EXHIBIT 1.1
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 2006-GG7
UNDERWRITING AGREEMENT
June 27, 2006
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GREENWICH CAPITAL MARKETS, INC.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BEAR, XXXXXXX & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
WACHOVIA CAPITAL MARKETS, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. Greenwich Capital Commercial Funding Corp., a
Delaware corporation (the "Depositor"), proposes to form one or more real estate
mortgage investment conduits (the "Trust"), which will issue securities entitled
Commercial Mortgage Trust 2006-GG7, Commercial Mortgage Pass-Through
Certificates, Series 2006-GG7 (the "Certificates"). Each Certificate will
evidence a fractional undivided, percentage interest or beneficial interest in
the Trust. The terms on which the Trust will issue the Certificates will be
specified in the Prospectus (as defined herein). The property of the Trust will
consist of a pool of fixed rate mortgage loans, secured by multifamily and
commercial properties (collectively, the "Mortgage Loans") that will be
purchased by the Depositor from Greenwich Capital Financial Products, Inc. and
Xxxxxxx Sachs Mortgage Company (each, a "Mortgage Loan Seller and collectively,
"the Mortgage Loan Sellers"), pursuant to separate certain Mortgage Loan
Purchase Agreements, each dated as of July 1, 2006 (each, a "Mortgage Loan
Purchase Agreement" and collectively, the "Mortgage Loan Purchase Agreements"),
and will be serviced by Midland Loan Services, Inc., as master servicer (the
"Master Servicer") and LNR Partners, Inc., as special servicer (the "Special
Servicer"), pursuant to that certain Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of July 1, 2006, by and among the
Depositor, the Master Servicer, the Special Servicer, and LaSalle Bank National
Association, as trustee (the "Trustee"), and certain related property to be
conveyed to the Trust by the Depositor (the "Trust Fund"). The Mortgage Loans
will be transferred to the Trust, and the Certificates will be issued pursuant
to the Pooling and Servicing Agreement. The Class X-0, X-0, X-0, X-XX, X-0,
A-1-A, A-M, A-J, B, C, D, E and F Certificates that are subject to this
Agreement and offered by means of the Registration Statement are referred to
herein as the "Publicly Offered Certificates." Capitalized terms used herein but
not defined herein have the respective meanings given to them in the Pooling and
Servicing Agreement.
At or prior to the time when sales to purchasers of the Publicly
Offered Certificates were first made, which was approximately 3:00 p.m. (Eastern
Standard Time) on June 27, 2006 (the "Time of Sale"), the Depositor had prepared
the following information (collectively, the "Time of Sale Information"): (i)
the Depositor's Free Writing Prospectus dated June 16, 2006 (the cover page of
which is attached hereto as Annex A) to accompany the Depositor's Prospectus
dated April 28, 2006, relating to the Certificates, as amended and modified by
the free writing prospectus dated June 23, 2006 (the cover page of which is
attached hereto as Annex B), (ii) the term sheet dated June 16, 2006, as amended
and modified by the term sheet dated June 23, 2006 and (iii) each other
"free-writing prospectus" (as defined pursuant to Rule 405 under the Securities
Act) (a "Free Writing Prospectus") the first page of each of which is attached
as Annex C hereto. If, subsequent to the date of this Agreement, the Depositor
and the Underwriters (x) determine that such information included an untrue
statement of material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (y) terminate their old purchase
contracts and enter into new purchase contracts with investors in the Publicly
Offered Certificates, then "Time of Sale Information" will refer to the
information conveyed to purchasers at the time of entry into such new purchase
contract, including any information that corrects such material misstatements or
omissions ("Corrective Information") and "Time of Sale" will refer to the time
and date on which such new purchase contracts were entered into.
The offering of the Publicly Offered Certificates made pursuant to
the Registration Statement will be made through you as underwriters. This
Underwriting Agreement (this "Agreement") provides for the sale of such Publicly
Offered Certificates to, and the purchase and offering thereof by, you, as
underwriters (collectively, the "Underwriters" and each, an "Underwriter").
Schedule I shall specify the principal or notional balance of each Class of the
Publicly Offered Certificates to be issued and any terms thereof not otherwise
specified in the Pooling and Servicing Agreement, the Classes of Publicly
Offered Certificates, the price at which such Certificates are to be purchased
by the Underwriters from the Depositor, the aggregate amount of Publicly Offered
Certificates to be purchased by you and the initial public offering price or the
method by which the price at which such Publicly Offered Certificates are to be
sold will be determined. The offering of the Publicly Offered Certificates will
be governed by this Agreement.
2. Representations and Warranties of the Depositor.
The Depositor represents and warrants to you as of the date hereof
as follows:
(a) a registration statement on Form S-3, including a prospectus and
such amendments thereto as may have been required to the date hereof, relating
to the Publicly Offered Certificates and the offering thereof from time to time
in accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Securities Act"), in the form heretofore delivered to you, has been filed with
the Securities and Exchange Commission (the "Commission") and has become
effective; such registration statement, including the exhibits thereto and any
information that is contained in the Prospectus (as defined herein) and is
deemed to be a part of and included in such registration statement, as such
registration statement may have been amended or supplemented at the date of the
Prospectus, is hereinafter referred to as the "Registration Statement"; the
prospectus first required to be filed to satisfy the condition set forth in Rule
172(c) and pursuant to Rule 424(b) under the Securities Act is hereinafter
referred to as the "Base Prospectus"; the supplement to the Base Prospectus
relating to the Publicly Offered Certificates in the form first required to be
filed to satisfy the condition set forth in Rule 172(c) and pursuant to Rule
424(b) under the Securities Act is hereinafter referred to as the "Prospectus
Supplement"; and the Base Prospectus and the Prospectus Supplement, including
the diskette delivered therewith, together, are hereinafter referred to as the
"Prospectus"); the conditions to the use of a registration statement on Form S-3
under the Securities Act, as set forth in the General Instructions to Form S-3,
and the conditions of Rule 415 under the Securities Act have been satisfied with
respect to the Registration Statement; and no other amendment to the
Registration Statement will be filed which shall have been reasonably
disapproved by you promptly after reasonable notice thereof.
(b) there is no request by the Commission for any further amendment
of the Registration Statement or the Prospectus or for any additional
information; the Commission has not issued any stop order suspending the
effectiveness of the Registration Statement and the Depositor is not aware of
any proceeding for that purpose having been instituted or threatened; and there
has been no notification with respect to the suspension of the qualification for
sale of the Publicly Offered Certificates for sale in any jurisdiction or any
proceeding for such purpose having been instituted or threatened.
(c) the Registration Statement on its effective date or deemed
effective date pursuant to Rule 430B under the Securities Act conformed in all
respects to the requirements of the Securities Act and the rules and regulations
of the Commission (the "Rules and Regulations") thereunder and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; the Prospectus, on the date of the Prospectus Supplement will
conform in all respects to the requirements of the Securities Act and the Rules
and Regulations thereunder and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
foregoing does not apply to statements in or omissions from either the
Registration Statement or the Prospectus to the extent based upon and in
conformity with (A) the Underwriters' Information (as defined in Section 7(a)),
(B) the information as to which the Mortgage Loan Sellers indemnify the
Underwriters under their respective Indemnification Agreements, each dated as of
the date hereof (collectively, the "Mortgage Loan Seller Indemnification
Agreements"), by and among the Depositor, each Mortgage Loan Seller,
respectively, and each Underwriter) (the "Mortgage Loan Seller Information"),
(C) any information contained in or omitted from the portions of the Prospectus
for which the Master Servicer is obligated to indemnify the Underwriters
pursuant to the Indemnification Agreement, dated as of June 27, 2006 (the
"Master Servicer Indemnification Agreement"), between the Master Servicer and
the Depositor (the "Master Servicer Information"), (D) any information contained
in or omitted from the portions of the Prospectus for which the Special Servicer
is obligated to indemnify the Underwriters pursuant to the Indemnification
Agreement, dated as of June 27, 2006 (the "Special Servicer Indemnification
Agreement"), between the Special Servicer and the Depositor (the "Special
Servicer Information") or (E) any information contained in or omitted from the
portions of the Prospectus for which the Trustee is obligated to indemnify the
Underwriters pursuant to the Indemnification Agreement, dated as of June 27,
2006 (the "Trustee Indemnification Agreement" and collectively, the
"Indemnification Agreements"), between the Trustee and the Depositor (the
"Trustee Information"). The documents incorporated by reference in the
Registration Statement and the Prospectus, when they were filed with the
Commission conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations thereunder; and any further documents
so filed and incorporated by reference in the Registration Statement and the
Prospectus, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the rules and
regulations thereunder; provided, however, that the Company makes no
representations, warranties or agreements as to the information contained in the
Prospectus or any revision or amendment thereof or supplement thereto in
reliance upon and in conformity with the Underwriters' Information, the Mortgage
Loan Seller Information, the Master Servicer Information, the Special Servicer
Information and the Trustee Information.
(d) The Time of Sale Information, at the Time of Sale, did not, and
at the Specified Delivery Date (as defined in Section 3) will not, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Depositor makes no
representation and warranty with respect to (A) any statements or omissions made
in reliance upon and in conformity with the Underwriters' Information (as
defined in Section 7(a)) or (B) any Mortgage Loan Seller Information, the Master
Servicer Information, the Special Servicer Information and the Trustee
Information contained in or omitted from such Time of Sale Information.
(e) The Depositor (including its agents and representatives other
than the Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not make, use, prepare, authorize,
approve or refer to any "written communication" (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or solicitation of an
offer to buy the Certificates other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act, (ii) the Time of Sale Information, (iii) each other
written communication of the Depositor or its agents and representatives
approved by the Underwriters either in writing in advance or in any other manner
mutually agreed by the Underwriters and the Depositor (each such communication
referred to in clause (ii) and this clause (iii) constituting an "issuer free
writing prospectus", as defined in Rule 433(h) under the Securities Act, being
referred to herein as an "Issuer Free Writing Prospectus") and (iv) the
Prospectus. Each such Issuer Free Writing Prospectus complied or, if used after
the date hereof, will comply, in all material respects with the Securities Act
and the rules and regulations promulgated thereunder, has been filed or will be
filed in accordance with Section 8 (to the extent required thereby) and did not
at the Time of Sale, and at the Specified Delivery Date will not, contain any
untrue statements of a material fact or (when read in conjunction with all Time
of Sale Information) omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Depositor makes no representation and
warranty with respect to (i) any statements or omissions made in reliance upon
and in conformity with the Underwriters' Information or (ii) any Mortgage Loan
Seller Information, Master Servicer Information, Special Servicer Information or
Trustee Information contained in or omitted from any Issuer Free Writing
Prospectus.
(f) the Depositor has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its business as
described in the Prospectus, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Depositor or its execution and performance of the terms of this Agreement, and
is conducting its business so as to comply in all material respects with the
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting business;
(g) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the Specified
Delivery Date (as defined herein), to the description thereof contained in the
Registration Statement and the Prospectus; and the Certificates have been duly
and validly authorized (or will have been so authorized prior to the issuance
thereof), and, when such Certificates are duly and validly executed by the
Depositor or Trustee, authenticated by the Trustee and delivered in accordance
with the Pooling and Servicing Agreement and delivered and paid for as provided
herein, will be validly issued and outstanding and entitled to the benefits
afforded by the Pooling and Servicing Agreement;
(h) the Depositor is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material and
adverse to the Depositor or which violation or default would have a material
adverse effect on the performance by the Depositor of its obligations under this
Agreement, the Pooling and Servicing Agreement, the Certificates or the Mortgage
Loan Purchase Agreements; other than as set forth or contemplated in the
Prospectus or in the Time of Sale Information, there are no actions or
proceedings against, or investigations of, the Depositor pending, or, to the
knowledge of the Depositor, threatened, before any court, administrative agency
or other tribunal required to be described in the Prospectus or Time of Sale
Information or (i) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement, any Mortgage Loan Purchase Agreement or the Certificates,
(ii) seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement, (iii) which might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability against the Depositor of,
this Agreement, the Pooling and Servicing Agreement, any Mortgage Loan Purchase
Agreement or the Certificates or (iv) seeking to affect adversely the federal
income tax attributes of the Certificates described in the Prospectus or the
Time of Sale Information;
(i) there has not been, and as of the Specified Delivery Date there
will not be, any material adverse change in the business operations, financial
condition, properties or assets of the Depositor since the date as of which
information is given in the Prospectus that would have a material adverse effect
on the ability of the Depositor to perform its obligations under this Agreement,
the Pooling and Servicing Agreement or any Mortgage Loan Purchase Agreement;
(j) there are no contracts, indentures or other documents of a
character required by the Securities Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that have
not been so described or referred to therein or so filed or incorporated by
reference as exhibits thereto;
(k) the Depositor possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Depositor has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Depositor;
(l) the issue and sale of the Certificates and the compliance by the
Depositor with all of the provisions of the Certificates, each Mortgage Loan
Purchase Agreement, this Agreement and the Pooling and Servicing Agreement, and
the execution and delivery by the Depositor of this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements are within the
corporate power of the Depositor and have been (in the case of this Agreement),
or will have been, duly authorized by all necessary corporate action on the part
of the Depositor; and neither the execution and delivery by the Depositor of
such instruments, nor the consummation by the Depositor of the transactions
herein or therein contemplated, nor the compliance by the Depositor with the
provisions hereof or thereof, will (A) conflict with or result in a breach of,
or constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Depositor, (B) conflict with any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on the Depositor or its properties, (C) conflict with any of the
provisions of any indenture, mortgage, contract or other instrument to which the
Depositor is a party or by which it is bound or (D) except as contemplated by
the Pooling and Servicing Agreement, result in the creation or imposition of any
lien, charge or encumbrance upon any of its property or assets pursuant to the
terms of any such indenture, mortgage, contract or other instrument;
(m) this Agreement has been duly authorized, executed and delivered
by the Depositor;
(n) on the Specified Delivery Date, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements will have been duly
authorized, executed and delivered by the Depositor and will be valid and
binding agreements of the Depositor, enforceable against the Depositor in
accordance with their respective terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity);
(o) all approvals, authorizations, consents, orders or other actions
of any person, corporation or other organization, or of any court, governmental
agency or body or official (except with respect to the state securities or "blue
sky" laws of various jurisdictions) required in connection with the valid and
proper authorization, issuance and sale of the Publicly Offered Certificates
pursuant to this Agreement and the Pooling and Servicing Agreement have been or
will be taken or obtained on or prior to the Specified Delivery Date;
(p) at the Specified Delivery Date, each of the Mortgage Loans will
meet the criteria for selection described in the Prospectus Supplement;
(q) neither the Depositor nor the Trust Fund is, and neither the
sale of the Certificates in the manner contemplated by the Prospectus or an
offering memorandum, as applicable, nor the activities of the Trust Fund
pursuant to the Pooling and Servicing Agreement will cause the Depositor or the
Trust Fund to be an "investment company" or under the control of an "investment
company" as such terms are defined under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and the Pooling and Servicing Agreement
is not required to be qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act");
(r) at the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) except as disclosed in the Prospectus,
will convey to the Trustee, or cause to be conveyed to the Trustee, all of the
Depositor's right, title and interest in and to the Mortgage Loans being
transferred to the Trustee pursuant to the Pooling and Servicing Agreement, free
and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively "Liens") granted by or imposed upon the
Depositor, (B) will not have assigned to any person any of its right, title or
interest in the Mortgage Loans or in the Pooling and Servicing Agreement other
than to the Trust and the holders of the Certificates and (C) will have the
power and authority to transfer or cause to be transferred the Mortgage Loans to
the Trustee and to sell the Publicly Offered Certificates to the Underwriters.
Upon execution and delivery of the Pooling and Servicing Agreement by the
Trustee, the Trustee will have acquired ownership of all of the Depositor's
right, title and interest in and to the Mortgage Loans except to the extent
disclosed in the Prospectus, and upon delivery to the Underwriters of the
Publicly Offered Certificates pursuant hereto, each Underwriter will have good
title to the Publicly Offered Certificates purchased by such Underwriter, in
each case free of Liens granted by or imposed upon the Depositor;
(s) under generally accepted accounting principles and for federal
income tax purposes, the Depositor will report the transfer of the Mortgage
Loans to the Trustee in exchange for the Certificates and the sale of the
Publicly Offered Certificates to the Underwriters pursuant to this Agreement as
a sale of the interest in the Mortgage Loans evidenced by the Publicly Offered
Certificates. The consideration received by the Depositor upon the sale of the
Publicly Offered Certificates to the Underwriters will constitute reasonably
equivalent value and fair consideration for the Publicly Offered Certificates.
The Depositor will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Publicly Offered Certificates to the
Underwriters. The Depositor is not selling the Mortgage Loans to the Trust or
the Publicly Offered Certificates to the Underwriters with any intent to hinder,
delay or defraud any of the creditors of the Depositor;
(t) any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements and the Certificates
payable by the Depositor (other than income taxes) have been paid or will be
paid at or prior to the Specified Delivery Date;
(u) the statements set forth in the Prospectus under the caption
"Description of the Offered Certificates," insofar as they purport to constitute
a summary of the terms of the Certificates and insofar as they purport to
describe the provisions of the documents referred to therein, are correct in all
material respects;
(v) following the election of the Trustee to treat certain assets of
the Trust Fund as one or more REMICs pursuant to Section 860D of the Internal
Revenue Code of 1986 (the "Code"), such assets will qualify as one or more
REMICs and each Certificate will qualify as a regular interest in one of such
REMICs; and
(w) the Depositor is not, and on the date on which the first bona
fide offer of the Certificates is made (within the meaning of Rule 164(h)(2)
under the Securities Act) will not be, an "ineligible issuer," as defined in
Rule 405 under the Securities Act.
3. Purchase, Sale and Delivery of Certificates. Delivery of and
payment for the Publicly Offered Certificates will be made at such place and at
such time as shall be specified in Schedule I or at such other time thereafter
as you and the Depositor shall agree upon, each such time being hereinafter
referred to as a "Specified Delivery Date." Delivery of such Certificates shall
be made by the Depositor causing The Depository Trust Company ("DTC") to credit
the respective accounts of the Underwriters at DTC against payment of the
purchase price specified in Schedule I in same day funds wired to such bank as
may be designated by the Depositor, or by such other manner of payment as may be
agreed upon by the Depositor and you. The Certificates to be purchased by the
Underwriters will be represented by one or more definitive global Certificates
in book-entry form, which will be deposited by or on behalf of the Depositor
with DTC or its designated custodian in such denominations as you request, and
will be made available for checking and packaging at the office of Greenwich
Capital Markets, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (or at
some other location specified by the Underwriters at least 48 hours prior to
delivery), at least 24 hours prior to the Specified Delivery Date.
4. Offering by Underwriters. (a) It is understood that the
Underwriters propose to offer the Publicly Offered Certificates for sale to the
public as set forth in the Prospectus.
(b) Each Underwriter represents and warrants to, and agrees with the
Depositor, that:
(i) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), 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 Publicly Offered Certificates to the public in that Relevant
Member State prior to the publication of a prospectus in relation to the
Publicly Offered Certificates which has been approved by the competent
authority in that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent authority in
that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Publicly Offered Certificates to the
public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than (euro)43,000,000 and (3) an
annual net turnover of more than (euro)50,000,000, as shown in its
last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the Trust of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Publicly Offered
Certificates to the public" in relation to any Publicly Offered Certificates in
any Relevant Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Publicly Offered
Certificates to be offered so as to enable an investor to decide to purchase or
subscribe the Publicly Offered Certificates, as the same may be varied in that
Relevant Member State by any measure implementing the Prospectus Directive in
that Relevant Member State and the expression "Prospectus Directive" means the
European Commission Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
(ii) Each Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the United Kingdom Financial Services and Markets
Act 2000 (the "FSMA")) received by it in connection with the issue or sale
of the Publicly Offered Certificates in circumstances in which Section
21(1) of the FSMA does not apply to the Trust.
(iii) Each Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Publicly Offered Certificates in, from or otherwise
involving the United Kingdom.
(iv) Each Underwriter will not offer or sell any Publicly Offered
Certificates, directly or indirectly, in Japan or to, or for the benefit
of, any resident of Japan (which term as used herein means any person
resident in Japan, including any corporation or other entity organized
under the laws of Japan), or to others for reoffering or resale, directly
or indirectly, in Japan or to a resident of Japan, except pursuant to an
exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law of Japan and any other
applicable laws, regulations and ministerial guidelines of Japan.
5. Covenants of the Depositor. The Depositor covenants and agrees
with you that:
(a) the Depositor has prepared and/or shall prepare a Prospectus
Supplement setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Base Prospectus, the price at which
such Publicly Offered Certificates are to be purchased by the Underwriters from
the Depositor, either the initial public offering price or the method by which
the price at which such Publicly Offered Certificates are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as you and the Depositor deem appropriate in connection with the
offering of such Publicly Offered Certificates, but the Depositor shall not file
any amendments to the Registration Statement as in effect with respect to the
Publicly Offered Certificates, or any amendments or supplements to the
Prospectus or prepare, use, authorize, approve, refer to or file any Issuer Free
Writing Prospectus, unless it has first delivered copies of such amendments or
supplements or Issuer Free Writing Prospectus to you and given you a reasonable
opportunity to review the same or if you have reasonably objected thereto
promptly after receipt thereof; the Depositor shall immediately advise you or
your counsel (i) when notice is received from the Commission that any
post-effective amendment to the Registration Statement has been filed or has
become or will become effective or any supplement to the Prospectus or any
amended Prospectus, in each case relating to the Publicly Offered Certificates
specified in Schedule I has been filed and will furnish you with copies thereof,
(ii) of any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information relating to the
Publicly Offered Certificates and (iii) of any order or communication suspending
or preventing, or threatening to suspend or prevent, the offer and sale of the
Publicly Offered Certificates or of any proceedings or examinations that may
lead to such an order or communication, whether by or of the Commission or any
authority administering any state securities or "blue sky" law, as soon as the
Depositor is advised thereof, and shall use its best efforts to prevent the
issuance of any such order or communication and to obtain as soon as possible
its lifting, if issued;
(b) if, at any time when a prospectus is required to be delivered
under the Securities Act, any event occurs as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Securities Act or the Rules and Regulations, the
Depositor shall prepare and file with the Commission, an amendment or supplement
that will correct such statement or omission or an amendment that will effect
such compliance;
(c) the Depositor shall make generally available to the holders of
the Publicly Offered Certificates (the "Holders of the Publicly Offered
Certificates"), in each case as soon as practicable, but in any event no later
than eighteen months after the Specified Delivery Date, earning statements
covering (i) a period of 12 months beginning not later than the first day of the
related Trust's fiscal quarter next following the effective date of the
Registration Statement and (ii) a period of 12 months beginning no later than
the first day of the Trust's fiscal quarter next following the date hereof which
will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
of the Commission with respect to the Publicly Offered Certificates. The
Depositor shall cause the Trustee to furnish or make available, within a
reasonable time after the end of each calendar year, to each Holder of the
Publicly Offered Certificate at any time during such year, such information as
the Depositor deems necessary or desirable to assist the Holders of the Publicly
Offered Certificates in preparing their federal income tax returns;
(d) the Depositor shall furnish to you copies of the Registration
Statement, the Prospectus and each Free Writing Prospectus, and all amendments
and supplements to such documents relating to the Publicly Offered Certificates,
in each case as soon as available and in such quantities as you reasonably
request as long as the Depositor is required to deliver a prospectus under the
Securities Act in connection with the sale of the Publicly Offered Certificates;
provided that any such documents requested by you on a date that is more than
nine (9) months after the Specified Delivery Date shall be provided at your
expense;
(e) the Depositor shall arrange for the qualification of the
Publicly Offered Certificates for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as you designate
and shall continue such qualifications in effect so long as required for the
distribution; provided, however, that neither the Depositor nor the Trust shall
be required to qualify to do business in any jurisdiction where it is now not
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is now not subject to service
of process;
(f) the Depositor shall furnish to you, or cause to be furnished to
you, such information with respect to the Trust or its financial condition or
results of operations, as you may reasonably request, including but not limited
to, any reports or other communications (financial or other) furnished to the
Holders of the Publicly Offered Certificates and any information necessary or
appropriate to the maintenance of a secondary market in the Publicly Offered
Certificates;
(g) as between itself and the Underwriters, the Depositor will pay
all expenses incidental to the performance of its obligations under this
Agreement, including without limitation (i) expenses of preparing, printing and
reproducing the Time of Sale Information, any Issuer Free Writing Prospectus,
the Prospectus (including any amendments thereof and supplements thereto), the
Pooling and Servicing Agreement and the Publicly Offered Certificates, (ii) the
fees charged by Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") and Xxxxx'x Investors Service, Inc
("Moody's", and together with S&P, the "Rating Agencies") for rating of the
Publicly Offered Certificates, (iii) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Pooling and Servicing Agreement and the Publicly
Offered Certificates, (iv) the cost of printing or producing any "blue sky"
memorandum in connection with the offer and sale of the Publicly Offered
Certificates under state securities laws and all expenses in connection with the
qualification of the Publicly Offered Certificates for offer and sale under
state securities laws, (v) any cost incurred in connection with the designation
of the Publicly Offered Certificates for trading in PORTAL and (vi) all other
costs and expenses incidental to the performance by the Depositor of its
obligations hereunder that are not otherwise specifically provided for in this
subsection. It is understood that, except as provided in this subsection (g) and
in Sections 7, 10 and 11 below, each Underwriter will pay all of its own
expenses including all out-of-pocket and/or internally allocated costs and
expenses incurred by them in connection with the transaction herein
contemplated, including, without limitation, fees and expenses of their counsel,
any transfer taxes on the Publicly Offered Certificates and the expenses of any
advertising of the offering of the Publicly Offered Certificates made by the
Underwriters;
(h) during the period when a prospectus is required by law to be
delivered in connection with the sale of the Publicly Offered Certificates
pursuant to this Agreement, the Depositor shall file, or cause the Trustee to
file on behalf of the Trust, on a timely and complete basis, all documents that
are required to be filed by the Trust with the Commission pursuant to Sections
13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(i) the Depositor is not and shall not become an open-end investment
company, unit investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under Section 8 of
the Investment Company Act; and
(j) the Depositor acknowledges and agrees that (i) the purchase and
sale of the Publicly Offered Certificates pursuant to this Agreement is an
arm's-length commercial transaction between the Depositor, on the one hand, and
the several Underwriters, on the other, (ii) in connection therewith and with
the process leading to such transaction each Underwriter is acting solely as a
principal and not the agent or fiduciary of the Depositor, (iii) no Underwriter
has assumed an advisory or fiduciary responsibility in favor of the Depositor
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Depositor on other matters) or any other obligation to the Depositor except
the obligations expressly set forth in this Agreement and (iv) the Depositor has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Depositor agrees that it will not claim that the Underwriters,
or any of them, has rendered advisory services of any nature or respect, or owes
a fiduciary or similar duty to the Depositor, in connection with such
transaction or the process leading thereto.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase and pay for the Publicly Offered
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Depositor as of the date hereof and the Specified
Delivery Date, to the accuracy of the statements of the Depositor made pursuant
to the provisions hereof, to the performance by the Depositor in all material
respects of its obligations hereunder and to the following additional conditions
precedent:
(a) you shall have received a letter from PricewaterhouseCoopers
LLP, dated the date hereof and, if requested by you, dated the Specified
Delivery Date, each in the forms heretofore agreed to;
(b) all actions required to be taken and all filings required to be
made by the Depositor under the Securities Act prior to the Specified Delivery
Date shall have been duly taken or made; and prior to the Specified Delivery
Date, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted, or to the knowledge of the Depositor or any Underwriter, shall be
contemplated by the Commission;
(c) the Publicly Offered Certificates shall be rated the ratings
specified in Schedule I, and shall not have been lowered or placed on any credit
watch with a negative implication for downgrade;
(d) you shall have received an opinion of Cadwalader, Xxxxxxxxxx &
Xxxx LLP, special counsel to the Depositor and the Co-Lead Underwriters, dated
the Specified Delivery Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
(e) you shall have received a letter from Cadwalader, Xxxxxxxxxx &
Xxxx LLP, special counsel to the Depositor and the Co-Lead Underwriters,
relating to the Prospectus and dated the Specified Delivery Date, in form and
substance satisfactory to the Underwriters and counsel to the Underwriters;
(f) you shall have received an opinion of special counsel to each
Mortgage Loan Seller, dated the Specified Delivery Date, in form and substance
satisfactory to the Underwriters and counsel to the Underwriters;
(g) you shall have received an opinion of counsel to the Trustee,
dated the Specified Delivery Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
(h) you shall have received an opinion of counsel to the Master
Servicer, dated the Specified Delivery Date, in form and substance satisfactory
to the Underwriters and counsel to the Underwriters;
(i) you shall have received an opinion of counsel to the Special
Servicer, dated the Specified Delivery Date, in form and substance satisfactory
to the Underwriters and counsel to the Underwriters;
(j) you shall have received letters, dated the Specified Delivery
Date, from counsel rendering opinions to the Rating Agencies, to the effect that
you may rely upon their opinion to such Rating Agencies, as if such opinion were
rendered to you, or such opinions shall be addressed to you;
(k) you shall have received a certificate or certificates signed by
such of the principal executive, financial and accounting officers of the
Depositor as you may request, dated the Specified Delivery Date, in form and
substance satisfactory to the Underwriters and counsel to the Underwriters;
(l) you shall have received a certificate of the Trustee, signed by
one or more duly authorized officers of the Trustee, dated the Specified
Delivery Date, in form and substance satisfactory to the Underwriters and
counsel to the Underwriters;
(m) you shall have received a certificate of the Master Servicer,
signed by one or more duly authorized officers of the Master Servicer, dated the
Specified Delivery Date, in form and substance satisfactory to the Underwriters
and counsel to the Underwriters;
(n) you shall have received a certificate of the Special Servicer,
signed by one or more duly authorized officers of the Special Servicer, dated
the Specified Delivery Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
(o) the Mortgage Loan Sellers shall have sold the Mortgage Loans to
the Depositor pursuant to the Mortgage Loan Purchase Agreements;
(p) the Pooling and Servicing Agreement and all of the other
documents identified therein or herein shall have been duly entered into by all
of the respective parties thereto;
(q) you shall have received such other documents, certificates,
letters and opinions as you may reasonably request; and
(r) the Registration Statement shall be effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or threatened by the Commission and the Prospectus Supplement
and each Free Writing Prospectus required to be filed by the Depositor pursuant
to Section 12 shall have been filed or transmitted for filing by means
reasonably calculated to result in a filing with the Commission pursuant to Rule
424(b) or Rule 433 under the Securities Act, as applicable.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each
Underwriter, each of its officers and each of its directors and each person, if
any, that controls any Underwriter within the meaning of the Securities Act or
the Exchange Act against any expenses, losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such officer, director or
controlling person may become subject under the Securities Act, the Exchange Act
or otherwise, and shall reimburse any legal or other expenses reasonably
incurred by such Underwriter or any such director, officer, or controlling
person in connection with investigating or defending any such expense, loss,
claim, damage, liability or action, in each case insofar as such expenses,
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or alleged untrue statement
of any material fact contained in the Prospectus Supplement or the Base
Prospectus or any amendment or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, (iii) any untrue statement or alleged
untrue statement of any material fact contained in any Issuer Free Writing
Prospectus (as defined in Section 2(e) hereof) or any "issuer information," as
defined in Rule 433(h) under the Securities Act and footnote 271 of the
Commission's Securities Offering Reform Release No. 33-8591 ("Issuer
Information") contained in any Underwriter Free Writing Prospectus, or the
omission or alleged omission to state a material fact required to make the
statements therein (when read in conjunction with all Time of Sale Information),
in light of the circumstances under which they were made, not misleading, which
error or omission was not corrected by Corrective Information subsequently
supplied by the Depositor or any Mortgage Loan Seller to such Underwriter at
least 1 Business Day prior to the Time of Sale and the person asserting any such
expense, loss, claim, damage or liability, did not receive such Corrective
Information prior to the Time of Sale, or (iv) any breach of the representation
and warranty in Section 2(w) hereof; and the Depositor shall reimburse, as
incurred, each Underwriter and each such officer, director and controlling
person for any legal or other expenses reasonably incurred by such Underwriter
and each such officer, director and controlling person in connection with
investigating or defending any such expense, loss, claim, damage, liability or
action; provided, however, that with respect to clauses (i), (ii) and (iii) of
this Section 7(a), the Depositor shall not be liable in any such case to the
extent that any such expense, loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement in, or
omission or alleged omission from, any such documents in reliance upon and in
conformity with (x) written information furnished to the Depositor by or on
behalf of an Underwriter specifically for use in the Prospectus or any Issuer
Free Writing Prospectus (the "Underwriters' Information"), or (y) any Mortgage
Loan Seller Information, the Master Servicer Information, the Special Servicer
Information and the Trustee Information. The parties acknowledge that the
following statements constitute the only Underwriters' Information furnished in
writing by or on behalf of the Underwriters for inclusion in the Prospectus or
any Issuer Free Writing Prospectus: (i) the statements set forth in the
penultimate paragraph (other than the third sentence thereof) and the entire
last paragraph, above the emboldened names of the Underwriters on the cover of
the Prospectus Supplement and each Issuer Free Writing Prospectus, (ii) the
statements in the second sentence under the caption "Summary of Prospectus
Supplement--Relevant Parties--Underwriters" in the Prospectus Supplement and the
Free Writing Prospectus, and (iii) the statements in the first and second
sentences of the fourth paragraph, the first sentence in the sixth paragraph,
and the entire seventh paragraph, under the caption "Method of Distribution" in
the Prospectus Supplement. This indemnity agreement shall be in addition to any
liability that the Depositor may otherwise have.
(b) Each Underwriter shall severally, and not jointly, indemnify and
hold harmless the Depositor, each of its directors, each of its officers who has
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of the Securities Act or the Exchange Act against
any expenses, losses, claims, damages or liabilities to which the Depositor or
any such director, officer or controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, and shall reimburse any legal or
other expenses reasonably incurred by the Depositor or any such director,
officer or controlling person in connection with investigating or defending any
such expense, loss, claim, damage, liability or action, in each case insofar as
such expenses, losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Underwriters' Information
and (ii) untrue statements or alleged untrue statements of a material fact in
any Underwriter Free Writing Prospectus or omission or alleged omission to state
in such Underwriter Free Writing Prospectus a material fact necessary in order
to make the statements therein (when read in conjunction with all Time of Sale
Information), in the light of the circumstances under which they were made, not
misleading, provided, that no Underwriter shall be obligated to so indemnify and
hold harmless the Depositor (A) to the extent such liabilities are caused by a
misstatement or omission resulting from an error or omission in the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Depositor or any Mortgage Loan Seller to any Underwriter at
least 1 Business Day prior to the Time of Sale or (B) with respect to
information that is also contained in the Time of Sale Information. This
indemnity agreement shall be in addition to any liability that such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the commencement
thereof; but the omission to so notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party under Section
7(a) and (b), except to the extent that such omission to notify materially
prejudices the indemnifying party and in no event relieves it of liability it
may otherwise then have under this Agreement. In case any such action is brought
against any indemnified party, after such indemnifying party has been notified
of the commencement thereof, such indemnifying party shall be entitled to
participate therein (at its own expense), and, if it elects by written notice
delivered to such indemnified party promptly after receiving the notice referred
to in the preceding sentence, such indemnifying party, shall be entitled to
assume the defense thereof (jointly with any other indemnifying party similarly
notified) with counsel reasonably satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election to so assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them or (iii) the indemnifying
party shall have failed to designate within a reasonable period of time counsel
reasonably satisfactory to the indemnified party (in which case the fees and
expenses shall be paid as incurred by the indemnifying party). In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent.
However, if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party shall indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing two sentences, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement (i) provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement and (ii) does not
require an admission of fault by the indemnified party, without the consent of
the indemnified party.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 7 or is insufficient in respect of any liabilities
referred to therein (on grounds of public policy or otherwise), the parties
entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent that contribution
is not permitted under Section 11(f) of the Securities Act. In determining the
amount of contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by the Depositor on the one hand
and each Underwriter on the other from the offering of the Publicly Offered
Certificates (taking into account the portion of the proceeds of the offering
realized by each). In the event contribution according to the foregoing sentence
is not permitted by law, in determining the amount of contribution to which the
respective parties are entitled, there shall be considered not only the relative
benefits but also the relative fault of the Depositor on the one hand, and of
the Underwriters on the other, in connection with the statements or omissions
which resulted in such losses, claims, damages, or other liabilities, as well as
any other relevant equitable considerations; provided, however, that no
Underwriter shall be required to contribute any amount under this subsection (d)
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter in connection with the offering of the
Publicly Offered Certificates exceeds the amount of damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of the
foregoing, the relative benefits received by the Depositor on the one hand, and
the Underwriters on the other, in connection with the offering of the Publicly
Offered Certificates shall be deemed to be in the same respective proportions
that the total proceeds from the sale of the Publicly Offered Certificates sold
by the Underwriters (before deducting expenses) received by the Depositor and
the total underwriting discounts, commissions and other fees received by the
Underwriters in connection with the offering of the Publicly Offered
Certificates, bear to the aggregate offering price of the Publicly Offered
Certificates. The relative fault of the Depositor on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Depositor or by the Underwriters, and the parties' relative
intent, knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission and any other equitable considerations appropriate under
the circumstances. The Depositor and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose). The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or other liabilities referred to in this Section
7 shall be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Depositor,
any Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Publicly Offered Certificates.
(g) The obligations of the Depositor under this Section 7 shall be
in addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of any
Underwriter and to each person, if any, who controls any Underwriter within the
meaning of the Securities Act or the Exchange Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Depositor and to each
person, if any, who controls the Depositor within the meaning of the Securities
Act or Exchange Act.
(h) Each Underwriter will indemnify and hold harmless the other
Underwriters and each person, if any, who controls such Underwriters within the
meaning of either the Securities Act or the Exchange Act (the "Non-Indemnifying
Underwriters") from and against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which the Non-Indemnifying Underwriters
becomes subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, common law or otherwise, insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission (when read in
conjunction with all Time of Sale Information) to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading at the Time of Sale, contained in any
Underwriter Free Writing Prospectus prepared by such Indemnifying Underwriter or
(ii) the failure of such Indemnifying Underwriter, or any member of its selling
group, to comply with any provision of Section 8, and agrees to reimburse such
Non-Indemnifying Underwriter, as incurred for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, except to the extent such losses,
claims, damages or liabilities are caused by a misstatement or omission
resulting from an error or omission in the Issuer Information which was not
corrected by Corrective Information subsequently supplied by the Depositor or
any Mortgage Loan Seller to any Underwriter at least 1 Business Day prior to the
Time of Sale. This indemnity agreement will be in addition to any liability that
any Underwriter may otherwise have.
8. Offering Communications; Free Writing Prospectuses.
(a) The Underwriters may prepare and provide to prospective
investors Free Writing Prospectuses, or portions thereof, which the Depositor is
required to file with the Commission in electronic format and will use
reasonable efforts to provide to the Depositor such Free Writing Prospectuses,
or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R) format
and not in PDF, except to the extent that the Depositor, in its sole discretion,
waives such requirements, subject to the following conditions (to which such
conditions each Underwriter agrees (provided that no Underwriter shall be
responsible for any breach of the following conditions by any other
Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication to any
person in connection with the initial offering of the Publicly Offered
Certificates, unless such written communication (1) is made in reliance on
Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying
the requirements of Rule 430B under the Securities Act or (3) constitutes
Time of Sale Information or a Free Writing Prospectus that does not
constitute Time of Sale Information. The Underwriters shall not convey or
deliver in connection with the initial offering of the Publicly Offered
Certificates any materials in reliance on any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB under
the Securities Act ("ABS Informational and Computational Material"), in
reliance upon Rules 167 and 426 under the Securities Act.
(ii) Each Underwriter shall deliver to the Depositor, no later than
two Business Days prior to the date of first use thereof or such later
date as may be agreed to by the Depositor and that allows the Depositor to
satisfy the requirements of Rule 433 under the Securities Act, (a) any
Free Writing Prospectus that was prepared by or on behalf of such
Underwriter (an "Underwriter Free Writing Prospectus") and that contains
the Issuer Information (which the parties hereto agree includes, without
limitation, Mortgage Loan Seller Information), and (b) any Free Writing
Prospectus or portion thereof prepared by or on behalf of such Underwriter
that contains only a description of the final terms of the Publicly
Offered Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that contains only ABS Informational and Computational
Materials may be delivered by an Underwriter to the Depositor not later
than the later of (A) two Business Days prior to the due date for filing
of the Prospectus pursuant to Rule 424(b) under the Securities Act or such
later date as may be agreed to by the Depositor or (B) the date of first
use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor that
the Free Writing Prospectuses to be furnished to the Depositor by such
Underwriter pursuant to Section 8(a)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to
prospective investors by such Underwriter in connection with its offer and
sale of the Publicly Offered Certificates.
(iv) Each Underwriter represents and warrants to the Depositor that
each Free Writing Prospectus required to be provided by it to the
Depositor pursuant to Section 8(a)(ii) did not, as of the Time of Sale,
and will not as of the Specified Delivery Date, include any untrue
statement of a material fact or omit any material fact necessary to make
the statements contained therein (when read in conjunction with all Time
of Sale Information), in light of the circumstances under which they were
made, not misleading; provided however, that such Underwriter makes no
representation to the extent such misstatements or omissions were the
result of any inaccurate Issuer Information, which information was not
corrected by Corrective Information subsequently supplied by the Depositor
or any Mortgage Loan Seller to such Underwriter within a reasonable period
of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Depositor pursuant to Section 8(a)(ii);
(C) Any Free Writing Prospectus for which the Depositor or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a
person unaffiliated with the Depositor or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be required to file (1)
Issuer Information contained in any Underwriter Free Writing Prospectus or Free
Writing Prospectus of any other offering participant other than the Depositor,
if such information is included or incorporated by reference in a prospectus or
Free Writing Prospectus previously filed with the Commission that relates to the
offering of the Publicly Offered Certificates, or (2) any Free Writing
Prospectus or portion thereof that contains a description of the Publicly
Offered Certificates or the offering of the Publicly Offered Certificates which
does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 8(a)(v)(C) by the Depositor shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final terms of
the Publicly Offered Certificates shall be filed by the Depositor
with the Commission within two days of the later of the date such
final terms have been established for all classes of Publicly
Offered Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required to
be filed that contains only ABS Informational and Computational
Material shall be filed by the Depositor with the Commission not
later than the later of the due date for filing the final Prospectus
relating to the Publicly Offered Certificates pursuant to Rule
424(b) under the Securities Act or two Business Days after the first
use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be filed pursuant
to Section 8(a)(v)(C) shall, if no payment has been made or
consideration has been given by or on behalf of the Depositor for
the Free Writing Prospectus or its dissemination, be filed by the
Depositor with the Commission not later than four Business Days
after the Depositor becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing
Prospectus.
(vii) Each Underwriter shall file with the Commission, or provide to
the Depositor at least 2 Business Days prior to the time such filing is
required, any Free Writing Prospectus that is used or referred to by it
and distributed by or on behalf of such Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination not later than
the date of the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 8(a)(vii), each
Underwriter shall file, or cause to be filed, with the Commission any Free
Writing Prospectus for which such Underwriter or any person acting on its
behalf provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Depositor or
any other offering participant that is in the business of publishing,
radio or television broadcasting or otherwise disseminating written
communications and for which no payment was made or consideration given by
or on behalf of the Depositor or any other offering participant, not later
than four Business Days after such Underwriter becomes aware of the
publication, radio or television broadcast or other dissemination of the
Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 8(a)(v) and
8(a)(vii), neither the Depositor nor any Underwriter shall be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission, and no Underwriter shall be required to file any Free Writing
Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Publicly Offered Certificates.
(x) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend, or
substantially equivalent legend that complies with Rule 433 of the
Securities Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information about
the depositor, the issuing trust, and this offering. You may get
these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any
dealer participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free 0-000-000-0000.
(xi) The Depositor and each Underwriter agree to retain all Free
Writing Prospectus that they have used and that are not required to be
filed pursuant to this Section 8 for a period of three years following the
initial bona fide offering of the Publicly Offered Certificates.
(xii) (A) In the event that the Depositor becomes aware that, as of
the Time of Sale, any Issuer Free Writing Prospectus contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein (when read in
conjunction with all Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective
Issuer Free Writing Prospectus"), the Depositor shall notify the
Underwriters of such untrue statement or omission within one Business Day
after discovery and the Depositor shall, if requested by the Underwriters,
prepare and deliver to the Underwriters a Free Writing Prospectus that
corrects the material misstatement or omission in the Defective Issuer
Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a
"Corrected Issuer Free Writing Prospectus").
(B) In the event that any Underwriter becomes aware that, as
of the Time of Sale, any Underwriter Free Writing Prospectus
delivered to an investor in any Publicly Offered 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 all Time of Sale
Information), in light of the circumstances under which they were
made, not misleading (together with a Defective Issuer Free Writing
Prospectus, a "Defective Free Writing Prospectus"), such Underwriter
shall notify the Depositor of such untrue statement or omission
within one Business Day after discovery.
(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(3) notify such investor in a prominent fashion that the
prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of
such agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Publicly Offered
Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5) comply with any other requirements for reformation
of the original contract of sale with such investor, as
described in Section IV.A.2.c of Commission's Securities
Offering Reform Release No. 33-8591.
(D) In the event that the Defective Free Writing Prospectus
was an Issuer Free Writing Prospectus, and the Underwriters shall in
good faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the Depositor
agrees to reimburse the Underwriters for such costs; provided that,
before incurring such costs, the Underwriters first permits the
Depositor access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation with such
investor.
(xiii) Each Underwriter covenants with the Depositor that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Publicly Offered Certificates to a prospective
investor unless such information is preceded or accompanied by the
Prospectus.
9. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase Publicly Offered Certificates hereunder and the
aggregate principal amount of Publicly Offered Certificates that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Publicly Offered Certificates to be purchased
hereunder, Xxxxxxx, Sachs & Co. and Greenwich Capital Markets, Inc. (together,
the "Co-Lead Underwriters") may make arrangements satisfactory to the Depositor
for the purchase of such Publicly Offered Certificates by other persons, but if
no such arrangements are made by such Specified Delivery Date, the
non-defaulting Underwriters shall be obligated to purchase the Publicly Offered
Certificates that such defaulting Underwriter agreed but failed to purchase
hereunder. If any Underwriter so defaults and the aggregate principal amount of
Publicly Offered Certificates with respect to which such default occurs exceeds
10% of the total principal amount of Publicly Offered Certificates to be
purchased hereunder and arrangements satisfactory to the Co-Lead Underwriters
and the Depositor for the purchase of such Publicly Offered Certificates by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Depositor, except as provided in Section 10. In the event that, within
the respective prescribed periods, the Co-Lead Underwriters have arranged for
the purchase of such Publicly Offered Certificates by other persons or the
non-defaulting Underwriters become obligated to purchase such Publicly Offered
Certificates, the Co-Lead Underwriters and the Depositor may postpone the
Specified Delivery Date for a period of not more than seven days, in order to
effect whatever changes the Depositor and the Co-Lead Underwriters reasonably
believe may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Depositor agrees
to file promptly any amendments to the Registration Statement or the Prospectus
that it and the Co-Lead Underwriters reasonably believe may thereby be made
necessary. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
10. Termination of the Obligations of the Underwriters. (a) Any
Underwriter may terminate its obligations under this Agreement by notice to the
Depositor at any time at or prior to the Specified Delivery Date if the sale of
the Publicly Offered Certificates provided for herein is not consummated because
of any failure or refusal on the part of the Depositor to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the
Depositor shall be unable to perform its obligations under this Agreement.
(b) The obligations of the Underwriters to purchase on the Specified
Delivery Date the Publicly Offered Certificates described in Schedule I shall be
terminable by the Co-Lead Underwriters if at any time on or prior to the
Specified Delivery Date (i) any change, or any development or event involving a
prospective change in the condition (financial or other), business, properties
or results of operations of the Depositor or the Trust which, in the judgment of
a majority in interest of the Underwriters (based on Underwriting obligations)
including the Co-Lead Underwriters, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Publicly Offered Certificates; (ii) any
downgrading in the rating of any of the Certificates by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any of the
Certificates (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters including the Co-Lead
Underwriters, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Publicly Offered Certificates, whether in the
primary market or in respect of dealings in the secondary market; (iv) any
material suspension or material limitation of trading in securities generally on
the New York Stock Exchange or over-the-counter market, or any setting of
minimum prices for trading on such exchange or market, or any suspension of
trading of any Publicly Offered Certificates on any relevant exchange or in the
over-the-counter market; (v) any general moratorium on commercial banking
activities declared by any Federal or New York State authorities; (vi) any major
disruption of settlements of securities or clearance services in the United
States; or (vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Co-Lead Underwriters, the
effect of any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of any payment for the Publicly Offered
Certificates.
(c) If any Underwriter terminates its obligations under this
Agreement in accordance with Section 10(a), the Depositor shall reimburse such
Underwriter for all reasonable out-of pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been reasonably incurred by such
Underwriter in connection with the proposed purchase and sale of the Publicly
Offered Certificates.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements by the Depositor and of the several Underwriters set forth in or made
pursuant to this Agreement shall remain in full force and effect, regardless of
any investigation or statement as to the results thereof made by or on behalf of
such Underwriters, the Depositor or any of their respective officers or
directors or any controlling person, and shall survive delivery of and payment
of the related Publicly Offered Certificates.
If this Agreement is terminated pursuant to Section 9 or 10 above or
if for any reason the purchase by the Underwriters of the Publicly Offered
Certificates described in Schedule I is not consummated, the Depositor shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5(g) above, and the obligations of the Depositor and such Underwriters
pursuant to Section 7 above shall remain in effect.
12. Notices. All communications hereunder shall be in writing and,
if sent to Xxxxxxx, Xxxxx & Co., shall be delivered to it at 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx, Telecopy No.: (000) 000-0000,
with a telecopy to Xxxxx Xxxxxxxxxx, Esq., Telecopy No.: (000) 000-0000; if sent
to Greenwich Capital Markets, Inc., shall be delivered to it at 000 Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, Telecopy No.:
(000) 000-0000, with a telecopy to Xxxx Xxxxxxxxx, Esq., Telecopy No.: (203)
618-2132; if sent to Xxxxxx Xxxxxxx & Co. Incorporated, shall be delivered to it
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx, Telecopy
No.: (000) 000-0000, with a telecopy to Xxxxxxxx Xxxxx, Esq., Telecopy No.:
(000) 000-0000; if sent to Bear, Xxxxxxx & Co. Inc., shall be delivered to it at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx,
Telecopy No.: (000) 000-0000, with a telecopy to Xxxxxx Xxxxxxxxx, Esq.,
Telecopy No.: (000) 000-0000; if sent to Wachovia Capital Markets, LLC, shall be
delivered to it at 000 X. Xxxxxxx Xxxxxx, XX-00 XX0000, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxx, Telecopy No.: (000) 000-0000, with a
telecopy to Xxxx Xxxxxxxx, Esq., Telecopy No.: (000) 000-0000; if sent to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, shall be delivered to it at
4 World Financial Center, 16th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Telecopy No: (000) 000-0000, Attention: Xxxxx X. Xxxxxxx or Director,
CMBS Securitization, with a copy to Xxxxxx Xxxxxxxx, Esq., Office of the General
Counsel, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated, 4 World Financial
Center, 12th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy No:
(000) 000-0000; or, if sent to the Depositor, shall be delivered to Greenwich
Capital Commercial Funding Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxxxx Xxxx, Telecopy No.: (000) 000-0000, with a telecopy to
Xxxx Xxxxxxxxx, Esq., Telecopy No. (000) 000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 7 shall be mailed, delivered or
telegraphed to such Underwriter at the address furnished by it.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 above, and
their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Publicly Offered Certificates from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW PROVISIONS.
15. Entire Agreement. This Agreement supersedes all prior agreements
and understandings (whether written or oral) between the Depositor and the
Underwriters, or any of them, with respect to the subject matter hereof.
16. Waiver of Jury Trial. The Depositor and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Depositor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Depositor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written communications.
Very truly yours,
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.,
as Depositor
By: /s/ Xxxxxx Xxxx
----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXX, XXXXX & CO., as Underwriter
/s/ Xxxxxxx, Sachs & Co.
-------------------------------------
(Xxxxxxx, Xxxxx & Co.)
GREENWICH CAPITAL MARKETS, INC.,
as Underwriter
By: /s/ Xxxxxx Xxxx
----------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
XXXXXX XXXXXXX & CO. INCORPORATED,
as Underwriter
By: /s/ Xxxxxx X. Friend
----------------------------------
Name: Xxxxxx X. Friend
Title: Vice President
BEAR, XXXXXXX & CO. INC.,
as Underwriter
By:/s/ Xxxxxxx X. Xxxxxx Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Senior Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
as Underwriter
By:/s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
WACHOVIA CAPITAL MARKETS, LLC,
as Underwriter
By:/s/ X. Xxxxx Xxxx, Jr.
----------------------------------
Name: X. Xxxxx Xxxx, Jr.
Title: Vice President
SCHEDULE I
Prospectus: Prospectus Supplement dated June 27, 2006 and Base Prospectus dated
April 28, 2006 (Registration Statement No.: (333-131400))
Aggregate Principal Amount of Offered Certificates: $3,327,238,000 (approximate)
Aggregate Purchase Price to be Paid by Greenwich Capital Markets, Inc.:
$_____________ plus accrued interest
Aggregate Purchase Price to be Paid by Xxxxxxx, Sachs & Co.: $_____________ plus
accrued interest
Aggregate Purchase Price to be Paid by Xxxxxx Xxxxxxx & Co. Incorporated:
$_____________
Aggregate Purchase Price to be Paid by Bear, Xxxxxxx & Co. Inc.: $_____________
Aggregate Purchase Price to be Paid by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated: $_____________
Aggregate Purchase Price to be Paid by Wachovia Capital Markets, LLC:
$_____________
Certificate Balances:
--------------------
Class A-1 $ 100,000,000
Class A-2 $ 260,278,000
Class A-3 $ 101,915,000
Class A-AB $ 125,000,000
Class A-4 $ 1,845,339,000
Class A-1-A $ 95,123,000
Class A-M $ 361,165,000
Class A-J $ 261,845,000
Class B $ 27,088,000
Class C $ 54,175,000
Class D $ 27,087,000
Class E $ 22,573,000
Class F $ 45,146,000
Certificates Purchased
Certificate Balances
Class
Underwriter Class A-1 Class A-2 Class A-3 Class A-AB A-4 Class A-1-A
-------------------------- ------------ ------------- ------------ ------------ -------------- -----------
Xxxxxxx, Xxxxx & Co. ..... $50,000,000 $130,3901,000 $50,957,500 $62,500,000 $922,669,500 $47,651,500
Greenwich Capital Markets,
Inc ................... $50,000,000 $130,3901,000 $50,957,500 $62,500,000 $922,669,500 $47,651,500
Xxxxxx Xxxxxxx & Co. .....
Incorporated .......... $0 $0 $0 $0 $0 $0
Bear, Xxxxxxx & Co. Inc. . $0 $0 $0 $0 $0 $0
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx
Incorporated .......... $0 $0 $0 $0 $0 $0
Wachovia Capital Markets,
LLC ................... $0 $0 $0 $0 $0 $0
Total .................... $100,000,000 $260,782,000 $101,915,000 $125,000,000 $1,845,339,000 $95,123,000
Underwriter Class A-M Class A-J Class B Class C Class D Class E Class F
------------------------ ------------ ------------ ----------- ----------- ----------- ----------- -----------
Xxxxxxx, Xxxxx & Co. ... $180,582,500 $130,922,500 $13,544,000 $27,087,500 $13,543,500 $11,286,500 $22,573,000
Greenwich Capital
Markets, Inc. ....... $180,582,500 $130,922,500 $13,544,000 $27,087,500 $13,543,500. $11,286,500 $22,573,000
Xxxxxx Xxxxxxx & Co. ...
Incorporated ........ $0 $0 $0 $0 $0 $0 $0
Bear, Xxxxxxx & Co. Inc. $0 $0 $0 $0 $0 $0 $0
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx
Incorporated ........ $0 $0 $0 $0 $0 $0 $0
Wachovia Capital
Markets, LLC ........ $0 $0 $0 $0 $0 $0 $0
Total .................. $361,165,000 $261,845,000 $27,088,000 $54,175,000 $27,087,000 $22,573,000 $45,146,000
Annex A
This free writing prospectus is not required to contain all information that is
required to be included in the base prospectus and the prospectus supplement
that will be prepared for the securities offering to which this free writing
prospectus relates. This free writing prospectus is not an offer to sell or a
solicitation of an offer to buy these securities in any state where such offer,
solicitation or sale is not permitted.
THIS FREE WRITING PROSPECTUS, DATED JUNE 16, 2006, MAY BE AMENDED OR COMPLETED
PRIOR TO TIME OF SALE
STATEMENT REGARDING THIS FREE WRITING PROSPECTUS
The depositor has filed a registration statement (including the prospectus) with
the SEC (SEC File No. 333-131400) for the offering to which this communication
relates. Before you invest, you should read the prospectus in the registration
statement and other documents the depositor has filed with the SEC for more
complete information about the depositor, the issuing trust and this offering.
You may get these documents for free by visiting XXXXX on the SEC website at
xxx.xxx.xxx. Alternatively, the depositor or Greenwich Capital Markets, Inc.,
any other underwriter, or any dealer participating in this offering will arrange
to send you the prospectus if you request it by calling toll-free
0-000-000-0000.
------------------------
$3,327,238,000 (Approximate)
Greenwich Capital Commercial Funding Corp.
as Depositor
Greenwich Capital Financial Products, Inc.
Xxxxxxx Xxxxx Mortgage Company
as Sponsors and Mortgage Loan Sellers
Commercial Mortgage Trust 2006-GG7
as Issuing Entity
Commercial Mortgage Pass-Through Certificates, Series 2006-GG7
Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-M, Class A-J,
Class B, Class C, Class D, Class E and Class F
We, Greenwich Capital Commercial Funding Corp., have prepared this document
in order to offer the classes of commercial mortgage pass-through certificates
identified above. These certificates are the only securities offered by this
document. We will not list the offered certificates on any national securities
exchange or any automated quotation system of any registered securities
associations, such as NASDAQ.
The offered certificates will represent interests in, and represent
obligations of, the issuing entity only and do not represent the obligations of
the depositor, the sponsors or any of their affiliates. None of the offered
certificates or the mortgage loans are insured or guaranteed by any governmental
agency or instrumentality or by any private mortgage insurer or by the
depositor, the underwriters, any mortgage loan seller, or any other party. The
primary assets of the trust will be a pool of multifamily and commercial
mortgage loans. The initial balance of the mortgage loans that we expect to
transfer to the trust will be approximately $3,611,656,138 as of the cut-off
date.
Each class of offered certificates will receive, to the extent of available
funds, monthly distributions of interest, principal or both, on the 10th day of
the month, or if such 10th day is not a business day, on the next succeeding
business day, commencing in August 2006. Credit enhancement will be provided by
certain classes of subordinate certificates that will be subordinate to certain
classes of senior certificates as described under "Description of the Offered
Certificates--Payments" in this document.
You should fully consider the risk factors beginning on page S-41 and on page
14 in the accompanying prospectus prior to investing in the offered
certificates.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this document or the accompanying prospectus. Any
representation to the contrary is a criminal offense.
Approximate Initial Initial Pass-Through
Certificate Pass-Through Rate Expected Ratings
Class Principal Balance Rate Description Principal Window S&P/Xxxxx'x
--------------- -------------------- --------------- -------------- ------------------ ------------------
A-1 $ 100,000,000 % (1) 08/06 - 12/10 AAA/Aaa
A-2 $ 261,799,000 % (1) 12/10 - 11/11 AAA/Aaa
A-3 $ 106,076,000 % (1) 09/12 - 07/13 AAA/Aaa
A-AB $ 130,000,000 % (1) 11/11 - 10/15 AAA/Aaa
A-4 $1,930,284,000 % (1) 10/15 - 06/16 AAA/Aaa
A-M $ 361,165,000 % (1) 06/16 - 06/16 AAA/Aaa
A-J $ 261,845,000 % (1) 06/16 - 07/16 AAA/Aaa
B $ 27,088,000 % (1) 07/16 - 07/16 AA+/Aa1
C $ 54,175,000 % (1) 07/16 - 07/16 AA/Aa2
D $ 27,087,000 % (1) 07/16 - 07/16 AA-/Aa3
E $ 22,573,000 % (1) 07/16 - 07/16 A+/A1
F $ 45,146,000 % (1) 07/16 - 07/16 A/A2
(Footnote to table on page S-9)
Xxxxxxx, Xxxxx & Co., Greenwich Capital Markets, Inc., Bear, Xxxxxxx & Co.
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated and Wachovia Capital Markets, LLC are the underwriters for this
offering. They will purchase their respective allocations of the offered
certificates from us, subject to the satisfaction of specified conditions. The
underwriters currently intend to sell the offered certificates at varying prices
to be determined at the time of sale. The underwriters expect to deliver the
offered certificates to purchasers on or about July 12, 2006.
With respect to this offering, Xxxxxxx, Sachs & Co. and Greenwich Capital
Markets, Inc. are acting as co-lead bookrunning managers and Bear, Xxxxxxx & Co.
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated and Wachovia Capital Markets, LLC are acting as co-managers.
Xxxxxxx, Sachs & Co. [LOGO] RBS Greenwich Capital
BEAR, XXXXXXX & CO. INC. XXXXXXX XXXXX & CO.
XXXXXX XXXXXXX WACHOVIA SECURITIES
June , 2006
Annex B
This free writing prospectus is not required to contain all information that is
required to be included in the base prospectus and the prospectus supplement
that will be prepared for the securities offering to which this free writing
prospectus relates. This free writing prospectus is not an offer to sell or a
solicitation of an offer to buy these securities in any state where such offer,
solicitation or sale is not permitted.
THIS FREE WRITING PROSPECTUS, DATED JUNE 23, 2006, MAY BE AMENDED OR COMPLETED
PRIOR TO TIME OF SALE
STATEMENT REGARDING THIS FREE WRITING PROSPECTUS
The depositor has filed a registration statement (including the prospectus) with
the SEC (SEC File No. 333-131400) for the offering to which this communication
relates. Before you invest, you should read the prospectus in the registration
statement and other documents the depositor has filed with the SEC for more
complete information about the depositor, the issuing trust and this offering.
You may get these documents for free by visiting XXXXX on the SEC website at
xxx.xxx.xxx. Alternatively, the depositor or Greenwich Capital Markets, Inc.,
any other underwriter, or any dealer participating in this offering will arrange
to send you the prospectus if you request it by calling toll-free
0-000-000-0000.
------------------------
$3,327,238,000 (Approximate)
Greenwich Capital Commercial Funding Corp.
as Depositor
Greenwich Capital Financial Products, Inc.
Xxxxxxx Xxxxx Mortgage Company
as Sponsors and Mortgage Loan Sellers
Commercial Mortgage Trust 2006-GG7
as Issuing Entity
Commercial Mortgage Pass-Through Certificates, Series 2006-GG7
Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1-A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E and Class F
We, Greenwich Capital Commercial Funding Corp., have prepared this document
in order to offer the classes of commercial mortgage pass-through certificates
identified above. These certificates are the only securities offered by this
document. We will not list the offered certificates on any national securities
exchange or any automated quotation system of any registered securities
associations, such as NASDAQ.
The offered certificates will represent interests in, and represent
obligations of, the issuing entity only and do not represent the obligations of
the depositor, the sponsors or any of their affiliates. None of the offered
certificates or the mortgage loans are insured or guaranteed by any governmental
agency or instrumentality or by any private mortgage insurer or by the
depositor, the underwriters, any mortgage loan seller, or any other party. The
primary assets of the trust will be a pool of multifamily and commercial
mortgage loans. The initial balance of the mortgage loans that we expect to
transfer to the trust will be approximately $3,611,656,138 as of the cut-off
date.
Each class of offered certificates will receive, to the extent of available
funds, monthly distributions of interest, principal or both, on the 10th day of
the month, or if such 10th day is not a business day, on the next succeeding
business day, commencing in August 2006. Credit enhancement will be provided by
certain classes of subordinate certificates that will be subordinate to certain
classes of senior certificates as described under "Description of the Offered
Certificates--Payments" in this document.
You should fully consider the risk factors beginning on page S-44 and on page
14 in the accompanying prospectus prior to investing in the offered
certificates.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this document or the accompanying prospectus. Any
representation to the contrary is a criminal offense.
Approximate Initial Pass-Through
Initial Certificate Pass-Through Rate Expected Ratings
Class Principal Balance Rate Description Principal Window S&P/Xxxxx'x
--------------- ------------------- ------------ ------------ ------------------ ----------------
A-1(1) $100,000,000 % (2) 08/06 - 12/10 AAA/Aaa
A-2(1) $260,782,000 % (2) 12/10 - 11/11 AAA/Aaa
A-3(1) $101,915,000 % (2) 09/12 - 07/13 AAA/Aaa
A-AB(1) $125,000,000 % (2) 11/11 - 09/15 AAA/Aaa
A-4(1) $1,845,339,000 % (2) 09/15 - 06/16 AAA/Aaa
A-1-A(1) $95,123,000 % (2) 08/06 - 06/16 AAA/Aaa
A-M $361,165,000 % (2) 06/16 - 06/16 AAA/Aaa
A-J $261,845,000 % (2) 06/16 - 07/16 AAA/Aaa
B $27,088,000 % (2) 07/16 - 07/16 AA+/Aa1
C $54,175,000 % (2) 07/16 - 07/16 AA/Aa2
D $27,087,000 % (2) 07/16 - 07/16 AA-/Aa3
E $22,573,000 % (2) 07/16 - 07/16 A+/A1
F $45,146,000 % (2) 07/16 - 07/16 A/A2
(Footnotes to table on page S-9)
Xxxxxxx, Xxxxx & Co., Greenwich Capital Markets, Inc., Bear, Xxxxxxx & Co.
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated and Wachovia Capital Markets, LLC are the underwriters for this
offering. They will purchase their respective allocations of the offered
certificates from us, subject to the satisfaction of specified conditions. The
underwriters currently intend to sell the offered certificates at varying prices
to be determined at the time of sale. The underwriters expect to deliver the
offered certificates to purchasers on or about July 12, 2006.
With respect to this offering, Xxxxxxx, Sachs & Co. and Greenwich Capital
Markets, Inc. are acting as co-lead bookrunning managers and Bear, Xxxxxxx & Co.
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co.
Incorporated and Wachovia Capital Markets, LLC are acting as co-managers.
Xxxxxxx, Sachs & Co. [LOGO] RBS Greenwich Capital
BEAR, XXXXXXX & CO. INC. XXXXXXX XXXXX & CO.
XXXXXX XXXXXXX WACHOVIA SECURITIES
June , 2006
Annex C
None
