EXHIBIT 1.1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series [_____-___]
UNDERWRITING AGREEMENT
[__________], 200[__]
CREDIT SUISSE FIRST BOSTON LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[LIST NAME/ADDRESS OF EACH ADDITIONAL
UNDERWRITER, AS APPLICABLE]
Ladies and Gentlemen:
1. Introductory. Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation (the "Depositor"), proposes to form one or more real estate
mortgage investment conduits (the "Trust"), which will issue securities entitled
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series [_____-___] (such series of securities, the
"Series [_____-___] Securities" or the "Securities"). The Depositor further
proposes, subject to the terms and conditions stated in this underwriting
agreement (the "Agreement"), to sell you, as underwriters (the "Underwriters"
and each, an "Underwriter"), those classes of the Series [_____-___] Securities
as are identified on Schedule I hereto (the classes of securities identified on
Schedule I hereto, collectively, the "Certificates"). Each Certificate will
evidence a fractional undivided, percentage interest or beneficial interest in
the Trust. The terms on which the Trust will issue the Certificates will be
specified in the Prospectus (as defined herein). The property of the Trust will
consist of a pool of [__________] fixed rate mortgage loans, secured by
[__________] multifamily and commercial properties (collectively, the "Mortgage
Loans") that will be purchased by the Depositor from Column Financial, Inc. (the
"Column Mortgage Loan Seller") and [LIST EACH ADDITIONAL MORTGAGE LOAN SELLER,
AS APPLICABLE) (the "[__________] Mortgage Loan Seller" and together with the
Column Mortgage Loan Seller, the "Mortgage Loan Sellers"), pursuant to those
certain Mortgage Loan Purchase Agreements, each dated as of [__________],
200[__] (the "Mortgage Loan Purchase Agreements"), and will be serviced by
[__________], as master servicer (the "Master Servicer"), and [__________], as
special servicer (the "Special Servicer"), of the Mortgage Loans, pursuant to
that certain Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") to be dated as of [__________], 200[__], by and among the Depositor,
the Master Servicer, the Special Servicer and [__________], as trustee (the
"Trustee"), and certain related property to be conveyed to the Trust by the
Depositor (the "Trust Fund"). The Mortgage Loans will be transferred to the
Trust, and the Certificates will be issued pursuant to the Pooling and Servicing
Agreement.
The offering of the Certificates made pursuant to the Registration
Statement (as defined below) will be made through you as underwriters. This
Agreement provides for the sale
of such Certificates to, and the purchase and offering thereof by, you, as
underwriters (the "Underwriters" and each, an "Underwriter"). Schedule I shall
specify the principal or notional balance of each Class of the Certificates to
be issued and any terms thereof not otherwise specified in the Pooling and
Servicing Agreement, the Classes of Certificates subject to this Agreement, the
price at which such Certificates are to be purchased by the Underwriters from
the Depositor, the aggregate amount of Certificates to be purchased by you and
the initial public offering price or the method by which the price at which such
Certificates are to be sold will be determined. The offering of the Certificates
will be governed by this Agreement.
2. Representations and Warranties of the Depositor.
The Depositor represents and warrants to you as of the date hereof
as follows:
(a) a registration statement on Form S-3, including a prospectus and such
amendments thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "Act"), in the form
heretofore delivered to you, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective; such registration
statement, as amended, and the prospectus relating to the sale of the
Certificates offered thereby by the Depositor and constituting a part of such
registration statement, as such prospectus is from time to time amended or
supplemented (including any prospectus filed with the Commission pursuant to
Rule 424(b) of the rules and regulations of the Commission (the "Rules and
Regulations") under the Act), are respectively referred to herein as the
"Registration Statement" and the "Base Prospectus"; the conditions to the use of
a registration statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the Act have been
satisfied with respect to the Registration Statement; and no other amendment to
the Registration Statement will be filed which shall have been reasonably
disapproved by you promptly after reasonable notice thereof;
(b) there is no request by the Commission for any further amendment of the
Registration Statement or the Prospectus or for any additional information; the
Commission has not issued any stop order suspending the effectiveness of the
Registration Statement and the Depositor is not aware of any proceeding for that
purpose having been instituted or threatened; and there has been no notification
with respect to the suspension of the qualification for sale of the Certificates
for sale in any jurisdiction or any proceeding for such purpose having been
instituted or threatened;
(c) the Registration Statement (i) on its effective date and on the date
of the then most recently filed Prospectus Supplement conformed in all respects
to the requirements of the Act and the Rules and Regulations thereunder and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (ii) on the date hereof will conform in all respects
to the requirements of the Act and the Rules and Regulations thereunder and will
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; the Base Prospectus, the preliminary prospectus
supplement, as amended or supplemented (including any computer diskettes
delivered as part of such preliminary prospectus supplement) (the "Preliminary
Prospectus
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Supplement") and the prospectus supplement, as amended or supplemented
(including any computer diskettes delivered as part of such prospectus
supplement) (the "Prospectus Supplement"), to the Base Prospectus prepared
pursuant to Section 5(a) hereof (the Prospectus Supplement, together with the
Base Prospectus, the "Prospectus"), on the date hereof and on the Specified
Delivery Date (as defined herein) will conform in all respects to the
requirements of the Act and the Rules and Regulations thereunder and will not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing does not apply to statements in or
omissions from either the Registration Statement or the Prospectus to the extent
based upon and in conformity with (A) written information furnished to the
Depositor by any Underwriter specifically for use therein, and (B) the Mortgage
Loan Seller's Information (collectively as defined in each of the
Indemnification Agreements, dated as of the date hereof (the "Indemnification
Agreements"), by and among the Depositor, each Mortgage Loan Seller and each
Underwriter);
(d) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as
described in the Prospectus, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Depositor, and is conducting its business so as to comply in all material
respects with the applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business;
(e) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the Specified
Delivery Date, to the description thereof contained in the Registration
Statement and the Prospectus; and the Certificates, on the date hereof, will
have been duly and validly authorized and, when such Certificates are duly and
validly executed by the Depositor or the Trustee, authenticated by the Trustee
and delivered in accordance with the Pooling and Servicing Agreement and
delivered and paid for as provided herein, will be validly issued and
outstanding and entitled to the benefits afforded by the Pooling and Servicing
Agreement;
(f) the Depositor is not in violation of its certificate of incorporation
or by-laws or in default under any agreement, indenture or instrument the effect
of which violation or default would be material and adverse to the Depositor or
which violation or default would have a material adverse effect on the
performance by the Depositor of its obligations under this Agreement, the
Pooling and Servicing Agreement, the Certificates or any of the Mortgage Loan
Purchase Agreements; there are no actions or proceedings against, or
investigations of, the Depositor pending, or, to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing Agreement,
any of the Mortgage Loan Purchase Agreements or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, (iii) which might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability against the Depositor of, this Agreement, the
Pooling and Servicing Agreement, any of the
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Mortgage Loan Purchase Agreements or the Certificates or (iv) seeking to affect
adversely the federal income tax attributes of the Certificates described in the
Prospectus;
(g) there has not been, and as of the Specified Delivery Date (as defined
in Section 3 hereof) there will not be, any material adverse change in the
business operations, financial condition, properties or assets of the Depositor
since the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Depositor to perform its
obligations under this Agreement, the Pooling and Servicing Agreement or any of
the Mortgage Loan Purchase Agreements;
(h) there are no contracts, indentures or other documents of a character
required by the Act or by the rules and regulations thereunder to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been so described or
referred to therein or so filed or incorporated by reference as exhibits
thereto;
(i) the Depositor possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Depositor has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization or
permit which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Depositor;
(j) the issue and sale of the Certificates and the compliance by the
Depositor with all of the provisions of the Certificates, each Mortgage Loan
Purchase Agreement, 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, will (A) conflict with or result in a breach of, or constitute a
default under, any of the provisions of the certificate of incorporation or
by-laws of the Depositor, (B) conflict with any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties, (C) conflict with any of the provisions of any
indenture, mortgage, contract or other instrument to which the Depositor is a
party or by which it is bound or (D) except as contemplated by the Pooling and
Servicing Agreement, result in the creation or imposition of any lien, charge or
encumbrance upon any of its property or assets pursuant to the terms of any such
indenture, mortgage, contract or other instrument;
(k) this Agreement has been duly authorized, executed and delivered by the
Depositor;
(l) on the Specified Delivery Date (as defined in Section 3 hereof), the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements will
have been duly
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authorized, executed and delivered by the Depositor and will be valid and
binding agreements of the Depositor, enforceable against the Depositor in
accordance with their respective terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity);
(m) all approvals, authorizations, consents, orders or other actions of
any person, corporation or other organization, or of any court, governmental
agency or body or official (except with respect to the state securities or "blue
sky" laws of various jurisdictions) required in connection with the valid and
proper authorization, issuance and sale of the Certificates pursuant to this
Agreement and the Pooling and Servicing Agreement have been or will be taken or
obtained on or prior to the Specified Delivery Date (as defined in Section 3
hereof);
(n) at the Specified Delivery Date (as defined in Section 3 hereof), each
of the Mortgage Loans will meet the criteria for selection described in the
Prospectus Supplement;
(o) neither the Depositor nor the Trust Fund is, and neither the sale of
the Certificates in the manner contemplated by the Prospectus nor the activities
of the Trust Fund pursuant to the Pooling and Servicing Agreement will cause the
Depositor or the Trust Fund to be an "investment company" or under the control
of an "investment company" as such terms are defined under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the Pooling
and Servicing Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act");
(p) at the time of the execution and delivery of the Pooling and Servicing
Agreement, the Depositor (A) except as disclosed in the Prospectus, will convey
to the Trustee, or cause to be conveyed to the Trustee, all of the Depositor's
right, title and interest in and to the Mortgage Loans being transferred to the
Trustee pursuant to the Pooling and Servicing Agreement, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively "Liens") granted by or imposed upon the Depositor, (B)
will not have assigned to any person any of its right, title or interest in the
Mortgage Loans or in the Pooling and Servicing Agreement or the Certificates,
and (C) will have the power and authority to transfer or cause to be transferred
the Mortgage Loans to the Trustee and to sell the Certificates to the
Underwriters. Upon execution and delivery of the Pooling and Servicing Agreement
by the Trustee, the Trustee will have acquired ownership of all of the
Depositor's right, title and interest in and to the Mortgage Loans except to the
extent disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor;
(q) under generally accepted accounting principles and for federal income
tax purposes, the Depositor will report the transfer of the Mortgage Loans to
the Trustee in exchange for the Certificates and the sale of the Certificates to
the Underwriters pursuant to this Agreement as a sale of the interest in the
Mortgage Loans evidenced by the Certificates. The consideration received by the
Depositor upon the sale of the Certificates to the Underwriters will constitute
reasonably equivalent value and fair consideration for the Certificates. The
Depositor
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will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Certificates to the Underwriters. The Depositor is
not selling the Certificates to the Underwriters with any intent to hinder,
delay or defraud any of the creditors of the Depositor;
(r) at the Specified Delivery Date (as defined in Section 3 hereof), the
respective Classes of Certificates shall have been assigned ratings no lower
than those set forth in Schedule I hereto by the nationally recognized
statistical rating organizations identified in Schedule I hereto;
(s) any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and Servicing
Agreement, the Mortgage Loan Purchase Agreements 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 (as defined in Section 3 hereof); and
(t) the Depositor is not, and on the date on which the first bona fide
offer of the Certificates is made will not be, an "ineligible issuer," as
defined in Rule 405 under the Act.
3. Purchase, Sale and Delivery of Certificates. Delivery of and payment
for the Certificates will be made at such place and at such time as shall be
specified in Schedule I or at such other time thereafter as set forth in
Schedule I or as you and the Depositor shall agree upon, each such time being
hereinafter referred to as a "Specified Delivery Date." Delivery of such
Certificates shall be made by the Depositor to the Underwriters against payment
of the purchase price specified in Schedule I in same day funds wired to such
bank as may be designated by the Depositor, or by such other manner of payment
as may be agreed upon by the Depositor and you. The Certificates so to be
delivered will be in such denominations and registered in such names as [any]
Underwriter requests [__] business days prior to the Specified Delivery Date and
will be made available through the facilities of The Depository Trust Company,
or otherwise as [any] Underwriter may request.
4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Certificates subject to this Agreement for sale to the public as set forth in
the Prospectus.
(b) Each Underwriter represents, warrants and agrees that: (i) it has not
sold or offered the Certificates in the United Kingdom, and it has not delivered
or communicated the Prospectus or any other invitation or inducement to buy or
participate in the Certificates in the United Kingdom, except to persons who (A)
have professional experience of participating in unregulated collective
investment schemes and of matters relating to investments falling within both
Article 14(5) of the Financial Services and Markets 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
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with respect to anything done by it in relation to the Certificates in, from or
otherwise involving the United Kingdom.
5. Covenants of the Depositor. The Depositor covenants and agrees with you
that:
(a) The Depositor has prepared and/or shall prepare a Prospectus
Supplement setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Base Prospectus, the price at which
such Certificates are to be purchased by the Underwriters from the Depositor,
either the initial public offering price or the method by which the price at
which such Certificates are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as you and the
Depositor deem appropriate in connection with the offering of such Certificates,
but the Depositor shall not file any amendments to the Registration Statement as
in effect with respect to the Certificates, or any amendments or supplements to
the Prospectus, unless it has first delivered copies of such amendments or
supplements to you and given you a reasonable opportunity to review the same or
if you have reasonably objected thereto promptly after receipt thereof; the
Depositor shall immediately advise you or your counsel (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement has been filed or has become or will become effective or
any supplement to the Prospectus or any amended Prospectus, in each case
relating to the Certificates specified in Schedule I has been filed and will
furnish you with copies thereof, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any additional
information relating to the Certificates and (iii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Certificates or of any proceedings or examinations that may lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or "blue sky" law, as soon as the Depositor
is advised thereof, and shall use its best efforts to prevent the issuance of
any such order or communication and to obtain as soon as possible its lifting,
if issued;
(b) If, at any time when the Prospectus is required to be delivered under
the Act, any event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with the
Act or the Rules and Regulations, the Depositor shall prepare and file with the
Commission, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance;
(c) The Depositor shall make generally available to the holders of the
Certificates (the "Certificateholders"), in each case as soon as practicable,
earning statements covering (i) a period of twelve (12) months beginning not
later than the first day of the related Trust's fiscal quarter next following
the effective date of the Registration Statement and (ii) a period of twelve
(12) months beginning no later than the first day of the Trust's fiscal quarter
next following the date hereof which will satisfy the provisions of Section
11(a) of the Act and Rule 158 of the Commission with respect to the
Certificates. The Depositor shall cause the Trustee to furnish or make
available, within a reasonable time after the end of each calendar year, to each
holder of a
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Certificate at any time during such year, such information as the Depositor
deems necessary or desirable to assist Certificateholders in preparing their
federal income tax returns;
(d) The Depositor shall furnish to you copies of the Registration
Statement, the Prospectus, and all amendments and supplements to such documents
relating to the Certificates, in each case as soon as available and in such
quantities as you reasonably request as long as the Depositor is required to
deliver the Prospectus under the Act in connection with the sale of the
Certificates; provided that any such documents requested by you on a date that
is more than nine (9) months after [__________], 200[__] (the "Closing Date")
shall be provided at your expense;
(e) The Depositor shall arrange for the qualification of the Certificates
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as you designate and shall continue such
qualifications in effect so long as required for the distribution; provided,
however, that neither the Depositor nor the Trust shall be required to qualify
to do business in any jurisdiction where it is now not qualified or to take any
action which would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process;
(f) The Depositor shall, while the Certificates are outstanding;
(i) furnish to you, as soon as available, copies of all reports
filed with the Commission and copies of each notice published or mailed to
holders of the Certificates pursuant to the Pooling and Servicing Agreement; and
(ii) furnish to you such other information with respect to the Trust
or its financial condition or results of operations, as you may reasonably
request, including but not limited to information necessary or appropriate to
the maintenance of a secondary market in the Certificates; and
(g) as between itself and the Underwriters, the Depositor will pay all
expenses incidental to the performance of its obligations under this Agreement,
including without limitation (i) expenses of preparing, printing and reproducing
the Prospectus (including any amendments thereof and supplements thereto), the
Pooling and Servicing Agreement and the Certificates, (ii) the fees charged by
[Fitch Ratings, Inc, ("Fitch"), Xxxxx'x Investors Service, Inc. ("Moody's"),
Dominion Bond Rating Services ("Dominion") and Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P"] and together
with [Fitch], [Moody's] [and] Dominion, the "Rating Agencies") for rating the
Certificates, (iii) the fees and expenses of the Trustee, and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection
with the Pooling and Servicing Agreement and the Certificates, and (iv) all
other costs and expenses incidental to the performance by the Depositor of its
obligations hereunder that are not otherwise specifically provided for in this
subsection. It is understood that, except as provided in this subsection (g) and
in Section 10 hereof, each Underwriter will pay all of its own expenses
including all out-of-pocket and/or internally allocated costs and expenses
incurred by them in connection with the transaction herein contemplated,
including, without limitation, fees and expenses of their counsel, any transfer
taxes on the Certificates and the expenses of any advertising of the offering of
the Certificates made by the Underwriters; and
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(h) during the period when a prospectus is required by law to be delivered
in connection with the sale of the Certificates pursuant to this Agreement, the
Depositor shall file, or cause the Trustee to file on behalf of the Trust, on a
timely and complete basis, all documents that are required to be filed by the
related Trust with the Commission pursuant to Sections 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Certificates subject to this
Agreement will be subject to the accuracy of the representations and warranties
on the part of the Depositor as of the date hereof and the Specified Delivery
Date, to the accuracy of the statements of the Depositor made pursuant to the
provisions hereof, to the performance by the Depositor in all material respects
of its obligations hereunder and to the following additional conditions
precedent:
(a) you shall have received a letter from [______________] dated the date
hereof and, if requested by you, dated the Specified Delivery Date, each in the
forms heretofore agreed to;
(b) all actions required to be taken and all filings required to be made
by the Depositor under the Act prior to the Specified Delivery Date shall have
been duly taken or made; and prior to the Specified Delivery Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or to the
knowledge of the Depositor or any Underwriter, shall be contemplated by the
Commission;
(c) unless otherwise specified in Schedule I, the Certificates subject to
this Agreement and offered by means of the Registration Statement shall be rated
the ratings specified in Schedule I, and shall not have been lowered or placed
on any credit watch with a negative implication for downgrade;
(d) you shall have received an opinion of counsel to the guarantor, Credit
Suisse First Boston acting through CSFB USA Inc. dated the Specified Delivery
Date, and in the form agreed to on or prior to such date;
(e) you shall have received opinions of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
special counsel to the Depositor and Credit Suisse First Boston LLC, dated the
Specified Delivery Date, in substantially the form agreed to on or prior to such
date;
(f) you shall have received an opinion of special counsel to each Mortgage
Loan Seller, dated the Specified Delivery Date, in the form agreed to on or
prior to such date;
(g) you shall have received an opinion of counsel to the Trustee, dated
the Specified Delivery Date, which shall be dated the date of the Mortgage Loan
Purchase Agreements, in the form agreed to on or prior to such date, together
with a reliance letter addressed to the Rating Agencies, the Depositor and the
Trustee;
(h) you shall have received an opinion of counsel of each Master Servicer,
dated the Specified Delivery Date, in the form agreed to on or prior to such
date;
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(i) you shall have received an opinion of counsel of each Special
Servicer, dated the Specified Delivery Date, in the form agreed to on or prior
to such date
(j) you shall have received letters, dated the Specified Delivery Date,
from counsel rendering opinions to the Rating Agencies, to the effect that you
may rely upon their opinion to such Rating Agencies, as if such opinion were
rendered to you, or such opinions shall be addressed to you;
(k) you shall have received a certificate or certificates signed by such
of the principal executive, financial and accounting officers of the Depositor
as you may request, dated the Specified Delivery Date, in the form agreed to on
or prior to such date;
(l) you shall have received a certificate of the Trustee, signed by one or
more duly authorized officers of the Trustee, dated the Specified Delivery Date,
in the form agreed to on or prior to such date;
(m) you shall have received a certificate of [each] Master Servicer,
signed by one or more duly authorized officers of such Master Servicer, dated
the Specified Delivery Date, in the form agreed to on or prior to such date;
(n) you shall have received a certificate of [each] Special Servicer,
signed by one or more duly authorized officers of such Special Servicer, dated
the Specified Delivery Date, in the form agreed to on or prior to such date;
(o) the Mortgage Loan Sellers shall have sold the Mortgage Loans to the
Depositor pursuant to the Mortgage Loan Purchase Agreements; and
(p) you shall have received such other documents, certificates, letters
and opinions as you may reasonably request.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter, each
of its officers and each of its directors and each person, if any, that controls
any Underwriter within the meaning of the Act or the Exchange Act against any
expenses, losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such officer, director or controlling person may become
subject under the Act, the Exchange Act or otherwise, and shall reimburse any
legal or other expenses reasonably incurred by such Underwriter or any such
director, officer, or controlling person in connection with investigating or
defending any such expense, loss, claim, damage, liability or action, in each
case insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment or supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Preliminary Prospectus Supplement, the Prospectus Supplement or the Base
Prospectus or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein,
10
in light of the circumstances under which they were made, not misleading, (iii)
any untrue statement or alleged untrue statement of any material fact contained
in any Issuer Free Writing Prospectus (as defined in Section 8(e)(i) hereof) or
any Issuer Information (as defined in Section 8(b) hereof) contained in any Free
Writing Prospectus (as defined in Section 8(a)) prepared by or on behalf of such
Underwriter, or in any Free Writing Prospectus that is required to be filed
pursuant to Section 8(e)(iii) or Section 8(h) hereof, or the omission or alleged
omission to state a material fact required to make the statements therein, in
light of the circumstances under which they were made, not misleading, which
error or omission was not corrected by information subsequently supplied by the
Depositor to such Underwriter at any time prior to the sale to the applicable
investor of the Certificates (including without limitation a contract of sale),
or (iv) any breach of the representation and warranty in Section 2(t) hereof;
provided, however, that with respect to clauses (i), (ii) and (iii) of this
Section 7(a), the Depositor shall not be liable in any such case to the extent
that any such expense, loss, claim, damage or liability (x) arises out of or is
based upon any such untrue statement or alleged untrue statement in, or omission
or alleged omission from, any such documents in reliance upon and in conformity
with written information furnished to the Depositor by or on behalf of an
Underwriter specifically for use therein (the "Underwriters' Information"), or
(y) is indemnified by the applicable Mortgage Loan Seller pursuant to the
related Indemnification Agreement; provided, further, that the indemnity with
respect to the Prospectus shall not inure to the benefit of the Underwriters if
information that corrected any untrue statement or omission of a material fact
contained in or excluded from the Preliminary Prospectus Supplement or the Base
Prospectus delivered therewith was furnished to the Underwriters in sufficient
quantities prior to the date on which a contract for sale was entered into with
any prospective investor, and the person asserting any such loss, claim, damage
or liability did not receive a copy of a final Prospectus (or, any supplement
thereto) that corrected such untrue statement or omission of a material fact
contained in the Preliminary Prospectus Supplement or the Base Prospectus
delivered therewith at or prior to the confirmation of the sale of the
Certificates, if delivery of a prospectus relating to the Certificates was
required to be delivered by such Underwriters under the Act. The Depositor
acknowledges that the following statements constitute the only Underwriters'
Information furnished in writing by or on behalf of the Underwriters for
inclusion in the Prospectus: the sub-heading "Summary of Prospectus
Supplement--Relevant Parties/Entities--Underwriters" in the Prospectus
Supplement; and the first sentence of the fourth paragraph, and the second
sentence of the fifth paragraph under the heading "Underwriting" in the
Prospectus Supplement. This indemnity agreement shall be in addition to any
liability which the Depositor may otherwise have.
(b) Each Underwriter shall severally, and not jointly, indemnify and hold
harmless the Depositor, each of its directors, each of its officers who has
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of the Act or the Exchange Act against any
expenses, losses, claims, damages or liabilities to which the Depositor or any
such director, officer or controlling person may become subject under the Act,
the Exchange Act or otherwise, and shall reimburse any legal or other expenses
reasonably incurred by the Depositor or any such director, officer or
controlling person in connection with investigating or defending any such
expense, loss, claim, damage, liability or action, in each case insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or
11
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, in the case of clauses (i) and (ii) to the
extent, but only to the extent, that any such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with Underwriters' Information or (iii)(A) any untrue statement or
alleged untrue statement of any material fact contained in any Free Writing
Prospectus (as defined in Section 8(a) hereof) prepared by or on behalf of such
Underwriter specifically for use in the preparation of the documents referred to
the foregoing indemnity or (B) the omission or the alleged omission to state a
material fact in any Free Writing Prospectus prepared by or on behalf of such
Underwriter (when read together with the Prospectus) required to be stated
therein or necessary to make the statements therein not misleading; except that,
in the case of clauses (iii)(A) and (iii)(B), no Underwriter shall be obligated
so to indemnify and hold harmless the Depositor (x) for any losses, claims,
damages or liabilities caused by any untrue statement, alleged untrue statement,
omission or alleged omission (including those of a quantitative nature)
resulting from an error or omission in any Mortgage Loan Seller's Information
(as defined in each of the Indemnification Agreements) provided by a Mortgage
Loan Seller and used for purposes of preparing such Free Writing Prospectus,
which Mortgage Loan Seller's Information was not corrected by information
subsequently supplied by the Depositor or any Mortgage Loan Seller at any time
prior to the sale to the applicable investor of Certificates (including without
limitation a contract of sale); (y) for any losses, claims, damages or
liabilities caused by any untrue statement, alleged untrue statement, omission
or alleged omission (including those of a quantitative nature) resulting from an
error or omission in the Issuer Information (as defined in Section 8(b) hereof)
supplied by the Depositor or any Mortgage Loan Seller to the Underwriter, which
Issuer Information was not corrected by information subsequently supplied by the
Depositor or any Mortgage Loan Seller at any time prior to the sale to the
applicable investor of Certificates (including without limitation a contract of
sale); or (z) to the extent that the Depositor is entitled to indemnification or
contribution therefor from any Mortgage Loan Seller pursuant to any
Indemnification Agreement. Notwithstanding the foregoing, the indemnity provided
in clause (iii) in the immediately preceding sentence will apply only if such
misstatement or omission was not also a misstatement or omission in the
Prospectus Supplement. This indemnity agreement shall be in addition to any
liability that such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party under subsections (a) and
(b) of this Section 7, except to the extent that such omission to notify
materially prejudices the indemnifying party or relieve it from any liability
that it may have other than under this Agreement. In case any such action is
brought against any indemnified party, after such indemnifying party has been
notified of the commencement thereof, such indemnifying party shall be entitled
to participate therein (at its own expense), and, to the extent that it may
wish, shall be entitled to assume the defense thereof (jointly with any other
indemnifying party similarly notified) with counsel reasonably satisfactory to
such indemnified party (which shall
12
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election to so assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them or (iii) the indemnifying
party shall have failed to designate within a reasonable period of time counsel
reasonably satisfactory to the indemnified party (in which case the fees and
expenses shall be paid by the indemnifying party as incurred by the indemnified
party). In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. An indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent. However, if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement (i) provides for an unconditional
release of the indemnified party in connection with all matters relating to the
proceeding that have been asserted against the indemnified party in such
proceeding by the other parties to such settlement and (ii) does not require an
admission of fault by the indemnified party, without the consent of the
indemnified party.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 7 or is insufficient in respect of any liabilities
referred to therein (on grounds of public policy or otherwise), the parties
entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent that contribution
is not permitted under Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by the Depositor on the one hand and
each Underwriter on the other from the offering of the Certificates subject to
this Agreement (taking into account the portion of the proceeds of the offering
realized by each). In the event contribution according to the foregoing sentence
is not permitted by law, in determining the amount of contribution to which the
respective parties are entitled, there shall be considered not only the relative
benefits received by the Depositor on the one hand and such Underwriter on the
other from the offering of the Certificates but also the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission and any other equitable considerations appropriate under the
circumstances. The Depositor and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose). Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total
13
underwriting discounts and commissions and other fees received by such
Underwriter in connection with the offering of the Certificates exceeds the
amount of damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or other liabilities referred to in this Section 7 shall
be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, any
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of any
Underwriter and to each person, if any, who controls any Underwriter within the
meaning of the Act or the Exchange Act; and the obligations of the Underwriters
under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Depositor and to each person, if
any, who controls the Depositor within the meaning of the Act or Exchange Act.
(h) Each Underwriter will indemnify and hold harmless the other
Underwriters and each person, if any, who controls such Underwriters within the
meaning of either the Act or the Exchange Act (the "Non-Indemnifying
Underwriters") from and against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which the Non-Indemnifying Underwriters
becomes subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, common law or otherwise, insofar as such expenses,
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
necessary in order to make the statement, in light of the circumstances under
which they were made, not misleading at the time of sale to the applicable
investor of Certificates (including without limitation a contract of sale),
contained in any Free Writing Prospectus (as defined in Section 8(a) hereof)
prepared by or on behalf of, or used or referred to by, such indemnifying
Underwriter or (ii) the failure of such indemnifying Underwriter or any member
of
14
its selling group to comply with any provision of Section 8 hereof. In
addition, each Underwriter agrees to reimburse, as incurred, such
Non-Indemnifying Underwriters for any legal or other expenses reasonably
incurred by them in connection with investigating or defending against any such
loss, claim, damage, liability or action, except to the extent that the
Non-Indemnifying Underwriters are entitled to indemnification or contribution
therefor from any Mortgage Loan Seller pursuant to any Indemnification
Agreement. This agreement will be in addition to any liability that any
Underwriter may otherwise have.
8. Offering Communications; Free Writing Prospectuses.
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, no Underwriter shall convey or deliver
any written communication to any person in connection with the initial offering
of the Certificates, unless such written communication (i) is made in reliance
on Rule 134 under the Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act or (iii) constitutes a "free writing
prospectus," as defined in Rule 405 under the Act (a "Free Writing Prospectus").
Without limitation thereby, without the prior written consent of the Depositor
(which consent may be withheld for any reason), no Underwriter shall convey or
deliver in connection with the initial offering of the Certificates any "ABS
informational and computational material," as defined in Item 1101(a) of
Regulation AB under the Act ("ABS Informational and Computational Material"), in
reliance upon Rules 167 and 426 under the Act.
(b) (i) Each Underwriter shall deliver to the Depositor, no later than two
(2) business days prior to the date of first use thereof, (A) any Free Writing
Prospectus prepared by or on behalf of such Underwriter that contains any
"issuer information," as defined in Rule 433(h) under the Act ("Issuer
Information") (which the parties hereto agree includes, without limitation,
Mortgage Loan Sellers' Information), and (B) any Free Writing Prospectus or
portion thereof that contains only a description of the final terms of the
Certificates.
(ii) Notwithstanding the provisions of clause (i) of this subsection
8(b), any Free Writing Prospectus described therein that contains only ABS
Informational and Computational Materials, may be delivered by such Underwriter
to the Depositor no later than the later of (a) two (2) business days prior to
the due date for filing of the Prospectus pursuant to Rule 424(b) under the Act
or (b) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Depositor that the
Free Writing Prospectuses to be furnished to the Depositor by such Underwriter
pursuant to Section 8(b) hereof will constitute all Free Writing Prospectuses of
the type described therein that were furnished to prospective investors by such
Underwriter in connection with its offer and sale of the Certificates.
(d) Each Underwriter represents and warrants to the Depositor that each
Free Writing Prospectus required to be provided by it to the Depositor pursuant
to Section 8(b) hereof did not, as of the date such Free Writing Prospectus was
conveyed or delivered to any prospective investor, include any untrue statement
of a material fact or omit any material fact required to be stated therein
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided however, that
no Underwriter makes any
15
representation to the extent such misstatements or omissions were the result of
any inaccurate Issuer Information supplied by the Depositor or any Mortgage Loan
Seller to such Underwriter, which information was not corrected by information
subsequently supplied by the Depositor or any Mortgage Loan Seller to such
Underwriter prior to the sale to the investor of the Certificates (including
without limitation, a contract of sale) which resulted in a loss, claim, damage
or liability arising out of or based upon such misstatement or omission.
(e) The Depositor agrees to file with the Commission the following:
(i) Any Free Writing Prospectus that constitutes an "issuer free
writing prospectus," as defined in Rule 433(h) under the Act (each, an "Issuer
Free Writing Prospectus");
(ii) Any Free Writing Prospectus or portion thereof delivered by the
Underwriter to the Depositor pursuant to Section 8(b) hereof; and
(iii) Any Free Writing Prospectus for which the Depositor or any
person acting on its behalf provided, authorized or approved information that is
prepared and published or disseminated by a person unaffiliated with the
Depositor or any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise disseminating
communications.
(f) Any Free Writing Prospectus required to be filed pursuant to Section
8(e) hereof by the Depositor shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the Certificates
may be filed by the Depositor within two (2) days of the later of the date such
final terms have been established for all classes of Certificates and the date
of first use;
(ii) any Free Writing Prospectus or portion thereof required to be
filed that contains only ABS Informational and Computational Material may be
filed by the Depositor with the Commission not later than the later of the due
date for filing the final Prospectus relating to the Certificates pursuant to
Rule 424(b) under the Act or two (2) business days after the first use of such
Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be filed pursuant to
Section 8(e)(iii) hereof may, if no payment has been made or consideration has
been given by or on behalf of the Depositor for the Free Writing Prospectus or
its dissemination, be filed by the Depositor with the Commission not later than
four (4) business days after the Depositor becomes aware of the publication,
radio or television broadcast or other dissemination of the Free Writing
Prospectus; and
(iv) the Depositor shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an Underwriter or any
offering participant other than the Depositor, if such information is included
or incorporated by reference in a prospectus or Free Writing Prospectus
previously filed with the Commission that relates to the offering of the
16
Certificates, or (B) any Free Writing Prospectus or portion thereof that
contains a description of the Certificates or the offering of the Certificates
which does reflect the final terms thereof.
(g) Each Underwriter shall file with the Commission any Free Writing
Prospectus that is used or referred to by it and distributed by or on behalf of
such Underwriter which is neither an Issuer Free Writing Prospectus nor contains
Issuer Information in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use of such Free
Writing Prospectus.
(h) Notwithstanding the provisions of Section 8(g) hereof, each
Underwriter shall file with the Commission any Free Writing Prospectus for which
such Underwriter or any person acting on its behalf provided, authorized or
approved information that is prepared and published or disseminated by a person
unaffiliated with the Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made or
consideration given by or on behalf of the Depositor or any other offering
participant, not later than four (4) business days after the Underwriter becomes
aware of the publication, radio or television broadcast or other dissemination
of the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 8(e) and 8(g) hereof,
neither the Depositor nor any Underwriter shall be required to file any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
(j) The Depositor and the Underwriters each agree that any Free Writing
Prospectuses prepared by it shall contain the following legend:
Commission File No. 333-[___] The depositor has filed a registration
statement (including a prospectus) with the Commission for the offering to which
this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the
Commission for more complete information about the issuer and this offering. You
may get these documents for free by visiting XXXXX on the Commission's website
at "xxxx://xxx.xxx.xxx." Alternatively, the depositor, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling toll-free 1-800-[________].
(k) The Depositor and the Underwriters each agree to retain all Free
Writing Prospectuses that they have used and that are not required to be filed
pursuant to this Section 8 for a period of three (3) years following the initial
bona fide offering of the Certificates.
(l) (i) In the event that any Underwriter becomes aware that, as of the
date on which an investor entered into an agreement to purchase any
Certificates, any Free Writing Prospectus prepared by or on behalf of such
Underwriter and delivered to such investor contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading (such Free Writing Prospectus, a "Defective Free
Writing Prospectus"), such Underwriter shall notify the Depositor thereof within
one (1) business day after discovery.
17
(i) Provided that the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus or contained Issuer Information, the Underwriter
shall, if requested by the Depositor:
(A) Prepare a Free Writing Prospectus which corrects the material
misstatement in or omission from the Defective Free Writing Prospectus (such
corrected Free Writing Prospectus, a "Corrected Free Writing Prospectus");
(B) Deliver the Corrected Free Writing Prospectus to each investor
which received the Defective Free Writing Prospectus prior to entering into an
agreement to purchase any Certificates;
(ii) Notwithstanding any other provision herein, the Underwriters,
on the one hand, and the Depositor, on the other hand, agree to pay all costs
and expenses of the other party or parties, as applicable, including, without
limitation, legal fees and expenses, incurred in connection with any successful
action by the Underwriters, on the one hand, or the Depositor, on the other
hand, against the other party or parties, as applicable, to enforce any of its
rights set forth in this Section 8.
(iii) Each Underwriter covenants with the Depositor that it will
make available to the Depositor such personnel as are familiar with the
Underwriter's compliance procedures for the purpose of answering questions
concerning the Underwriter's practices and procedures for the preparation and
dissemination of written materials concerning the Certificates to prospective
investors prior to the delivery of the final Prospectus to such investors.
(iv) Each Underwriter covenants with the Depositor that after the
final Prospectus is available the Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the final Prospectus.
9. Default of Underwriters. If any Underwriter defaults in its obligations
to purchase Certificates hereunder and the aggregate principal amount of
Certificates that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed 10% of the total principal amount of Certificates to
be purchased hereunder, Credit Suisse First Boston LLC, and/or [NAME EACH
ADDITIONAL UNDERWRITER, AS APPLICABLE] may make arrangements satisfactory to the
Depositor for the purchase of such Certificates by other persons, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated to purchase the Certificates that such defaulting Underwriter
agreed but failed to purchase hereunder. If any Underwriter so defaults and the
aggregate principal amount of Certificates with respect to which such default
occurs exceeds 10% of the total principal amount of Certificates to be purchased
hereunder and arrangements satisfactory to Credit Suisse First Boston LLC and/or
[NAME EACH ADDITIONAL UNDERWRITER, AS APPLICABLE] and the Depositor for the
purchase of such Certificates by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Depositor, except as provided in
Section 10 hereof. As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
18
10. Termination of the Obligations of the Underwriters. (a) Any
Underwriter may terminate its obligations under this Agreement by notice to the
Depositor at any time at or prior to the Specified Delivery Date if the sale of
the Certificates provided for herein is not consummated because of any failure
or refusal on the part of the Depositor to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Depositor
shall be unable to perform its obligations under this Agreement.
(b) The obligations of the Underwriters to purchase on the Specified
Delivery Date the Certificates described in Schedule I shall be terminable by
Credit Suisse First Boston LLC and/or [NAME EACH ADDITIONAL UNDERWRITER, AS
APPLICABLE] 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 Credit Suisse
First Boston LLC and [NAME EACH ADDITIONAL UNDERWRITER, AS APPLICABLE] 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 Credit
Suisse First Boston LLC and [NAME EACH ADDITIONAL UNDERWRITER, AS APPLICABLE] 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 general moratorium on commercial banking activities declared by
any federal or New York State authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States; or (vii)
any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including Credit Suisse First Boston
LLC and [NAME EACH ADDITIONAL UNDERWRITER, AS APPLICABLE] the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of any payment for the Certificates.
(c) If any Underwriter terminates its obligations under this
Agreement in accordance with Section 10(a) hereof, the Depositor shall reimburse
such Underwriter for all reasonable out-of pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
such Underwriter in connection with the proposed purchase and sale of the
Certificates.
19
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Depositor and of the several Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
or statement as to the results thereof made by or on behalf of such
Underwriters, the Depositor or any of their respective officers or directors or
any controlling person, and shall survive delivery of and payment of the related
Certificates.
If this Agreement is terminated pursuant to Section 10 hereof or if
for any reason the purchase by the Underwriters of the Certificates described in
Schedule I is not consummated, the Depositor shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(g) hereof, and the
obligations of the Depositor and such Underwriters pursuant to Section 7 hereof
shall remain in effect.
12. Obligations of Column Financial, Inc. Column Financial, Inc. agrees
with the Underwriters, for the sole and exclusive benefit of the Underwriters
and each of their respective officers, directors and any other person, if any,
who controls the Underwriters within the meaning of the Act or the Exchange Act
and not for the benefit of any assignee thereof or any other person or persons
dealing with the Underwriters, to indemnify and hold harmless the Underwriters
against any failure by the Depositor to perform its obligations to the
Underwriters and their officers, directors and control persons pursuant to
Section 7(a) hereof.
13. Notices. All communications hereunder shall be in writing and, if sent
to Credit Suisse First Boston LLC, shall be mailed, delivered or telecopied to
it at Credit Suisse First Boston LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx XxXxxxxxxx, Esq., Legal &
Compliance Department, Telecopy No.: [__________]; if sent to [LIST INFORMATION
FOR EACH ADDITIONAL UNDERWRITER, AS APPLICABLE], shall be mailed, delivered or
telecopied to it at [__________], Attention: [__________], Telecopy No.:
[__________]; 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: Xxxxxx Xxxxxx, with a copy
to Xxxxx XxXxxxxxxx, Esq., Legal & Compliance Department, Telecopy No.:
[__________]; provided, however, that any notice to an Underwriter pursuant to
Section 7 hereof shall be mailed, delivered or telecopied to such Underwriter at
the address furnished by it.
14. No Fiduciary Duty. The Depositor acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm's length contractual
counterparty to the Depositor with respect to the offering of the Certificates
contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Depositor or any other person. Additionally, neither CSFB nor any other
Underwriter is advising the Depositor or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Depositor
shall consult with its own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Depositor with respect thereto. Any review by
the Underwriters of the Depositor, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Underwriters and shall not be on behalf of the Depositor.
20
15. 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 hereof, 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.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Depositor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Depositor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written communications.
Very truly yours,
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
21
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:____________________________________
Name:
Title
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC,
as Underwriter
By:____________________________________
Name:
Title:
[__________],
as Underwriter
By:____________________________________
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[__________],
as Underwriter
By:____________________________________
Name:
Title:
[__________],
as Underwriter
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
[__________],
as Underwriter
By:____________________________________
Name:
Title:
Acknowledged and agreed solely as to Section 12 hereof:
COLUMN FINANCIAL, INC.
By:___________________________________
Name:
Title:
SCHEDULE I
Prospectus: Prospectus Supplement dated [__________], 200[__] and Base
Prospectus dated [__________], 200[__] (Registration Statement No.: 333-[_____])
Aggregate Principal Amount of Offered Certificates: $[__________] (approximate)
Aggregate Purchase Price to be Paid by Credit Suisse First Boston LLC:
$[__________] plus accrued interest
Aggregate Purchase Price to be Paid by [__________]: $[__] plus accrued interest
Aggregate Purchase Price to be Paid by [__________]: $[__] plus accrued interest
Aggregate Purchase Price to be Paid by [__________]: $[__] plus accrued interest
Aggregate Purchase Price to be Paid by [__________]: $[__] plus accrued interest
Certificate Balances/Notional Balance:
[Class A-1] $[__________]
[Class A-2 $[__________]
[Class
A-1-A] $[__________]
[Class B] $[__________]
[Class C] $[__________]
[Class D] $[__________]
Ratings ([Fitch /S&P/Moodys/Dominion]):
[Class A-1]
[Class A-2]
[Class A-1-A]
[Class B]
[Class C]
[Class D]
Pass-Through Rates:
[Class A-1] [__________]%
[Class A-2] [__________]%
[Class A-1-A] [__________]%
[Class B] [__________]%
[Class C] [__________]%
[Class D] [__________]%
I-1
Certificates Purchased
Certificate Balances
[Class A-1] [Class A-2] [Class A-1-A]
Certificate Certificate Certificate
Underwriter Balance Balance Balance
----------- ------- ------- -------
Credit Suisse First Boston LLC $[ ] $[ ] $[ ]
[__________] $[ ] $[ ] $[ ]
[__________] $[ ] $[ ] $[ ]
[__________] $[ ] $[ ] $[ ]
[__________] $[ ] $[ ] $[ ]
Total $[ ] $[ ] $[ ]
Class B Class C Class D
Certificate Certificate Certificate
Underwriter Balance Balance Balance
----------- ------- ------- -------
Credit Suisse First Boston LLC $[ ] $[ ] $[ ]
[__________] $[ ] $[ ] $[ ]
[__________] $[ ] $[ ] $[ ]
[__________] $[ ] $[ ] $[ ]
[__________] $[ ] $[ ] $[ ]
Total $[ ] $[ ] $[ ]
B-1
