EXHIBIT 1.1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 2007-C2
UNDERWRITING AGREEMENT
----------------------
April 27, 2007
CREDIT SUISSE SECURITIES (USA) LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CALIFORNIA FINA GROUP, INC.
(DBA: FINACORP SECURITIES)
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
KEYBANC CAPITAL MARKETS INC.
Key Tower
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
GREENWICH CAPITAL MARKETS, INC.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
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 certain
securities entitled Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2007-C2 and including the
classes thereof specified on Schedule I hereto (the classes of such securities
so specified on Schedule I hereto, 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 207 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
KeyBank National Association (in such capacity, the "Key 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 1, 2007 (the "Mortgage Loan Purchase Agreements"), and will be serviced by
KeyCorp Real Estate Capital Markets, Inc., as master servicer (in such capacity,
the "Key Master Servicer") and Wachovia Bank, National Association, as master
servicer (the "Wachovia Master Servicer" and together with the Key Master
Servicer, the "Master Servicers"), and if and when necessary ING Clarion
Partners, LLC as special servicer (the "Special Servicer"), pursuant to that
certain Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of May 1, 2007, by and among the Depositor, the Master Servicers, 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. This
Agreement provides for the sale of such Certificates to, and the purchase and
offering thereof by, you, as underwriters (the "Underwriters" and, individually,
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.
At or prior to the time when sales to purchasers of the Certificates
were first made, which was approximately 2:00 p.m. on April 27, 2007 (the "Time
of Sale"), the Depositor had prepared the following information (collectively,
the "Rule 159 Information"): (i) the Depositor's Free Writing Prospectus dated
April 13, 2007 (the cover page of which is attached hereto as Annex A) (as
modified on April 26, 2007 by the Update to Free Writing Prospectus dated April
26, 2007) to the Depositor's Prospectus dated April 10, 2007, (ii) the term
sheet dated April 13, 2007, relating to the Certificates, and (iii) certain
other "free-writing prospectuses" (as defined pursuant to Rule 405 under the
1933 Act) (each of items (i) through (iii), a "Free Writing Prospectus"). If,
subsequent to the date of this Agreement, the Depositor and the Underwriters
determine that such information included an untrue statement of material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and terminate their old purchase contracts and enter into new
purchase contracts with investors in the Certificates, then "Rule 159
Information" will refer to the information conveyed to purchasers at the time of
entry into the first such new purchase contract, including any information that
corrects such material misstatements or omissions ("Corrective Information") and
"Time of Sale" will refer to the time and date on which such new purchase
contracts were entered into.
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2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to you as of the date hereof as follows:
(a) The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (File No. 333-141613) on Form S-3
for the registration of the Certificates under the Securities Act of 1933, as
amended (the "1933 Act"), which registration statement has become effective. The
Depositor proposes to and will file with the Commission pursuant to Rule 424(b)
under the 1933 Act a supplement to the form of prospectus included in such
registration statement relating to the Certificates and the plan of distribution
thereof. Such registration statement, including the exhibits thereto and
information that is contained in the Prospectus (as defined below) and is deemed
to be part of and included in such registration statement, as such registration
statement may have been amended or supplemented at the date of the Prospectus,
and including the Prospectus, is hereinafter referred to as the "Registration
Statement"; the prospectus first required to be filed to satisfy the condition
set forth in Rule 172(c) and pursuant to Rule 424(b) under the 1933 Act, is
hereinafter referred to as the "Base Prospectus"; such form of supplement to the
Base Prospectus relating to the Certificates, in the form first required to be
filed to satisfy the condition set forth in Rule 172(c) and pursuant to Rule
424(b) under the 1933 Act (including the Base Prospectus as so supplemented) is
hereinafter referred to as the "Prospectus Supplement"; and the Base Prospectus
and the Prospectus Supplement, together, are hereinafter referred to as the
"Prospectus." The conditions to the use of a registration statement on Form S-3
under the 1933 Act, as set forth in the General Instructions to Form S-3, and
the conditions of Rule 415 under the 1933 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. 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;
(b) 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 1933 Act and the rules and regulations
thereunder (the "Rules and Regulations") 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
1933 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
and the Prospectus on the date hereof and on the Specified Delivery Date (as
defined in Section 3 hereof) will conform in all respects to the requirements of
the 1933 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)
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written information furnished to the Depositor by any Underwriter specifically
for use therein (the "Underwriter Information"), (B) information contained in
the Prospectus Supplement regarding the Mortgage Loans that is contained in the
"Loan Detail" (as defined below) or, to the extent consistent therewith, the
Diskette (as defined below), (C) information contained in the Prospectus
Supplement regarding any Mortgage Loan Seller, the Mortgage Loans sold by such
Mortgage Loan Seller to the Depositor or the related mortgaged real properties,
in the case of clauses (B) and (C), to the extent such information is covered by
the related indemnification agreement, dated as of the date hereof, by and among
the Depositor, such Mortgage Loan Seller, Credit Suisse Securities (USA) LLC, as
Initial Purchaser (in such capacity, the "Initial Purchaser"), and each
Underwriter (each such indemnification agreement, a "Mortgage Loan Seller
Indemnification Agreement" and the information in clauses (B) and (C),
collectively, the "Mortgage Loan Sellers' Information"), and (D) information
contained in the Prospectus Supplement regarding the Master Servicers, the
Special Servicer and the Trustee (each of the Master Servicers, the Special
Servicer and the Trustee, a "Transaction Party" and collectively, the
"Transaction Parties") under the headings "The Series 2007-C2 Pooling and
Servicing Agreement--The Master Servicers," "--The Special Servicer" and "--The
Trustee," as applicable, and certain other sections in the Prospectus
Supplement, in each case as specified in, and only to the extent such
information is covered by, the related indemnification agreement, dated as of
the date hereof, by and among the Depositor, such Transaction Party, the Initial
Purchaser and each Underwriter (each such indemnification agreement, a
"Transaction Party Indemnification Agreement" and collectively with the Mortgage
Loan Seller Indemnification Agreements, the "Indemnification Agreements"; the
information in this clause (D), collectively, the "Transaction Party
Information"). "Loan Detail" shall mean the information set forth in Annex A-1
and Annex A-2 to the Prospectus Supplement. "Diskette" shall mean the
information set forth on the diskette attached to the Prospectus Supplement;
(c) 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;
(d) The Rule 159 Information, at the Time of Sale, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that the Depositor makes no representation and warranty with respect to
(A) any statements or omissions made in reliance upon and in conformity with the
Underwriter Information or (B) any Mortgage Loan Seller Information contained in
or omitted from such Time of Sale Information. The parties acknowledge that none
of the Underwriters has furnished any Underwriter Information to the Depositor
expressly for use in the Rule 159 Information.
(e) Other than the Prospectus, the Depositor (including its agents and
representatives other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any
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"written communication" (as defined in Rule 405 under the 1933 Act) that
constitutes an offer to sell or solicitation of an offer to buy the Certificates
other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act, (ii) the Rule 159
Information, and (iii) each other written communication of the Depositor or its
agents and representatives approved by the Underwriters either in writing in
advance or in any other manner mutually agreed by the Underwriters and the
Depositor (each such communication referred to in clause (ii) and this clause
(iii), together with any other "issuer free writing prospectus," as defined in
Rule 433(h) under the 1933 Act, relating to the Certificates, being referred to
herein as an "Issuer Free Writing Prospectus"). Each such Issuer Free Writing
Prospectus complied or, if used after the date hereof, will comply, in all
material respects with the 1933 Act and the rules and regulations promulgated
thereunder, has been filed or will be filed in accordance with Section 8 (to the
extent required thereby) and did not at the Time of Sale, and at the Closing
Date will not, contain any untrue statements of a material fact or (when read in
conjunction with the other Rule 159 Information) omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Depositor makes no representation and warranty with respect to (i) any
statements or omissions made in reliance upon and in conformity with the
Underwriter Information or (ii) any Mortgage Loan Seller Information contained
in or omitted from any Issuer Free Writing Prospectus. The parties acknowledge
that none of the Underwriters has furnished any Underwriter Information to the
Depositor expressly for use in any Issuer Free Writing Prospectus.
(f) 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 or its ability to perform its obligations under this Agreement, any
Mortgage Loan Purchase Agreement or the Pooling and Servicing Agreement, 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;
(g) 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;
(h) 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
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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;
(i) there has not been, and as of the Specified Delivery Date 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;
(j) there are no contracts, indentures or other documents of a
character required by the 1933 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;
(k) 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;
(l) 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
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its property or assets pursuant to the terms of any such indenture, mortgage,
contract or other instrument;
(m) this Agreement has been duly authorized, executed and delivered by
the Depositor;
(n) 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);
(o) 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;
(p) at the Specified Delivery Date, each of the Mortgage Loans will
meet the criteria for selection described in the Prospectus Supplement;
(q) 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");
(r) 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;
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(s) 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;
(t) 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;
(u) 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; and
(v) 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 1933 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. 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 through the facilities of The Depository Trust Company,
or otherwise as you 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 Act 2000
(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,
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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 Act 2000 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, it has given you a reasonable opportunity to review the same
and you have reasonably objected thereto promptly thereafter; 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
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 1933 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 1933 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 1933 Act and
Rule 158 of the Commission with respect to the Certificates. The Depositor shall
cause the Trustee to furnish or
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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 you are required to deliver the
Prospectus under the 1933 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 May 9, 2007 (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
Standard & Poor's ("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
10
(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 1933 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 acting through Credit Suisse (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 Xxxxxxx, Arps, Slate, Xxxxxxx &
Xxxx LLP and Cadwalader, Xxxxxxxxxx & Xxxx LLP, special counsel to the Depositor
and Credit Suisse Securities (USA) LLC, respectively, 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, in the form agreed to on or prior to such date,
together with a reliance letter addressed to the Rating Agencies and the
Depositor;
(h) you shall have received an opinion of counsel of each of the Master
Servicers, 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 the 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 of the Master
Servicers, 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;
(n) 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;
(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 1933 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 1933 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 (which,
for the avoidance of doubt, includes, without limitation, 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 not misleading, (ii) any untrue statement or alleged untrue
statement of any material fact contained in (x) any Issuer Free Writing
Prospectus or (y) any Issuer Information (as defined in Section 8(b)) contained
in (1) any Underwriter Free Writing Prospectus (as defined in Section 8(b)
hereof) prepared by or on behalf of such Underwriter, or (2) any Free Writing
Prospectus that is required to be filed pursuant to Section 8(e)(iii) or Section
8(h) hereof
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(clauses (x) and (y) collectively, the "Issuer Disclosure Materials"), or the
omission or alleged omission to state a material fact required to make the
statements therein (when read in connection with the other Rule 159
Information), 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 within a reasonable
period of time prior to the Time of Sale or (iii) any breach of the
representation and warranty in Section 2(v).
Notwithstanding the foregoing, (i) the Depositor shall not be liable in
any such case to the extent that any such expense, loss, claim, damage or
liability 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 (A) any Underwriter Information, (B) any
Mortgage Loan Sellers' Information; or (C) any Transaction Party Information,
but in the case of clauses (B) and (C), only to the extent that that the
Underwriters and Depositor are actually indemnified by the applicable party and
(ii) such indemnity with respect to an untrue statement or omission of a
material fact made in any Issuer Disclosure Materials that are part of the
initial Rule 159 Information shall not inure to the benefit of any Underwriter
if information that corrected any untrue statement or omission of a material
fact was furnished to the Underwriters at a reasonable time prior to the Time of
Sale.
(b) 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 sixth paragraph on the cover
of the Prospectus Supplement; the sub-heading "--Underwriters" in the section of
the Prospectus Supplement entitled "Summary of Prospectus Supplement--Relevant
Parties/Entities"; 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.
(c) 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 1933 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 1933
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
statements of a material fact in the Underwriter Information, or omissions or
alleged omissions to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and (ii) untrue statements or alleged
untrue statements of a material fact in any Underwriter Free Writing Prospectus
(as defined in Section 8(b)) prepared by or on behalf of such Underwriter or
omission or alleged omission to state in such Underwriter Free Writing
Prospectus a material fact necessary in order to make the statements therein
(when read in conjunction with the Rule 159 Information), in light of the
circumstances under which they were made, not misleading; except that, in the
case of clause (ii), no Underwriter shall be obligated so to indemnify and hold
harmless the Depositor (x) for
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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
Sellers' Information provided by a Mortgage Loan Seller or in any Transaction
Party Information provided by the Master Servicers, the Special Servicer or the
Trustee, as the case may be, and used for purposes of preparing such Free
Writing Prospectus, which Mortgage Loan Sellers' Information or Transaction
Party Information was not corrected by information subsequently supplied by the
Depositor or any Mortgage Loan Seller or the Master Servicers, the Special
Servicer or the Trustee within a reasonable period of time prior to the Time 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 within a reasonable period of time prior to the Time of Sale; or (z)
to the extent that the Depositor is entitled to indemnification or contribution
therefor from any Mortgage Loan Seller, the Trustee, the Master Servicers or the
Special Servicer pursuant to any Indemnification Agreement. Notwithstanding the
foregoing, the indemnity provided in clause (ii) in the immediately preceding
sentence will apply only if such misstatement or omission was not also a
misstatement or omission in the Rule 159 Information. This indemnity agreement
shall be in addition to any liability that such Underwriter may otherwise have.
(d) 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 Section 7 (a) and
(c), 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
14
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.
(e) 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 1933 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 (e), no Underwriter
shall 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 (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) 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
15
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.
(g) 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.
(h) 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 1933 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 1933 Act or
Exchange Act.
(i) 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 1933 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 become
subject under the 1933 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 (when read in conjunction with
the Rule 159 Information) to state a material fact necessary in order to make
the statements contained in any Underwriter Free Writing Prospectus prepared by
or on behalf of such indemnifying Underwriter, in light of the circumstances
under which they were made, not misleading at the Time of Sale, or (ii) the
failure of such indemnifying Underwriter, or any member of 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 1933 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 1933 Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the 1933 Act or (iii) constitutes Rule 159
Information or a Free Writing Prospectus.
16
Without limitation thereby, without the prior written consent of the Depositor
(which consent may be withheld for any reason), no Underwriter shall prepare,
convey or deliver in connection with the initial offering of the Certificates
any Free Writing Prospectus or "ABS informational and computational material,"
as defined in Item 1101(a) of Regulation AB under the 1933 Act ("ABS
Informational and Computational Material"), in reliance upon Rules 167 and 426
under the 1933 Act other than materials provided to it by Credit Suisse
Securities (USA) LLC or the Depositor.
(b) Each Underwriter shall deliver to the Depositor, no later than two
(2) business days prior to the date of first use thereof or such later date as
may be agreed to by the Depositor, (i) any Free Writing Prospectus that was
prepared by or on behalf of such Underwriter (an "Underwriter Free Writing
Prospectus") and that contains any "issuer information," as defined in Rule
433(h) under the 1933 Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties
hereto agree includes, without limitation, Mortgage Loan Sellers' Information),
and (ii) any Free Writing Prospectus or portion thereof prepared by or on behalf
of such Underwriter that contains only a description of the final terms of the
Certificates. Notwithstanding the foregoing, any Free Writing Prospectus that
contains only ABS Informational and Computational Materials may be delivered by
an Underwriter to the Depositor not 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 1933 Act or such later date as may be agreed to by the Depositor or
(B) the date of first use of such Free Writing Prospectus. It is acknowledged
and agreed that the Rule 159 Information does not include any Underwriter 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 to state any material fact required to be stated
therein or necessary to make the statements contained therein (when read in
conjunction with the Rule 159 Information), in light of the circumstances under
which they were made, not misleading; provided however, that no Underwriter
makes any 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 within a reasonable period of time prior to the Time of
Sale.
(e) The Depositor agrees to file with the Commission the following:
(i) Any Issuer Free Writing Prospectus;
17
(ii) Any Free Writing Prospectus or portion thereof delivered by an
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.
Notwithstanding the foregoing, the Depositor shall not be required to
file (1) Issuer Information contained in any Underwriter Free Writing Prospectus
or Free Writing Prospectus of any other 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 Certificates, or (2) any Free Writing Prospectus
or portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms thereof.
(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 1933 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
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 not reflect the final terms thereof.
(g) Each Underwriter shall file with the Commission, or provide to the
Depositor at least two (2) business days prior to the time such filing is
required, any Free Writing Prospectus
18
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, or substantially
equivalent legend that complies with Rule 433 of the 1933 Act:
"We have filed a registration statement (including a prospectus) with
the Securities and Exchange Commission for the offering to which this
communication relates. Before you invest, you should read the prospectus in the
registration statement and other documents the depositor has filed with the
Securities and Exchange Commission for more complete information about us, the
issuing trust and this offering. You may get these documents for free by
visiting XXXXX on the Securities and Exchange Commission web site at
xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus after
filing if you request it by calling toll free 0.000.000.0000 or by email to the
following address: xxxxx.xxxxx@xxxx.xxx."
(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 the Depositor becomes aware that, as of the
Time of Sale, any Issuer Free Writing Prospectus contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements contained therein (when read in conjunction with the Rule 159
Information), in light of the circumstances under which they were made, not
misleading (a "Defective Issuer Free Writing Prospectus"), the Depositor shall
notify the Underwriters of such untrue statement or omission within one business
day after discovery and the Depositor shall, if requested by the Underwriters,
prepare and deliver to the Underwriters a Free Writing Prospectus that corrects
the material misstatement or omission in the Defective
19
Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus,
a "Corrected Issuer Free Writing Prospectus").
(ii) In the event that any Underwriter becomes aware that, as of
the Time of Sale, any Underwriter Free Writing Prospectus delivered to an
investor in any Certificates contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Rule 159 Information), in
light of the circumstances under which they were made, not misleading (together
with a Defective Issuer Free Writing Prospectus, a "Defective Free Writing
Prospectus"), such Underwriter shall notify the Depositor of such untrue
statement or omission within one business day after discovery.
(iii) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that
corrects the material misstatement in or omission from the Defective Free
Writing Prospectus (together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus prior to entering
into a contract of sale with such investor;
(3) notify such investor in a prominent fashion that the prior
contract of sale with the investor has been terminated, and of the investor's
rights as a result of termination of such agreement;
(4) provide such investor with an opportunity to affirmatively
agree to purchase the Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5) comply with any other requirements for reformation of the
original contract of sale with such investor, as described in Section IV.A.2.c
of Commission's Securities Offering Reform Release No. 33-8591.
(iv) In the event that the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus or in the event that any Underwriter Free Writing
Prospectus contains any inaccurate Issuer Information supplied by the Depositor
or any Mortgage Loan Seller to the related Underwriter, and the Underwriters
shall in good faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the Depositor agrees to
reimburse the Underwriters for such costs; provided that, before incurring such
costs, the Underwriters first permits the Depositor access to the applicable
investor and an opportunity to attempt to mitigate such costs through direct
negotiation with such investor.
(v) 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.
20
(m) Each Underwriter covenants with the Depositor that it will make
available to the Depositor, upon reasonable request, 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.
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 Securities (USA) 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 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 Securities (USA) 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 the Certificates on
the Specified Delivery Date shall be terminable by Credit Suisse Securities
(USA) LLC (and, solely with respect to any Underwriter's obligation to purchase
its respective allotment of the Certificates as specified in Schedule I, by such
Underwriter) 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
Securities (USA) 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 1933 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
21
judgment of a majority in interest of the Underwriters including Credit Suisse
Securities (USA) 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 Credit
Suisse Securities (USA) 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 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 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 any of the Underwriters within the meaning of the 1933 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 respective 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, Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx XxXxxxxxxx, Esq.,
Legal & Compliance Department, Telecopy No.: (000) 000-0000; if sent to KeyBanc
Capital Markets Inc., shall be mailed, delivered or telecopied to it
22
at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Telecopy No.: (000) 000-0000,
Attention: Xxxxxx Xxxxxxxx, with a copy to: KeyBank National Association, 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Telecopy No.: (000) 000-0000, Attention:
Xxxxxxx X. Xxxxxxxx, and with an additional copy to: Xxxxxxxxxx Xxxxxxx Xxxxxxxx
Suelthaus PC, 000 X. 00xx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000,
Telecopy No.: (000) 000-0000, Attention: Xxxxx Xxxxxxx; if sent to Finacorp
Securities, shall be mailed, delivered or telecopied to it at California Fina
Group, Inc. (DBA: Finacorp Securities), 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, Attention: Xx Xxxxx, Telecopy No.: (000) 000-0000; if sent to
Wachovia Capital Markets, LLC, shall be mailed, delivered or telecopied to it at
000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: X. Xxxxx Xxxx, Jr., Telecopy No.: (000) 000-0000, with a copy to
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, Telecopy No.: (000) 000-0000;
if sent to Greenwich Capital Markets, Inc., shall be mailed, delivered or
telecopied to it at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxxxx Xxxx, Telecopy No.: (000) 000-0000, with a copy to Xxxx X. Xxxxxxxxx,
Esq., Legal Department, Telecopy No.: (000) 000-0000 or if sent to the
Depositor, shall be mailed, delivered or telecopied to it at Credit Suisse First
Boston Mortgage Securities Corp., Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxx XxXxxxxxxx, Esq., Legal &
Compliance Department, Telecopy No.: (000) 000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 7 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 Credit Suisse 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.
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 above, and
their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Certificates from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
23
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.
24
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]
25
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CREDIT SUISSE SECURITIES (USA) LLC,
as Underwriter
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
KEYBANC CAPITAL MARKETS INC.,
as Underwriter
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Director
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
CALIFORNIA FINA GROUP, INC.,
as Underwriter
By: /s/ Xx Xxxxx
---------------------------------
Name: Xx Xxxxx
Title: President/CFO
WACHOVIA CAPITAL MARKETS, LLC,
as Underwriter
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
GREENWICH CAPITAL MARKETS, INC.,
as Underwriter
By: /s/ Xxxxxx Xxxx
---------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
Acknowledged and agreed solely as to Section 12:
----------
COLUMN FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
Prospectus: Prospectus Supplement dated April 27, 2007 and Base Prospectus
dated April 10, 2007 (Registration Statement No.: 333-141613)
Closing Date & Location: May 9, 2007 at 10:00 a.m., New York time in the New
York offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP. All of the
Certificates will be available in book entry form through the facilities of the
Depository Trust Company.
Aggregate Principal Amount of Offered Certificates: $2,910,254,000 (approximate)
Aggregate Purchase Price to be Paid by Credit Suisse Securities (USA) LLC:
$ 2,924,805,270 plus accrued interest
Aggregate Purchase Price to be Paid by KeyBanc Capital Markets Inc.:
$0 plus accrued interest
Aggregate Purchase Price to be Paid by California Fina Group, Inc. (DBA:
Finacorp Securities): $0 plus accrued interest
Aggregate Purchase Price to be Paid by Wachovia Capital Markets, LLC:
$0 plus accrued interest
Aggregate Purchase Price to be Paid by Greenwich Capital Markets, Inc.:
$0 plus accrued interest
Certificate Balances/Notional Balance:
Class A-1 $26,000,000
Class A-2 $318,000,000
Class A-AB $64,298,000
Class A-3 $368,000,000
Class A-1-A $1,532,119,000
Class A-M $229,773,000
Class A-MFL $100,000,000
Class A-J $272,064,000
Sched. I-1
Ratings (Xxxxx'x/S&P):
----------------------
Class A-1 Aaa/AAA
Class A-2 Aaa/AAA
Class A-AB Aaa/AAA
Class A-3 Aaa/AAA
Class A-1-A Aaa/AAA
Class A-M Aaa/AAA
Class A-MFL Aaa/AAA
Class A-J Aaa/AAA
Initial Pass-Through Rates:
---------------------------
Class A-1 5.2690%
Class A-2 5.4480%
Class A-AB 5.4850%
Class A-3 5.5420%
Class A-1-A 5.5260%
Class A-M 5.6150%
Class A-MFL LIBOR + 0.2300%
Class A-J 5.7490%
Sched. I-2
Certificates Purchased
Certificate Balances
Class A-1 Class A-2 Class A-AB Class A-3
Certificate Certificate Certificate Certificate
Underwriter Balance Balance Balance Balance
----------- ------- ------- ------- -------
Credit Suisse Securities (USA) LLC $26,000,000 $318,000,000 $64,298,000 $368,000,000
KeyBanc Capital Markets Inc. $0 $0 $0 $0
California Fina Group, Inc.
(DBA: Finacorp Securities) $0 $0 $0 $0
Wachovia Capital Markets, LLC $0 $0 $0 $0
Greenwich Capital Markets, Inc. $0 $0 $0 $0
Total $26,000,000 $318,000,000 $64,298,000 $368,000,000
Class A-M Class A-MFL Class A-J
Class A-1-A Certificate Certificate Certificate
Underwriter Certificate Balance Balance Balance Balance
----------- ------------------- ------- ------- -------
Credit Suisse Securities (USA) LLC $1,532,119,000 $229,773,000 $100,000,000 $272,064,000
KeyBanc Capital Markets Inc. $0 $0 $0 $0
California Fina Group, Inc. (DBA:
Finacorp Securities) $0 $0 $0 $0
Wachovia Capital Markets, LLC $0 $0 $0 $0
Greenwich Capital Markets, Inc. $0 $0 $0 $0
Total $1,532,119,000 $229,773,000 $100,000,000 $272,064,000
Sched. I-3
