EXHIBIT 1.1
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 200[__]-[___]
UNDERWRITING AGREEMENT
[__________]
GREENWICH CAPITAL MARKETS, INC.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
[OTHER UNDERWRITERS]
Ladies and Gentlemen:
1. Introductory. Greenwich Capital Commercial Funding Corp., a
Delaware corporation (the "Depositor"), proposes to form one or more real estate
mortgage investment conduits (the "Trust"), which will issue securities entitled
Commercial Mortgage Trust 200[_]-[___], Commercial Mortgage Pass-Through
Certificates, Series 200[_]-[___] (the "Certificates"). Each Certificate will
evidence a fractional undivided, percentage interest or beneficial interest in
the Trust. The terms on which the Trust will issue the Certificates will be
specified in the Prospectus (as defined herein). The property of the Trust will
consist of a pool of fixed rate mortgage loans, secured by multifamily and
commercial properties (collectively, the "Mortgage Loans") that will be
purchased by the Depositor from Greenwich Capital Financial Products, Inc.,
[__________________], and [_______________] (each, a "Mortgage Loan Seller and
collectively, "the Mortgage Loan Sellers"), pursuant to separate certain
Mortgage Loan Purchase Agreements, each dated as of [_____________] (each, a
"Mortgage Loan Purchase Agreement" and collectively, the "Mortgage Loan Purchase
Agreements"), and will be serviced by [________________], as master servicer
(the "Master Servicer") and [_______________], as special servicer (the "Special
Servicer"), pursuant to that certain Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of [__________], by and among the
Depositor, the Master Servicer, the Special Servicer, and [_______________], as
trustee (the "Trustee"), and certain related property to be conveyed to the
Trust by the Depositor (the "Trust Fund"). The Mortgage Loans will be
transferred to the Trust, and the Certificates will be issued pursuant to the
Pooling and Servicing Agreement. Capitalized terms used herein but not defined
herein have the respective meanings given to them in the Pooling and Servicing
Agreement.
At or prior to the time when sales to purchasers of the Certificates
were first made, which was approximately [_____] on [_________] (the "Time of
Sale"), the Depositor had prepared the following information (collectively, the
"Time of Sale Information"): the Depositor's Free Writing Prospectus dated
[__________] (the cover page of which is attached hereto as Annex A) to the
Depositor's Prospectus dated [__________], and the Term Sheet dated
[__________], relating to the Certificates, and each "free-writing prospectus"
(as defined
pursuant to Rule 405 under the Securities Act) (a "Free Writing Prospectus") the
first page of each of which is attached as Annex B hereto. If, subsequent to the
date of this Agreement, the Depositor and the Underwriters (x) 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 (y)
terminate their old purchase contracts and enter into new purchase contracts
with investors in the Certificates, then "Time of Sale 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.
The offering of the Certificates made pursuant to the Registration
Statement will be made through you as underwriters. This Underwriting Agreement
(the "Agreement") provides for the sale of such Certificates to, and the
purchase and offering thereof by, you, as underwriters (collectively, the
"Underwriters" and each, an "Underwriter"). Schedule I shall specify the
principal or notional balance of each Class of the Certificates to be issued and
any terms thereof not otherwise specified in the Pooling and Servicing
Agreement, the Classes of Certificates subject to this Agreement, the price at
which such Certificates are to be purchased by the Underwriters from the
Depositor, the aggregate amount of Certificates to be purchased by you and the
initial public offering price or the method by which the price at which such
Certificates are to be sold will be determined. The offering of the Certificates
will be governed by this Agreement.
2. Representations and Warranties of the Depositor.
The Depositor represents and warrants to you as of the date hereof
as follows:
(a) a registration statement on Form S-3, including a prospectus and
such amendments thereto as may have been required to the date hereof, relating
to the Certificates and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "Act"), in the
form heretofore delivered to you, has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective; such
registration statement, including the exhibits thereto and any information that
is contained in the Prospectus (as defined herein) and is deemed to be a part of
and included in such registration statement, as such registration statement may
have been amended or supplemented at the date of 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 Securities Act is hereinafter referred to as the "Base
Prospectus"; the 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 Securities Act is hereinafter
referred to as the "Prospectus Supplement"; and the Base Prospectus and the
Prospectus Supplement, including the diskette delivered therewith, together, are
hereinafter referred to as the "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
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amendment to the Registration Statement will be filed which shall have been
reasonably disapproved by you promptly after reasonable notice thereof;
(b) there is no request by the Commission for any further amendment
of the Registration Statement or the Prospectus or for any additional
information; the Commission has not issued any stop order suspending the
effectiveness of the Registration Statement and the Depositor is not aware of
any proceeding for that purpose having been instituted or threatened; and there
has been no notification with respect to the suspension of the qualification for
sale of the Certificates for sale in any jurisdiction or any proceeding for such
purpose having been instituted or threatened;
(c) the Registration Statement on its effective date or deemed
effective date pursuant to Rule 430B under the Securities Act conformed in all
respects to the requirements of the Act and the rules and regulations of the
Commission (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;
the Prospectus, on the date of the Prospectus Supplement 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) the Underwriters'
Information (as defined in Section 7(a)), (B) the information as to which the
Mortgage Loan Sellers indemnify the Underwriters under their respective
Indemnification Agreements, each dated as of the date hereof (collectively, the
"Mortgage Loan Seller Indemnification Agreements"), by and among the Depositor,
each Mortgage Loan Seller, respectively, and each Underwriter), (C) any
information contained in or omitted from the portions of the Prospectus for
which the Master Servicer is obligated to indemnify the Underwriters pursuant to
the Indemnification Agreement, dated as of [__________] (the "Master Servicer
Indemnification Agreement"), between the Master Servicer and the Depositor (the
"Master Servicer Information"), (D) any information contained in or omitted from
the portions of the Prospectus for which the Special Servicer is obligated to
indemnify the Underwriters pursuant to the Indemnification Agreement, dated as
of [___________] (the "Special Servicer Indemnification Agreement"), between the
Special Servicer and the Depositor (the "Special Servicer Information"), or (E)
any information contained in or omitted from the portions of the Prospectus for
which the Trustee is obligated to indemnify the Underwriters pursuant to the
Indemnification Agreement, dated as of [__________] (the "Trustee
Indemnification Agreement" and collectively, the "Indemnification Agreements"),
between the Trustee and the Depositor (the "Trustee Information");
(d) The Time of Sale Information, at the Time of Sale, did not, and
at the Specified Delivery 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.
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(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 "written communication" (as
defined in Rule 405 under the Securities 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 Securities
Act or Rule 134 under the Securities Act, (ii) the Time of Sale 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) constituting
an "issuer free writing prospectus", as defined in Rule 433(h) under the
Securities Act, 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 Securities
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 Specified Delivery Date will not, contain
any untrue statements of a material fact or (when read in conjunction with the
other Time of Sale 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, Master Servicer Information, Special Servicer
Information or Trustee Information contained in or omitted from 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 execution and performance of the terms of this 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 (as defined herein), to the description thereof contained in the
Registration Statement and the Prospectus; and the Certificates have been duly
and validly authorized (or will have been so authorized prior to the issuance
thereof), and, when such Certificates are duly and validly executed by the
Depositor or 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
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a material adverse effect on the performance by the Depositor of its obligations
under this Agreement, the Pooling and Servicing Agreement, the Certificates or
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 Mortgage Loan Purchase Agreement 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 Mortgage Loan Purchase
Agreement 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 as of which
information is given in the Prospectus that 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 Mortgage Loan Purchase Agreement;
(j) 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 that 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 an 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 (in the case of this Agreement),
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
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(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;
(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 other
than to the Underwriters and the Initial Purchasers, 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
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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;
(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 Mortgage Loans to the Trust or
the Certificates to the Underwriters with any intent to hinder, delay or defraud
any of the creditors of the Depositor;
(t) any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements and the Certificates
payable by the Depositor (other than income taxes) have been paid or will be
paid at or prior to the Specified Delivery Date;
(u) the statements set forth in the Prospectus under the caption
"Description of the Offered Certificates," insofar as they purport to constitute
a summary of the terms of the Certificates and insofar as they purport to
describe the provisions of the documents referred to therein, are correct in all
material respects;
(v) following the election of the Trustee to treat certain assets of
the Trust Fund as one or more REMICs pursuant to Section 860D of the Internal
Revenue Code of 1986 (the "Code"), such assets will qualify as one or more
REMICs and each Certificate will qualify as a regular interest in one of such
REMICs; and
(w) The Depositor is not, and on the date on which the first bona
fide offer of the Certificates is made (within the meaning of Rule 164(h)(2)
under the Securities Act) will not be, an "ineligible issuer," as defined in
Rule 405 under the Securities 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 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 causing The Depository Trust Company ("DTC") to credit the respective
accounts of the Underwriters at DTC against payment of the purchase price
specified in Schedule I in same day funds wired to such bank as may be
designated by the Depositor, or by such other manner of payment as may be agreed
upon by the Depositor and you. The Certificates to be purchased by the
Underwriters will be represented by one or more definitive global Certificates
in book-entry form, which will be deposited by or on behalf of the Depositor
with DTC or its designated custodian in such denominations as you request, and
will be made available for checking and packaging at the office of Greenwich
Capital Markets, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 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.
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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 warrants to, and agrees with the
Depositor, that:
(i) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), such Underwriter has not made and will not make an offer of
Certificates to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Certificates which has been
approved by the competent authority in that Relevant Member State or,
where appropriate, approved in another Relevant Member State and notified
to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect
from and including the relevant implementation date, make an offer of
Certificates to the public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than (euro)43,000,000 and (3) an
annual net turnover of more than (euro)50,000,000, as shown in its
last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Certificates to
the public" in relation to any Certificates in any Relevant Member State means
the communication in any form and by any means of sufficient information on the
terms of the offer and the Certificates to be offered so as to enable an
investor to decide to purchase or subscribe the Certificates, as the same may be
varied in that Member State by any measure implementing the Prospectus Directive
in that Member State and the expression "Prospectus Directive" means the
European Commission Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
(ii) Each Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the United Kingdom Financial Services and Markets
Act 2000 (the "FSMA")) received by it in connection with the issue or sale
of the Certificates in circumstances in which Section 21(1) of the FSMA
does not apply to the issuer.
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(iii) Each Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Certificates in, from or otherwise involving the United
Kingdom.
5. Covenants of the Depositor. The Depositor covenants and agrees
with you that:
(a) the Depositor has prepared and/or shall prepare a Prospectus
Supplement setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Base Prospectus, the price at which
such Certificates are to be purchased by the Underwriters from the Depositor,
either the initial public offering price or the method by which the price at
which such Certificates are to be sold will be determined, the selling
concessions and reallowances, if any, and such other information as you and the
Depositor deem appropriate in connection with the offering of such Certificates,
but the Depositor shall not file any amendments to the Registration Statement as
in effect with respect to the Certificates, or any amendments or supplements to
the Prospectus, unless it has first delivered copies of such amendments or
supplements to you and given you a reasonable opportunity to review the same or
if you have reasonably objected thereto promptly after receipt thereof; the
Depositor shall immediately advise you or your counsel (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement has been filed or has become or will become effective or
any supplement to the Prospectus or any amended Prospectus, in each case
relating to the Certificates specified in Schedule I has been filed and will
furnish you with copies thereof, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any additional
information relating to the Certificates and (iii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Certificates or of any proceedings or examinations that may lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or "blue sky" law, as soon as the Depositor
is advised thereof, and shall use its best efforts to prevent the issuance of
any such order or communication and to obtain as soon as possible its lifting,
if issued;
(b) if, at any time when the Prospectus is required to be delivered
under the Act, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend or supplement the Prospectus to comply with
the Act or the Rules and Regulations, the Depositor shall prepare and file with
the Commission, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance;
(c) the Depositor shall make generally available to the holders of
the Certificates (the "Certificateholders"), in each case as soon as
practicable, earning statements covering (i) a period of 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
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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 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 Specified Delivery 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 furnish to you, or cause to be furnished to
you, such information with respect to the Trust or its financial condition or
results of operations, as you may reasonably request, including but not limited
to, any reports or other communications (financial or other) furnished to
Certificateholders and any information necessary or appropriate to the
maintenance of a secondary market in the Certificates;
(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 [_________________] ("[_____]") and [___________________]
("[_______]", and together with [_______], 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, (iv) the cost of
printing or producing any "blue sky" memorandum in connection with the offer and
sale of the Certificates under state securities laws and all expenses in
connection with the qualification of the Certificates for offer and sale under
state securities laws, (v) any cost incurred in connection with the designation
of the Certificates for trading in PORTAL and (vi) 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 Sections 7 and 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;
-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 Trust with the Commission pursuant to Sections 13, 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(i) the Depositor is not and shall not become an open-end investment
company, unit investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under Section 8 of
the Investment Company Act; and
(j) the Depositor acknowledges and agrees that (i) the purchase and
sale of the Certificates pursuant to this Agreement is an arm's-length
commercial transaction between the Depositor, on the one hand, and the several
Underwriters, on the other, (ii) in connection therewith and with the process
leading to such transaction each Underwriter is acting solely as a principal and
not the agent or fiduciary of the Depositor, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Depositor with respect to
the offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Depositor on
other matters) or any other obligation to the Depositor except the obligations
expressly set forth in this Agreement and (iv) the Depositor has consulted its
own legal and financial advisors to the extent it deemed appropriate. The
Depositor agrees that it will not claim that the Underwriters, or any of them,
has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Depositor, in connection with such transaction or the
process leading thereto.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Certificates subject
to this Agreement will be subject to the accuracy of the representations and
warranties on the part of the Depositor as of the date hereof and the Specified
Delivery Date, to the accuracy of the statements of the Depositor made pursuant
to the provisions hereof, to the performance by the Depositor in all material
respects of its obligations hereunder and to the following additional conditions
precedent:
(a) you shall have received a letter from [_______________], dated
the date hereof and, if requested by you, dated the Specified Delivery Date,
each in the forms heretofore agreed to;
(b) all actions required to be taken and all filings required to be
made by the Depositor under the Act prior to the Specified Delivery Date shall
have been duly taken or made; and prior to the Specified Delivery Date, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or to the
knowledge of the Depositor or any Underwriter, shall be contemplated by the
Commission;
(c) 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;
-11-
(d) you shall have received an opinion of Cadwalader, Xxxxxxxxxx &
Xxxx LLP, special counsel to the Depositor and the Co-Lead Underwriters, dated
the Specified Delivery Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
(e) you shall have received a letter from Cadwalader, Xxxxxxxxxx &
Xxxx LLP, special counsel to the Depositor and the Co-Lead Underwriters,
relating to the Prospectus and dated the Specified Delivery Date, in form and
substance satisfactory to the Underwriters and counsel to the Underwriters;
(f) you shall have received an opinion of special counsel to each
Mortgage Loan Seller, dated the Specified Delivery Date, in form and substance
satisfactory to the Underwriters and counsel to the Underwriters;
(g) you shall have received an opinion of counsel to the Trustee and
Fiscal Agent, dated the Specified Delivery Date, in form and substance
satisfactory to the Underwriters and counsel to the Underwriters;
(h) you shall have received an opinion of counsel to the Master
Servicer, dated the Specified Delivery Date, in form and substance satisfactory
to the Underwriters and counsel to the Underwriters;
(i) you shall have received an opinion of counsel to the Special
Servicer, dated the Specified Delivery Date, in form and substance satisfactory
to the Underwriters and counsel to the Underwriters;
(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 form and
substance satisfactory to the Underwriters and counsel to the Underwriters;
(l) you shall have received a certificate of the Trustee and the
Fiscal Agent, signed by one or more duly authorized officers of the Trustee,
dated the Specified Delivery Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
(m) 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 form and substance satisfactory to the Underwriters
and counsel to the Underwriters;
(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 form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
-12-
(o) the Mortgage Loan Sellers shall have sold the Mortgage Loans to
the Depositor pursuant to the Mortgage Loan Purchase Agreements;
(p) the Pooling and Servicing Agreement and all of the other
documents identified therein or herein shall have been duly entered into by all
of the respective parties thereto; and
(q) 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 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, (iii) any untrue statement or alleged untrue statement of any
material fact contained in any Issuer Free Writing Prospectus (as defined in
Section 2(e) hereof) or any "issuer information," as defined in Rule 433(h)
under the Act ("Issuer Information") contained in any Underwriter Free Writing
Prospectus, or the omission or alleged omission to state a material fact
required to make the statements therein (when read in conjunction with the other
Time of Sale Information), in light of the circumstances under which they were
made, not misleading, which error or omission was not corrected by Correction
Information subsequently supplied by the Depositor or any Mortgage Loan Seller
to such Underwriter at any time prior to the Time of Sale, or (iv) any breach of
the representation and warranty in Section 2(w) hereof; and the Depositor shall
reimburse, as incurred, each Underwriter and each such officer, director and
controlling person for any legal or other expenses reasonably incurred by such
Underwriter and each such officer, director and controlling person in connection
with investigating or defending any such expense, loss, claim, damage, liability
or action; provided, however, that with respect to clauses (i), (ii) and (iii)
of this Section 7(a), the Depositor shall not be liable in any such case to the
extent that any such expense, loss, claim, damage or liability (x) arises out of
or is based upon any such untrue statement or alleged untrue statement in, or
omission or alleged omission from, any such documents in reliance upon and in
conformity with written information furnished to the Depositor by or on behalf
of an Underwriter specifically for use therein (the "Underwriters'
Information"), or (y) is indemnified for by any Mortgage Loan
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Seller, the Master Servicer, the Special Servicer or the Trustee pursuant to any
Indemnification Agreement. This indemnity agreement shall be in addition to any
liability that 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 Underwriter Information and (ii)
untrue statements or alleged untrue statements of a material fact in any
Underwriter Free Writing Prospectus 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 other Time of
Sale Information), in the light of the circumstances under which they were made,
not misleading, provided, that no Underwriter shall be obligated to so indemnify
and hold harmless the Depositor (A) to the extent such liabilities are caused by
a misstatement or omission resulting from an error or omission in the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Depositor or any Mortgage Loan Seller to any Underwriter at
least 1 Business Day prior to the Time of Sale or (B) with respect to
information that is also contained in the Time of Sale Information. This
indemnity agreement shall be in addition to any liability that such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the commencement
thereof; but the omission to so notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party under Section
7(a) and (b), except to the extent that such omission to notify materially
prejudices the indemnifying party and in no event relieves it of liability it
may otherwise then have 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, if it elects by written notice
delivered to such indemnified party promptly after receiving the notice referred
to in the preceding sentence, such indemnifying party, 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
-14-
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 as incurred by the indemnifying party). In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one 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. Notwithstanding the
foregoing two sentences, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel for which the indemnifying party is obligated under this
subsection, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. If an indemnifying party assumes the defense of any
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 but also the relative fault of the Depositor on the one hand, and of
the Underwriters on the other, in connection with the statements or omissions
which resulted in such losses, claims, damages, or other liabilities, as well as
any other relevant equitable considerations; provided, however, that no
Underwriter shall be required to contribute any amount under this subsection (d)
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter in connection with the offering of the
Certificates exceeds the amount of damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission
-15-
or alleged omission. For purposes of the foregoing, the relative benefits
received by the Depositor on the one hand, and the Underwriters on the other, in
connection with the offering of the Certificates shall be deemed to be in the
same respective proportions that the total proceeds from the sale of the
Certificates sold by the Underwriters (before deducting expenses) received by
the Depositor and the total underwriting discounts, commissions and other fees
received by the Underwriters in connection with the offering of the
Certificates, bear to the aggregate offering price of the Offered Certificates.
The relative fault of the Depositor on the one hand and of the Underwriters on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Depositor or by the Underwriters, and the parties' relative intent, 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). The
obligations of the Underwriters in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or other liabilities referred to in this Section
7 shall be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Depositor,
any Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The obligations of the Depositor under this Section 7 shall be
in addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of any
Underwriter and to each person, if any, who controls any Underwriter within the
meaning of the Act or the Exchange Act; and the obligations of the Underwriters
under this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Depositor and to each person, if
any, who controls the Depositor within the meaning of the Act or Exchange Act.
-16-
(h) Each Underwriter will indemnify and hold harmless the other
Underwriters and each person, if any, who controls such Underwriters within the
meaning of either the Act or the Exchange Act (the "Non-Indemnifying
Underwriters") from and against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which the Non-Indemnifying Underwriters
becomes subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, common law or otherwise, insofar as such expenses,
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission (when read in conjunction with
the Time of Sale Information) to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they were
made, not misleading at the Time of Sale, contained in any Underwriter Free
Writing Prospectus prepared by such Indemnifying Underwriter or (ii) the failure
of such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Section 8, and agrees to reimburse such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, except to the extent such losses, claims, damages or
liabilities are caused by a misstatement or omission resulting from an error or
omission in the Issuer Information which was not corrected by Corrective
information subsequently supplied by the Depositor or any Mortgage Loan Seller
to any Underwriter at least 1 Business Day prior to the Time of Sale.
8. Offering Communications; Free Writing Prospectuses.
(a) The Underwriters may prepare and provide to prospective
investors Free Writing Prospectuses (as defined below), or portions thereof,
which the Depositor is required to file with the Commission in electronic format
and will use reasonable efforts to provide to the Depositor such Free Writing
Prospectuses, or portions thereof, in either Microsoft Word(R) or Microsoft
Excel(R) format and not in PDF, except to the extent that the Depositor, in its
sole discretion, waives such requirements, subject to the following conditions
(to which such conditions each Underwriter agrees (provided that no Underwriter
shall be responsible for any breach of the following conditions by any other
Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication to any
person in connection with the initial offering of the Certificates, unless
such written communication (1) is made in reliance on Rule 134 under the
Securities Act, (2) constitutes a prospectus satisfying the requirements
of Rule 430B under the Securities Act or (3) constitutes Time of Sale
Information or a Free Writing Prospectus that does not constitute Time of
Sale Information. The Underwriters shall not convey or deliver in
connection with the initial offering of the Certificates any materials in
reliance on any "ABS informational and computational material," as defined
in Item 1101(a) of Regulation AB under the Securities Act ("ABS
Informational and Computational Material"), in reliance upon Rules 167 and
426 under the Securities Act.
(ii) Each Underwriter shall deliver to the Depositor, no later than
two business days prior to the date of first use thereof or such later
date as may be agreed to by the Depositor and that allows the Depositor to
satisfy the requirements of Rule 433 under the
-17-
Securities Act, (a) 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 Securities 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 Seller
Information), and (b) 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 business
days prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the Securities Act or such later date as may be agreed to by
the Company or (B) the date of first use of such Free Writing Prospectus.
(iii) 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(a)(ii) 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.
(iv) 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(a)(ii) did not, as of the Time of Sale,
and will not as of the Specified Delivery Date, include any untrue
statement of a material fact or omit any material fact necessary to make
the statements contained therein (when read in conjunction with the Time
of Sale Information), in light of the circumstances under which they were
made, not misleading; provided however, that such Underwriter makes no
representation to the extent such misstatements or omissions were the
result of any inaccurate Issuer Information, which information was not
corrected by Corrective 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.
(v) The Depositor agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Depositor pursuant to Section 8(a)(ii);
(C) 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
-18-
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.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 8(a)(v)(C) by the Depositor shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final terms of
the Certificates shall be filed by the Depositor with the Commission
within two days of the later of the date such final terms have been
established for all classes of Certificates and the date of first
use;
(B) Any Free Writing Prospectus or portion thereof required to
be filed that contains only ABS Informational and Computational
Material shall 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
Securities Act or two business days after the first use of such Free
Writing Prospectus; and
(C) Any Free Writing Prospectus required to be filed pursuant
to Section 8(a)(v)(C) shall, 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 business days
after the Depositor becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing
Prospectus.
(vii) Each Underwriter shall file with the Commission, or provide to
the Depositor at least 2 Business Days prior to the time such filing is
required, any Free Writing Prospectus that is used or referred to by it
and distributed by or on behalf of such Underwriter 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.
(viii) Notwithstanding the provisions of Section 8(a)(vii), each
Underwriter shall file, or cause to be filed, 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 business days after such Underwriter becomes aware of the
publication, radio or television broadcast or other dissemination of the
Free Writing Prospectus.
-19-
(ix) Notwithstanding the provisions of Sections 8(a)(v) and
8(a)(vii), 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, and no Underwriter shall be required to file any Free Writing
Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Certificates.
(x) 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
Securities Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information about
the depositor, the issuing trust, and this offering. You may get
these documents for free by visiting XXXXX on the SEC 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 if you request it by calling toll-free [__________].
(xi) The Depositor and each Underwriter agree to retain all Free
Writing Prospectus that they have used and that are not required to be
filed pursuant to this Section 8 for a period of three years following the
initial bona fide offering of the Certificates.
(xii) (A) 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 Time of Sale 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 Issuer
Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a
"Corrected Issuer Free Writing Prospectus").
(B) 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 Time of Sale 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
-20-
Prospectus"), such Underwriter shall notify the Depositor of such
untrue statement or omission within one business day after
discovery.
(C) 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.
(D) In the event that the Defective Free Writing Prospectus
was an Issuer Free Writing Prospectus, 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.
(xiii) Each Underwriter covenants with the Depositor that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless
such information is preceded or accompanied by the Prospectus.
9. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Certificates hereunder and the aggregate principal
amount of Certificates that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of
Certificates to be purchased hereunder, [_______________] and Greenwich Capital
Markets, Inc. (together, the "Co-Lead Underwriters") may make arrangements
satisfactory to the Depositor for the purchase of such Certificates by other
persons, but if no such arrangements are made by such Specified Delivery Date,
the non-defaulting
-21-
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 the
Co-Lead Underwriters 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. In the event that, within
the respective prescribed periods, the Co-Lead Underwriters have arranged for
the purchase of such Certificates by other persons or the non-defaulting
Underwriters become obligated to purchase such Certificates, the Co-Lead
Underwriters and the Depositor may postpone the Specified Delivery Date for a
period of not more than seven days, in order to effect whatever changes the
Depositor and the Co-Lead Underwriters reasonably believe may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Depositor agrees to file promptly any
amendments to the Registration Statement or the Prospectus that it and the
Co-Lead Underwriters reasonably believe may thereby be made necessary. 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
the Co-Lead Underwriters if at any time on or prior to the Specified Delivery
Date (i) any change, or any development or event involving a prospective change
in the condition (financial or other), business, properties or results of
operations of the Depositor or the Trust which, in the judgment of a majority in
interest of the Underwriters (based on Underwriting obligations) including the
Co-Lead Underwriters, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Certificates; (ii) any downgrading in the rating of any of the
Certificates by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any of
the Certificates (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters including the Co-Lead
Underwriters, 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 over-the-counter market, or any setting of minimum prices for
trading on such exchange or market, 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
-22-
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 the Co-Lead Underwriters, 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 9 or 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. Notices. All communications hereunder shall be in writing and,
if sent to Greenwich Capital Markets, Inc., shall be delivered to it at 000
Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, Telecopy
No.: (000) 000-0000, with a telecopy to Xxxx Xxxxxxxxx, Esq., Telecopy No.:
(000) 000-0000; or, if sent to the Depositor, shall be delivered to Greenwich
Capital Commercial Funding Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxxxx Xxxx, Telecopy No.: (000) 000-0000, with a telecopy to
Xxxx Xxxxxxxxx, Esq., Telecopy 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.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 above, and
their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Certificates from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW PROVISIONS.
-23-
15. Entire Agreement. This Agreement supersedes all prior agreements
and understandings (whether written or oral) between the Depositor and the
Underwriters, or any of them, with respect to the subject matter hereof.
16. Waiver of Jury Trial. The Depositor and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
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,
GREENWICH CAPITAL COMMERCIAL FUNDING
CORP.,
as Depositor
By:
--------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
GREENWICH CAPITAL MARKETS, INC.,
as Underwriter
By:
---------------------------------------------
Name:
Title:
SCHEDULE I
----------
Prospectus: Prospectus Supplement dated October 20, 2005 and Base Prospectus
dated [___________________] (Registration Statement No.: [___________________])
Aggregate Principal Amount of Offered Certificates: $[___________________]
(approximate)
Aggregate Purchase Price to be Paid by Greenwich Capital Markets, Inc.:
$[______________] plus accrued interest
Aggregate Purchase Price to be Paid by[___________________]: $[_______________]
Certificate Balances:
Class A-1 $[________________]
Class A-2 $[________________]
Class A-3 $[________________]
Class A-4-1 $[________________]
Class A-4-2 $[________________]
Class A-AB $[________________]
Class A-5 $[________________]
Class A-M $[________________]
Class A-J $[________________]
Class B $[________________]
Class C $[________________]
Class D $[________________]
Class E $[________________]
Ratings ($[___________________]):
Class A-1 AAA/Aaa
Class A-2 AAA/Aaa
Class A-3 AAA/Aaa
Class A-4-1 AAA/Aaa
Class A-4-2 AAA/Aaa
Class A-AB AAA/Aaa
Class A-5 AAA/Aaa
Class A-M AAA/Aaa
Class A-J AAA/Aaa
Class B AA/Aa2
Class C AA-/Aa3
Class D A/A2
Class E A-/A3
I-1
Specified Delivery Date and Location: 10:00 a.m. $[___________________] at the
offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
Initial Pass-Through Rates:
Class A-1 [______________]%
Class A-2 [______________]%
Class A-3 [______________]%
Class A-4-1 [______________]%
Class A-4-2 [______________]%
Class A-AB [______________]%
Class A-5 [______________]%
Class A-M [______________]%
Class A-J [______________]%
Class B [______________]%
Class C [______________]%
Class D [______________]%
Class E [______________]%
(1) Subject to a cap equal to the Weighted Average Pool Pass-Through Rate.
(2) The Class A-J Certificates will accrue interest at a rate equal to the
Weighted Average Pool Pass-Through Rate minus [______________]%.
(3) The Class B, Class C, Class D and Class E Certificates will accrue interest
at a rate equal to [the Weighted Average Pool Pass-Through Rate].
I-2
Certificates Purchased
Certificate Balances
Class Class
Underwriter Class A-1 Class A-2 Class X-0 X-0-0 X-0-0 Class A-AB Class A-5
----------------- ------------ ------------ ------------ ------------ ----------- ------------ ------------
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________] $[_________]
Total $[_________] $[_________] $[_________] $[_________] $[________] $[_________] $[_________]
Underwriter Class A-M Class A-J Class B Class C Class D Class E
----------------- ------------ ------------ ------------ ------------ ----------- ----------- ------------
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________]
[_______________] $[_________] $[_________] $[_________] $[_________] $[________] $[_________]
Total $[_________] $[_________] $[_________] $[_________] $[________] $[_________]
X-0
Xxxxx X-0
Xxxxx X-0-0
Xxxxx A-2
Annex A-2-1
