Exhibit 1.1
EXECUTION COPY
CITIGROUP COMMERCIAL MORTGAGE TRUST 2007-C6
$3,999,345,000
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-C6
CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-3B, CLASS A-SB, CLASS A-4, CLASS A-1A,
CLASS A-M, CLASS A-J, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS X
UNDERWRITING AGREEMENT
as of July 25, 2007
Citigroup Global Markets Inc. PNC Capital Markets LLC
000 Xxxxxxxxx Xxxxxx Xxx XXX Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx
Attention: Xxxx Xxxxxxxxxxx Pittsburgh, Pennsylvania 15222
Attention: Xxxxxxx Xxxxxx
Capmark Securities Inc. Xxxxxx Brothers Inc.
00 Xxxx Xxxxxx, 17th Floor 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx Attention: Xxxxx Xxxx
Banc of America Securities LLC
000 X. Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Ladies and Gentlemen:
Citigroup Commercial Mortgage Securities Inc., a Delaware
corporation ("CCMS"), proposes to sell to Citigroup Global Markets Inc.
("CGMI"), Banc of America Securities LLC ("Banc of America"), Capmark Securities
Inc. ("Capmark Securities"), Xxxxxx Brothers Inc. ("Lehman") and PNC Capital
Markets LLC ("PNC"; CGMI, Banc of America, Capmark Securities, Xxxxxx and PNC,
collectively, the "Underwriters"), pursuant to this Underwriting Agreement (this
"Agreement"), the classes of commercial mortgage pass-through certificates that
are identified on Schedule I hereto (collectively, the "Registered
Certificates"), each having the initial aggregate stated principal amount (the
initial "Class Principal Balance") or notional amount (the initial "Class
Notional Amount") set forth on Schedule I. The Registered Certificates, together
with the other classes of commercial mortgage pass-through certificates of the
same series (collectively, the "Private Certificates" and, collectively with the
Registered Certificates, the "Certificates"), evidence the entire beneficial
ownership interest in the assets of one or more trusts to be created by CCMS
(such trust or trusts, individually and collectively, the "Trust" and such
assets collectively, the "Trust Fund"). The Trust Fund consists primarily of
multifamily, commercial and manufactured housing community mortgage loans (the
"Mortgage Loans") that will have, as of the Cut-off Date (as defined in the
Pooling and Servicing Agreement referred to below), after taking into account
all payments of principal due on the Mortgage Loans on or before the Cut-off
Date, whether or not received, an
aggregate principal balance of approximately $4,756,049,403 (subject to a
variance of plus or minus 5.0%).
CCMS intends to sell the Private Certificates to CGMI pursuant to a
certificate purchase agreement dated as of the date hereof (the "Certificate
Purchase Agreement"), between CCMS and CGMI.
Certain of the Mortgage Loans will be acquired by CCMS from
Citigroup Global Markets Realty Corp. ("CGMRC" and such Mortgage Loans, the
"CGMRC Mortgage Loans"), pursuant to a mortgage loan purchase agreement, dated
as of the date hereof (the "CGMRC Mortgage Loan Purchase Agreement"), between
CGMRC, as seller, and CCMS, as purchaser. Certain other Mortgage Loans will be
acquired by CCMS from LaSalle Bank National Association ("LaSalle Bank" and such
Mortgage Loans, the "LaSalle Bank Mortgage Loans"), pursuant to a mortgage loan
purchase agreement, dated as of the date hereof (the "LaSalle Bank Mortgage Loan
Purchase Agreement"), between LaSalle Bank, as seller, and CCMS, as purchaser.
Certain other Mortgage Loans will be acquired by CCMS from Capmark Finance Inc.
("Capmark") and such Mortgage Loans, the "Capmark Mortgage Loans"), pursuant to
a mortgage loan purchase agreement, dated as of the date hereof (the "Capmark
Mortgage Loan Purchase Agreement"), between Capmark, as seller, and CCMS, as
purchaser. The remaining Mortgage Loans will be acquired by CCMS from PNC Bank,
National Association ("PNC Bank" and such Mortgage Loans, the "PNC Bank Mortgage
Loans"), pursuant to a mortgage loan purchase agreement, dated as of the date
hereof (the "PNC Bank Mortgage Loan Purchase Agreement"), between PNC Bank, as
seller, and CCMS, as purchaser. CGMRC, LaSalle Bank, Capmark and PNC Bank are,
collectively, the "Mortgage Loan Sellers"; and, the CGMRC Mortgage Loan Purchase
Agreement, the LaSalle Bank Mortgage Loan Purchase Agreement, the Capmark
Mortgage Loan Purchase Agreement and the PNC Bank Mortgage Loan Purchase
Agreement are, collectively, the "Mortgage Loan Purchase Agreements".
In connection with the sale by CGMRC to CCMS of the CGMRC Mortgage
Loans, CGMRC, CCMS, CGMI and the other Underwriters entered into an
indemnification agreement dated as of the date hereof (the "CGMRC
Indemnification Agreement"). In connection with the sale by LaSalle Bank to CCMS
of the LaSalle Bank Mortgage Loans, LaSalle Bank, CCMS, CGMI and the other
Underwriters entered into an indemnification agreement dated as of the date
hereof (the "LaSalle Bank Indemnification Agreement"). In connection with the
sale by Capmark to CCMS of the Capmark Mortgage Loans, Capmark, CCMS, CGMI and
the other Underwriters entered into an indemnification agreement dated as of the
date hereof (the "Capmark Indemnification Agreement"). In connection with the
sale by PNC Bank to CCMS of the PNC Bank Mortgage Loans, PNC Bank, CCMS, CGMI
and the other Underwriters entered into an indemnification agreement dated as of
the date hereof (the "PNC Bank Indemnification Agreement"). The CGMRC
Indemnification Agreement, the LaSalle Bank Indemnification Agreement, the
Capmark Indemnification Agreement and the PNC Bank Indemnification Agreement
are, collectively, the "Mortgage Loan Seller Indemnification Agreements".
The Trust is to be created and the Certificates are to be issued
under a pooling and servicing agreement to be dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among CCMS as depositor, Midland Loan
Services, Inc. ("Midland"), Wachovia Bank, National Association ("Wachovia") and
Capmark as master servicers (each, in such capacity, a "Master Servicer" and,
collectively, in such capacity, the "Master Servicers"), CWCapital Asset
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Management LLC ("CWCapital") as special servicer (in such capacity, the "Special
Servicer"), Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo") as trustee (in such capacity,
the "Trustee") and LaSalle Bank, as certificate administrator (in such capacity,
the "Certificate Administrator").
In connection with the execution and delivery of the Pooling and
Servicing Agreement: (i) Xxxxx Fargo, CCMS, CGMI and the other Underwriters
entered into an indemnification agreement dated as of the date hereof (the
"Trustee Indemnification Agreement"); (ii) LaSalle Bank, CCMS, CGMI and the
other Underwriters entered into an indemnification agreement dated as of the
date hereof (the "Certificate Administrator Indemnification Agreement"); (iii)
Midland, CCMS, CGMI and the other Underwriters entered into an indemnification
agreement dated as of the date hereof (the "Midland Master Servicer
Indemnification Agreement"); (iv) Wachovia, CCMS, CGMI and the other
Underwriters entered into an indemnification agreement dated as of the date
hereof (the "Wachovia Master Servicer Indemnification Agreement"); (v) Capmark,
CCMS, CGMI and the other Underwriters entered into an indemnification agreement
dated as of the date hereof (the "Capmark Master Servicer Indemnification
Agreement"); and (vi) CWCapital, CCMS, CGMI and the other Underwriters entered
into an indemnification agreement dated as of the date hereof (the "Special
Servicer Indemnification Agreement"). In addition, X.X. Xxxxxx Company, Inc.
("JER"), CCMS, CGMI and the other Underwriters entered into an indemnification
agreement dated as of the date hereof (the "JER Indemnification Agreement"), and
LNR Partners, Inc., ("LNR"), CCMS, CGMI and the other Underwriters entered into
an indemnification agreement dated as of the date hereof (the "LNR
Indemnification Agreement"). The Trustee Indemnification Agreement, the
Certificate Administrator Indemnification Agreement, the Midland Master Servicer
Indemnification Agreement, the Wachovia Master Servicer Indemnification
Agreement, the Capmark Master Servicer Indemnification Agreement, the Special
Servicer Indemnification Agreement, the JER Indemnification Agreement, the LNR
Indemnification Agreement and the Mortgage Loan Seller Indemnification
Agreements are, collectively, the "Indemnification Agreements".
CCMS has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-141648) for the
registration of the Registered Certificates under the Securities Act of 1933, as
amended (the "Securities Act"), which registration statement has become
effective. The rules and regulations of the Commission promulgated under the
Securities Act are collectively referred to in this Agreement as the "Securities
Act Rules." As used in this Underwriting Agreement (this "Agreement" or this
"Underwriting Agreement"): (i) "Registration Statement" means the foregoing
registration statement and all exhibits thereto, as amended or supplemented to
the date of this Agreement, together with any information that is contained in
the Prospectus (as defined below) that is deemed to be a part of and included in
that registration statement pursuant to Rule 430B under the Securities Act as of
the date hereof; (ii) "Base Prospectus" means the base prospectus included in
the Registration Statement at the time it became effective, as amended or
supplemented up to the date of filing of the Prospectus Supplement (as defined
below) by any base prospectus filed with the Commission pursuant to paragraph
(b) of Rule 424 under the Securities Act; (iii) "Prospectus Supplement" means
the prospectus supplement to the Base Prospectus, specifically relating to the
Registered Certificates and any amendment thereof or supplement thereto, filed
or to be filed with the Commission pursuant to paragraph (b) of Rule 424 under
the Securities Act, that is deemed to be part of and included in the
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Registration Statement on the date hereof in accordance with paragraph (f) of
Rule 430B under the Securities Act; and (iv) "Prospectus" means the Base
Prospectus and the Prospectus Supplement.
At or prior to the time when sales to purchasers of the Registered
Certificates were first made in accordance with Rule 159 under the Securities
Act, which was approximately 10:30 a.m. (New York City time) on the date hereof
(the "Time of Sale"), CCMS had prepared the following information, which is
collectively referred to as the "Time of Sale Information": (i) the Base
Prospectus dated July 9, 2007; (ii) the Free Writing Prospectus (as defined
below) dated July 9, 2007, relating to the Registered Certificates and filed by
CCMS pursuant to Rule 433 under the Securities Act (the "Offering Prospectus"),
which Free Writing Prospectus refers to itself therein as "this offering
prospectus", consists of approximately 314 printed pages (not including annexes
thereto) and was accompanied by the Base Prospectus dated July 9, 2007; (iii)
the Free Writing Prospectus dated July 9, 2007, in the form of a term sheet,
relating to the Registered Certificates and filed by CCMS pursuant to Rule 433
under the Securities Act (the "Term Sheet"), which Free Writing Prospectus
consists of approximately 91 pages; and (iv) the Free Writing Prospectus(es)
attached hereto as Exhibit A and disseminated through xxxxxxxxx.xxx. If,
subsequent to the date of this Agreement, CCMS and the Underwriters determine
that, as to the investors in one or more Classes of the Registered 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 those Classes of Registered
Certificates, then "Time of Sale Information" for such investors shall refer to
the information conveyed to such investors at the time of entry into the last
such new purchase contract, including any information that corrects such
material misstatements or omissions ("Corrective Information"). For the purposes
of this Underwriting Agreement, "Free Writing Prospectus" means a "free writing
prospectus" within the meaning of Rule 405 under the Securities Act; and "Issuer
Free Writing Prospectus" means an "issuer free writing prospectus" within the
meaning of Rule 433 under the Securities Act.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CCMS. CCMS
represents and warrants to, and covenants with, each of the Underwriters that:
(a) The Registration Statement has become effective under the
Securities Act. The aggregate principal amount of the Registered Certificates
does not exceed the remaining amount of mortgage-backed securities that may be
offered and sold under the Registration Statement as of the date hereof. The
Registration Statement, as of the date it was declared effective (its "Effective
Date"), and the portion of the Registration Statement relating to the Registered
Certificates (including, without limitation, the Prospectus), as of the deemed
effective date thereof pursuant to Rule 430B under the Securities Act (its
"Deemed Effective Date") complied, complies and/or will comply, as applicable,
as to form in all material respects with the requirements of the Securities Act
and the Securities Act Rules; and the information in the Registration Statement,
as of its Effective Date, and the information in the portion of the Registration
Statement relating to the Registered Certificates (including, without
limitation, the Prospectus), as of its Deemed Effective Date, did not, does not
and/or will not, as applicable, contain an untrue statement of a material fact
or omit to state
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any material fact required to be stated therein or necessary to make the
statements therein not misleading, and the information in the Prospectus as of
the date hereof, does not, and as of the Closing Date (as hereinafter defined),
will not, contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that CCMS makes no representation or warranty as to the Excluded Information (as
defined below).
The "Excluded Information" shall mean, collectively, the information
contained in or omitted from the Registration Statement or the Prospectus or the
Time of Sale Information or any Issuer Free Writing Prospectus or any Issuer
Information (as defined below), or any revision, amendment or supplement to any
of the foregoing, (i) in reliance upon and in conformity with written or
electronic information furnished to CCMS by any Underwriter specifically for use
in connection with the preparation of the Prospectus, or any revision, amendment
or supplement thereto, the Time of Sale Information or any such Issuer Free
Writing Prospectus (collectively, the "Underwriter Information"), or (ii) to
which the indemnities provided for in Section 2 of any of the Indemnification
Agreements are applicable in accordance with the respective terms thereof
(collectively, the "Third-Party Information"). It is hereby acknowledged that
the information set forth on Schedule II hereto constitutes the only Underwriter
Information in the Offering Prospectus and the Prospectus.
(b) If and to the extent that it has not done so already, CCMS
will make a good faith and reasonable effort to file the Prospectus with the
Commission within the time period required under Rule 424 and, in the event that
it fails to do so, the CCMS shall file the Prospectus with the Commission as
soon as practicable thereafter.
(c) The Time of Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that CCMS makes no representation and warranty with respect
to any Excluded Information.
(d) CCMS (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 Registered Certificates other than (i) the Prospectus, (ii) any
document not constituting a prospectus under Section 2(a)(10)(a) of the
Securities Act, including, without limitation, any document that complies with
Rule 134 under the Securities Act, (iii) the Time of Sale Information, and (iv)
any other Free Writing Prospectus that complied or, if used after the date
hereof, will comply in all material respects with the Securities Act and the
Securities Act Rules. Each Issuer Free Writing Prospectus prepared by or on
behalf of CCMS or its affiliates or delivered to CCMS for filing in accordance
with Section 9 has been filed or will be filed in accordance with Section 9 (to
the extent required thereby). Each Issuer Free Writing Prospectus included under
clause (iv) of the second preceding sentence, at the Time of Sale, did not, and
at the Closing 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
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light of the circumstances under which they were made, not misleading; provided
that CCMS makes no representation or warranty with respect to any Excluded
Information.
(e) As of the Closing Date, the Certificates will be duly
authorized by CCMS, and, when the Registered Certificates have been duly
executed and authenticated in the manner contemplated in the Pooling and
Servicing Agreement and have been delivered to and paid for by the Underwriters
pursuant to this Agreement, the Registered Certificates will be validly issued
and outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement.
(f) Ernst & Young LLP ("Ernst & Young") is an independent public
accountant for CCMS as required by the Securities Act and the rules and
regulations thereunder.
(g) As of the Closing Date, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements will each have been duly authorized,
executed and delivered by CCMS and, assuming the valid authorization, execution
and delivery thereof by the other parties thereto, will each constitute a valid
and binding agreement of CCMS enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting the enforcement of creditors' rights and
by general principles of equity.
(h) This Agreement has been duly authorized, executed and
delivered by CCMS and, assuming the valid authorization, execution and delivery
thereof by the other parties hereto, will constitute a valid and binding
agreement of CCMS enforceable against CCMS in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting the enforcement of creditors' rights and
by general principles of equity, and except as enforcement thereof may be
limited by public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport or are construed to provide
indemnification from liabilities under applicable securities laws.
(i) CCMS has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus and now conducted by it, 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, 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 its business, except where the failure
to be so qualified or to so comply, as the case may be, would not have a
material adverse effect on the performance by CCMS of its obligations under this
Agreement, the Pooling and Servicing Agreement or the Mortgage Loan Purchase
Agreements. CCMS 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 have a material adverse effect on the
performance by CCMS of its obligations under this Agreement, the Pooling and
Servicing Agreement or the Mortgage Loan Purchase Agreements.
(j) The issuance and sale of the Registered Certificates to the
Underwriters, the compliance by CCMS with the provisions of this Agreement, the
Mortgage Loan Purchase
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Agreements, the Pooling and Servicing Agreement and the Certificates and the
consummation by CCMS of the other transactions herein or therein contemplated do
not, under any statute, regulation or rule of general applicability in the
United States or any decision, order, decree or judgment of any judicial or
other governmental body applicable to CCMS, require any consent, approval,
authorization, order, registration or qualification of or with any court or
governmental authority, except (A) such as have been obtained or effected with
respect to the Registered Certificates under the Securities Act, (B) the
recordation of the assignments of the Mortgage Loans to the Trustee, which
recordation is to be completed pursuant to the Pooling and Servicing Agreement
on or following the Closing Date, and (C) such other approvals as have been
obtained; provided that CCMS makes no representations or warranties as to any
consent, approval, authorization, registration or qualification that may be
required under state securities or "blue sky" laws.
(k) Neither the execution and delivery of this Agreement, the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement nor the
issuance and delivery of the Certificates, nor the consummation by CCMS of any
other of the transactions contemplated herein or therein, nor the fulfillment by
CCMS of the terms of this Agreement, the Mortgage Loan Purchase Agreements, the
Pooling and Servicing Agreement and the Certificates, will (A) conflict with,
violate, result in a breach of or constitute a default under the certificate of
incorporation or by-laws of CCMS, any statute or regulation currently applicable
to CCMS or its properties, or any order or judgment currently applicable to CCMS
or its properties of any arbiter, court, regulatory body, administrative agency
or governmental body having jurisdiction over CCMS or its properties, or the
terms of any indenture or other agreement or instrument to which CCMS is a party
or by which it or any of its properties are bound, or (B) result in the creation
or imposition of any lien upon any of its properties pursuant to the terms of
any indenture or other agreement to which CCMS is a party or by which it or any
of its properties are bound.
(l) There are no actions or proceedings against, or investigations
of, CCMS pending, or, to the knowledge of CCMS, threatened, before any court,
administrative agency or other tribunal (A) asserting the invalidity of this
Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement or the Registered Certificates, (B) seeking to prevent the issuance of
the Registered Certificates or the consummation by CCMS of any of the
transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement, (C) that might materially and
adversely affect the performance by CCMS of its obligations under, or the
validity or enforceability against CCMS of, this Agreement, the Mortgage Loan
Purchase Agreements, the Pooling and Servicing Agreement or the Registered
Certificates or (D) seeking to affect adversely the federal income tax
attributes of the Registered Certificates described in the Prospectus.
(m) CCMS has not received any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information. CCMS has not received any notice of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement and has no knowledge of the institution or threatening of any
proceeding for that purpose. CCMS has not received any notification with respect
to the suspension of the qualification of the Registered Certificates for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose.
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(n) Any taxes, fees and other governmental charges (other than
income taxes, franchise taxes and recording and filing fees) that are or will be
due and payable by CCMS as of the Closing Date in connection with the execution,
delivery and performance of this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement and the Registered Certificates,
will have been paid at or prior to the Closing Date.
(o) Neither CCMS nor the Trust is, and the sale of the Registered
Certificates in the manner contemplated by the Prospectus will not cause CCMS or
the Trust to be, an "investment company" or under the control of an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act"); and the Pooling and Servicing Agreement
is not required to be qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
(p) At the time of the execution and delivery of the Pooling and
Servicing Agreement, CCMS (i) except as disclosed in the Prospectus, will convey
to the Trustee, or cause to be conveyed to the Trustee, all of CCMS's right,
title and interest in and to the Mortgage Loans, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") granted by or imposed upon CCMS, (ii) will not have
assigned to any other person any of its right, title or interest in the Mortgage
Loans or in the Pooling and Servicing Agreement or the Registered Certificates,
and (iii) will have the power and authority to transfer or cause the transfer of
all of its right, title and interest in and to the Mortgage Loans to the Trustee
and to sell the Registered Certificates to the Underwriters.
(q) Upon delivery to the Underwriters of the Registered
Certificates pursuant to this Agreement, each Underwriter will have good title
to the Registered Certificates purchased by such Underwriter, in each case free
and clear of Liens granted or imposed upon CCMS.
(r) The consideration received by CCMS upon the sale of the
Registered Certificates to the Underwriters will constitute at least reasonably
equivalent value and fair consideration for the Registered Certificates.
(s) CCMS (i) will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Registered Certificates to
the Underwriters and (ii) is not selling the Registered Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the creditors of
CCMS or on account of an antecedent debt.
(t) The transfer of the Mortgage Loans to the Trust and the sale
of the Registered Certificates to each of the Underwriters, at the Closing Date,
will be treated by CCMS for financial accounting and reporting purposes as a
sale of assets and not as a pledge of assets to secure debt.
(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 Registered Certificates and insofar as they
purport to describe the provisions of the documents referred to therein, are
correct in all material respects.
(v) There has not been, and as of the Closing Date, there will not
be, any material adverse change in the business operations, financial condition,
properties or assets of CCMS since
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the date as of which information is given in the Prospectus that would have a
material adverse effect on the ability of CCMS to perform its obligations under
this Agreement, the Pooling and Servicing Agreement or any Mortgage Loan
Purchase Agreement.
(w) CCMS 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 CCMS 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 CCMS.
(x) CCMS is not, and on the date on which the first bona fide
offer of the Registered 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.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance on the representations and warranties herein set forth, CCMS agrees to
sell to each of the Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase from CCMS, their respective allotments of each
class of Registered Certificates specified on Schedule I hereto, at the purchase
price for each such class as set forth on such Schedule I (the "Purchase
Price").
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Registered Certificates shall be made in the manner, on the date and at the time
specified in Schedule I hereto, which date and time may be changed by agreement
among the Underwriters and CCMS (such date and time of delivery of and payment
for the Registered Certificates being hereinafter referred to as the "Closing
Date"). Delivery of each Underwriter's allotment of the Registered Certificates
shall be made to the related Underwriter against payment by such Underwriter of
the purchase price therefor to or upon the order of CCMS in same-day funds by
federal funds wire (or by such other method as such Underwriter and CCMS may
agree). Unless delivery is made through the facilities of The Depository Trust
Company, the Registered Certificates of each class thereof shall be registered
in such names and in such authorized denominations as the related Underwriter
may have requested not less than three (3) full business days prior to the
Closing Date.
CCMS agrees to have the Registered Certificates available for
inspection, checking and packaging in New York, New York, at any time before
3:00 p.m. New York City time on the business day prior to the Closing Date.
4. OFFERING BY THE UNDERWRITERS. (a) It is understood that the
Underwriters propose to offer the Registered Certificates for sale as set forth
in the Prospectus. It is further understood that CCMS, in reliance upon Policy
Statement 105, has not filed 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 Registered Certificates. As required by Policy Statement 105, each
Underwriter therefore covenants and agrees with CCMS that sales of the
Registered Certificates made by such Underwriter in and from the State of New
York will be made only to institutional investors within the meaning of Policy
Statement 105.
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(b) Each Underwriter represents and warrants to, and agrees with,
CCMS that: (i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection with
the issue or sale of any Registered Certificates in circumstances in which
section 21(1) of the FSMA does not apply to CCMS; and (ii) it has complied and
will comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to the Registered Certificates in, from or otherwise
involving the United Kingdom.
(c) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Underwriter hereby represents and warrants to, and agrees with,
CCMS that with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") such Underwriter has not made and will not make an offer
of the Registered Certificates to the public in that Relevant Member State prior
to the publication of a prospectus in relation to the Registered 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 such Underwriter may, with effect from and
including the Relevant Implementation Date, make an offer of the Registered
Certificates to the public in that Relevant Member State at any time:
(i) 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;
(ii) 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
(iii) in any other circumstances which do not require the
publication by CCMS of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of the
Registered Certificates to the public" in relation to any Registered
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
Registered Certificates so as to enable an investor to decide to purchase or
subscribe the Registered 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.
(d) No Underwriter shall take any action relating to the offer or
sale of any of the Registered Certificates in any jurisdiction that would result
in CCMS being obligated to register or file any further prospectus or
corresponding document relating to the Registered Certificates in such
jurisdiction, other than as expressly contemplated hereby.
10
(e) If any Underwriter does not have an allocation of Registered
Certificates, then such Underwriter nevertheless acknowledges that it has
actively participated in the marketing and distribution of the Registered
Certificates.
(f) Each Underwriter hereby advises CCMS that it currently intends
to make a market in the Registered Certificates, although it has no obligation
to do so and may terminate such market making at any time.
5. ADDITIONAL AGREEMENTS. CCMS and the Underwriters mutually
agree that:
(a) CCMS will not file any further supplement to the Prospectus
relating to or affecting the Registered Certificates at any time, except as
contemplated by Section 5(e) or unless CCMS has furnished a copy to the
Underwriters for their review prior to filing, and will not file any such
proposed supplement to which the Underwriters reasonably object. CCMS will not
file any amendment to the Registration Statement relating to or affecting the
Registered Certificates at any time subsequent to the date hereof and prior to
the Closing Date, except as contemplated by Section 5(e) or unless CCMS has
furnished a copy to the Underwriters for their review prior to filing, and will
not file any such proposed amendment to which the Underwriters reasonably
object. Subject to the foregoing sentences, CCMS will cause the Prospectus to be
filed, or transmitted for filing, with the Commission pursuant to Rule 424(b)
under the Securities Act and, until the termination of the offering of the
Registered Certificates, will also promptly advise each Underwriter (i) when any
amendment to the Registration Statement relating to the Registered Certificates
has become effective or any revision of or supplement to the Prospectus has been
so filed or transmitted for filing, (ii) of any request by the Commission for
any amendment of 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 or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by CCMS of any notification with respect to the suspension of the
qualification of the Registered Certificates for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. CCMS 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 when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act, (i) 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 a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) it shall be
necessary to revise, amend or supplement the Prospectus to comply with the
Securities Act or the rules and regulations of the Commission thereunder, CCMS
promptly will, to the extent it has knowledge thereof, prepare and file with the
Commission, subject to paragraph (a) of this Section 5, a revision, amendment or
supplement that will correct such statement or omission or effect such
compliance and will deliver a copy thereof to the Underwriters.
(c) Upon request, so long as delivery of a prospectus relating to
the Registered Certificates is required under the Securities Act, CCMS will
furnish to any Underwriter and counsel for such Underwriter, without charge, as
many copies of the Prospectus and each Issuer Free Writing
11
Prospectus prepared by or on behalf of CCMS and any revisions or amendments
thereof or supplements thereto as may be reasonably requested.
(d) CCMS will arrange for the qualification of the Registered
Certificates for sale under the laws of such jurisdictions as CGMI may
designate, maintain such qualifications in effect so long as required for the
distribution of the Registered Certificates and arrange for the determination of
the legality of the Registered Certificates for purchase by institutional
investors; provided, however, that CCMS 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) CCMS will file any documents and any amendments thereof as may
be required to be filed by it pursuant to the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission under the Securities Act and the Exchange Act,
including, but not limited to, the filing with the Commission, to the extent
required under Rule 433 of the Securities Act Rules, of all Free Writing
Prospectuses that CCMS is required to file under Section 9(c) hereof, within the
time frames set forth in Section 9(d) hereof. Subject to compliance by each
Underwriter with the requirements of Section 9 hereof, CCMS represents and
warrants that, to the extent required by Rule 433 under the Securities Act, CCMS
has timely filed with the Commission any Free Writing Prospectuses contemplated
to be filed by it under Section 9(c) hereof.
(f) Each Underwriter agrees that its purchase of Registered
Certificates, at the Closing Date, will be treated by such Underwriter for
financial accounting and reporting purposes as a sale of such Certificates by
CCMS and not as a pledge of such Certificates to secure a debt.
6. CONDITIONS TO THE OBLIGATIONS OF EACH UNDERWRITER AND CCMS.
The obligation of each Underwriter to purchase from CCMS, and the obligation of
CCMS to sell to such Underwriter, its allotment of the Registered Certificates
shall be subject to the accuracy of the representations and warranties on the
part of CCMS and such Underwriter contained herein as of the date hereof and as
of the Closing Date, to the accuracy of the statements of CCMS and such
Underwriter made in any officer's certificate delivered pursuant to the
provisions hereof, to the performance by CCMS and such Underwriter of their
respective obligations hereunder and to satisfaction, as of the Closing Date, of
the following additional conditions:
(a) All actions required to be taken and all filings required to
be made by CCMS under the Securities Act prior to the Closing Date shall have
been taken or made, and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted and be pending or shall have been threatened.
(b) CCMS shall have furnished to the Underwriters:
(i) an executed copy of the Pooling and Servicing
Agreement;
(ii) an opinion of in-house counsel for CCMS, dated the
Closing Date and addressed to the Underwriters, in form and substance
reasonably acceptable to the Underwriters;
12
(iii) an opinion of Xxxxxxx Xxxxxxxx & Xxxx LLP, in its
capacity as special counsel for CCMS, dated the Closing Date and addressed
to the Underwriters, in form and substance reasonably acceptable to the
Underwriters;
(iv) a letter from Xxxxxxx Xxxxxxxx & Xxxx LLP, in its
capacity as special counsel to CCMS, dated the Closing Date and addressed
to the Underwriters, containing a statement substantially to the effect
that, based on conferences and telephone conversations with
representatives of CCMS, the Mortgage Loan Sellers, the Underwriters, the
Trustee, the Certificate Administrator, the Master Servicers, the Special
Servicer and their respective counsel (but, except as otherwise expressly
set forth in that letter, without having reviewed any of the mortgage
notes, mortgages or other documents relating to the Mortgage Loans, or any
documents, records, agreements, ratings or portfolio data or any other
information regarding the business or operations of the sponsors, the
Trustee, the Certificate Administrator, the Master Servicers or the
Special Servicer (other than the Pooling and Servicing Agreement) or made
any inquiry of any originator of any Mortgage Loan not referenced above
and without having made any independent check or verification of the
statements contained in the Prospectus or the Time of Sale Information),
nothing has come to such counsel's attention that would lead it to believe
that the Time of Sale Information (when read as a whole), at the Time of
Sale, or the Prospectus, at the date of the Prospectus Supplement or at
the Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that such counsel need not comment on
(i) information regarding any party to any agreement other than CCMS, (ii)
information regarding the Mortgage Loans or the related mortgaged real
properties, (iii) the servicing and administration of the Outside Serviced
Trust Mortgage Loans (as defined in the Pooling and Servicing Agreement),
(iv) statistical, accounting, numerical or other financial information,
(v) information contained in any accompanying computer disk, CD-ROM or
other electronic media, (vi) information incorporated by reference and
(vii) other marketing materials including without limitation any ABS
informational and computational materials used in reliance on Rule 167
under the Securities Act.
(v) copies of all legal opinion letters delivered to the
Rating Agencies by Xxxxxxx Xxxxxxxx & Xxxx LLP, in its capacity as special
counsel to CCMS, in connection with the issuance of the Registered
Certificates, with each such opinion letter to be either addressed to the
Underwriters or accompanied by a letter signed by Xxxxxxx Xxxxxxxx & Xxxx
LLP stating that the Underwriters may rely on such opinion letter as if it
were addressed to them as of the date thereof;
(vi) a good standing certificate regarding CCMS from the
Secretary of State of the State of Delaware, dated not earlier than 30
days prior to the Closing Date;
(vii) a certificate of CCMS, dated the Closing Date and
signed by an executive officer or authorized signatory of CCMS, to the
effect that (A) the representations and warranties of CCMS herein and in
the Pooling and Servicing 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, and (B) CCMS has in all material respects complied with
all the
13
agreements and satisfied all the conditions on its part set forth herein
to be performed or satisfied at or prior to the Closing Date; and
(viii) an officer's certificate, dated the Closing Date
and signed by the secretary or an assistant secretary of CCMS, to the
effect that each individual who, as an officer or representative of CCMS,
signed this Agreement, the Certificate Purchase 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 Certificate
Purchase Agreement, the Mortgage Loan Purchase Agreements or 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, which officer's certificate shall be accompanied by
true and complete copies (certified as such by the secretary or an
assistant secretary of CCMS) of the organizational documents of CCMS, as
in effect on the Closing Date, and of the resolutions of CCMS and any
required shareholder consent relating to the transactions contemplated in
this Agreement, the Certificate Purchase Agreement, the Mortgage Loan
Purchase Agreements and/or the Pooling and Servicing Agreement.
(c) The Underwriters shall have received, with respect to each of
the Master Servicers, the Special Servicer, the Trustee and the Certificate
Administrator a favorable opinion of counsel, dated the Closing Date, addressing
the valid existence and good standing of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and delivery
of the Pooling and Servicing Agreement by such party, the enforceability of the
Pooling and Servicing Agreement against such party (subject to such limitations
as are reasonably acceptable to the Underwriters) and such other matters as the
Underwriters may reasonably request. Such opinion may express its reliance as to
factual matters on representations and warranties made by, and on certificates
or other documents furnished by officers and/or authorized representatives of
parties to the Pooling and Servicing Agreement and on certificates furnished by
public officials. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the party on behalf of which such opinion is being rendered.
Such opinion need cover only the laws of the jurisdiction in which the party on
whose behalf such opinion is being rendered is organized, the laws of the State
of New York and the federal law of the United States.
(d) The Underwriters shall have received such other documents,
certificates and opinions regarding the Master Servicers, the Special Servicer,
the Trustee and the Certificate Administrator as the Underwriters may reasonably
request.
(e) CCMS and the Underwriters shall have received from Ernst &
Young, certified public accountants, various comfort letters, dated, as
applicable, the date of the Prospectus Supplement or such other date acceptable
to CCMS and the Underwriters, in form and substance reasonably satisfactory to
CCMS and the Underwriters, stating in effect that:
(i) they have performed certain specified procedures as a
result of which they have determined that such information of an
accounting, financial or statistical nature
14
set forth in the Time of Sale Information, as was agreed upon by the
Underwriters, agrees with the data sheet or computer tape prepared by or
on behalf of the Mortgage Loan Sellers, unless otherwise noted in such
letter(s);
(ii) they have performed certain specified procedures as a
result of which they have determined that such information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement, as was agreed upon by the Underwriters, agrees with the data
sheet or computer tape prepared by or on behalf of the Mortgage Loan
Sellers, unless otherwise noted in such letter(s); and
(iii) they have compared the data contained in the data
sheet or computer tape referred to in the immediately preceding clauses
(i) and (ii) to information contained in an agreed upon sampling of the
Mortgage Loan files and in such other sources as shall be specified by
them, and found such data and information to be in agreement in all
material respects, unless otherwise noted in such letter.
(f) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by each Mortgage Loan Seller
and/or any affiliate thereof in connection with the sale of Mortgage Loans by
such Mortgage Loan Seller to CCMS, pursuant to the related Mortgage Loan
Purchase Agreement. The Underwriters shall be entitled to rely on each such
certificate executed and delivered by a Mortgage Loan Seller, any affiliate
thereof or any of their respective officers and representatives, to the same
extent that CCMS may so rely, and each such opinion addressed to CCMS shall also
be addressed to the Underwriters or shall be accompanied by a letter signed by
the counsel that rendered such opinion stating that the Underwriters may rely on
such opinion as if it were addressed to them.
(g) The Underwriters shall have been furnished with such other
documents and opinions as the Underwriters may reasonably require, for the
purpose of enabling them to pass upon the issuance and sale of the Registered
Certificates as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained.
(h) The Mortgage Loan Sellers shall have sold the Mortgage Loans
to CCMS, pursuant to the respective Mortgage Loan Purchase Agreements.
(i) Subsequent to the date hereof, there shall not have occurred
any change, or any development involving a prospective change, in or affecting
the business or properties of CCMS that CGMI concludes, in its opinion after
consultation with CCMS and the other Underwriters, materially impairs the
investment quality of the Registered Certificates so as to make it impractical
or inadvisable to proceed with the public offering or the delivery of the
Registered Certificates as contemplated by the Prospectus.
(j) The Registered Certificates shall have been assigned ratings
no less than those set forth on Schedule I and such ratings shall not have been
rescinded or qualified.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Subject to Section 7(c),
CCMS agrees to indemnify and hold harmless each Underwriter, each of its
officers and directors and each
15
person who controls such Underwriter within the meaning of either the Securities
Act or the Exchange Act against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which it or any such officer, director or
controlling person may become subject under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) (A) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or any revision or amendment thereof or
supplement thereto, or in any other filing incorporated by reference therein, or
arise out of or are based upon the omission or alleged omission to state therein
a 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, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by it or him in connection with
investigating or defending any such expense, loss, claim, damage, liability or
action or (B) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Issuer Free Writing
Prospectus prepared by or on behalf of CCMS or any Issuer Information (as
defined in Section 9(a)) contained in any Underwriter Free Writing Prospectus
(as defined in Section 9(a)), or the omission or alleged omission therefrom of a
material fact necessary 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 was not corrected by Corrective
Information subsequently supplied by CCMS or any Mortgage Loan Seller to any
Underwriter within a reasonable period of time prior to the Time of Sale;
provided that CCMS shall not be liable under the indemnity agreement in this
Section 7(a) to the extent that any such expense, loss, claim, damage or
liability (or action in respect thereof) arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact contemplated by this Section 7(a) that
was made in the Excluded Information or (ii) any material breach, inaccuracy or
untruth of any of the statements, representations, warranties and/or covenants
made by any Underwriter pursuant to Section 9; and provided, further, that CCMS
shall not be liable under the indemnity agreement in this Section 7(a) for any
such expense, loss, claim, damage or liability (or action in respect thereof)
that arises out of or is based upon any such untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact contemplated in this Section (7)(a) as to which any Underwriter has agreed
to indemnify CCMS pursuant to Section 7(b). This indemnity agreement will be in
addition to any liability that CCMS may otherwise have.
(b) Subject to Section 7(c), each Underwriter, severally and not
jointly, agrees to indemnify and hold harmless CCMS, each of its officers and
directors and each person who controls CCMS within the meaning of either the
Securities Act or the Exchange Act against any and all expenses, losses, claims,
damages or liabilities, joint or several, to which it or any such officer,
director or controlling person may become subject under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, at 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 contained in
the Underwriter Information (insofar as the Underwriter Information relates to
such Underwriter), or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; (ii) any untrue
statements or alleged untrue statements of a material fact made in any
Underwriter Free
16
Writing Prospectus prepared by or on behalf of such Underwriter or omissions or
alleged omissions 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 Time of Sale Information), in the light of the
circumstances under which they were made, not misleading; and (iii) any material
breach, inaccuracy or untruth on the part of such Underwriter of any of the
statements, representations, warranties and/or covenants made pursuant to
Section 9; provided that such Underwriter shall not be liable under the
indemnity agreement in this Section 7(b) for any such expense, loss, claim,
damage or liability (or action in respect thereof) that arises out of or is
based upon (A) any untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact contemplated by
this Section 7(b) that was caused by or resulted from an error or omission in
the Issuer Information which was not corrected by Corrective Information
subsequently supplied by CCMS or any Mortgage Loan Seller to any Underwriter
within a reasonable period of time prior to the Time of Sale or (B) any material
breach, inaccuracy or untruth of any of the statements, representations,
warranties and/or covenants made by CCMS pursuant to Section 9. Notwithstanding
the foregoing, the indemnity in clause (ii) of the preceding sentence above will
not apply if such untrue statement or alleged untrue statement or omission or
alleged omission was also an untrue statement or alleged untrue statement or
omission or alleged omission in the Prospectus, the Offering Prospectus or the
Term Sheet to which the indemnity agreement in Section 7(a) applies. This
indemnity agreement will be in addition to any liability that the Underwriters
may otherwise have.
(c) Promptly after receipt by an indemnified party under Section
7(a) or Section 7(b) above of notice of the commencement of any suit, action,
proceeding (including, without limitation, any governmental or regulatory
investigation), claim or demand, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under Section 7(a)
or Section 7(b) above, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability that it may have to any
indemnified party otherwise than under Section 7(a) or Section 7(b); provided,
however, that any increase in such liability under Section 7(a) or Section 7(b),
as applicable, as a result of such failure to promptly notify shall not be an
expense of the indemnifying party. 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 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 reasonably satisfactory to such indemnified party;
provided 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 additional or different legal defenses
available to it that conflict with those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
(in addition to local counsel) 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 for legal expenses of other counsel or other expenses, in
each case 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
17
proviso to the 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 any local counsel), representing the
indemnified party or parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time period after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
Notwithstanding anything herein to the contrary, an indemnifying
party shall not be liable under Section 7(a) or Section 7(b) for any settlement
of any litigation, proceeding, action or claim effected without its consent
unless (i) at any time an indemnified party shall have requested such
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which the indemnifying party is obligated under Section 7(a) or
Section 7(b), as applicable, (ii) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request and more
than 15 days after receipt by such indemnifying party of written notice of the
proposed settlement and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the prior written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) If the indemnification provided for in Section 7(a) or
Section 7(b) above is due in accordance with its terms but is for any reason
held by a court to be unavailable to any indemnified party on grounds of public
policy or otherwise or is insufficient in respect of any expenses, losses,
claims, damages or liabilities referred to in and intended to be covered under
Section 7(a) or Section 7(b), then the indemnifying party shall contribute to
the aggregate expenses, losses, claims, damages and liabilities (including legal
and other expenses reasonably incurred in connection with investigating or
defending same) to which such indemnified party may be subject and which were
intended to be covered under such Section 7(a) or Section 7(b), as the case may
be, as follows:
(i) in the case of any such expenses, losses, claims,
damages or liabilities (or actions in respect thereof) referred to in and
intended to be covered under Section 7(a) above, in such proportion so
that the applicable Underwriter is responsible for that portion
represented by the percentage that the total underwriting discounts,
commissions and/or fees received by such Underwriter bear to the sum of
such discounts, commissions and/or fees received by the Underwriters and
the total purchase price of the Registered Certificates specified in
Schedule I hereto and CCMS is responsible for the balance (or, if such
allocation is not permitted by applicable law or if the indemnified party
failed to give the notice required in Section 7(c) or in the last
paragraph of this Section 7(d), in such proportion as is
18
appropriate to reflect not only such financial considerations but also the
factors referred to in the immediately following clause (ii)); provided,
however, that in no case shall any Underwriter be responsible under this
clause (i) for more than the amount, if any, by which the underwriting
discounts, commissions and fees applicable to the Registered Certificates
purchased by such Underwriter hereunder exceeds any damages otherwise paid
by such Underwriter with respect to any expense, loss, claim, damage or
liability (or action in respect thereof); and
(ii) in the case of any expenses, losses, claims, damages
or liabilities (or actions in respect thereof) referred to in and intended
to be covered under Section 7(b) above, in such proportion as is
appropriate to reflect the relative fault of CCMS on the one hand and the
applicable Underwriters on the other in connection with the untrue
statement or alleged untrue statement or omission or alleged omission
which resulted in such expenses, losses, claims, damages or liabilities
(or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault 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
that is the basis for such expense, loss, claim, damage or liability
results from information prepared by CCMS on the one hand or the
applicable Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
CCMS and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by per
capita allocation which does not take account of the equitable considerations
referred to above in this subsection (d).
Notwithstanding the foregoing, however, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of either the
Securities 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 CCMS within the meaning of either the Securities Act or
the Exchange Act and each officer and director of CCMS shall have the same
rights to contribution as CCMS. 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 subsection (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 subsection (d).
(e) The amount paid or payable by an indemnified party as a result
of the expenses, losses, claims, damages and liabilities referred to in any
subsection of this Section 7 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim (except where the indemnified party is required to bear such
expenses pursuant to this Agreement), which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to the
extent that it is reasonable to believe that the indemnifying
19
party will be ultimately obligated to pay such expenses. If any expenses so paid
by an indemnifying party are subsequently determined not to be required to be
borne by such indemnifying party hereunder, the indemnified party that received
such payment shall promptly refund the amount so paid to such indemnifying
party.
(f) Each Underwriter agrees to indemnify and hold harmless each
other Underwriter, such other Underwriter's officers and directors and each
person who controls such other Underwriter within the meaning of the Securities
Act or the Exchange Act to the same extent that the indemnifying Underwriter has
agreed to indemnify and hold harmless CCMS pursuant to Section 7(b).
8. FEES AND EXPENSES. Except as provided in any other particular
section hereof, each Underwriter shall be responsible only for the costs and
expenses (including, but not limited to, the costs of any counsel retained
thereby) actually incurred by such Underwriter in connection with the
transactions contemplated by this Agreement, and otherwise, the costs and
expenses incurred in connection with the transactions herein contemplated shall
be payable by the Mortgage Loan Sellers, as and to the extent provided in the
respective Mortgage Loan Purchase Agreements, or by CCMS.
9. FREE WRITING PROSPECTUSES.
(a) In connection with the offering of the Registered
Certificates, the Underwriters may each prepare and provide to prospective
investors Free Writing Prospectuses, or portions thereof, which CCMS is required
to file with the Commission in electronic format and will use reasonable efforts
to provide to CCMS such Free Writing Prospectuses, or portions thereof, in
either Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except
to the extent that CCMS, in its sole discretion, waives such requirements,
subject to the following conditions and any additional conditions set forth in
any other subsection of this Section 9 (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 (other
than the Prospectus) to any person in connection with the initial offering
of the Registered Certificates, unless such written communication (1) is
made in reliance on Rule 134 under the Securities Act, (2) constitutes
Time of Sale Information, (3) constitutes an Underwriter Free Writing
Prospectus (as defined below) (that does not constitute Time of Sale
Information) that has been approved by CCMS in advance of its use, or (4)
contains no more than the following: (x) information relating to the
class, size, rating, price, CUSIP, coupon, yield, spread, benchmark,
status and/or legal maturity date, the weighted average life, expected
final payment date, the trade date and payment window of one or more
classes of Registered Certificates, (y) the eligibility of the Registered
Certificates to be purchased by ERISA plans and (z) a column or other
entry showing the status of the subscriptions of the Registered
Certificates (both for the issuance as a whole or for the Underwriter's
retention) and/or expected pricing parameters of the Registered
Certificates (provided that to the extent any of the information in
clauses (x) through (z) constitutes a description of terms not permitted
20
under Rule 134, then such information will be included in a description of
the final terms of the Registered Certificates that is filed as a Free
Writing Prospectus).
(ii) Each Underwriter shall deliver (and, if used on or
prior to the date hereof, represents and warrants that it has delivered)
to CCMS, no later than two business days prior to the date of first use
thereof or such later date as may be agreed to by CCMS: (a) any Free
Writing Prospectus that was prepared by or on behalf of such Underwriter
or any affiliate thereof (each, 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, Third-Party Information
covered by the indemnity agreements set forth in any of the
Indemnification Agreements); 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 Registered Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains
only ABS Informational and Computational Materials (as defined below) may
be delivered by an Underwriter to CCMS 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 CCMS or (B) the date of first use of such Free Writing
Prospectus.
(b) Each Underwriter represents and warrants to CCMS that:
(i) The Free Writing Prospectuses that were prepared by or
on behalf of such Underwriter or an affiliate thereof complied or, if used
after the date hereof, will comply in all material respects with the
Securities Act and the Securities Act Rules.
(ii) The Free Writing Prospectuses furnished or to be
furnished to CCMS by such Underwriter pursuant to or as contemplated by
Section 9(a)(ii) or Section 9(e) hereof will constitute all Free Writing
Prospectuses of the type described in such section that were furnished to
prospective investors by the Underwriter in connection with its offer and
sale of the Registered Certificates.
(iii) The Free Writing Prospectuses furnished or to be
furnished to CCMS by such Underwriter pursuant to Section 9(a)(ii) hereof
will constitute all Free Writing Prospectuses furnished to a sponsor or
servicer (as defined in Item 1101 of Regulation AB) for use or referral by
any such person in connection with its offer and sale of the Registered
Certificates.
(iv) Each Free Writing Prospectus provided or required to
be provided by it to CCMS pursuant to or as contemplated by Section
9(a)(ii) hereof did not, as of the Time of Sale, and will not, as of the
Closing Date, contain 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 other 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
21
Information subsequently supplied by CCMS, any other Underwriter or any
Mortgage Loan Seller to such Underwriter within a reasonable period of
time prior to the Time of Sale.
(v) Such Underwriter has not and will not convey any ABS
Informational and Computational Material in reliance upon Rule 167 and
Rule 426 under the Securities Act. ABS Informational and Computational
Material shall mean "ABS informational and computational material" as
defined in Item 1101 of Regulation AB.
(c) CCMS agrees to file with the Commission the following:
(i) each Issuer Free Writing Prospectus that was prepared
by or on behalf of CCMS or its affiliates or delivered to CCMS for filing;
(ii) any Free Writing Prospectus or portion thereof
delivered by any Underwriter to CCMS pursuant to Section 9(a)(ii) or
Section 9(e) hereof; and
(iii) any Free Writing Prospectus for which CCMS or any
person acting on its behalf provided, authorized or approved information
that is prepared and published or disseminated by a person unaffiliated
with CCMS or any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise disseminating
communications;
provided, however, that CCMS shall not be required to file (1) Issuer
Information contained in any Underwriter Free Writing Prospectus or Free Writing
Prospectus of any other offering participant other than CCMS, 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 Registered Certificates, or (2) any Free Writing Prospectus or
portion thereof that contains a description of the Registered Certificates or
the offering of the Registered Certificates which does not reflect the final
terms thereof or (3) any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus previously
filed with the Commission.
(d) Any Free Writing Prospectus required to be filed pursuant to
Section 9(c) hereof by CCMS shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus (subject, in the case of
any Free Writing Prospectus required to be filed pursuant to Section 9(c)(ii)
hereof, to compliance by the Underwriters with Section 9(a)(ii) or Section 9(e),
as applicable, hereof), except that:
(i) any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the final terms
of the Registered Certificates shall be filed by CCMS with the Commission
within two days of the later of the date such final terms have been
established for all classes of Registered 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 shall be filed by CCMS with the Commission not
later than the later of the due date for filing the final Prospectus
relating
22
to the Registered Certificates pursuant to Rule 424(b) under the
Securities Act or two business days after the first use of such Free
Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed
pursuant to Section 9(c)(iii) shall, if no payment has been made or
consideration has been given by or on behalf of
CCMS for the Free Writing Prospectus or its dissemination, be filed by
CCMS with the Commission not later than four business days after CCMS
becomes aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
(e) Each Underwriter shall provide to CCMS for filing with the
Commission the following:
(i) 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; and
(ii) 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 CCMS 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 CCMS 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;
provided, however, that no Underwriter shall be required to provide to CCMS (1)
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 Registered Certificates, or (2) any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
(f) CCMS and each Underwriter agree that any Free Writing
Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC (SEC File No. 333-141648) 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 entity 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
23
0-000-000-0000 or by emailing
Xxxxxxxxx-XXX-Xxxxxxxxxx@Xxxxxxxxx.xxx.
(g) CCMS and the respective Underwriters each agrees to retain
all Free Writing Prospectuses that it has used and that are not required to be
filed with the Commission for a period of three years following the initial bona
fide offering of the Registered Certificates.
(h) If CCMS becomes aware that, as of the Time of Sale, 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 Time of Sale Information), in light of the circumstances
under which they were made, not misleading (a "Defective Issuer Free Writing
Prospectus"), then CCMS shall notify the Underwriters of such untrue statement
or omission within one business day after discovery and CCMS 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"). If any Underwriter becomes aware
that, as of the Time of Sale, any Underwriter Free Writing Prospectus (other
than any Issuer Information contained therein) delivered to an investor in any
Registered 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 (a
"Defective Underwriter Free Writing Prospectus" and, together with a Defective
Issuer Free Writing Prospectus, a "Defective Free Writing Prospectus"), then
such Underwriter shall notify CCMS of such untrue statement or omission within
one business day after discovery.
The Underwriters shall, if requested by CCMS:
(i) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, the Underwriter that prepared such
Defective Free Writing Prospectus shall 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");
(ii) either (A) 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 (B)
deliver the Corrected Free Writing Prospectus to each investor which
received the Defective Free Writing Prospectus, clearly identifying or
highlighting the Corrective Information together with information
regarding (1) reformation of the contract of sale and (2) an ability to
elect to terminate or not terminate the prior contract of sale, each as
consistent with the Underwriter's good faith interpretation of the
requirements of Commission Release No. 33-8591, provide such investor with
an opportunity to affirmatively agree in writing to purchase the subject
Registered Certificates on the terms described in the Corrected Free
Writing Prospectus; and
24
(iii) 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.
In connection with clause (i) of the prior paragraph, if the
Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus,
then the Corrected Free Writing Prospectus will be prepared by the Underwriter
that prepared such Defective Free Writing Prospectus.
If the Defective Free Writing Prospectus was an Issuer Free Writing
Prospectus and the defective information was not provided by any party that
would be obligated to indemnify the Underwriters under the Indemnification
Agreements, 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, then CCMS agrees to reimburse the Underwriters for such costs;
provided that, before incurring such costs, the Underwriters first permit CCMS
access to the applicable investor and an opportunity to attempt to mitigate such
costs through direct negotiation with such investor.
(i) Each Underwriter covenants with CCMS that after the Prospectus
is available such Underwriter shall not distribute any written information
concerning the Registered Certificates to a prospective investor unless such
information is preceded or accompanied by the Prospectus.
10. TERMINATION. This Agreement may be terminated by notice given
to CCMS, if the sale of the Registered Certificates provided for herein is not
consummated because of any failure or refusal on the part of CCMS to comply in
all material respects with the terms or to fulfill in all material respects any
of the conditions of this Agreement, or if for any reason CCMS shall be unable
to perform in all material respects its obligations under this Agreement. This
Agreement also may be terminated by the Underwriters, by notice given to CCMS
prior to delivery of and payment for the Certificates, if prior to such time (i)
trading in securities generally on the New York Stock Exchange or in any
over-the-counter market shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York shall have been
declared by either federal or New York State authorities, or (iii) there shall
have occurred any material outbreak or 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
after consultation with CCMS, impracticable to market the Registered
Certificates.
11. DEFAULT BY AN UNDERWRITER. If any Underwriter shall fail to
purchase and pay for any of the Registered Certificates agreed to be purchased
by such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its obligations under this Agreement, the
remaining Underwriters shall be obligated (in proportion to their respective
allocations set forth in Schedule I) to take up and pay for the Registered
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the purchase price of the
Registered Certificates that the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate purchase price of the
Registered Certificates, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Registered Certificates, and if such nondefaulting Underwriters do not purchase
all of the Registered Certificates, this Agreement will terminate without
liability to the nondefaulting Underwriters or CCMS. In the event of a default
by an Underwriter as set forth in this Section 11, the Closing Date for the
Registered Certificates shall be
25
postponed for such period, not exceeding ten (10) days, as the nondefaulting
Underwriters shall determine in order that the required changes in the
Registration Statement, the Prospectus or any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to CCMS and to any
nondefaulting Underwriter for damages occasioned by its default hereunder.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
CCMS, the Underwriters and their respective officers, directors, employees and
agents 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 the
Underwriters, CCMS or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Registered Certificates. The provisions of Sections 7 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. BENEFICIARIES. 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 7 hereof, and
no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York, applicable to
agreements negotiated, made and to be performed entirely in said State.
15. NO FIDUCIARY DUTY. CCMS hereby acknowledges that (a) the
Underwriters are acting as principal and not as an agent or fiduciary of CCMS
and (b) its engagement of the Underwriters in connection with the offering of
the Registered Certificates is as independent contractors and not in any other
capacity. Furthermore, CCMS agrees that it is solely responsible for making its
own judgments in connection with the offering of the Registered Certificates
(irrespective of whether the Underwriters have advised or are currently advising
CCMS on related or other matters).
16. MISCELLANEOUS. This Agreement supersedes all prior or
contemporaneous agreements and understandings between CCMS and any of the
Underwriters relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, and that taken
together shall constitute one and the same instrument.
17. NOTICES. All communications hereunder will be in writing and
effective only upon receipt and, if sent to any Underwriter, will be delivered
to such Underwriter at the address, and to the attention of the person or group,
set forth on page 1 of this Agreement; and, if sent to CCMS, will be delivered
to Citigroup Commercial Mortgage Securities Inc., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, and, solely for
purposes of Sections 5(e), 9(a)(ii) and 9(e) hereof, Xxxxxxx Xxxxxxxx & Xxxx
LLP, 2 World Financial Center, New York, New York 10281, Attention: Xxxxxxx X.
Xxxxxx; or, in each such case, to such other
26
address, or to the attention of such other person or group, as may be forwarded
by any such party to the other parties hereto in writing.
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument, along with all counterparts, and your acceptance
shall represent a binding agreement between you and CCMS.
Very truly yours,
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/Xxxxxx Xxxxx
----------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/Xxxxxx Xxxxx
-------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name:
Title:
CAPMARK SECURITIES INC.
By: /s/Xxxxxx Xxxxx
-------------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Name
Title:
PNC CAPITAL MARKETS LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name:
Title:
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-141648 filed by CCMS on Form S-3 and declared
effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
Commercial Mortgage Pass-Through Certificates, Series CD 2007-CD4, Class A-1,
Class A-2, Class A-3, Class A-3B, Class A-SB, Class A-4, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F and Class X Certificates.
Underwriting Agreement, dated as of March 14, 2007
INITIAL CLASS PRINCIPAL
BALANCE OR CLASS NOTIONAL INITIAL RATING
CLASS DESIGNATION PURCHASE PRICE(1) AMOUNT(2) PASS-THROUGH RATE BY FITCH /S&P(4)
----------------- ----------------- ------------------------- ----------------- ----------------
A-1 100.24945% $155,000,000 5.6220% AAA/AAA
A-2 100.41527% $259,000,000 5.8888% AAA/AAA
A-3 99.43253% $387,000,000 5.8888% AAA/AAA
A-3B 98.34600% $126,300,000 5.8888% AAA/AAA
A-SB 99.24464% $140,000,000 5.8888% AAA/AAA
A-4 98.62986% $1,573,002,000 5.8888% AAA/AAA
A-1A 98.79630% $488,932,000 5.8888% AAA/AAA
A-M 98.23214% $425,605,000 5.8888% AAA/AAA
A-J 97.72546% $248,319,000 5.8888% AAA/AAA
B 96.97881% $23,780,000 5.8888% AA+/AA+
C 96.55363% $71,341,000 5.8888% AA/AA
D 95.99034% $35,670,000 5.8888% AA-/AA-
E 95.50085% $29,725,000 5.8888% A+/A+
F 94.80702% $35,671,000 5.8888% A/A
X 0.04657% $4,756,049,403(3) 0.0225%(5) AAA/AAA
____________________________
(1) Exclusive of interest.
(2) Subject to a variance of plus or minus 5.0%.
(3) Notional Amount.
(4) By each of Fitch, Inc. ("Fitch") and Standard and Poor's Ratings Services,
a division of The McGraw Hill Companies, Inc. ("S&P").
(5) Approximate.
PURCHASE PRICE: The purchase prices set forth in the above schedule for each
Class of Registered Certificates is expressed as a percentage of the initial
Class Principal Balance of such Class, and is to be accompanied by interest on
the initial Class Principal Balance of such Class of Registered Certificates at
the initial Pass-Through Rate for such Class, from July 1, 2007 to but not
including the Closing Date.
CLOSING TIME, DATE AND LOCATION: 10:00 a.m. New York City time on July 31, 2007
at the offices Xxxxxxx Xxxxxxxx & Xxxx LLP, 2 World Financial Center, New York,
New York 10281.
ISSUANCE AND DELIVERY OF REGISTERED CERTIFICATES: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance of $10,000 and integral multiples of $1 in excess thereof.
Sch-I-1
ALLOCATION OF CERTIFICATES AMONG UNDERWRITERS
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
Citigroup Global Markets Inc. A-1 $ 155,000,000
000 Xxxxxxxxx Xxxxxx A-2 $ 295,000,000
New York, New York 10013 A-3 $ 387,000,000
A-3B $ 126,300,000
A-SB $ 140,000,000
A-4 $ 1,573,002,000
A-1A $ 488,932,000
A-M $ 425,605,000
A-J $ 248,319,000
B $ 23,780,000
C $ 71,341,000
D $ 35,670,000
E $ 29,725,000
F $ 35,671,000
X $ 4,756,049,403(1)
Capmark Securities Inc. A-1 $ 0
00 Xxxx Xxxxxx, 17th Floor A-2 $ 0
New York, NY 10005 A-3 $ 0
A-3B $ 0
A-SB $ 0
A-4 $ 0
A-1A $ 0
A-M $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
X $ 0
Xxxxxx Brothers Inc. A-1 $ 0
000 Xxxx Xxxxxx A-2 $ 0
New York, NY 10022 A-3 $ 0
A-3B $ 0
A-SB $ 0
A-4 $ 0
A-1A $ 0
A-M $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
X $ 0
Sch I-2
PNC Capital Markets LLC A-1 $ 0
One PNC Plaza A-2 $ 0
000 Xxxxx Xxxxxx A-3 $ 0
Pittsburgh, Pennsylvania 15222 A-3B $ 0
A-SB $ 0
A-4 $ 0
A-1A $ 0
A-M $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
X $ 0
Banc of America Securities LLC A-1 $ 0
214 X. Xxxxx A-2 $ 0
Charlotte, NC 28255 A-3 $ 0
A-3B $ 0
A-SB $ 0
A-4 $ 0
A-1A $ 0
A-M $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
X $ 0
____________________________
(1) Notional Amount.
Sch I-3
SCHEDULE II
The Underwriter Information in each of the Offering Prospectus and
the Prospectus Supplement consists of: (a) the first, fourth and fifth sentences
of the penultimate paragraph, and the entire last paragraph, above the
names/logos of the Underwriters on the cover page; and (b) the second sentence
of the first paragraph, the entire second paragraph, the first sentence of the
third paragraph, the first sentence of the fifth paragraph, the entire sixth
paragraph and the entire seventh paragraph under the heading "Method of
Distribution".
EXHIBIT A
FREE WRITING PROSPECTUSES
Free Writing Prospectus
Filed Pursuant to Rule 433
Registration No. 000-000000-00
t: 7/24 17:01:37
CGCMT, Commercial Mortgage Pass-Through
Certificates, Series 2007-C6 $4.76B
Book Runner: Citigroup Global Markets Inc.
Lead Manager: Citigroup Global Markets Inc.
Co-Managers: Capmark Securities Inc. / PNC Capital Markets LLC /
Banc of America Securities, LLC / Xxxxxx Brothers
Rating Agencies: Fitch / S&P / Xxxxx'x (30% AAA's)
Loan Sellers: LaSalle Bank National Association (40.1%)
Citigroup Global Markets Realty Corp. (39.5%)
Capmark Finance Inc. (12.5%)
PNC Bank, National Association ( 7.9%)
Ratings Class WAL Principal Sub
Class Fitch/S&P/MDY Size (yrs) Window Levels Launch
Status
A1 AAA/AAA/Aaa 155.000 3.68 08/07-04/12 30.000% S+21a
..40x
A2 AAA/AAA/Aaa 259.000 4.90 04/12-08/12 30.000% 31a
Subject
A3 AAA/AAA/Aaa 387.000 6.51 09/13-06/14 30.000% 44a
..10X
A3B AAA/AAA/Aaa 126.300 9.33 04/16-02/17 30.000% 47a
..20X
ASB AAA/AAA/Aaa 140.000 7.19 08/12-02/17 30.000% 44a
Subject
A4 AAA/AAA/Aaa [1,773.002] 9.73 02/17-06/17 30.000% 41a
..95X
A1A AAA/AAA/Aaa * NO LONGER AVAILABLE *
AM AAA/AAA [475.605] 9.86 06/17-06/17 20.000% 46a
..60X
AJ AAA/AAA [398.319] 9.87 06/17/07/17 11.625% 53a
..70X
B AA+/AA+ 23.780 9.94 07/17-07/17 11.125% 62a
Subject
C AA/AA 71.341 9.94 07/17-07/17 9.625% 68a
..10X
D AA-/AA- 35.670 9.94 07/17-07/17 8.875% 76a
..85X
E A+/A+ 29.725 9.94 07/17-07/17 8.250% 83a
OPEN
F A/A 35.671 9.94 07/17-07/17 7.500% 93a
OPEN
X AAA/AAA 4,756.049 NAP NAP NAP
*[_] A2/A4/AM/AJ as floaters subject to demand.
Expected Settle: July 31, 2007
Collateral: 319 Loans / 502 Properties
DSCR/LTV: 1.41x / 71.98%
Inv. Grade Loans: 3 loans for 3.9% UPB
Property Type: Retail 39.1%, Office 26.6%, Hotel 10.6%, Industrial 9.7%,
Multifamily 9.4%, Mixed Use 2.3%, MHC 1.3%, Self Storage
0.6%, Other 3.6%, Land 0.1%
Geographic: CA 19.5%, VA 8.8%, FL 8.2%, PA 6.5%, IL 5.4$%
Top 10 Loans: 29.0% of the pool, DSCR 1.49x, LTV: 69.98%
Top 3 Trust Assets Balance DSCR LTV %UPB
DDR Southeast Pool $442,500,000 1.49x 63.39% 9.3%
CGM Americold Portfolio $145,000,000 1.83x 77.92% 3.0%
Greensboro Corporate Center $130,000,000 1.10x 67.71% 2.7%
The information in this material (and in the attached file identified as
"Changes.xls") clarifies, updates or modifies certain of the information
previously conveyed with respect to the classes of the certificates that will be
issued in the Citigroup Commercial Mortgage Trust 2007-C6 transaction and with
respect to the underlying pool of mortgage loans.
The depositor has filed a registration statement (including a prospectus) with
the SEC (SEC File No. 333-141648) 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 and this offering. You may get these
documents for free by visiting XXXXX on the SEC Website 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 0-000-000-0000 or by emailing Citigroup XXX-Xxxxxxxxxx@Xxxxxxxxx.xxx.
Any legends, disclaimers or notices that appear below are not applicable to this
message and should be disregarded. Such text has been automatically generated
via Bloomberg or another system.
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subject to terms and conditions contained in our offical confirmation. We may
make markets, buy/sell as principal or have a position in financial products
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an offer to sell or a solicitation of any offer to buy any financial product.
Changes to assumptions may have material impact or returns. For info, please
contact your rep.
The depositor has filed a registration statement (including a prospectus) with
the SEC (SEC File No. 333-141648) 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 and this offering. You may get these
documents for free by visiting XXXXX on the SEC Website 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 0-000-000-0000 or by emailing Citigroup XXX-Xxxxxxxxxx@Xxxxxxxxx.xxx.
Any legends, disclaimers or notices that appear below are not applicable to this
message and should be disregarded. Such text has been automatically generated
via Bloomberg or another system.
CHANGES SINCE RED
One mortgage loan, secured by a mortgaged real property identified on Annex A-1
as Stor/Gard Northboro, with a cut-off date balance of $4,500,000, has been
removed from the mortgage pool.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as 0000 Xxxxxx Xxxx Xxxx, the related administrative fee
rates have been changed to 0.01048%.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as Xxxxxx Valley Mall, the related payment due date has
been changed to the 6th of each month.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as The Shops at Vista Commons, the related U/W Revenues
has been changed to 610,928, the related U/W Expenses has been changed to
129,231, the related U/W NOI has been changed to 481,697, the related U/W Annual
TI/LC Reserves has been changed to 17,556, the related U/W NCF has been changed
to 460,804, the related U/W NCF DSCR has been changed to 1.23x, and the related
Escrowed TI/LC Reserves Current Annual Deposit has been changed to 15,000.
With respect to two mortgage loans, secured by mortgaged real properties
identified on the Annex A-1 as South Jordan Market Place and South Xxxxxx Xxxx
Center, the maturity date for the mezzanine loan is the earlier of the mezzanine
borrower's transfer of its sole membership interest in both borrowers to the
mezzanine lender and November 25, 2007. The interest rate for such mezzanine
loan is currently 0.0%.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as The Wesleyan Building, the related Related (Mortgage
Loan Group) has been changed to No and the related Related Mortgage Loan Group
Aggregate Cut-Off Date Principal Balance has been changed to 8,500,000
With respect to six mortgage loans, secured by mortgaged real properties
identified on Annex A-1 as Camden Village Shopping Center, 0000 Xxxx Xxxx Xxxx,
XXXX Realtors Building, Commerce Center One, South Jordan Market Place and
Walnut Creek Office Park, the related Escrowed TI/LC Reserves Current Annual
Deposit has been changed to 0.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as University Shopping Center, the related Insurance
Currently Escrowed has been changed to Yes.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as Cedar Village Mobile Home Park, the related Escrowed
Replacement Reserves Current Annual Deposit has been changed to 7,350.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as The Wesleyan Building, the related Related (Mortgage
Loan Group) has been changed to No and the related Related Mortgage Loan Group
Aggregate Cut-Off Date Principal Balance has been changed to 8,500,000.
In the case of one mortgage loan, secured by 52 mortgaged real properties
identified on Annex A-1 as DDR Southeast Pool, the related Appraised Value has
been changed to 1,395,900,000 and the related Cut-off Date LTV Ratio and the
related Maturity Date/ARD LTV Ratio have been changed to 63.40%.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as 1st Financial Bank Building, the related Escrowed
TI/LC Reserves Current Annual Deposit has changed to 10,000.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as One Journal Square Plaza, the related Note Date has
changed to 06/27/07, the related Grace Period has changed to 5 and the related
Prepayment Provisions has changed to LO(24)/Defeasance(93)/Free(3).
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as Xxxxx Xxxxxxx Building, the related Occupancy as of
Date has changed to 03/26/07, the related Second Largest Major Tenant has
changed to Sun Palace Salon, the related Second Largest Major Tenant Lease
Maturity Date has changed to 10/31/09, the related Second Largest Major Tenant
NRSF has changed to 2,441, the related Second Largest Major Tenant NRSF% has
changed to 16%, the related Third Largest Major Tenant has changed to Kansas
City Title, the related Third Largest Major Tenant Lease Maturity Date has
changed to 09/30/10, the related Third Largest Major Tenant NRSF has changed to
1,699, and the related Third Largest Major Tenant NRSF% has changed to 11%.
With respect to five mortgage loans, secured by mortgaged real properties
identified on Annex A-1 as DDR Southeast Pool, Waterfront Apartments, Las Vegas
Tech Center, The Crossroads, and Rite Aid - Totem Lake, the related Yield
Maintenance Calculation Method has been changed to Interest Differential
(Monthly LS).
With respect to two mortgage loans, secured by mortgaged real properties
identified on the Annex A-1 as IAC - CA & WA Industrial Portfolio and IAC -
Oregon Industrial Portfolio, the related Master Servicer will be Midland Loan
Services.
With respect to the right of the Greensboro Corporate Center Subordinate
Non-Trust Loan Noteholder (or its designee) to cure an event of default on the
Greensboro Corporate Center Loan Combination, (1) a cure event may not exceed
three consecutive months and (2) no more than six cure events are permitted
during the term of the Greensboro Corporate Center Loan Combination.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as Waterfront Apartments, the related Yield Maintenance
Discounting Horizon has changed to Maturity.
With respect to two mortgage loans, secured by mortgaged real properties
identified on the Annex A-1 as DDR Southeast Pool and Waterfront Apartments, the
related Yield Maintenance Interest Rate Converted to Monthly Mortgage Rate has
changed to No.
In the case of one mortgage loan, secured by a mortgaged real property
identified on Annex A-1 as Xxxxxx Center, the related Yield Maintenance Interest
Rate Converted to Monthly Mortgage Rate has changed to Yes.
With respect to three mortgage loans, secured by mortgaged real properties
identified on the Annex A-1 CEAH Realtors Building, Xxxxx Xxxxxxx Building and
First Horizon, the related Related Mortgage Loan Group Aggregate Cut-Off Date
Principal Balance has changed to 11,684,000.
With respect to two mortgage loans, secured by mortgaged real properties
identified on the Annex A-1 as Eastland Medical Building and 1st Financial Bank
Building, the related Related (Mortgage Loan Group) has changed to Yes (R35) and
the related Related Mortgage Loan Group Aggregate Cut-Off Date Principal Balance
has changd to 11,684,000.
With respect to the mortgage loan, secured by the mortgaged property identified
on Annex A-1 as Courtyard by Marriott-Pasadena, the Courtyard Pasadena Property
is not the newest hotel in the market, it is the newest property of the three
most competitive properties (based on year built) identified in the appraisal by
PKF Consulting dated January 24, 2007.
