any other documents with respect to the Mortgage Loans for purposes of
delivering this letter.
This letter is being delivered to you as of the date hereof, and we
assume no obligation to advise you of any changes of law or fact that may occur
after the date hereof,
notwithstanding that such changes may affect the statements made herein. This
letter is solely for your benefit in connection with the Transactions and may
not be relied on in any manner for any other purpose or by any other person
(including, without limitation, any person who acquires the Certificates from
the persons to whom this letter is addressed) or transmitted to any other person
without our prior consent.
Very truly yours,
ANNEX A
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
McDonald Investments Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
E-1
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,
Xxxxxx Brothers Inc., McDonald Investments Inc. and Xxxxxxx Xxxxx Xxxxxx 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.
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