EXHIBIT 1.1
COMM 2006-C7
Commercial Mortgage Pass-Through Certificates
UNDERWRITING AGREEMENT
May 26, 2006
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center, 16th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Deutsche Mortgage & Asset Receiving Corporation, a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to sell to Deutsche Bank Securities Inc. ("DBS"), Banc of America
Securities LLC ("BofA Securities"), X.X. Xxxxxx Securities Inc. ("X.X. Xxxxxx"),
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Xxxxxx
Brothers Inc. ("Xxxxxx") (collectively, the "Underwriters") its COMM 2006-C7,
Commercial Mortgage Pass-Through Certificates, Class A-1, Class A-2, Class A-3,
Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class B and Class C
(the "Offered Certificates"). The Offered Certificates, together with the Class
X, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class P, Class S, Class R and Class LR Certificates,
evidence the entire beneficial ownership interest in the assets of the Trust
Fund (as defined in the Pooling and Servicing Agreement referred to below)
consisting primarily of a pool of mortgage loans secured by first liens on
commercial, multifamily and manufactured housing properties (the "Mortgage
Loans"), that will have, as of the payment date occurring on each Mortgage Loan
in June 1, 2006 (such date, the "Cut-off Date"), after taking into account all
payments of principal due on the Mortgage Loans on or before such date, whether
or not received, an aggregate principal balance of $2,447,292,353 subject to a
variance of plus or minus 5%. The Mortgage Loans will be acquired by the Company
from German American Capital Corporation ("GACC"), Bank of America, National
Association ("BofA"), General Electric Capital Corporation ("GECC") and
CWCapital Mortgage Securities III LLC ("CWCMSIII," and together with GACC, BofA
and GECC, the "Loan Sellers") in exchange for immediately available funds
pursuant to four separate mortgage loan purchase agreements, each to be dated as
of June 7, 2006, between the Company and GACC, BofA, GECC and CWCMSIII,
respectively. Two separate real estate mortgage investment conduit ("REMIC")
elections will be made with respect to the Trust Fund for federal income tax
purposes. The Trust Fund is to be created and the Offered Certificates are to be
issued pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement") to be dated as of June 1, 2006, by and among the Company, as
depositor, Midland Loan Services, Inc., as the master servicer with respect to
all of the Mortgage Loans other than the Desert Passage Loan (the "Master
Servicer"), CWCapital Asset Management LLC, as special servicer (the "Special
Servicer") and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and paying
agent. The Mortgage Loans will be primary serviced by BofA (with respect to the
Mortgage Loans sold by BofA) and by CWCapital LLC (with respect to the Mortgage
Loans sold by CWCMSIII) (collectively the "Primary Servicers" and together with
the Trustee, the Master Servicer and the Special Servicer, each a "Transaction
Party" and collectively the "Transaction Parties"). Capitalized terms used
herein but not defined herein have the respective meanings given to them in the
Pooling and Servicing Agreement.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-130390) on Form
S-3 for registration under the Securities Act of 1933, as amended (the "Act"),
of mortgage pass-through certificates, including the Offered Certificates, which
registration statement has become effective, and copies of which, as amended to
the date hereof, have heretofore been delivered to you. Such registration
statement meets the requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with such rule. The Company proposes to
file with the Commission pursuant to Rule 424 under the Act a supplement, dated
May 26, 2006, to the prospectus, dated May 26, 2006, relating to the Offered
Certificates and the method of distribution thereof and has previously advised
you of all further information (financial and other) with respect to the Offered
Certificates set forth therein. Such registration statement, including the
exhibits thereto and any information incorporated therein by reference, as
amended on the date hereof is hereinafter called the "Registration Statement";
such prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424 under the Act, is hereinafter called the "Base Prospectus";
such supplement to the Base Prospectus, in the form in which it will be filed
with the Commission pursuant to Rule 424 of the Act, is hereinafter called the
"Prospectus Supplement"; and the Base Prospectus and the Prospectus Supplement
together are hereinafter called the "Prospectus". The Company shall make a good
faith and reasonable effort to file the Prospectus within the time required
under Rule 424 of the Act and, in the event that the Company fails to timely
file the Prospectus, the Company shall file the Prospectus as soon as
practicable thereafter. The Company will not, without your prior consent, file
any other amendment to the Registration Statement or make any change in the Base
Prospectus or the Prospectus Supplement until after the period during which a
prospectus is required to be delivered to purchasers of the Offered Certificates
under the Act (the "Prospectus Delivery Period"). The Company will file with the
Commission within fifteen days of the issuance of the Offered Certificates a
report on Form 8-K setting forth specific information concerning the Offered
Certificates (the "Form 8-K").
(b) As of or prior to the time when sales to purchasers of the
Offered Certificates were first made in accordance with Rule 159 of the Act,
which was approximately 10:40 a.m. (New York City time) on the date hereof (the
"Time of Sale"), the Company had prepared and filed with the Commission the
following information: (i) the Free Writing Prospectus (as defined below), dated
May 17, 2006, the first page of which is attached hereto as Exhibit A, (the
"Preliminary FWP"); and (ii) the Free Writing Prospectus, dated May 23, 2006,
the first page of which is attached hereto as Exhibit B (the "Revised FWP"). The
Preliminary FWP, the Revised FWP and any additional Disclosure Information (as
defined below) delivered to the investors prior to the Time of Sale is
collectively referred to as the "Time of Sale Information." If, subsequent to
the date of this Agreement, the Company or the Underwriters determine that, as
to the investors in one or more Classes of the Offered Certificates, such
initial Time of Sale Information includes an untrue statement of material fact
or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Underwriters terminate their old purchase contracts and
enter into new purchase contracts with investors in such Classes of the Offered
Certificates, then "Time of Sale Information" shall refer to all of the
information conveyed to investors at the time of entry into the new purchase
contract (each, a "Subsequent Time of Sale"), including any information that
corrects such material misstatements or omissions ("Corrective Information").
The Preliminary FWP and the Revised FWP are the only Issuer Free Writing
Prospectuses (as defined below) prepared by or on behalf of the Company as of
the date hereof.
(c) As of the date hereof, when the Registration Statement became
effective, as of the Time of Sale, when the Prospectus Supplement is first filed
pursuant to Rule 424 under the Act, at the time of any Subsequent Time of Sale,
when, prior to the Closing Date, any amendment to the Registration Statement
becomes effective, when any supplement to the Prospectus Supplement is filed
with the Commission, and on the Closing Date, (i) the Registration Statement, as
amended as of any such time, and the Prospectus, as amended or supplemented as
of any such time, complied, complies and will comply in all material respects
with the applicable requirements of the Act and the rules thereunder, (ii) the
Registration Statement, as amended as of any such time, did not, does not and
will not contain any untrue statement of a material fact and did not, does not
and will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the Prospectus, as
amended or supplemented as of any such time, did not, does not and will not
contain an untrue statement of a material fact and did not, does not and will
not omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (iii) the initial Time of Sale Information did not (when
evaluated as of the Time of Sale only), and the Time of Sale Information
existing at any Subsequent Time of Sale, if any, will not, as of such Subsequent
Time of Sale, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (A) the
Underwriter Supplied Information (as defined in Section 8(b) hereof), (B) the
Loan Sellers' Information (as defined in Section 8(a) hereof) or (C) the
Transaction Party Information (as defined in Section 8(a) hereof). Any Issuer
Information (as defined below) provided by the Company to any Underwriter as of
the date hereof for inclusion in an Underwriter Free Writing Prospectus (as
defined below), did not, as of the date that such Issuer Information was so
provided, and does not, as of the date of this Agreement, contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company shall not be in
breach of this representation if the Company provided Issuer Information to the
Underwriters, correcting such untrue statement or omission of a material fact
contained in previously delivered Issuer Information, so long as the Company
delivered the corrected information to the Underwriter at a reasonable time
prior to the date hereof.
(d) The Company is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware with full power and
authority (corporate and other) to own its properties and conduct its business,
as described in the Prospectus, and to enter into and perform its obligations
under this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and
Servicing Agreement, and is conducting its business so as to comply in all
material respects with all applicable statutes, ordinances, rules and
regulations of the jurisdictions in which it is conducting business.
(e) The Company has not received and is not aware of (i) any request
by the Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification of
the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(f) On or prior to the Closing Date, the Company will have entered
into the Pooling and Servicing Agreement; this Agreement and the Mortgage Loan
Purchase Agreements have been duly authorized, executed and delivered by the
Company, and the Pooling and Servicing Agreement, when delivered by the Company,
will have been duly authorized, executed and delivered by the Company, and this
Agreement and the Mortgage Loan Purchase Agreements will constitute, and the
Pooling and Servicing Agreement will constitute, valid and binding agreements of
the Company, enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, moratorium, receivership, reorganization or similar laws affecting
the rights of creditors generally, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of any provisions of this
Agreement that purport to provide indemnification from securities law
liabilities.
(g) The Offered Certificates and the Pooling and Servicing
Agreement: (i) conform in all material respects to the descriptions thereof
contained in each of (A) the Prospectus, (B) the initial Time of Sale
Information and (C) any Issuer Information (as may have been revised and
corrected if such revised or corrected information was delivered a reasonable
time prior to the Time of Sale) delivered to any Underwriter for inclusion in an
Underwriter Free Writing Prospectus; and (ii) will conform in all material
respects to the descriptions thereof in the Time of Sale Information (as
constituted at any Subsequent Time of Sale). The Offered Certificates have been
duly and validly authorized by the Company, and will, when duly and validly
executed and authenticated by the Trustee and delivered to and paid for by the
Underwriters in accordance with this Agreement and the Pooling and Servicing
Agreement, be validly outstanding and entitled to the benefits of the Pooling
and Servicing Agreement.
(h) As of the Closing Date, the representations and warranties of
the Company set forth in Section 2.03 of the Pooling and Servicing Agreement
will be true and correct.
(i) Neither the issuance and sale of the Offered Certificates, nor
the consummation of any other of the transactions contemplated herein, nor the
fulfillment of any of the terms of the Pooling and Servicing Agreement, the
Mortgage Loan Purchase Agreements or this Agreement, will result in the breach
of any term or provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a material breach, violation or acceleration
of or constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which it is bound, or any statute, order or regulation applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries is a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects the ability of the
Company to perform its obligations under each of this Agreement, the Mortgage
Loan Purchase Agreements and the Pooling and Servicing Agreement.
(j) There are no actions or proceedings against, or investigations
of, the Company pending, or, to the knowledge of the Company, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement or the Offered
Certificates, (ii) seeking to prevent the issuance of the Offered Certificates
or the consummation of any of the transactions contemplated by this Agreement or
the Pooling and Servicing Agreement, (iii) which might materially and adversely
affect the performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement, the Pooling and Servicing Agreement or the
Offered Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Offered Certificates described in the Prospectus.
(k) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Company since the
date of its latest audited financial statements which would have a material
adverse effect on the ability of the Company to perform its obligations under
this Agreement or the Pooling and Servicing Agreement.
(l) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement and the Pooling
and Servicing Agreement (other than income taxes, franchise taxes and recording
and filing fees) and the execution, delivery and sale of the Offered
Certificates have been or will be paid on or prior to the Closing Date.
(m) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan free and clear of any pledge, mortgage, lien, security
interest or other encumbrance of any other person, except for any retained
servicing.
(n) No authorization, approval or consent of or filing or
registration with, any court or governmental authority or agency is necessary in
connection with the offering, issuance or sale of the Offered Certificates
hereunder or the execution, delivery or performance by the Company of the
Pooling and servicing Agreement or this Agreement, except such as have been, or
as of the Closing Date will have been, obtained or completed, as applicable, or
such as may otherwise be required under applicable state securities laws in
connection with the purchase and offer and sale of the Offered Certificates by
the Underwriters and any recordation of the respective assignments of the
Mortgage Loans to the Trustee pursuant to the Pooling and Servicing Agreement
that have not yet been completed.
(o) The Company is not, and the issuance and sale of the Offered
Certificates in the manner contemplated by the Prospectus will not cause the
Company or the Trust Fund to be, subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act"); and the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(p) Upon delivery to the Underwriters of the Offered Certificates
pursuant to this Agreement, each Underwriter will have good title to the Offered
Certificates purchased by such Underwriter, in each case free and clear of liens
granted by or imposed upon the Company.
(q) The consideration received by the Company upon the sale of the
Offered Certificates to the Underwriters will constitute at least reasonably
equivalent value and fair consideration for the Offered Certificates.
(r) The Company (i) will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Offered Certificates to
the Underwriters and (ii) is not selling the Offered Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the creditors of
the Company.
(s) The transfer of the Mortgage Loans to the Trust and the sale of
the Offered Certificates to each of the Underwriters, at the Closing Date, will
be treated by the Company for financial accounting and reporting purposes as a
sale of assets and not as a pledge of assets to secure debt.
(t) The Company possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct business now operated by it,
and the Company 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 Company.
(u) the Company is not, and on the date on which the first bona fide
offer of the Certificates is made will not be, an "ineligible issuer," as
defined in Rule 405 under the Act.
2. Purchase and Sale. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters, and each of the
Underwriters agrees severally, and not jointly, to purchase from the Company the
principal or notional amount of each class of Offered Certificates under its
name at the Purchase Price set forth in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Offered
Certificates shall be made on the date, location and time of delivery set forth
in Schedule I hereto, or such later date as DBS and BofA Securities shall
designate, which date and time may be postponed by agreement between the
Underwriters and the Company (such date, location and time of delivery and
payment for the Offered Certificates being herein called the "Closing Date").
Delivery of the Offered Certificates shall be made to the Underwriters against
payment by the Underwriters of the purchase price thereof in immediately
available funds. Delivery of such Offered Certificates shall be made through the
facilities of the depository or depositories set forth on Schedule I hereto. Any
Offered Certificates not in book-entry form shall be registered in such names
and in such denominations as any Underwriter, as applicable, may request not
less than three full business days in advance of the Closing Date.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging, as applicable, by the Underwriters in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. Offering by Underwriters.
(a) It is understood that the several Underwriters propose to offer
the Offered Certificates for sale to the public as set forth in the Prospectus
and the Underwriters agree that all such offers and sales by them shall be made
in compliance with all applicable laws and regulations. It is further understood
that the Company, in reliance upon a no-filing letter from the Attorney General
of the State of New York granted pursuant to Policy Statement 105, has not and
will not file an offering statement pursuant to Section 352-e of the General
Business Law of the State of New York with respect to the Offered Certificates.
As required by Policy Statement 105, each Underwriter therefore covenants and
agrees with the Company that sales of the Offered Certificates made by such
Underwriter, as applicable, in and from the State of New York will be made only
to institutional accredited investors within the meaning of Policy Statement
105.
(b) Each Underwriter hereby represents and agrees, severally and not
jointly, that in relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") it has not made and will not make an offer of the Offered
Certificates to the public in that Relevant Member State, except that it may,
with effect from and including the Relevant Implementation Date, make an offer
of the Offered Certificates to the public in that Relevant Member State:
(i) in (or in Germany, where the offer starts within) the period
beginning on the date the publication of a prospectus in relation to the
Offered 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 and
ending on the date which is 12 months after the date of publication;
(ii) at any time 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;
(iii) at any time 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
(iv) in any other circumstances which do not require the publication
by the Company of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this representation, the expression an "offer of
the certificates to the public" in relation to any Offered 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 Offered Certificates to
be offered so as to enable an investor to decide to purchase or subscribe the
Offered 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 Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(c) Each Underwriter, severally and not jointly, hereby further
represents and agrees, with respect to the United Kingdom, that:
(i) it 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
Financial Services and Markets Act) received by it in connection with the
issue or sale of the Notes in circumstances in which Section 21(1) of the
Financial Services and Markets Act does not apply to the Company; and
(ii) it has complied and will comply with all applicable provisions
of the Financial Services and Markets Act with respect to anything done by
it in relation to the certificates in, from or otherwise involving the
United Kingdom.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will promptly advise the Underwriters (i) when any
amendment to the Registration Statement shall have become effective, (ii) of any
request by the Commission for any amendment to the Registration Statement or the
Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement affecting the Offered Certificates or the institution or threatening
of any proceeding for that purpose and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will not use, authorize or approve
any free writing prospectus on or prior to the Closing Date, or file any
amendment to the Registration Statement or supplement to the Prospectus unless
the Company has furnished to you a copy for your review prior to filing and will
not use, authorize or approve any free writing prospectus on or prior to the
Closing Date, or file any such proposed amendment or supplement to which you
reasonably object until after the period in which a prospectus is required to be
delivered to purchasers of the Offered Certificates under the Act. Subject to
the foregoing sentence, the Company will cause the Prospectus Supplement to be
filed with the Commission in accordance with Rule 424 of the Act. The Company
will use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time during the Prospectus Delivery Period 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 shall be necessary to amend
or supplement the Registration Statement or the Prospectus to comply with the
Act or the rules under the Act, the Company promptly will prepare and file with
the Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance and, if such amendment or supplement is required to
be contained in a post-effective amendment to the Registration Statement, will
use its best efforts to cause such amendment of the Registration Statement to be
made effective as soon as possible.
(c) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto that shall become
effective on or prior to the Closing Date and, during the Prospectus Delivery
Period, as many copies of the Base Prospectus and the Prospectus Supplement and
any amendments and supplements thereto as the Underwriters may reasonably
request. Prior to the date on which the Base Prospectus and the Prospectus
Supplement are available, the Company will furnish to the Underwriters and
counsel for the Underwriters, without charge as many copies of the Preliminary
FWP and each Issuer Free Writing Prospectus as the Underwriters may reasonably
request.
(d) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(e) Whether or not the transactions contemplated by this Agreement
are consummated, the Company shall pay all costs and expenses in connection with
the transactions herein contemplated, including, but not limited to, the fees
and disbursements of its counsel and of counsel to the Underwriters, the fees
and disbursements of accountants for the Company, the costs and expenses in
connection with the qualification, or exemption from qualification, of the
Offered Certificates under state securities or "blue sky" laws (including filing
fees and reasonable fees and disbursements of counsel in connection therewith),
the preparation of any blue sky survey, any determination of the eligibility of
the Offered Certificates for investment by institutional investors and the
preparation of any legal investment survey, all fees and expenses incurred in
connection with the registration and delivery of the Offered Certificates under
the Act, and all other fees or expenses in connection with the preparation and
filing of the Registration Statement, any Free Writing Prospectus, the
Prospectus and amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivery of copies
thereof to the Underwriters and dealers, in the quantities specified above, all
costs and expenses related to the transfer and delivery of the Offered
Certificates to the Underwriters, including any transfer or other taxes payable
thereon, the cost of printing the Offered Certificates, the upfront costs and
charges of any transfer agent, registrar or depository, the fees and expenses of
the rating agencies incurred in connection with the issuance and sale of the
Offered Certificates, the out-of-pocket expenses of each Underwriter incurred in
connection with the purchase and sale of the Offered Certificates and all other
costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section 5(e).
(f) The Company acknowledges and agrees that each Underwriter in
providing investment banking services to the Company in connection with the
offering, including in acting pursuant to the terms of this Agreement, has acted
and is acting as an independent contractor and not as a fiduciary and the
Company does not intend such Underwriter to act in any capacity other than
independent contractor, including as a fiduciary or in any other position of
higher trust.
(g) The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus or any
materials used in a Road Show (as defined in Rule 433 of the Act) that are
required to be retained by the Company pursuant to the Act, to the extent not
filed with the Commission in accordance with Rule 433 under the Act.
6. Conditions to the Obligations of the Underwriters. The respective
rights and obligations of the Underwriters hereunder shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof and the Closing Date, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions with respect to the Offered
Certificates:
(a) 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 threatened; and the Prospectus Supplement shall have been
filed with the Commission within the time period prescribed by the Commission.
(b) The Company shall have delivered to you a certificate, dated the
Closing Date, of any president or vice president of the Company to the effect
that the signatory of such certificate has carefully examined the Registration
Statement, the Time of Sale Information, this Agreement and the Prospectus and
that: (i) the representations and warranties of the Company in this Agreement
are true and correct in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date, (ii) the Company has complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied on or prior to the Closing Date, (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to the Company's
knowledge, threatened, and (iv) nothing has come to his/her attention that would
lead him/her to believe that the Time of Sale Information, as of the Time of
Sale, or the Prospectus, as of the Closing Date, contains any untrue statement
of a material fact or omits to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(c) a good standing certificate regarding the Company from the
Secretary of State of the State of Delaware, dated not earlier than 30 days
prior to the Closing Date;
(d) an officer's certificate, dated the Closing Date and signed by
the secretary or an assistant secretary of the Company, to the effect that each
individual who, as an officer or representative of the Company, signed this
Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was
at the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures. Such officer's certificate shall
be accompanied by true and complete copies (certified as such by the secretary
or an assistant secretary of the Company) of the organizational documents of the
Company, as in effect on the Closing Date, and of the resolutions of the Company
and any required shareholder consent relating to the transactions contemplated
in this Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and
Servicing Agreement.
(e) The Underwriters shall have received from Cadwalader, Xxxxxxxxxx
& Xxxx LLP, counsel for the Company, a favorable opinion, dated the Closing
Date, that is satisfactory in form and substance to counsel for the
Underwriters.
(f) The Underwriters shall have received from in-house counsel for
the Company, a favorable opinion, dated the Closing Date, that is satisfactory
in form and substance to counsel for the Underwriters.
Such opinion (a) may express counsel's reliance as to factual
matters on certificates of government and agency officials and the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement, the Mortgage Loan
Purchase Agreements and the Pooling and Servicing Agreement and (b) may be
qualified as an opinion only on the law of the State of New York, the General
Corporation Law of the State of Delaware and the federal law of the United
States of America.
(g) The Underwriters shall have received from counsel for each of
the Master Servicer, the Special Servicer and the Trustee a favorable opinion,
dated the Closing Date, with respect to such matters as the Underwriters shall
have reasonably requested and in form and substance satisfactory to counsel for
the Underwriters, which will include an opinion as to the compliance of the
disclosure with respect to each such party with the requirements of Regulation
AB and that such disclosure does not contain an untrue statement of any material
fact or omit to state a material fact necessary in order to make the statements
therein (in the case of any item comprising the Time of Sale Information, when
read in connection with the other items comprising the Time of Sale Information
delivered to investors in the Offered Certificates as of the applicable Time of
Sale), in light of the circumstances under which they were made, not misleading.
Any such opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters to the Underwriters or shall
state that the Underwriters may rely upon them.
(h) The Underwriters shall have received from Cadwalader, Xxxxxxxxxx
& Xxxx LLP, counsel for the Underwriters, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to the Underwriters.
(i) The Underwriters shall have received from Ernst & Young,
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters
stating in effect that using the assumptions and methodology used by the
Company, all of which shall be described in such letter, they have recalculated
such numbers and percentages set forth in the Preliminary FWP, the Revised FWP
and the Prospectus as the Underwriters may reasonably request and as are agreed
to by Ernst & Young, compared the results of their calculations to the
corresponding items in the Preliminary FWP, the Revised FWP and the Prospectus,
and found each such number and percentage set forth in the Preliminary FWP, the
Revised FWP and the Prospectus to be in agreement with the results of such
calculations.
(j) The Offered Certificates listed on Schedule I hereto shall have
been rated as indicated on such Schedule I by the rating agency or agencies
indicated.
(k) The Underwriters shall have received from counsel for each Loan
Seller a favorable opinion, dated the Closing Date, in form and substance
satisfactory to counsel for the Underwriters.
(l) All proceedings in connection with the transactions contemplated
by this Agreement, and all documents incident hereto and thereto, shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such additional information, opinions, certificates and documents as
they may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided by this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled on,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, by telephone or by either
telegraph or telecopier confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of any
Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of such
Offered Certificates.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter,
its officers and directors, and each person, if any, who controls such
Underwriter within the meaning of the Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act") against any and all losses, claims,
damages, costs, expenses or liabilities, joint or several, to which any such
indemnified party may become subject, under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, costs, expenses 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 contained in any part
of the Registration Statement when such part became effective, the Prospectus,
the Diskette (as defined below) or any revision or amendment thereof or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading or (ii) any untrue statement or alleged untrue statement of any
material fact contained in (x) any Issuer Free Writing Prospectus (as defined in
Section 9(e)(i) hereof) or (y) any "issuer information" (as defined in Rule
433(h) under the Act) ("Issuer Information") or information concerning the
Mortgage Loans provided to the Underwriters by the Company (solely to the extent
such information is not Loan Seller Information) contained in (1) any
Underwriter Free Writing Prospectus (as defined in Section 9(a) hereof) prepared
by or on behalf of such Underwriter, or (2) any Free Writing Prospectus that is
required to be filed pursuant to Section 9(e)(iii), Section 9(e)(iv) or Section
9(h) hereof (clauses (x) and (y) collectively, the "Issuer Disclosure
Materials"), or the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein (when read in connection
with the other initial Time of Sale Information or the other revised Time of
Sale Information in connection with a Subsequent Time of Sale), in light of the
circumstances under which they were made, not misleading, which untrue statement
or omission referred to above in this clause (ii) was not corrected by
information subsequently supplied by the Company to such Underwriter a
reasonable period of time prior to the sale to the applicable investor of the
Offered Certificates (including without limitation a contract of sale). The
Company shall reimburse any such indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against such loss, claim, damage, liability, or
action. Notwithstanding the foregoing, (i) the Company shall not be liable in
any such case if and to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with (A) the Underwriter Supplied Information (as defined below), (B)
information regarding the Mortgage Loans that is contained in the Loan Detail
(as defined below) or, to the extent consistent therewith, the Diskette; (C)
information regarding any Loan Seller, the Mortgage Loans sold by such Loan
Seller to the Company or the related Mortgaged Properties to the extent such
information is covered by the related Loan Seller in the indemnification
agreement entered into between such Loan Seller, the Depositor and the
Underwriters (the information in clauses (B) and (C) referred to herein as the
"Loan Seller Information"); or (D) information regarding any Transaction Parties
to the extent such information is covered by the related Transaction Party in
the indemnification agreement entered into between such party, the Depositor and
the Underwriters (such information, the "Transaction Party Information") 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 Time of Sale Information, shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter or any officer or
director of any Underwriter) asserting any such loss, claim, damage or liability
based on a claim by a purchaser of the Offered Certificates, which are the
subject thereof, if and to the extent that such loss, claim, damage or liability
results from such person not receiving a copy of any subsequent Issuer
Disclosure Materials correcting such untrue statement or omission of a material
fact contained in any subsequent Issuer Disclosure Materials that are part of
the Time of Sale Information so long as the Company delivered the corrected
information to such Underwriter a reasonable time prior to the Time of Sale.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have. "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.
(b) Each Underwriter will, severally and not jointly, indemnify and
hold harmless the Company, each of its directors, each of its officers, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to (A) the Underwriter Supplied
Information provided by or relating to such Underwriter, which was not corrected
by a subsequent Underwriter Supplied Information supplied to the Company by such
Underwriter prior to the sale to the applicable investor of Offered Certificates
(including without limitation a contract of sale), or (B) any untrue statement
or alleged untrue statement of any material fact contained in any Free Writing
Prospectus described in Sections 9(g) and 9(h) or omission or alleged omission
to state in any such Free Writing Prospectus material fact necessary in order to
make the statements therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were made, not
misleading, which was not corrected by a subsequent Free Writing Prospectus
supplied to the Company by such Underwriter prior to the sale to the applicable
investor of Offered Certificates (including without limitation a contract of
sale); provided, that no Underwriter shall be obligated to so indemnify and hold
harmless to the extent such losses, claims, damages, costs, expenses or
liabilities arise out of or are based upon (A) an untrue statement or alleged
untrue statement or omission or alleged omission contained in or made in
reliance on and in conformity with the Issuer Information, the Loan Sellers'
Information or the Transaction Party Information or (B) any errors in the
mathematical calculations reflected in such Free Writing Prospectus to the
extent such errors arise out of or are based upon errors in such Loan Sellers'
Information or the Transaction Party Information; provided, further, that no
Underwriter shall be liable for any losses, claims, damages, costs, expenses or
liabilities arising out of or based upon any untrue statement, alleged untrue
statement, omission or alleged omission (including those of a quantitative
nature) that arise out of or are based upon an error or omission in any Issuer
Information supplied by the Company to the Underwriter, which error or omission
in such Issuer Information was not corrected by information subsequently
supplied by the Company to such Underwriter a reasonable period of time prior to
the sale to the applicable investor of Offered Certificates (including without
limitation a contract of sale). This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the second to last paragraph of the cover page
and in the second paragraph and the first, third, fourth and fifth sentences of
the fifth paragraph under the heading "Method of Distribution" in the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity (other than any Free Writing Prospectus furnished to the Company by
any Underwriter) (the "Underwriter Supplied Information"). Any Free Writing
Prospectus furnished to the Company by a particular Underwriter shall relate
exclusively to and be the several responsibility of such Underwriter, as
applicable, and no other.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the failure to notify the indemnifying party shall not
relieve the indemnifying party from any liability which it may have under
paragraph (a) or (b) of this Section 8, except to the extent that it has been
materially prejudiced by such failure and, provided, further, that the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 8. Upon
request of the indemnified party, the indemnifying party shall retain counsel
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding as incurred.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party (which may
be counsel representing the indemnifying party); provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel (and one local counsel, if it deems it so necessary) to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel), approved by the Underwriters in the case of
paragraph (a) of this Section 8 or the Company in the case of paragraph (b) of
this Section 8, representing the indemnified parties under such paragraph who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent shall not be unreasonably withheld), but if
settled with such written consent or if there shall be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party, but
only to the extent provided herein, from and against any loss, damage or
liability by reason of such settlement or judgment. If the indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the written consent of the indemnified party, which consent
shall not be unreasonably withheld or delayed, or, if such settlement (i) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any such indemnified party, and (ii) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding, without the consent of the
indemnified party.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 8 is applicable in accordance with its terms, but is unavailable or
insufficient to hold harmless an indemnified party under such paragraph (a) or
(b) above, then in order to provide for just and equitable contribution, each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages, costs, expenses or
liabilities referred to in such paragraph (a) or (b) above in such proportion as
is appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other from the offering of the Offered Certificates or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages, costs, expenses or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and any Underwriter on
the other shall be deemed to be in the same proportion as the total proceeds
from the issuance and sale of the Offered Certificates under this Agreement
(before deducting expenses) received by the Company bear to the total
underwriting discounts or comissions received by such Underwriter. The relative
fault of the parties 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 Company on the one hand, or such Underwriter on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Company and the Underwriters agree that it would not be just and equitable if
the amount of such contribution were determined by pro rata or per capita
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
expenses or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating, preparing or defending
against any action or claim which is the subject of this subsection (d) subject
to the limitations therein provided under subsection (c).
Notwithstanding anything to the contrary in this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of the Act or the
Exchange Act and each officer and director of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of the Act or the Exchange Act, each officer and
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the preceding sentence of this paragraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
Notwithstanding the provisions of this Section 8(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total underwriting discounts, commissions and other fees received by such
Underwriter in connection with the offering of the Offered Certificates exceeds
the amount of damages that such Underwriter has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
The Underwriters' respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective amount of Offered
Certificates they have purchased hereunder, and not joint.
(e) Each Underwriter (the "Indemnifying Underwriter") will indemnify
and hold harmless each of the other Underwriters their respective officers and
directors, and each person, if any, who controls such Non-Indemnifying
Underwriter within the meaning of either the Act or the Exchange Act
(collectively, the "Non-Indemnifying Underwriters") against any and all losses,
claims, damages, costs, expenses or liabilities, joint or several, to which any
Non-Indemnifying Underwriter may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, common law or otherwise,
insofar as such losses, claims, damages, costs, expenses or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not
misleading at the time of sale to the applicable investor in the Offered
Certificates (including without limitation a contract of sale) contained in any
Free Writing Prospectus prepared by or on behalf of the Indemnifying Underwriter
or (ii) the failure of the Indemnifying Underwriter or any member of its selling
group to comply with any provision of Section 9 hereof, and will reimburse, as
incurred, the 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; provided, that the
Indemnifying Underwriter shall not be liable under this paragraph (e) to any
Non-Indemnifying Underwriter or any controlling person in respect thereof to the
extent that the Non-Indemnifying Underwriters are entitled to indemnification or
contribution for the subject loss, claim, damage, liability cost or expense by
(i) another party pursuant to any separate indemnification agreement entered
into by a Loan Seller, a Master Servicer, the Special Servicer or the Trustee or
(ii) from the Company hereunder; provided, further, that the indemnification
provided by this Section 8(e) shall apply (solely with respect to DBS in the
case of clause (1) below) notwithstanding the preceding proviso, to the extent
that (1) such untrue statement of a material fact was made as a result of an
error in the manipulation of, or in any calculations based upon, or in any
aggregation of the information regarding the Mortgage Loans, the related
mortgagors and/or the related mortgaged properties set forth in the Loan Detail,
including without limitation the aggregation of such information relating to the
Mortgage Loans in the Trust Fund by such indemnifying Underwriter or (2) the
information provided by the related Loan Seller was not represented accurately
in the Loan Detail, and consequently information based thereon was not
represented accurately in the Time of Sale Information or the Prospectus.. This
agreement will be in addition to any liability that any Underwriter may
otherwise have.
9. Offering Communications; Free Writing Prospectuses
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, no Underwriter shall convey or deliver
any written communication to any person in connection with the initial offering
of the Certificates, unless such written communication (i) is made in reliance
on Rule 134 under the Act, (ii) is made in reliance on Rule 172 under the Act,
(iii) constitutes a prospectus satisfying the requirements of Rule 430B under
the Act or (iv) constitutes a "free writing prospectus," as defined in Rule 405
under the Act (a "Free Writing Prospectus"). Without limitation thereby, without
the prior written consent of the Company (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 Act ("ABS Informational and Computational Material" and
together with any Free Writing Prospectus "Disclosure Information"), in reliance
upon Rules 167 and 426 under the Act other than materials provided to it by the
Company, including Issuer Free Writing Prospectuses; provided, that
notwithstanding the foregoing, each Underwriter may use an Underwriter Free
Writing Prospectus that does not include Issuer Information without obtaining
the prior written consent of the Company.
(b) Each Underwriter shall deliver to the Company:
(i) any Free Writing Prospectus that was prepared by or on behalf of
such Underwriter or any affiliate thereof (each, an "Underwriter Free
Writing Prospectus") that contains any Issuer Information by no later than
one (1) business day prior to the date of first use thereof or such later
date as may be agreed to by the Company,; 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 Offered Certificates by no later than the later of (A)
the date such final terms have been established for all classes of the
Offered Certificates or (B) the date of first use.
Notwithstanding the foregoing, any Free Writing Prospectus that
contains only ABS Informational and Computational Materials may be delivered by
an Underwriter to the Company not later than the later of (A) one (1) business
day prior to the due date for filing of the Prospectus pursuant to Rule 424(b)
under the Act or (B) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the
Free Writing Prospectuses to be furnished to the Company by such Underwriter
pursuant to Section 9(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 Company that
each Free Writing Prospectus (other than an Issuer Free Writing Prospectus)
required to be provided by it to the Company pursuant to Section 9(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, in light of the circumstances under which
they were made, not misleading and that each such Free Writing Prospectus
complied with Rules 164, 167, 426 and 433 under the Act; provided, however, that
no Underwriter makes any representation or warranty to the extent such
misstatements or omissions are based upon or arise out of an untrue statement or
omission in the Issuer Information supplied by the Company to such Underwriter,
the Loan Seller Information or the Transaction Party Information, which
information was not corrected by information subsequently supplied by the
Company, the related Loan Seller or the related Transaction Party to such
Underwriter prior to the sale to such investor of the Offered Certificates
(including without limitation, by means of a contract of sale).
(e) The Company agrees to file with the Commission the following:
(i) Any Free Writing Prospectus that constitutes an "issuer free
writing prospectus," as defined in Rule 433(h) under the Act (each, an
"Issuer Free Writing Prospectus");
(ii) Any Free Writing Prospectus or portion thereof delivered by an
Underwriter to the Company pursuant to Section 9(b) hereof (but not any
subsequent Free Writing Prospectus containing only information prepared by
or on behalf of an Underwriter on the basis of or derived from Issuer
Information previously filed);
(iii) Any Free Writing Prospectus or portion thereof that contains a
description of the final terms of the Offered Certificates, after such
terms have been established for all classes in the offering; and
(iv) Any Free Writing Prospectus for which the Company 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
Company or any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise disseminating
communications.
(f) Any Free Writing Prospectus required to be filed pursuant to
Section 9(e) hereof by the Company 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 a description of the final terms of the Offered
Certificates may be filed by the Company 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 Company with the Commission not later than the later of
the due date for filing of the Prospectus pursuant to Rule 424(b) under
the Act or two (2) business days after the date of first use of such Free
Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to
Section 9(e)(iv) hereof may, if no payment has been made or consideration
has been given by or on behalf of the Company for the Free Writing
Prospectus or its dissemination, be filed by the Company with the
Commission not later than four (4) business days after the Company becomes
aware of the publication, radio or television broadcast or other
dissemination of such Free Writing Prospectus.
(g) Each Underwriter (with the reasonable cooperation of the
Company) shall file with the Commission any Free Writing Prospectus (other than
a Free Writing Prospectus required to be delivered to the Company pursuant to
Section 9(b)) that is neither an Issuer Free Writing Prospectus nor contains
Issuer Information and that is used or referred to by such Underwriter or
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.
(h) Notwithstanding the provisions of Section 9(g) hereof, each
Underwriter (with the reasonable cooperation of the Company) 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 Company
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
Company or any other offering participant, not later than four (4) business days
after such Underwriter becomes aware of the publication, radio or television
broadcast or other dissemination of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 9(e) (other than
9(e)(iii)) and 9(g) hereof, neither the Company nor any Underwriter shall be
required to file (A) Issuer Information contained in any Free Writing Prospectus
of an Underwriter or any offering participant other than the Company, if such
information is included or incorporated by reference in the Prospectus or a Free
Writing Prospectus previously filed with the Commission that relates to the
offering of the Certificates, (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 or (C) 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 Company and the Underwriters each agree that any Free
Writing Prospectuses prepared by each such party shall contain the following
legend:
"The depositor filed a registration statement (including a
prospectus) with the Securities and Exchange Commission (SEC File No.
333-130390) 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 the depositor, the issuing entity 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 1.800.503-4611 or by email to the following address:
xxxxx.xxxxxxx@xx.xxx."
(k) The Company 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 9 for a period of three (3) years following the initial
bona fide offering of the Certificates.
(l) In the event that the Company becomes aware, at any time between
the Time of Sale or any Subsequent Time of Sale and the Closing Date, that any
information in an Issuer Free Writing Prospectus or any Issuer Information
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 other applicable Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective Issuer
Free Writing Prospectus"), the Company shall notify the Underwriters of such
untrue statement or omission within one business day after discovery (except for
any Underwriter that informed the Issuer of such untrue statement or omission)
and the Company 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"). In the event that, at any time between the Time of Sale or any
Subsequent Time of Sale and the Closing Date, any Underwriter becomes aware that
any Underwriter Free Writing Prospectus delivered thereby to an investor in any
Offered Certificates 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 applicable Time of Sale Information),
in light of the circumstances under which they were made, not misleading (a
"Defective Underwriter Free Writing Prospectus" and, together with a Defective
Issuer Free Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Company of such untrue statement or omission within
one business day after discovery (unless the Company was the party that informed
such Underwriter of such untrue statement or omission) and:
(i) The Underwriters shall, if requested by the Company:
(A) 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"), provided, that if an Underwriter Free Writing
Prospectus and Issuer Free Writing Prospectus are both determined to
be a Defective Free Writing Prospectus as a result of the same
untrue statement or omission in each such document, then the Issuer
shall prepare a single Corrected Free Writing Prospectus correcting
both such Defective Free Writing Prospectuses;
(B) Either (i) 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, clearly identifying or highlighting the Corrective
Information, or (ii) deliver the Corrected Free Writing Prospectus
to each investor which received the Defective Free Writing
Prospectus and has entered into a contract of sale, clearly
identifying or highlighting the Corrective Information, and (x)
notify in writing each such investor in a prominent fashion that the
prior contract of sale with such investor has been terminated, and
of such investor's rights as a result of termination of such
agreement and (y) provide such investor with an opportunity to
affirmatively agree in writing to purchase the Certificates on the
terms described in the Corrected Free Writing Prospectus; and
(C) 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 the Commission's Securities Offering Reform
Release No. 33-8591.
(m) In the event that a Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus and the defective information was not Underwriter
Supplied Information, Loan Seller Information or Transaction Party Information
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
Company agrees to reimburse the Underwriters for such costs.
(n) Each Underwriter covenants with the Company that, upon
reasonable request, it will make available to the Company 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 Offered
Certificates to prospective investors prior to the delivery of the final
Prospectus to such investors.
(o) Each Underwriter covenants with the Company 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.
10. Termination or Default by an Underwriter.
(a) This Agreement shall be subject to termination in the absolute
discretion of the Underwriters by notice given to the Company prior to delivery
of and payment for all Offered Certificates if prior to such time (i) trading in
securities of the Company or DBS or any affiliate of either on any major
securities exchange on which such securities are commonly traded shall have been
suspended or limited, or (ii) trading in securities generally on the New York
Stock Exchange or the over-the-counter market shall have been suspended or
materially limited or minimum prices shall have been established on such
exchange, or (iii) a banking moratorium shall have been declared by either
federal or New York State authorities, or (iv) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters, impractical to market the
Offered Certificates on the terms specified in this Agreement. In the event of a
termination pursuant to this Section 10, fees and expenses of the Underwriters
shall be paid by the Company pursuant to Section 7 of this Agreement.
(b) 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, DBS and BofA Securities (together, the "Co-Lead Underwriters") may
make arrangements satisfactory to the Company for the purchase of such
Certificates by other persons, but if no such arrangements are made by such
Specified Delivery 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 the Co-Lead Underwriters and the Company 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 Company, 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 Company may postpone the
Specified Delivery Date for a period of not more than seven days, in order to
effect whatever changes the Company 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 Company 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.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Offered Certificates. The
provisions of Sections 5(e) and 7 hereof shall survive the termination or
cancellation of this Agreement.
12. Obligations of GACC. GACC agrees with the Underwriters, for the
sole and exclusive benefit of the Underwriters and each of their respective
officers, directors and any other person, if any, who controls the Underwriters
within the meaning of the Act or the Exchange Act and not for the benefit of any
assignee thereof or any other person or persons dealing with the Underwriters,
to indemnify and hold harmless the Underwriters against any failure by the
Company to perform its obligations to the Underwriters and their respective
officers, directors and control persons pursuant to Section 8 hereof.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to
them at the addresses set forth on the cover page hereof; or, if sent to the
Company will be mailed, delivered or either telegraphed or transmitted by
telecopier and confirmed to it at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxx, with a copy to Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx, Esq.
14. Successors. This Agreement will 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 8 hereof, and
their successors and assigns, and no other person will have any right or
obligation hereunder.
15. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New York without
giving effect to the provisions thereof concerning conflict of laws. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Confirmed and accepted in New York, New York
as of the date first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Acknowledged and agreed solely as to Section 12:
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
Underwriting Agreement, dated May 26, 2006.
Title and Description of Offered Certificates: COMM 2006-C7 Commercial Mortgage
Pass-Through Certificates
Initial Aggregate
Class Principal Amount Purchase Initial Pass-
Designation of Class Price(1) Through Rate Ratings(2)
-------------------- -------------------- ------------- ---------------- --------------------
Class A-1 $90,000,000 5.540% AAA/AAA
Class A-2 $107,966,000 5.690% AAA/AAA
Class A-3 $40,098,000 5.707% AAA/AAA
Class A-AB $98,824,000 5.729% AAA/AAA
Class A-4 $1,052,664,000 5.769% AAA/AAA
Class A-1A $323,552,000 5.758% AAA/AAA
Class A-M $244,729,000 5.794% AAA/AAA
Class A-J $189,666,000 5.794% AAA/AAA
Class B $52,005,000 5.794% AA/AA
Class C $24,472,000 5.794% AA-/AA-
------------
(1) Expressed as a percentage of the aggregate stated amount of the relevant
class of Offered Certificates to be purchased.
(2) By each of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and Fitch, Inc.
Closing Time, Date and Location: 10:00 A.M. on June 7, 2006 at the offices of
Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
Issuance and Delivery of Certificates: The Offered Certificates will be
delivered in book-entry form through the Same-Day Funds Settlement System of The
Depository Trust Company.
X.X. Xxxxxxx Xxxxx,
Banc of Xxxxxx Xxxxxx, Xxxxxx
Deutsche Bank America Securities & Xxxxx Xxxxxx
Class Securities, Inc. Securities LLC Inc. Incorporated Brothers Inc.
--------------- ----------------- ---------------- ---------- -------------- ---------------
Class A-1 $60,000,000 $30,000,000 $0 $0 $0
Class A-2 $71,997,333 $35,998,667 $0 $0 $0
Class A-3 $26,732,000 $13,366,000 $0 $0 $0
Class A-AB $65,882,667 $32,941,333 $0 $0 $0
Class A-4 $701,776,000 $350,888,000 $0 $0 $0
Class A-1A $215,701,333 $107,850,667 $0 $0 $0
Class A-M $163,152,667 $81,576,333 $0 $0 $0
Class A-J $126,444,000 $63,222,000 $0 $0 $0
Class B $34,670,000 $17,335,000 $0 $0 $0
Class C $16,314,667 $8,157,333 $0 $0 $0
