Exhibit 1.1
EXECUTION COPY
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 2005-C2
UNDERWRITING AGREEMENT
May 18, 2005
CREDIT SUISSE FIRST BOSTON LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MCDONALD INVESTMENTS INC.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
GREENWICH CAPITAL MARKETS, INC.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
WACHOVIA CAPITAL MARKETS, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
1. INTRODUCTORY. Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation (the "DEPOSITOR"), proposes to form one or more real estate
mortgage investment conduits (the "TRUST"), which will issue securities entitled
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2005-C2 (such series of securities, the
"SERIES 2005-C2 SECURITIES"). The Depositor further proposes, subject to the
terms and conditions stated in this underwriting agreement (this "AGREEMENT"),
to sell to you, as underwriters (the "UNDERWRITERS" and, individually, an
"UNDERWRITER"), those classes of the Series 2005-C2 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 168
fixed rate mortgage loans, secured by 168 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 KeyBank
National Association (the "KEYBANK 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 May 18, 2005 (the
"MORTGAGE LOAN PURCHASE
AGREEMENTS"), and will be serviced by KeyCorp Real Estate Capital Markets, Inc.,
as master servicer (the "MASTER SERVICER") and X.X. Xxxxxx Company, Inc., as
special servicer (the "SPECIAL SERVICER"), pursuant to that certain Pooling and
Servicing Agreement (the "POOLING AND SERVICING AGREEMENT"), dated as of May 1,
2005, by and among the Depositor, the Master Servicer, the Special Servicer and
Xxxxx Fargo Bank, N.A., 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. SCHEDULE
I shall specify the principal or notional balance of each class of the
Certificates to be issued and any terms thereof not otherwise specified in the
Pooling and Servicing Agreement, the classes of Certificates subject to this
Agreement, the price at which such Certificates are to be purchased by the
Underwriters from the Depositor, the aggregate amount of Certificates to be
purchased by you and the initial public offering price or the method by which
the price at which such Certificates are to be sold will be determined. The
offering of the Certificates will be governed by this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor represents and warrants to you as of the date hereof as
follows:
(a) a registration statement on Form S-3, including a prospectus and such
amendments thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "ACT"), in the form
heretofore delivered to you, has been filed with the Securities and Exchange
Commission (the "COMMISSION") and has become effective; such registration
statement, as amended (excluding any related Computational Materials and ABS
Term Sheets (each as defined in SECTION 8(a) below) previously filed or to be
filed and any Computational Materials and ABS Term Sheets relating to securities
other than the Certificates), and the prospectus relating to the sale of the
Certificates offered thereby by the Depositor and constituting a part of such
registration statement, as such prospectus is from time to time amended or
supplemented (including any prospectus filed with the Commission pursuant to
Rule 424(b) of the rules and regulations of the Commission (the "RULES AND
REGULATIONS") under the Act), are respectively referred to herein as the
"REGISTRATION STATEMENT" and the "BASE PROSPECTUS"; the conditions to the use of
a registration statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the Act have been
satisfied with respect to the Registration Statement; and no other amendment to
the Registration Statement will be filed which shall have been reasonably
disapproved by you promptly after reasonable notice thereof;
(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
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the Certificates for sale in any jurisdiction or any proceeding for such purpose
having been instituted or threatened;
(c) the Registration Statement (i) on its effective date and on the date
of the then most recently filed Prospectus Supplement conformed in all respects
to the requirements of the Act and the Rules and Regulations thereunder and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (ii) on the date hereof will conform in all respects
to the requirements of the Act and the Rules and Regulations thereunder and will
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; the Base Prospectus, the preliminary prospectus
supplement, as amended or supplemented (including any computer diskettes
delivered as part of such preliminary prospectus supplement) (the "PRELIMINARY
PROSPECTUS SUPPLEMENT") and the prospectus supplement, as amended or
supplemented (including any computer diskettes delivered as part of such
prospectus supplement) (the "PROSPECTUS SUPPLEMENT"), to the Base Prospectus
prepared pursuant to SECTION 5(a) below (the Prospectus Supplement, together
with the Base Prospectus, the "PROSPECTUS"), on the date hereof and on the
Specified Delivery Date will conform in all respects to the requirements of the
Act and the Rules and Regulations thereunder and will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that the foregoing does not apply to statements in or omissions from either the
Registration Statement or the Prospectus to the extent based upon and in
conformity with (A) written information furnished to the Depositor by any
Underwriter specifically for use therein, and (B) the Mortgage Loan Seller's
Information (collectively as defined in each of the Seller Indemnification
Agreements (as defined herein)); PROVIDED, FURTHER, that the Depositor makes no
representations and warranties as to the information contained in or omitted
from any Current Report (as defined in SECTION 8(a) below), or in any amendment
or supplement thereto, incorporated by reference in the Registration Statement
or the Prospectus;
(d) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as
described in the Prospectus, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Depositor, and is conducting its business so as to comply in all material
respects with the applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business;
(e) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the Specified
Delivery Date (as defined herein), to the description thereof contained in the
Registration Statement and the Prospectus; 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;
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(f) the Depositor is not in violation of its certificate of incorporation
or by-laws or in default under any agreement, indenture or instrument the effect
of which violation or default would be material and adverse to the Depositor or
which violation or default would have a material adverse effect on the
performance by the Depositor of its obligations under this Agreement, the
Pooling and Servicing Agreement, the Certificates or any of the Mortgage Loan
Purchase Agreements; there are no actions or proceedings against, or
investigations of, the Depositor pending, or, to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing Agreement,
any of the Mortgage Loan Purchase Agreements or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, (iii) which might materially and
adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability against the Depositor of, this Agreement, the
Pooling and Servicing Agreement, any of the Mortgage Loan Purchase Agreements or
the Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Certificates described in the Prospectus;
(g) there has not been any material adverse change in the business
operations, financial condition, properties or assets of the Depositor since the
date of its latest audited financial statements which would have a material
adverse effect on the ability of the Depositor to perform its obligations under
this Agreement, the Pooling and Servicing Agreement or any of the Mortgage Loan
Purchase Agreements;
(h) there are no contracts, indentures or other documents of a character
required by the Act or by the rules and regulations thereunder to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been so described or
referred to therein or so filed or incorporated by reference as exhibits
thereto;
(i) the Depositor possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Depositor has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization or
permit which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Depositor;
(j) the issue and sale of the Certificates and the compliance by the
Depositor with all of the provisions of the Certificates, this Agreement and the
Pooling and Servicing Agreement, and the execution and delivery by the Depositor
of this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreements are within the corporate power of the Depositor and have
been, or will have been, duly authorized by all necessary corporate action on
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
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Depositor or its properties, (C) conflict with any of the provisions of any
indenture, mortgage, contract or other instrument to which the Depositor is a
party or by which it is bound or (D) except as contemplated by the Pooling and
Servicing Agreement, result in the creation or imposition of any lien, charge or
encumbrance upon any of its property or assets pursuant to the terms of any such
indenture, mortgage, contract or other instrument;
(k) this Agreement has been duly authorized, executed and delivered by the
Depositor;
(l) on the Specified Delivery Date, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements will have been duly authorized,
executed and delivered by the Depositor and will be valid and binding agreements
of the Depositor, enforceable against the Depositor in accordance with their
respective terms, except to the extent that enforcement thereof may be limited
by (1) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and (2)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity);
(m) all approvals, authorizations, consents, orders or other actions of
any person, corporation or other organization, or of any court, governmental
agency or body or official (except with respect to the state securities or "blue
sky" laws of various jurisdictions) required in connection with the valid and
proper authorization, issuance and sale of the Certificates pursuant to this
Agreement and the Pooling and Servicing Agreement have been or will be taken or
obtained on or prior to the Specified Delivery Date;
(n) at the Specified Delivery Date, each of the Mortgage Loans will meet
the criteria for selection described in the Prospectus Supplement;
(o) neither the Depositor nor the Trust Fund is, and neither the sale of
the Certificates in the manner contemplated by the Prospectus nor the activities
of the Trust Fund pursuant to the Pooling and Servicing Agreement will cause the
Depositor or the Trust Fund to be an "investment company" or under the control
of an "investment company" as such terms are defined under the Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), and the Pooling
and Servicing Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT");
(p) at the time of the execution and delivery of the Pooling and Servicing
Agreement, the Depositor (A) except as disclosed in the Prospectus, will convey
to the Trustee, or cause to be conveyed to the Trustee, all of the Depositor's
right, title and interest in and to the Mortgage Loans being transferred to the
Trustee pursuant to the Pooling and Servicing Agreement, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively "LIENS") granted by or imposed upon the Depositor, (B)
will not have 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
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delivery to the Underwriters of the Certificates pursuant hereto, each
Underwriter will have good title to the Certificates purchased by such
Underwriter, in each case free of Liens granted by or imposed upon the
Depositor;
(q) under generally accepted accounting principles and for federal income
tax purposes, the Depositor will report the transfer of the Mortgage Loans to
the Trustee in exchange for the Certificates and the sale of the Certificates to
the Underwriters pursuant to this Agreement as a sale of the interest in the
Mortgage Loans evidenced by the Certificates. The consideration received by the
Depositor upon the sale of the Certificates to the Underwriters will constitute
reasonably equivalent value and fair consideration for the Certificates. The
Depositor will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Certificates to the Underwriters. The
Depositor is not selling the Certificates to the Underwriters with any intent to
hinder, delay or defraud any of the creditors of the Depositor;
(r) at the Specified Delivery Date, the respective classes of Certificates
shall have been assigned ratings no lower than those set forth in SCHEDULE I
hereto by the nationally recognized statistical rating organizations identified
in SCHEDULE I hereto; and
(s) any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and Servicing
Agreement and the Certificates payable by the Depositor (other than income
taxes) have been paid or will be paid at or prior to the Specified Delivery
Date.
3. PURCHASE, SALE AND DELIVERY OF CERTIFICATES. Delivery of and payment
for the Certificates will be made at such place and at such time as shall be
specified in SCHEDULE I or at such other time thereafter as set forth in
SCHEDULE I or as you and the Depositor shall agree upon, each such time being
hereinafter referred to as a "SPECIFIED DELIVERY DATE." Delivery of such
Certificates shall be made by the Depositor to the Underwriters against payment
of the purchase price specified in SCHEDULE I in same day funds wired to such
bank as may be designated by the Depositor, or by such other manner of payment
as may be agreed upon by the Depositor and you. Unless otherwise provided for,
the Certificates to be so delivered will be in definitive, fully registered
form, in such denominations and registered in such names as you request, and
will be made available for checking and packaging at the office of Credit Suisse
First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at some
other location specified by the Underwriters at least 48 hours prior to
delivery), at least 24 hours prior to the Specified Delivery Date.
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 and agrees that: (A) it has not offered or
sold and, prior to the expiry of the period of six months from the Closing Date,
will not offer or sell any Registered Certificates to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their business or otherwise in circumstances which have not
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resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, as
amended; (B) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection with
the issue or sale of any Registered Certificates in circumstances in which
section 21(1) of the FSMA does not apply to the Depositor; and (C) it has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Registered Certificates in, from or
otherwise involving the United Kingdom.
5. COVENANTS OF THE DEPOSITOR. The Depositor covenants and agrees with
you that:
(a) the Depositor has prepared and/or shall prepare a Prospectus
Supplement setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Base Prospectus, the price at which
such Certificates are to be purchased by the Underwriters from the Depositor,
either the initial public offering price or the method by which the price at
which such Certificates are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as you and the
Depositor deem appropriate in connection with the offering of such Certificates,
but the Depositor shall not file any amendments to the Registration Statement as
in effect with respect to the Certificates, or any amendments or supplements to
the Prospectus, unless it has first delivered copies of such amendments or
supplements to you and given you a reasonable opportunity to review the same or
if you have reasonably objected thereto promptly after receipt thereof; the
Depositor shall immediately advise you or your counsel (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement has been filed or has become or will become effective or
any supplement to the Prospectus or any amended Prospectus, in each case
relating to the Certificates specified in SCHEDULE I has been filed and will
furnish you with copies thereof, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any additional
information relating to the Certificates and (iii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Certificates or of any proceedings or examinations that may lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or "blue sky" law, as soon as the Depositor
is advised thereof, and shall use its best efforts to prevent the issuance of
any such order or communication and to obtain as soon as possible its lifting,
if issued. Subject to the Underwriters' compliance with their obligations set
forth in SECTION 8 below and receipt by the Depositor of a letter from Xxxxx &
Young, LLP satisfactory in form and substance to the Depositor, to the effect
that such accountants have performed certain specified procedures, all of which
have been agreed to by the Depositor, as a result of which they have determined
that the information included in the Computational Materials and ABS Term Sheets
provided by the Underwriters to the Depositor for filing on Form 8-K pursuant to
SECTION 8 and this SUBSECTION (a), and that the accountants have examined in
accordance with such agreed upon procedures, is accurate except as to such
matters that are not deemed by the Depositor to be material, the Depositor shall
file with the Commission a Current Report on Form 8-K including any
Computational Materials and ABS Term Sheets provided to it by any Underwriter
pursuant to SECTION 8 below not later than the date on which such Current Report
is required to be filed with the Commission;
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(b) if, at any time when the Prospectus is required to be delivered under
the Act, any event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with the
Act or the Rules and Regulations, the Depositor shall prepare and file with the
Commission, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance;
(c) the Depositor shall make generally available to the holders of the
Certificates (the "CERTIFICATEHOLDERS"), in each case as soon as practicable,
earning statements covering (i) a period of 12 months beginning not later than
the first day of the related Trust's fiscal quarter next following the effective
date of the Registration Statement and (ii) a period of 12 months beginning no
later than the first day of the Trust's fiscal quarter next following the date
hereof which will satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Commission with respect to the Certificates. The Depositor shall
cause the Trustee to furnish or make available, within a reasonable time after
the end of each calendar year, to each holder of a Certificate at any time
during such year, such information as the Depositor deems necessary or desirable
to assist Certificateholders in preparing their federal income tax returns;
(d) the Depositor shall furnish to you copies of the Registration
Statement, the Prospectus, and all amendments and supplements to such documents
relating to the Certificates, in each case as soon as available and in such
quantities as you reasonably request as long as the Depositor is required to
deliver the Prospectus under the Act in connection with the sale of the
Certificates; PROVIDED that any such documents requested by you on a date that
is more than nine (9) months after the Closing Date shall be provided at your
expense;
(e) the Depositor shall arrange for the qualification of the Certificates
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as you designate and shall continue such
qualifications in effect so long as required for the distribution; PROVIDED,
HOWEVER, that neither the Depositor nor the Trust shall be required to qualify
to do business in any jurisdiction where it is now not qualified or to take any
action which would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process;
(f) the Depositor shall, while the Certificates are outstanding;
(i) furnish to you, within 90 days after the close of each fiscal
year, appropriate annual financial statements of the Trust, certified by a
nationally recognized firm of independent public accountants, in such form
as to disclose its financial condition at the end of, and the results of
its operations for, such fiscal year;
(ii) furnish to you, as soon as available, copies of all reports
filed with the Commission and copies of each notice published or mailed to
holders of the Certificates pursuant to the Pooling and Servicing
Agreement; and
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(iii) furnish to you such other information with respect to the
Trust or its financial condition or results of operations, as you may
reasonably request, including but not limited to information necessary or
appropriate to the maintenance of a secondary market in the Certificates;
and
(g) as between itself and the Underwriters, the Depositor will pay all
expenses incidental to the performance of its obligations under this Agreement,
including without limitation (i) expenses of preparing, printing and reproducing
the Prospectus, the Pooling and Servicing Agreement and the Certificates, (ii)
the fees charged by Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") and Xxxxx'x Investors Service, Inc.
("XXXXX'X" and together with S&P, the "RATING AGENCIES") for rating the
Certificates, (iii) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection
with the Pooling and Servicing Agreement and the Certificates, and (iv) all
other costs and expenses incidental to the performance by the Depositor of its
obligations hereunder that are not otherwise specifically provided for in this
subsection. It is understood that, except as provided in this SUBSECTION (g) and
in SECTION 10 below, each Underwriter will pay all of its own expenses including
all out-of-pocket and/or internally allocated costs and expenses incurred by
them in connection with the transaction herein contemplated, including, without
limitation, fees and expenses of their counsel, any transfer taxes on the
Certificates and the expenses of any advertising of the offering of the
Certificates made by the Underwriters; and
(h) during the period when a prospectus is required by law to be delivered
in connection with the sale of the Certificates pursuant to this Agreement, the
Depositor shall file, or cause the Trustee to file on behalf of the Trust, on a
timely and complete basis, all documents that are required to be filed by the
related Trust with the Commission pursuant to Sections 13, 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT").
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase and pay for the Certificates subject to this
Agreement will be subject to the accuracy of the representations and warranties
on the part of the Depositor as of the date hereof and the Specified Delivery
Date, to the accuracy of the statements of the Depositor made pursuant to the
provisions hereof, to the performance by the Depositor in all material respects
of its obligations hereunder and to the following additional conditions
precedent:
(a) you shall have received a letter from Xxxxx & Young LLP dated the date
hereof and, if requested by you, dated the Specified Delivery Date, each in the
forms heretofore agreed to;
(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;
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(c) unless otherwise specified in SCHEDULE I, the Certificates subject to
this Agreement and offered by means of the Registration Statement shall be rated
the ratings specified in SCHEDULE I, and shall not have been lowered or placed
on any credit watch with a negative implication for downgrade;
(d) you shall have received opinions of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP
special counsel to the Depositor and Credit Suisse First Boston LLC, dated the
Specified Delivery Date, substantially in the form agreed to on or prior to such
date;
(e) you shall have received an opinion of special counsel to each Mortgage
Loan Seller, dated the Specified Delivery Date, in the form agreed to on or
prior to such date;
(f) you shall have received an opinion of counsel to the Trustee, dated
the Specified Delivery Date, in the form agreed to on or prior to such date,
which shall also be addressed to the Rating Agencies, the Depositor and the
Trustee or shall be accompanied by a reliance letter addressed to such parties;
(g) you shall have received an opinion of counsel of the Master Servicer,
dated the Specified Delivery Date, in the form agreed to on or prior to such
date;
(h) you shall have received an opinion of counsel of the Special Servicer,
dated the Specified Delivery Date, in the form agreed to on or prior to such
date;
(i) you shall have received letters, dated the Specified Delivery Date,
from counsel rendering opinions to the Rating Agencies, to the effect that you
may rely upon their opinion to such Rating Agencies, as if such opinion were
rendered to you, or such opinions shall be addressed to you;
(j) you shall have received a certificate or certificates signed by such
of the principal executive, financial and accounting officers of the Depositor
as you may request, dated the Specified Delivery Date, in the form agreed to on
or prior to such date;
(k) you shall have received a certificate of the Trustee, signed by one or
more duly authorized officers of the Trustee, dated the Specified Delivery Date,
in the form agreed to on or prior to such date;
(l) you shall have received a certificate of the Master Servicer, signed
by one or more duly authorized officers of the Master Servicer, dated the
Specified Delivery Date, in the form agreed to on or prior to such date;
(m) you shall have received a certificate of the Special Servicer, signed
by one or more duly authorized officers of the Special Servicer, dated the
Specified Delivery Date, in the form agreed to on or prior to such date;
(n) the Mortgage Loan Sellers shall have sold the Mortgage Loans to the
Depositor pursuant to the Mortgage Loan Purchase Agreements; and
10
(o) you shall have received such other documents, certificates, letters
and opinions as you may reasonably request.
7. INDEMNIFICATION.
(a) The Depositor shall indemnify and hold harmless each Underwriter, each
of its officers and each of its directors and each person, if any, that controls
any Underwriter within the meaning of the Act or the Exchange Act against any
expenses, losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such officer, director or controlling person may become
subject under the Act, the Exchange Act or otherwise, and shall reimburse any
legal or other expenses reasonably incurred by such Underwriter or any such
director, officer, or controlling person in connection with investigating or
defending any such expense, loss, claim, damage, liability or action, in each
case insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment or supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Preliminary Prospectus Supplement, the Prospectus Supplement or the Base
Prospectus or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the Depositor
shall not be liable in any such case to the extent that any such expense, loss,
claim, damage or liability (x) arises out of or is based upon any such untrue
statement or alleged untrue statement in, or omission or alleged omission from,
any such documents in reliance upon and in conformity with written information
furnished to the Depositor by or on behalf of an Underwriter specifically for
use therein (the "UNDERWRITERS' INFORMATION"), (y) is indemnified for by any of
(i) the Column Mortgage Loan Seller pursuant to the Indemnification Agreement,
dated May 18, 2005, between the Column Mortgage Loan Seller, the Depositor, CSFB
LLC, in its capacity as purchaser of those classes of Series 2005-C2 Securities
being privately offered (in such capacity, the "INITIAL PURCHASER"), and the
Underwriters, or (ii) the KeyBank Mortgage Loan Seller pursuant to the
Indemnification Agreement, dated May 18, 2005, between the KeyBank Mortgage Loan
Seller, the Depositor, the Initial Purchaser and the Underwriters (the
indemnification agreements identified in the preceding CLAUSES (i) and (ii),
collectively, the "SELLER INDEMNIFICATION AGREEMENTS"), or (z) is caused by any
untrue statement or alleged untrue statement contained in, or any omission or
alleged omission from, any Computational Materials or ABS Term Sheets (when read
together with the Prospectus) so long as such untrue statement or alleged untrue
statement contained in, or any omission or alleged omission from, any
Computational Materials or ABS Term Sheets is not also contained in the
Prospectus; PROVIDED, FURTHER, that the indemnity with respect to the Prospectus
shall not inure to the benefit of the Underwriters if information that corrected
any untrue statement or omission of a material fact contained in or excluded
from the Preliminary Prospectus Supplement or the Base Prospectus delivered
therewith was furnished to the Underwriters prior to the Closing Date and the
person asserting any such loss, claim, damage or liability did not receive a
copy of a final Prospectus (or, any supplement thereto) that corrected such
untrue statement or omission of a material fact contained in the Preliminary
Prospectus Supplement or the Base Prospectus delivered therewith at or prior to
the confirmation of the sale of the Certificates, if delivery of a prospectus
relating to
11
the Certificates was required to be delivered by such Underwriters under the
Act. The Depositor acknowledges that the following statements constitute the
only Underwriters' Information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus: the first sentence of the sixth
paragraph on the cover of the Prospectus; the sub-heading "Summary of Prospectus
Supplement--Relevant Parties/Entities--Underwriters"; and the first sentence of
the fourth paragraph, and the second sentence of the fifth paragraph under the
heading "Underwriting" in the Prospectus. This indemnity agreement shall be in
addition to any liability which the Depositor may otherwise have.
(b) Each Underwriter shall severally, and not jointly, indemnify and hold
harmless the Depositor, each of its directors, each of its officers who has
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of the Act or the Exchange Act against any
expenses, losses, claims, damages or liabilities to which the Depositor or any
such director, officer or controlling person may become subject under the Act,
the Exchange Act or otherwise, and shall reimburse any legal or other expenses
reasonably incurred by the Depositor or any such director, officer or
controlling person in connection with investigating or defending any such
expense, loss, claim, damage, liability or action, in each case insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus or any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, in the case of clauses (i) and (ii) to the extent, but only to the
extent, that any such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with
Underwriters' Information or (iii)(A) any untrue statement or alleged untrue
statement of any material fact contained in the Computational Materials or ABS
Term Sheets that such Underwriter prepared or (B) the omission or the alleged
omission to state a material fact in the Computational Materials or ABS Term
Sheets (when read together with the Prospectus) required to be stated therein or
necessary to make the statements therein not misleading, other than, in the case
of clauses (iii)(A) and (iii)(B), any untrue statement, alleged untrue
statement, omission or alleged omission (including those of a quantitative
nature) resulting from information regarding Mortgage Loans provided by a
Mortgage Loan Seller and used for purposes of preparing the Computational
Materials or ABS Term Sheets or any other errors in such Computational Materials
or ABS Term Sheets to the extent such error resulted from such information.
Notwithstanding the foregoing, the indemnity provided in CLAUSE (iii) in the
immediately preceding sentence will apply only if such misstatement or omission
was not also a misstatement or omission in the Prospectus Supplement. This
indemnity agreement shall be in addition to any liability that such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this SECTION 7 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
SECTION 7, notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it
12
from any liability which it may have to any indemnified party under SECTION 7(a)
and (b), except to the extent that such omission to notify materially prejudices
the indemnifying party or relieve it from any liability that it may have other
than under this Agreement. In case any such action is brought against any
indemnified party, after such indemnifying party has been notified of the
commencement thereof, such indemnifying party shall be entitled to participate
therein (at its own expense), and, to the extent that it may wish, shall be
entitled to assume the defense thereof (jointly with any other indemnifying
party similarly notified) with counsel reasonably satisfactory to such
indemnified party (which shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election to so assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this SECTION 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have agreed to the retention
of such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to designate within a reasonable period of
time counsel reasonably satisfactory to the indemnified party (in which case the
fees and expenses shall be paid 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
13
one hand and such Underwriter on the other from the offering of the Certificates
but also the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission and any other equitable
considerations appropriate under the circumstances. The Depositor and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by PRO RATA or per capita allocation (even if the
Underwriters were treated as one entity for such purpose). Notwithstanding the
provisions of this SUBSECTION (d), each Underwriter shall not be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions and other fees received by such Underwriter in
connection with the offering of the Certificates exceeds the amount of damages
that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. The
obligations of the Underwriters in this SUBSECTION (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or other liabilities referred to in this SECTION 7 shall
be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this SECTION 7 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this SECTION 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, any
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The obligations of the Depositor under this SECTION 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of any
Underwriter and to each person, if any, who 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
14
law or regulation, common law or otherwise, insofar as such expenses, losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement of material fact contained in any
Computational Materials, ABS Term Sheets or other written materials developed
by, mailed or otherwise transmitted by such indemnifying Underwriter, or any
member of its selling group, in connection with the Certificates or in any
revision or amendment thereof or supplement thereto, other than any untrue
statement (including any of a quantitative nature) resulting from information
regarding the Mortgage Loans provided by the Mortgage Loan Sellers and used for
purposes of preparing such computational or other written materials or any other
errors reflected in such materials to the extent such error resulted from such
information. This agreement will be in addition to any liability that any
Underwriter may otherwise have.
8. COMPUTATIONAL MATERIALS.
(a) The Underwriters agree to provide to the Depositor not later than
10:30 a.m., New York time, on the Business Day before the date on which a
Current Report on Form 8-K is required to be filed by the Depositor with the
Commission pursuant to the No-Action Letters (as defined below) (each, a
"CURRENT REPORT") five complete copies of all materials that have been provided
by the Underwriters to prospective investors in the Certificates and that
constitute (i) "Computational Materials" within the meaning of the no-action
letter dated May 20, 1994 and issued by the Division of Corporation Finance of
the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx &
Co. Incorporated and Xxxxxx Structured Asset Corporation and the no-action
letter dated May 27, 1994 and issued by the Division of Corporation Finance of
the Commission to the Public Securities Association (together, the "XXXXXX
LETTERS") and (ii) "ABS Term Sheets" within the meaning of the no-action letter
dated February 17, 1995 and issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together with the Xxxxxx
Letters, the "NO-ACTION LETTERS"), and the Underwriters acknowledge that the
filing of such materials is a condition of relief granted in such letter (such
materials, the "COMPUTATIONAL MATERIALS" and the "ABS TERM SHEETS,"
respectively); PROVIDED, HOWEVER, that any ABS Term Sheets are subject to the
review and approval of the Depositor prior to their distribution to any
prospective investors, and a copy of all such ABS Term Sheets and Computational
Materials as are delivered to prospective investors shall, in addition to the
foregoing delivery requirements, be delivered to the Depositor simultaneously
with delivery thereof to prospective investors. Each delivery of Computational
Materials and ABS Term Sheets to the Depositor pursuant to this SECTION 8(a)
shall be effected by delivering four copies of such materials to counsel for the
Depositor on behalf of the Depositor and one copy of such materials to the
Depositor. Neither Underwriter shall provide to any investor or prospective
investor in the Certificates any Computational Materials or ABS Term Sheets on
or after the day on which Computational Materials or ABS Term Sheets are
required to be provided to the Depositor pursuant to this SUBSECTION (a) (other
than copies of Computational Materials or ABS Term Sheets previously submitted
to the Depositor in accordance with this SUBSECTION (a)) for filing pursuant to
SECTION 5(a), unless such Computational Materials or ABS Term Sheets are
preceded or accompanied by the delivery of a Prospectus to such investor or
prospective investor.
(b) As of the date of this Agreement and as of the Specified Delivery
Date, each of the Underwriters represents and warrants to, and agrees with, the
Depositor and with each other
15
Underwriter that: (i) the Computational Materials and ABS Term Sheets furnished
to the Depositor pursuant to SECTION 8(a) above, if any, constitute (either in
original, aggregated or consolidated form) all of the materials furnished to
prospective investors by such Underwriter that is required to be filed with the
Commission with respect to the Certificates in accordance with the No-Action
Letters, and such Computational Materials and ABS Term Sheets comply with the
requirements of the No-Action Letters; (ii) on the date any such Computational
Materials and ABS Term Sheets with respect to such Certificates (or any written
or electronic materials furnished to prospective investors on which such
Computational Materials and ABS Term Sheets are based) were last furnished to
each prospective investor and on the date of delivery thereof to the Depositor
pursuant to SECTION 8(a) above and on such Specified Delivery Date, such
Computational Materials and ABS Term Sheets (or materials) were accurate in all
material respects when read in conjunction with the Prospectus (taking into
account the assumptions explicitly set forth in the Computational Materials),
except to the extent of any errors therein that are caused by errors in the
Mortgage Loan Seller's Information; (iii) such Underwriter will not represent to
potential investors that any Computational Materials and ABS Term Sheets were
prepared or disseminated by the Depositor; and (iv) all Computational Materials
and ABS Term Sheets (or underlying materials distributed to prospective
investors on which the Computational Materials and ABS Term Sheets were based)
shall bear a legend substantially in the form of Exhibit A. Notwithstanding the
foregoing, the Underwriters make no representation or warranty as to whether any
Computational Materials and ABS Term Sheets (or any written or electronic
materials furnished to prospective investors on which the Computational
Materials and ABS Term Sheets are based), if any, included or will include any
inaccurate statement resulting directly from any error contained in the Mortgage
Loan Seller's Information.
(c) All information included in the Computational Materials and ABS Term
Sheets shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; PROVIDED that the Computational Materials and
ABS Term Sheets may include information based on alternative methodologies or
assumptions if specified therein. In the event that any Computational Materials
and ABS Term Sheets that are required to be filed were based on assumptions with
respect to the Mortgage Loans that are incorrect or that differ from the final
Mortgage Loans or the Mortgage Loan Seller's Information in any material respect
or were based on Certificate structuring terms that were revised in any material
respect prior to the printing of the Prospectus, the Underwriters shall prepare
revised Computational Materials or ABS Term Sheets, as the case may be, based on
the final Mortgage Loan Seller's Information and structuring assumptions, shall
circulate such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated orally to the
Underwriters they would purchase all or any portion of the Certificates, and
shall include such revised Computational Materials or ABS Term Sheets (marked
"as revised") in the materials delivered to the Depositor pursuant to SECTION
8(a) above.
(d) If, within the period during which the Prospectus relating to the
Certificates is required to be delivered under the Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of the
Depositor or the related Underwriter, to contain a material error or omission,
such Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected Computational
16
Materials or ABS Term Sheets to all recipients of the prior versions thereof
that either indicated orally to such Underwriter they would purchase all or any
portion of the Certificates, or actually purchased all or any portion thereof,
and shall deliver copies of such corrected Computational Materials or ABS Term
Sheets (marked, "as corrected") to the Depositor for filing with the Commission
in a subsequent Form 8-K submission (subject to the Depositor's obtaining an
accountant's comfort letter in respect of such corrected Computational Materials
and ABS Term Sheets, which the parties acknowledge shall be at the expense of
the related Mortgage Loan Seller). As of the date that any Underwriter
disseminates any Computational Materials or ABS Term Sheets, such Underwriter
shall not have any knowledge or reason to believe that such Computational
Materials or ABS Term Sheets contained any material error or omission and each
Underwriter agrees to promptly notify the Depositor of any such material error
or omission of which such Underwriter becomes aware. Notwithstanding the
foregoing, the Underwriters make no representation or warranty as to whether any
Computational Materials or ABS Term Sheets (or any written or electronic
materials furnished to prospective investors on which the Computational
Materials or ABS Term Sheets are based) included or will include any inaccurate
statement resulting directly from any error contained in the Mortgage Loan
Seller's Information.
(e) Each Underwriter shall be deemed to have represented, as of the
Specified Delivery Date, that, except for Computational Materials and ABS Term
Sheets provided to the Depositor pursuant to SUBSECTION (a) above, such
Underwriter did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Certificates
that is required to be filed with the Commission in accordance with the
No-Action Letters, and each Underwriter shall separately provide the Depositor
with a certification to that effect on the Specified Delivery Date.
(f) In the event of any delay in the delivery by either Underwriter to the
Depositor of Computational Materials and ABS Term Sheets required to be
delivered in accordance with SUBSECTION (a) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to SECTION 5(a), the
Depositor shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Specified Delivery Date and to
take other appropriate actions in each case as necessary in order to allow the
Depositor to comply with its agreement set forth in SECTION 5(a) to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(g) Each Underwriter further represents and warrants that, if and to the
extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in clauses (c),
(d) and (f) above have been satisfied with respect thereto.
9. DEFAULT OF UNDERWRITERS. If any Underwriter defaults in its
obligations to purchase Certificates hereunder and the aggregate principal
amount of Certificates that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of
Certificates to be purchased hereunder, Credit Suisse First Boston LLC may make
arrangements satisfactory to the Depositor for the purchase of such Certificates
by other persons, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated to purchase the Certificates that
such defaulting Underwriter agreed but failed to purchase hereunder. If any
Underwriter so defaults and the aggregate
17
principal amount of Certificates with respect to which such default occurs
exceeds 10% of the total principal amount of Certificates to be purchased
hereunder and arrangements satisfactory to Credit Suisse First Boston LLC ("CSFB
LLC") and the Depositor for the purchase of such Certificates by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the
Depositor, except as provided in SECTION 10. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
10. TERMINATION OF THE OBLIGATIONS OF THE UNDERWRITERS. (a) Any
Underwriter may terminate its obligations under this Agreement by notice to the
Depositor at any time at or prior to the Specified Delivery Date if the sale of
the Certificates provided for herein is not consummated because of any failure
or refusal on the part of the Depositor to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Depositor
shall be unable to perform its obligations under this Agreement.
(b) The obligations of the Underwriters to purchase on the Specified
Delivery Date the Certificates described in SCHEDULE I shall be terminable by
CSFB LLC if at any time on or prior to the Specified Delivery Date (i) any
change, or any development or event involving a prospective change in the
condition (financial or other), business, properties or results of operations of
the Depositor or the Trust which, in the judgment of a majority in interest of
the Underwriters (based on Underwriting obligations) including CSFB LLC, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Certificates; (ii) any downgrading in the rating of any of the Certificates by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 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 CSFB LLC,
be likely to prejudice materially the success of the proposed issue, sale or
distribution of the Certificates, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any Certificates on any relevant exchange or in the over-the-counter
market; (v) any general moratorium on commercial banking activities declared by
any Federal or New York State authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States; or (vii)
any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including CSFB LLC, the effect of any
such attack, outbreak, escalation, act, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the public offering
or the sale of any payment for the Certificates.
(c) If any Underwriter terminates its obligations under this Agreement in
accordance with SECTION 10(a), the Depositor shall reimburse such Underwriter
for all reasonable out-of
18
pocket expenses (including reasonable fees and disbursements of counsel) that
shall have been reasonably incurred by such Underwriter in connection with the
proposed purchase and sale of the Certificates.
11. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements by the
Depositor and of the several Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
or statement as to the results thereof made by or on behalf of such
Underwriters, the Depositor or any of their respective officers or directors or
any controlling person, and shall survive delivery of and payment of the related
Certificates.
If this Agreement is terminated pursuant to SECTION 10 above or if for any
reason the purchase by the Underwriters of the Certificates described in
SCHEDULE I is not consummated, the Depositor shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to SECTION 5(g) above, and the
obligations of the Depositor and such Underwriters pursuant to SECTION 7 above
shall remain in effect.
12. OBLIGATIONS OF COLUMN FINANCIAL, INC. Column Financial, Inc. agrees
with the Underwriters, for the sole and exclusive benefit of the Underwriters
and each of their respective officers, directors and any other person, if any,
who controls the Underwriters within the meaning of the Act or the Exchange Act
and not for the benefit of any assignee thereof or any other person or persons
dealing with the Underwriters, to indemnify and hold harmless the Underwriters
against any failure by the Depositor to perform its obligations to the
Underwriters and their officers, directors and control persons pursuant to
SECTION 7(a) hereof.
13. NOTICES. All communications hereunder shall be in writing and, if sent
to Credit Suisse First Boston LLC, shall be mailed, delivered or sent by
facsimile transmission to it at Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx
XxXxxxxxxx, Esq., Legal Compliance Department, Facsimile No.: (000) 000-0000; if
sent to McDonald Investments Inc., shall be mailed, delivered or sent by
facsimile transmission to it at McDonald Investments Inc., 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Xxx Xxxxxxxx, Facsimile No.: (000) 000-0000;
if sent to Greenwich Capital Markets, Inc., shall be mailed, delivered or sent
by facsimile transmission to it at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxxxx Xxxx, Facsimile No.: (000) 000-0000; if sent to
Wachovia Capital Markets, LLC, shall be mailed, delivered or sent by facsimile
transmission to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: CMBS Securitization, Facsimile No.: (704)
715-0066; or if sent to the Depositor, shall be mailed, delivered or sent by
facsimile transmission to it at Credit Suisse First Boston Mortgage Securities
Corp., Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxx, with a copy to Xxxxx XxXxxxxxxx, Esq., Legal Compliance Department,
Facsimile No.: (000) 000-0000; PROVIDED, HOWEVER, that any notice to an
Underwriter pursuant to SECTION 7 shall be mailed, delivered or telegraphed to
such Underwriter at the address furnished by it.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in SECTION 7 above, and
their successors and assigns, and no other person shall have
19
any right or obligation hereunder. No purchaser of any Certificates from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon it will become a
binding agreement among the Depositor and the several Underwriters in accordance
with its terms. Alternatively, the execution of this Agreement by the Depositor
and its acceptance by or on behalf of the Underwriters may be evidenced by an
exchange of telegraphic or other written communications.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
20
Very truly yours,
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:/s/ Xxxxxxx 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 LLC,
as Underwriter
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXXXX INVESTMENTS INC.,
as Underwriter
By:/s/ Xx-Xxxxxxxx III
----------------------------
Name: Xx-Xxxxxxxx XXX
Title Managing Director
GREENWICH CAPITAL MARKETS, INC.,
as Underwriter
By:/s/ Xxxxxx X. Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
WACHOVIA CAPITAL MARKETS, LLC,
as Underwriter
By:/s/ Xxxxx X. Xxxxxxxxxx XX
-----------------------------
Name: Xxxxx X. Xxxxxxxxxx XX
Title: Vice President
Acknowledged and agreed solely as to Section 12:
COLUMN FINANCIAL, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
PROSPECTUS: Prospectus Supplement dated May 18, 2005 and Base Prospectus dated
February 18, 2005 (Registration Statement No.: 333-121904)
AGGREGATE PRINCIPAL AMOUNT OF OFFERED CERTIFICATES: $1,468,652,000 (approximate)
AMOUNT OF CERTIFICATES TO BE PURCHASED BY:
INITIAL
CLASS OF CREDIT SUISSE FIRST MCDONALD GREENWICH CAPITAL WACHOVIA CAPITAL RATINGS PASS-THROUGH
CERTIFICATES BOSTON LLC INVESTMENTS INC. MARKETS, INC. MARKETS, LLC PRICE* (XXXXX'X/S&P) RATE
------------ ------------------- ---------------- ----------------- ---------------- ------ ------------- ------------
A-1 $ 55,791,000 $ 0 $ 0 $ 0 100.000000% Aaa/AAA 4.2050%
A-2 $ 75,897,000 $ 0 $ 0 $ 0 100.500000% Aaa/AAA 4.5770%
A-3 $ 107,275,000 $ 0 $ 0 $ 0 100.500000% Aaa/AAA 4.6910%
A-AB $ 74,464,000 $ 0 $ 0 $ 0 100.500000% Aaa/AAA 4.6810%
A-4 $ 365,026,000 $ 0 $ 0 $ 0 100.500000% Aaa/AAA 4.8320%
A-1-A $ 445,106,000 $ 0 $ 0 $ 0 100.000000% Aaa/AAA 4.7720%
A-MFL $ 80,000,000 $ 0 $ 0 $ 0 100.477200% Aaa/AAA LIBOR + .25%
A-MFX $ 80,508,000 $ 0 $ 0 $ 0 100.500000% Aaa/AAA 4.8770%
A-J $ 110,350,000 $ 0 $ 0 $ 0 100.500000% Aaa/AAA 4.9180%
B $ 30,095,000 $ 0 $ 0 $ 0 100.500000% Aa2/AA 5.0160%
C $ 16,051,000 $ 0 $ 0 $ 0 100.500000% Aa3/AA- 5.0560%
D $ 28,089,000 $ 0 $ 0 $ 0 100.500000% A2/A 5.1170%
----------
* Price is expressed as a percentage of par and is exclusive of accrued
interest, if any. The price of each class of Certificates (other than the Class
A-MFL Certificates) shall include interest at the related initial pass-through
rate from and including May 1, 2005 to, but not including, the Closing Date.
I-1
EXHIBIT A
Form of Computational Material/ABS Term Sheet Legend
Under no circumstances shall the information presented herein constitute an
offer to sell or the solicitation of an offer to buy any security nor shall
there be any sale of securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
for an exemption from such registration under the securities laws of such
jurisdiction. You have requested that Credit Suisse First Boston LLC, McDonald
Investments Inc., Greenwich Capital Markets, Inc. and Wachovia Capital Markets,
LLC (collectively the "UNDERWRITERS") provide to you information in connection
with your consideration of the purchase of certain securities described herein.
The attached information is being provided to you for informative purposes only
in response to your specific request. By accepting this material the recipient
agrees that it will not distribute or provide the material to any other person.
The information contained herein has been compiled by the Underwriters from
sources which the Underwriters believe to be reasonably reliable. However, the
Underwriters make no representation or warranty as to the accuracy or
completeness of such information and you must make your own determination as to
whether the information is appropriate and responsive to your request. Any
investment decision with respect to the securities described herein should be
based solely on your own due diligence with respect to the securities and the
mortgage loans referred to herein and only upon your review of the final
prospectus and prospectus supplement for the securities. This information may
not be delivered by you to any other person without the Underwriters' prior
written consent. The Underwriters may from time to time perform investment
banking services for or solicit investment banking business from any company
named in the information herein. The Underwriters and/or their employees may
from time to time have a long or short position in any contract or security
discussed herein. INFORMATION CONTAINED IN THIS MATERIAL IS CURRENT AS OF THE
DATE APPEARING ON THIS MATERIAL ONLY. INFORMATION IN THIS MATERIAL REGARDING ANY
ASSETS BACKING ANY SECURITIES DISCUSSED HEREIN SUPERSEDES 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.
B-1
