EXHIBIT 1.1
EXECUTION VERSION
CITIGROUP COMMERCIAL MORTGAGE TRUST 2004-C2
$932,592,000
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-C2
CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5,
CLASS A-1A, CLASS A-J, CLASS B, CLASS C AND CLASS D
UNDERWRITING AGREEMENT
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as of December 15, 2004
Citigroup Global Markets Inc. PNC Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, 11th Floor Xxx XXX Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx
Attention: Xxxx Xxxxxxxxxxx Pittsburgh, Pennsylvania 15222
Attention: Xxxxxxx Xxxxxxxx
Deutsche Bank Securities Inc. X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx Attention: Xxxxxx Xxxxx
Ladies and Gentlemen:
Citigroup Commercial Mortgage Securities Inc., a Delaware corporation
("CCMS"), proposes to sell to Citigroup Global Markets Inc. ("CGMI"), PNC
Capital Markets, Inc. ("PNC Capital"), Deutsche Bank Securities Inc. ("DBSI")
and X.X. Xxxxxx Securities Inc. ("JPM" and, collectively with CGMI, PNC Capital
and DBSI, the "Underwriters"), pursuant to this Underwriting Agreement (this
"Agreement"), the classes of Commercial Mortgage Pass-Through Certificates,
Series 2004-C2 that are identified on Schedule I hereto (collectively, the
"Registered Certificates"), each having the initial aggregate stated principal
amount (the initial "Class Principal Balance") set forth on Schedule I. The
Registered Certificates, together with the Class XC, Class XP, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class R and Class Y Certificates (collectively, the "Private Certificates" and,
collectively with the Registered Certificates, the "Certificates"), evidence the
entire beneficial ownership interest in the assets of a trust to be created by
CCMS (such trust, the "Trust" and such assets collectively, the "Trust Fund").
The Trust Fund consists primarily of a pool (the "Mortgage Pool") of multifamily
and commercial mortgage loans (the "Mortgage Loans") that will have, as of the
Cut-off Date (as defined below), after taking into account all payments of
principal due on the Mortgage Loans on or before the Cut-off Date, whether or
not received, an aggregate principal balance of approximately $1,030,490,079
(subject to a variance of plus or minus 5.0%). As used in this Agreement,
"Cut-off Date" shall mean, individually and collectively, as the context may
require: with respect to each Mortgage Loan originated on or prior to November
1, 2004 (or, in the case of a CGMRC Mortgage Loan (as defined below), on or
prior to November 11, 2004), the related Due Date of that Mortgage Loan in
December
2004; with respect to each Mortgage Loan originated after November 1, 2004 (or,
in the case of a CGMRC Mortgage Loan, after November 11, 2004) and having its
first Scheduled Payment in January 2005, December 1, 2004 (or, in the case of a
CGMRC Mortgage Loan, December 13, 2004); and with respect to the one (1) PNC
Mortgage Loan (as defined below) originated after December 1, 2004 and having
its first Scheduled Payment in February 2005, the date of origination.
Certain of the Mortgage Loans will be acquired by CCMS from Citigroup
Global Markets Realty Corp. ("CGMRC" and such Mortgage Loans, the "CGMRC
Mortgage Loans"), pursuant to a mortgage loan purchase agreement, dated as of
the date hereof (the "CGMRC/CCMS Mortgage Loan Purchase Agreement"), between
CGMRC, as seller, and CCMS, as purchaser. The remaining Mortgage Loans will be
acquired by CCMS from PNC Bank, National Association ("PNC Bank" and such
Mortgage Loans, the "PNC Mortgage Loans"), pursuant to a mortgage loan purchase
agreement, dated as of the date hereof (the "PNC/CCMS Mortgage Loan Purchase
Agreement"), between PNC Bank, as seller, and CCMS, as purchaser. CGMRC and PNC
Bank are, collectively, the "Mortgage Loan Sellers" and the CGMRC/CCMS Mortgage
Loan Purchase Agreement and the PNC/CCMS Mortgage Loan Purchase Agreement are,
together, the "Mortgage Loan Purchase Agreements".
The Trust is to be created and the Certificates are to be issued under a
pooling and servicing agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), between CCMS as depositor, Midland Loan Services, Inc. as
master servicer (the "Master Servicer"), Lennar Partners, Inc. as special
servicer (the "Special Servicer") and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"). Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
CCMS intends to sell the Private Certificates to CGMI pursuant to a
certificate purchase agreement dated as of December 15, 2004 (the "Certificate
Purchase Agreement"), between CCMS and CGMI.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. CCMS represents and warrants
to, and covenants with, each of the Underwriters that:
(a) A registration statement (File No. 333-108125) on Form S-3 has been
filed with the Securities and Exchange Commission (the "Commission"), and has
become effective under the Securities Act of 1933, as amended (the "Securities
Act"); such registration statement includes a prospectus which, as supplemented,
shall be, and may include a preliminary prospectus supplement which, as
completed, is proposed to be, used in connection with the sale of the Registered
Certificates. Such registration statement, as amended to the date of this
Agreement, is hereinafter referred to as the "Registration Statement" such
prospectus (which shall be in the form in which it has most recently been filed,
as the same is proposed to be added to or changed), as first supplemented by a
prospectus supplement relating to the Registered Certificates, filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and, used in connection with the sale of the Registered
Certificates, is hereinafter referred to as the "Base Prospectus" such
prospectus supplement is hereinafter referred to as the "Prospectus Supplement"
and the Base Prospectus and the Prospectus Supplement are collectively referred
to as the "Prospectus". The conditions to the use of a registration statement on
Form S-3 under the Securities
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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 in all material respects
with respect to the Registration Statement. Any preliminary form of Prospectus
that has heretofore been filed pursuant to Rule 424 hereinafter is called the
"Preliminary Prospectus". Any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), deemed to be
incorporated by reference therein after the date hereof. CCMS will file with the
Commission (i) within fifteen (15) days of the issuance of the Certificates a
current report on Form 8-K (a "Current Report") for purposes of filing the
Pooling and Servicing Agreement and other material contracts and (ii) in the
time period specified in Section 5(e) hereof, a Current Report for purposes of
filing certain Computational Materials and ABS Term Sheets as described in
Section 5(e) hereof.
(b) The Registration Statement, as of the date it became effective and the
date of the most recently filed Prospectus Supplement, and the Prospectus, as of
the date of the most recently filed Prospectus Supplement, and any revisions or
amendments thereof or supplements thereto filed prior to the termination of the
offering of the Registered Certificates, as of their respective effective or
issue dates, conformed or will conform, as applicable, in all material respects
to the requirements of the Securities Act and the rules and regulations of the
Commission thereunder applicable to the use of such documents as of such
respective dates, and the Registration Statement and the Prospectus, as revised,
amended or supplemented as of the Closing Date (as defined in Section 3), will
conform in all material respects to the requirements of the Securities Act and
the rules and regulations of the Commission thereunder applicable to the use of
such documents as of the Closing Date; and neither the Registration Statement
nor the Prospectus, as of such respective dates and, in the case of the
Prospectus and any revisions or amendments thereof or supplements thereto filed
prior to the Closing Date, as of the Closing Date, included or will include any
untrue statement of a material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that CCMS does not make any representations, warranties or
agreements as to (A) the information contained in or omitted from the Prospectus
or any revision or amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished electronically or in writing by or on
behalf of the Underwriters specifically for use in connection with the
preparation of the Prospectus or any revision or amendment thereof or supplement
thereto, (B) any information in any Computational Materials and ABS Term Sheets
(each as defined in Section 9) provided by the Underwriters to prospective
investors in connection with the sale of the Registered Certificates, or (C) the
statements in or the omissions from the Registration Statement, the Prospectus
or any revisions or amendments thereof or supplements thereto that are excluded
from the indemnification provisions of Section 7(a) pursuant to Section
7(a)(ii). There are no contracts or other documents relating to CCMS of a
character required to be described in or to be filed as exhibits to the
Registration Statement, as of the date of the Prospectus Supplement, which were
not described or filed as required.
(c) As of the Closing Date, the Registered Certificates and the Private
Certificates will be duly authorized by CCMS, and, when the Registered
Certificates have been duly executed and authenticated in the manner
contemplated in the Pooling and Servicing Agreement and have been delivered to
and paid for by the Underwriters pursuant to this Agreement, the Registered
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Certificates will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement.
(d) Ernst & Young LLP ("Ernst & Young") is an independent public accountant
for CCMS as required by the Securities Act and the rules and regulations
thereunder.
(e) As of the Closing Date, the Pooling and Servicing Agreement and each
Mortgage Loan Purchase Agreement will have been duly authorized, executed and
delivered by CCMS and, assuming the valid authorization, execution and delivery
thereof by the other parties thereto, will constitute a valid and binding
agreement of CCMS enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting the enforcement of creditors' rights and by
general principles of equity.
(f) This Agreement has been duly authorized, executed and delivered by CCMS
and, assuming the valid authorization, execution and delivery thereof by the
other parties hereto, will constitute a valid and binding agreement of CCMS
enforceable in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights and by general principles of
equity, and except as enforcement thereof may be limited by public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement which purport or are construed to provide indemnification from
liabilities under applicable securities laws.
(g) CCMS has been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with corporate power
and authority to own its properties and conduct its business as described in the
Prospectus and now conducted by it, is duly qualified as a foreign corporation
in good standing in all jurisdictions in which the ownership or lease of its
property or the conduct of its business requires such qualification, and is
conducting its business so as to comply in all material respects with the
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting its business, except where the failure to be so qualified
or to so comply, as the case may be, would not have a material adverse effect on
the performance by CCMS of its obligations under this Agreement, the Pooling and
Servicing Agreement or the Mortgage Loan Purchase Agreements. CCMS is not in
violation of its certificate of incorporation or by-laws or in default under any
agreement, indenture or instrument the effect of which violation or default
would have a material adverse effect on the performance by CCMS of its
obligations under this Agreement, the Pooling and Servicing Agreement or the
Mortgage Loan Purchase Agreements.
(h) The issuance and sale of the Registered Certificates to the
Underwriters, the compliance by CCMS with the provisions of this Agreement, the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement and the
Certificates and the consummation by CCMS of the other transactions herein or
therein contemplated do not, under any statute, regulation or rule of general
applicability in the United States or any decision, order, decree or judgment of
any judicial or other governmental body applicable to CCMS, require any consent,
approval, authorization, order, registration or qualification of or with any
court or governmental authority,
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except (A) such as have been obtained or effected with respect to the Registered
Certificates under the Securities Act, (B) the recordation of the assignments of
the Mortgage Loans to the Trustee, which recordation is to be completed pursuant
to the Pooling and Servicing Agreement on or following the Closing Date, and (C)
such other approvals as have been obtained; provided that CCMS makes no
representations or warranties as to any consent, approval, authorization,
registration or qualification that may be required under state securities or
"blue sky" laws.
(i) Neither the execution and delivery of this Agreement, the Mortgage Loan
Purchase Agreements and the Pooling and Servicing Agreement, nor the issuance
and delivery of the Certificates, nor the consummation by CCMS of any other of
the transactions contemplated herein or therein, nor the fulfillment by CCMS of
the terms of this Agreement, the Mortgage Loan Purchase Agreements, the Pooling
and Servicing Agreement and the Certificates, will (A) conflict with, violate,
result in a breach of or constitute a default under the certificate of
incorporation or by-laws of CCMS, any statute or regulation currently applicable
to CCMS or its properties, or any order or judgment currently applicable to CCMS
or its properties of any arbiter, court, regulatory body, administrative agency
or governmental body having jurisdiction over CCMS or its properties, or the
terms of any indenture or other agreement or instrument to which CCMS is a party
or by which it or any of its properties are bound, or (B) result in the creation
or imposition of any lien upon any of its properties pursuant to the terms of
any indenture or other agreement to which CCMS is a party or by which it or any
of its properties are bound.
(j) There are no actions or proceedings against, or investigations of, CCMS
pending, or, to the knowledge of CCMS, threatened, before any court,
administrative agency or other tribunal (A) asserting the invalidity of this
Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement or the Registered Certificates, (B) seeking to prevent the issuance of
the Registered Certificates or the consummation by CCMS of any of the
transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement, (C) that might materially and
adversely affect the performance by CCMS of its obligations under, or the
validity or enforceability against CCMS of, this Agreement, the Mortgage Loan
Purchase Agreements, the Pooling and Servicing Agreement or the Registered
Certificates or (D) seeking to affect adversely the federal income tax
attributes of the Registered Certificates described in the Prospectus.
(k) CCMS has not received any request by the Commission for any further
amendment of the Registration Statement or the Prospectus or for any additional
information. CCMS has not received any notice of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement and
has no knowledge of the institution or threatening of any proceeding for that
purpose. CCMS has not received any notification with respect to the suspension
of the qualification of the Registered Certificates for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose.
(l) Any taxes, fees and other governmental charges (other than income
taxes, franchise taxes and recording and filing fees) that are due and payable
by CCMS as of the Closing Date in connection with the execution, delivery and
performance of this Agreement, the Mortgage Loan Purchase Agreements, the
Pooling and Servicing Agreement and the Registered Certificates, will have been
paid at or prior to the Closing Date.
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(m) Neither CCMS nor the Trust is, and the sale of the Registered
Certificates in the manner contemplated by the Prospectus will not cause CCMS or
the Trust to be, an "investment company" or under the control of an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act"); and the Pooling and Servicing Agreement
is not required to be qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
(n) At the time of the execution and delivery of the Pooling and Servicing
Agreement, CCMS (i) except as disclosed in the Prospectus, will convey to the
Trustee, or cause to be conveyed to the Trustee, all of CCMS's right, title and
interest in and to the Mortgage Loans, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") granted by or imposed upon CCMS, (ii) will not have
assigned to any other person any of its right, title or interest in the Mortgage
Loans or in the Pooling and Servicing Agreement or the Registered Certificates,
and (iii) will have the power and authority to transfer or cause the transfer of
all of its right, title and interest in and to the Mortgage Loans to the Trustee
and to sell the Registered Certificates to the Underwriters.
(o) Upon delivery to the Underwriters of the Registered Certificates
pursuant to this Agreement, each Underwriter will have good title to the
Registered Certificates purchased by such Underwriter, in each case free and
clear of Liens granted or imposed upon CCMS.
(p) The consideration received by CCMS upon the sale of the Registered
Certificates to the Underwriters will constitute at least reasonably equivalent
value and fair consideration for the Registered Certificates.
(q) CCMS (i) will be solvent at all relevant times prior to, and will not
be rendered insolvent by, the sale of the Registered Certificates to the
Underwriters and (ii) is not selling the Registered Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the creditors of
CCMS.
(r) The transfer of the Mortgage Loans to the Trust and the sale of the
Certificates to each of the Underwriters, at the Closing Date, will be treated
by CCMS for financial accounting and reporting purposes as a sale of assets and
not as a pledge of assets to secure debt.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
on the representations and warranties herein set forth, CCMS agrees to sell to
each of the Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase from CCMS, their respective allotments of each class
of Registered Certificates specified on Schedule I hereto, at the purchase price
for each such class as set forth on such Schedule I (the "Purchase Price").
3. DELIVERY AND PAYMENT. Delivery of and payment for the Registered
Certificates shall be made in the manner, on the date and at the time specified
in Schedule I hereto, which date and time may be changed by agreement among the
Underwriters and CCMS (such date and time of delivery of and payment for the
Registered Certificates being hereinafter referred to as the "Closing Date").
Delivery of each Underwriter's allotment of the Registered Certificates shall be
made to the related Underwriter against payment by such Underwriter of the
purchase price therefor to or upon the order of CCMS in same-day funds by
federal funds wire (or by such other method as
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such Underwriter and CCMS may agree). Unless delivery is made through the
facilities of The Depository Trust Company, the Registered Certificates of each
class thereof shall be registered in such names and in such authorized
denominations as the related Underwriter may have requested not less than three
(3) full business days prior to the Closing Date.
CCMS agrees to have the Registered Certificates available for inspection,
checking and packaging in New York, New York, at any time before 3:00 p.m. New
York City time on the business day prior to the Closing Date.
4. OFFERING BY THE UNDERWRITERS. It is understood that the Underwriters
propose to offer the Registered Certificates for sale as set forth in the
Prospectus. It is further understood that CCMS, in reliance upon Policy
Statement 105, has not filed and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Registered Certificates. As required by Policy Statement 105, each
Underwriter therefore covenants and agrees with CCMS that sales of the
Registered Certificates made by such Underwriter in and from the State of New
York will be made only to institutional investors within the meaning of Policy
Statement 105.
Each Underwriter represents and agrees that: (A) it has not offered or sold
and, prior to the expiry of the period of six months from the Closing Date, will
not offer or sell any Registered Certificates to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their business or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995, as amended; (B) it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the Financial Services and Markets Act 2000
(the "FSMA")) received by it in connection with the issue or sale of any
Registered Certificates in circumstances in which section 21(1) of the FSMA does
not apply to CCMS; and (C) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Registered Certificates in, from or otherwise involving the United Kingdom.
5. AGREEMENTS. CCMS and the Underwriters mutually agree that:
(a) CCMS will not file any further supplement to the Prospectus relating to
or affecting the Registered Certificates at any time, except as contemplated by
Section 5(e) or unless CCMS has furnished a copy to the Underwriters for their
review prior to filing, and will not file any such proposed supplement to which
the Underwriters reasonably object. CCMS will not file any amendment to the
Registration Statement relating to or affecting the Registered Certificates at
any time subsequent to the date hereof and prior to the Closing Date, except as
contemplated by Section 5(e) or unless CCMS has furnished a copy to the
Underwriters for their review prior to filing, and will not file any such
proposed amendment to which the Underwriters reasonably object. Subject to the
foregoing sentences, CCMS will cause the Prospectus to be filed, or transmitted
for filing, with the Commission pursuant to Rule 424(b) under the Securities Act
and, until the termination of the offering of the Registered Certificates, will
also promptly advise each Underwriter (i) when any amendment to the Registration
Statement relating to the Registered Certificates has become effective
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or any revision of or supplement to the Prospectus has been so filed or
transmitted for filing, (ii) of any request by the Commission for any amendment
of the Registration Statement or the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt by CCMS
of any notification with respect to the suspension of the qualification of the
Registered Certificates for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. CCMS will use its best efforts
to prevent the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act, (i) any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) it shall be
necessary to revise, amend or supplement the Prospectus to comply with the
Securities Act or the rules and regulations of the Commission thereunder, CCMS
promptly will, to the extent it has knowledge thereof, prepare and file with the
Commission, subject to paragraph (a) of this Section 5, a revision, amendment or
supplement that will correct such statement or omission or effect such
compliance and will deliver a copy thereof to the Underwriters.
(c) Upon request, so long as delivery of a prospectus relating to the
Registered Certificates is required under the Securities Act, CCMS will furnish
to any Underwriter and counsel for such Underwriter, without charge, as many
copies of the Prospectus and any revisions or amendments thereof or supplements
thereto as may be reasonably requested.
(d) CCMS will arrange for the qualification of the Registered Certificates
for sale under the laws of such jurisdictions as CGMI may designate, maintain
such qualifications in effect so long as required for the distribution of the
Registered Certificates and arrange for the determination of the legality of the
Registered Certificates for purchase by institutional investors; provided,
however, that CCMS shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(e) CCMS will cause or, if appropriate, has caused any Computational
Materials and ABS Term Sheets (each as defined in Section 9) with respect to the
Registered Certificates, which are or have been delivered by the Underwriters to
CCMS pursuant to or as contemplated by Section 9, to be filed with the
Commission on a Current Report pursuant to Rule 13a-11 under the Exchange Act
not later than, in each such case, the business day immediately following the
later of (i) the day on which such Computational Materials or ABS Term Sheets
are delivered to counsel for CCMS by the Underwriters (it being understood that
any such material that is delivered after 10:30 a.m., New York City time, on a
business day shall be deemed to have been delivered on the next business day)
and (ii) the date hereof; and, if such filing is subsequent to the date hereof,
CCMS will promptly advise the Underwriters when each such Current Report has
been so filed. If any Collateral Term Sheet (as defined in Section 9) is
provided by any Underwriter to potential investors in the Registered
Certificates, CCMS will cause each such Collateral Term Sheet that is delivered
by such
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Underwriter to CCMS to be filed with the Commission on a Current Report pursuant
to Rule 13a-11 under the Exchange Act on the business day immediately following
the day on which such Collateral Term Sheet is delivered to counsel for CCMS by
such Underwriter (it being understood that any such material that is delivered
after 10:30 a.m., New York City time, on a business day shall be deemed to have
been delivered on the next business day). Each such Current Report shall be
incorporated by reference in the Prospectus and the Registration Statement.
Notwithstanding the foregoing, CCMS shall have no obligation to file materials
provided by the Underwriters pursuant to or as contemplated by Section 9 which,
in the reasonable determination of CCMS after making reasonable efforts to
consult with the Underwriters, are not required to be filed pursuant to the
No-Action Letters (as defined in Section 9), or which contain erroneous
information or contain any untrue statement of a material fact, or which, when
read in conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
it being understood, however, that CCMS shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any Computational
Materials or ABS Term Sheets provided by the Underwriters to CCMS pursuant to or
as contemplated by Section 9 hereof.
(f) The purchase of the Certificates by each of the Underwriters, at the
Closing Date, will be treated by each Underwriter for financial accounting and
reporting purposes as a sale of the Certificates by CCMS and not as a pledge of
the Certificates to secure a debt. The Underwriters agree to sell the Registered
Certificates only to purchasers other than CCMS, the Mortgage Loan Sellers and
their respective affiliates.
(g) CCMS will make generally available to holders of the Registered
Certificates as soon as practicable, but in any event not later than eighteen
months after the filing of the Prospectus pursuant to Rule 424(b) under the
Securities Act, an earnings statement (which need not be audited) with respect
to the Mortgage Pool as contemplated by Section 11(a) of the Securities Act),
which pursuant to Rule 158 under the Securities Act may be the annual report
filed with the Commission with respect to the Trust.
6. CONDITIONS TO THE OBLIGATIONS OF EACH UNDERWRITER AND CCMS. The
obligation of each Underwriter to purchase from CCMS, and the obligation of CCMS
to sell to such Underwriter, its allotment of the Registered Certificates shall
be subject to the accuracy of the representations and warranties on the part of
CCMS and such Underwriter contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of CCMS and such Underwriter
made in any officer's certificate delivered pursuant to the provisions hereof,
to the performance by CCMS and such Underwriter of their respective obligations
hereunder and to the following additional conditions:
(a) All actions required to be taken and all filings required to be made by
CCMS under the Securities Act prior to the Closing Date shall have been taken or
made, and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or shall have been threatened.
(b) CCMS shall have furnished to the Underwriters:
(i) an executed copy of the Pooling and Servicing Agreement;
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(ii) an opinion of in-house counsel for CCMS, dated the Closing Date
and addressed to the Underwriters, in form reasonably acceptable to the
Underwriters;
(iii) an opinion of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, in its capacity as
special counsel for CCMS, dated the Closing Date and addressed to the
Underwriters, in form reasonably acceptable to the Underwriters;
(iv) a letter from Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, in its capacity as
special counsel to CCMS, dated the Closing Date and addressed to the
Underwriters, substantially to the effect that, based on conferences and
telephone conversations with representatives of the Mortgage Loan Sellers,
the Underwriters, CCMS, the Trustee, the Master Servicer, the Special
Servicer and their respective counsel (but, except as otherwise expressly
set forth in that letter, without having reviewed any of the mortgage
notes, mortgages or other documents relating to the Mortgage Loans or made
any inquiry of any originator of any Mortgage Loan not referenced above),
nothing has come to such counsel's attention that would lead it to believe
that the Registration Statement or the Prospectus (other than any
accounting, financial or statistical information contained in or omitted
from the Registration Statement or the Prospectus, any information
incorporated by reference into the Registration Statement or the Prospectus
and any information contained in or omitted from the Registration Statement
or the Prospectus relating to the PNC Mortgage Loans and the related
obligors and mortgaged properties), at the date of effectiveness of the
Registration Statement (in the case of the Registration Statement) or at
the date of the Prospectus Supplement or at the Closing Date (in the case
of the Prospectus Supplement), included or includes an untrue statement of
a material fact or omitted or omits 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;
(v) copies of all legal opinion letters delivered to the Rating
Agencies by Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, in its capacity as special
counsel to CCMS, in connection with the issuance of the Registered
Certificates, with each such opinion letter to be either addressed to the
Underwriters or accompanied by a letter signed by Xxxxxx Xxxxxx Xxxxx &
Wood LLP stating that the Underwriters may rely on such opinion letter as
if it were addressed to them as of the date thereof;
(vi) a good standing certificate regarding CCMS from the Secretary of
State of the State of Delaware, dated not earlier than 30 days prior to the
Closing Date;
(vii) a certificate of CCMS, dated the Closing Date and signed by an
executive officer or authorized signatory of CCMS, to the effect that (A)
the representations and warranties of CCMS herein and in the Pooling and
Servicing Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date,
and (B) CCMS has in all material respects complied with all agreements and
satisfied all the conditions on its part set forth herein to be performed
or satisfied at or prior to the Closing Date; and
10
(viii) an officer's certificate, dated the Closing Date and signed by
the secretary or an assistant secretary of CCMS, to the effect that each
individual who, as an officer or representative of CCMS, signed this
Agreement, the Certificate Purchase Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or in the Certificate Purchase Agreement,
the Mortgage Loan Purchase Agreements or in the Pooling and Servicing
Agreement, was at the respective times of such signing and delivery, and is
as of the Closing Date, duly elected or appointed, qualified and acting as
such officer or representative, and the signatures of such persons
appearing on such documents and certificates are their genuine signatures.
Such officer's certificate shall be accompanied by true and complete copies
(certified as such by the secretary or an assistant secretary of CCMS) of
the organizational documents of CCMS, as in effect on the Closing Date, and
of the resolutions of CCMS and any required shareholder consent relating to
the transactions contemplated in this Agreement, the Certificate Purchase
Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and
Servicing Agreement.
(c) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer and the Trustee a favorable opinion of
counsel, dated the Closing Date, addressing the valid existence and good
standing of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party, the enforceability of the Pooling and Servicing
Agreement against such party (subject to such limitations as are reasonably
acceptable to the Underwriters) and such other matters as the Underwriters may
reasonably request. Such opinion may express its reliance as to factual matters
on representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of parties to
the Pooling and Servicing Agreement and on certificates furnished by public
officials. Such opinion may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered. Such
opinion need cover only the laws of the jurisdiction in which the party on whose
behalf such opinion is being rendered is organized, the laws of the State of New
York and the federal law of the United States.
(d) The Underwriters shall have received such other documents,
certificates and opinions regarding the Master Servicer, the Special Servicer
and the Trustee as the Underwriters may reasonably request.
(e) CCMS and the Underwriters shall have received from Ernst & Young,
certified public accountants, various comfort letters, dated, as applicable, the
date of the Preliminary Prospectus, the date of the Prospectus Supplement or
such other date acceptable to CCMS and the Underwriters, in form and substance
reasonably satisfactory to CCMS and the Underwriters, stating in effect that:
(i) They have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial
or statistical nature set forth in the Prospectus Supplement under the
caption "Description of the Mortgage Pool" and on Annex A-1, Annex A-2,
Annex A-3, Annex A-4, Annex A-5 and Annex B thereto agrees
11
with the data sheet or computer tape prepared by the Mortgage Loan Sellers,
unless otherwise noted in such letter(s); and
(ii) They have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan files
and in such other sources as shall be specified by them, and found such
data and information to be in agreement, unless otherwise noted in such
letter.
(f) CCMS and the Underwriters shall have received from Ernst & Young,
certified public accountants, a letter dated on or about the Closing Date, in
form and substance reasonably satisfactory to CCMS and the Underwriters, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by CCMS and the Underwriters, as a result of which they confirmed
the information of an accounting, financial or statistical nature included in
the Prospectus Supplement under the caption "Yield and Maturity Considerations"
and Annex C thereto.
(g) Xxxxx & Xxxxx shall have furnished to CCMS and each Underwriter a
letter or letters, each in form and substance satisfactory to CCMS, relating to
the Computational Materials and ABS Terms Sheets of such Underwriter filed in
accordance with Section 5(e), dated the date of the related Current Report and
stating in effect that:
(i) Using the assumptions and methodology used by such Underwriter, all
of which shall be described by reference in the letter, they have
recalculated the numerical data and dates set forth in such Computational
Materials and ABS Term Sheets of such Underwriter (or portions thereof)
attached to such letter, compared the results of their calculations to the
corresponding items in such Computational Materials and ABS Term Sheets (or
portions thereof) and found such items to be in agreement with the
respective results of such calculation;
(ii) If such Computational Materials and ABS Term Sheets include data
reflecting the distribution of interest at other than a fixed rate, or
reflecting other characteristics that give rise to the use of tables in
such Computational Materials and ABS Term Sheets, such letter shall also
set forth such other statements as are customarily set forth by Xxxxx &
Xxxxx in such letter with respect to such data; and
(iii) They have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial
or statistical nature set forth in such Computational Materials and ABS
Term Sheets agrees with the data sheet or computer tape prepared by each
Mortgage Loan Seller, unless otherwise indicated in such letter.
(h) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by each Mortgage Loan Seller
in connection with its sale of Mortgage Loans to CCMS, pursuant to the related
Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on
each such certificate executed and delivered by a Mortgage Loan Seller or any of
its officers and representatives, to the same extent that CCMS may so rely, and
each such opinion addressed to CCMS shall also be addressed to the Underwriters
or shall be
12
accompanied by a letter signed by the counsel that rendered such opinion stating
that the Underwriters may rely on such opinion as if it were addressed to them.
(i) The Mortgage Loan Sellers shall have sold the Mortgage Loans to CCMS,
pursuant to the respective Mortgage Loan Purchase Agreements.
(j) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of CCMS that CGMI concludes, in its opinion after
consultation with CCMS and the other Underwriters, materially impairs the
investment quality of the Registered Certificates so as to make it impractical
or inadvisable to proceed with the public offering or the delivery of the
Registered Certificates as contemplated by the Prospectus.
(k) The Registered Certificates shall have been assigned ratings no less
than those set forth on Schedule I and such ratings shall not have been
rescinded or qualified.
7. INDEMNIFICATION AND CONTRIBUTION. 1. Subject to Section 7(c), CCMS
agrees to indemnify and hold harmless each Underwriter, each of its officers and
directors and each person who controls such Underwriter within the meaning of
either the Securities Act or the Exchange Act against any and all expenses,
losses, claims, damages or liabilities, joint or several, to which it or any
such officer, director or controlling person may become subject under the
Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such expenses, losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any revision or amendment thereof or supplement thereto, or in any
other filing incorporated by reference therein, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by it or him in connection with investigating or defending any such
expense, loss, claim, damage, liability or action; provided that CCMS shall not
be liable under the indemnity agreement in this Section 7(a) to the extent that
any such expense, loss, claim, damage or liability (or action in respect
thereof) arises out of or is based upon: (i) any such untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in the Registration Statement or in any Preliminary
Prospectus, the Prospectus or any revision or amendment thereof or supplement
thereto that was made in reliance upon and in conformity with written or
electronic information furnished to CCMS by or on behalf of any Underwriter
specifically for use in connection with the preparation thereof, as set forth in
Section 7(b); (ii) any such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
revision or amendment thereof or supplement thereto that (A) arose out of or was
based upon an untrue statement, omission or other inaccuracy with respect to the
Mortgage Loan Seller Matters (as defined below) contained in the Master Tape
(also as defined below) (it being acknowledged that the Master Tape has been
used to prepare, without limitation, any Preliminary Prospectus Supplement, the
Prospectus Supplement and any Computational Materials and ABS Term Sheets (each
as defined in Section 9) with respect to the
13
Registered Certificates), (B) was made in reliance upon and conformity with (1)
any of the representations and warranties made by a Mortgage Loan Seller
contained in the related Mortgage Loan Purchase Agreement, or (2) any other
information regarding the Mortgage Loan Seller Matters furnished by a Mortgage
Loan Seller, electronically or in writing, to CCMS or any Underwriter in
connection with the preparation of any Preliminary Prospectus, the Prospectus,
any Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or any revision or amendment thereof or supplement thereto, or (C)
is contained in the information regarding the Mortgage Loan Seller Matters set
forth (1) in any Preliminary Prospectus or the Prospectus Supplement under the
headings "Summary of Prospectus Supplement - Relevant Parties - Mortgage Loan
Sellers," "Summary of Prospectus Supplement--The Underlying Mortgage Loans and
the Mortgaged Real Properties", "Risk Factors--Risks Related to the Underlying
Mortgage Loans" and/or "Description of the Mortgage Pool", (2) on Annex A-1,
Annex A-2, Annex A-3, Annex A-4, Annex A-5 and/or Annex B to any Preliminary
Prospectus or the Prospectus Supplement or (3) on the diskette accompanying any
Preliminary Prospectus or the Prospectus Supplement (provided that CCMS shall be
liable to the extent that any such expense, loss, claim, damage, liability or
action arises out of or is based upon an error in the manipulation of, or any
calculations based upon, or any aggregation (other than an aggregation made in
the Master Tape by a Mortgage Loan Seller) of information concerning the
Mortgage Loan Seller Matters); (iii) any such untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact that was made in any Computational Materials or ABS Term Sheets provided by
any Underwriter to prospective investors in connection with the sale of the
Registered Certificates and incorporated by reference into the Registration
Statement, any Preliminary Prospectus or the Prospectus as a result of any
filing pursuant to Section 5(e); or (iv) any breach, inaccuracy or untruth of
any of the statements, representations, warranties and/or covenants made by any
Underwriter pursuant to Section 9(b); and provided, further, that CCMS shall not
be liable under the indemnity agreement in this Section 7(a) for any such
expense, loss, claim, damage or liability (or action in respect thereof) that
arises out of or is based upon any such untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in any Preliminary Prospectus to the extent that such expense, loss, claim,
damage or liability (or action in respect thereof) results from the fact that
such Underwriter sold Registered Certificates to a person as to whom there was
not sent or given, at or prior to the confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated therein by reference) and such
untrue statement or alleged untrue statement or omission or alleged omission had
been corrected in the Prospectus, unless the Underwriter did not receive the
Prospectus or such corrected and amended Prospectus prior to the written
confirmation of the sale of such Certificates to such person (despite the
Underwriter's timely request for copies of the Prospectus or such corrected and
amended Prospectus). This indemnity agreement will be in addition to any
liability that CCMS may otherwise have.
The "Mortgage Loan Seller Matters" consist of the following matters: the
Mortgage Loans and the underlying real properties securing the Mortgage Loans;
the related loan documents and the obligors thereunder; and the Mortgage Loan
Sellers.
The "Master Tape" is the compilation of underlying information and data
regarding the Mortgage Loans covered by the independent accountants' reports on
applying agreed upon procedures dated December 6, 2004 and December 15, 2004, as
supplemented to the date of initial issuance of the Certificates, and rendered
by Xxxxx & Xxxxx.
14
(b) Subject to Section 7(c), each Underwriter, severally and not jointly,
agrees to indemnify and hold harmless CCMS, each of its officers, directors and
each person who controls CCMS within the meaning of either the Securities Act or
the Exchange Act against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which it or any such officer, director or
controlling person may become subject under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Prospectus or any revision or amendment thereof or
supplement thereto, or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, which untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written or electronic information furnished to CCMS
by or on behalf of such Underwriter, specifically for use in connection with the
preparation of any Preliminary Prospectus, the Prospectus or any revision or
amendment thereof or supplement thereto, (ii) any untrue statement or alleged
untrue statement of a material fact made in Computational Materials or ABS Term
Sheets prepared or developed by such Underwriter and provided by such
Underwriter or any other Underwriter to prospective investors in connection with
the sale of the Registered Certificates and incorporated by reference into the
Registration Statement or Prospectus as a result of any filing pursuant to
Section 5(e), (iii) any omission or alleged omission to state in any
Computational Materials or ABS Term Sheets prepared or developed by such
Underwriter and provided by such Underwriter or any other Underwriter to
prospective investors in connection with the sale of the Registered Certificates
and incorporated by reference into the Registration Statement or Prospectus as a
result of any filing pursuant to Section 5(e), a material fact that, when read
in conjunction with any Preliminary Prospectus (or, if delivered on or after the
date hereof or if there is no Preliminary Prospectus, when read in conjunction
with the Prospectus), is required to be stated therein or necessary to make the
statements therein not misleading and (iv) any material breach, inaccuracy or
untruth on the part of such Underwriter of any of the statements,
representations, warranties and/or covenants made pursuant to Section 9(b);
provided that such Underwriter shall not be liable under the indemnity agreement
in this Section 7(b) for any such expense, loss, claim, damage or liability (or
action in respect thereof) that arises out of or is based upon any untrue
statement or omission in any such Computational Materials or ABS Term Sheets to
the extent that such expense, loss, claim, damage or liability (or action in
respect thereof) is covered by the indemnity agreement included in Section 7(a)
of any Mortgage Loan Purchase Agreement, in accordance with the terms thereof.
Notwithstanding the foregoing, the indemnity in clause (ii) and clause (iii)
above will not apply if such untrue statement or alleged untrue statement or
omission or alleged omission was also an untrue statement or alleged untrue
statement or omission or alleged omission in the Prospectus to which the
indemnity agreement in Section 7(a) applies. This indemnity agreement will be in
addition to any liability that the Underwriters may otherwise have. CCMS
acknowledges that the statements set forth in the first and fourth sentences of
the paragraph beginning "Citigroup Global Markets Inc., PNC Capital Markets,
Inc., Deutsche Bank Securities Inc. and X.X. Xxxxxx Securities Inc.", and the
entire following paragraph, on the cover page of the Prospectus Supplement, the
subsection entitled "Summary of Prospectus Supplement--Relevant
Parties--Underwriters" in the Prospectus Supplement, the last paragraph under
the heading "Risk Factors--Risks Related to the Offered Certificates--Potential
Conflicts of Interest May Affect the Underwriting and Servicing of the
15
Underlying Mortgage Loans" in the Prospectus Supplement and the second
paragraph, the third paragraph, the fourth paragraph and the fifth paragraph
under the heading "Method of Distribution" in the Prospectus Supplement,
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus and Preliminary Prospectus or any
revision or amendment thereof or supplement thereto, and each Underwriter
confirms that such statements attributable thereto are correct.
(c) Promptly after receipt by an indemnified party under Section 7(a) or
Section 7(b) above of notice of the commencement of any suit, action, proceeding
(including, without limitation, any governmental or regulatory investigation),
claim or demand, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under Section 7(a) or Section 7(b)
above, notify the indemnifying party in writing of the commencement thereof, but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability that it may have to any indemnified party
otherwise than under Section 7(a) or Section 7(b); provided, however, that any
increase in such liability under Section 7(a) or Section 7(b), as applicable, as
a result of such failure to promptly notify shall not be an expense of the
indemnifying party. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided that,
if the defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party shall have reasonably concluded
that there may be additional or different legal defenses available to it that
conflict with those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for legal expenses of other counsel
or other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel),
representing the indemnified party or parties who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time period after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
Notwithstanding anything herein to the contrary, an indemnifying party
shall not be liable under Section 7(a) or Section 7(b) for any settlement of any
litigation, proceeding, action or claim effected without its consent unless (i)
at any time an indemnified party shall have requested such indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under Section 7(a) or Section 7(b), as
applicable, (ii) such
16
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request and more than 15 days after receipt by such
indemnifying party of written notice of the proposed settlement and (iii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) If the indemnification provided for in Section 7(a) or Section 7(b)
above is due in accordance with its terms but is for any reason held by a court
to be unavailable to any indemnified party on grounds of public policy or
otherwise or is insufficient in respect of any expenses, losses, claims, damages
or liabilities under Section 7(a) or Section 7(b), then the indemnifying party
shall contribute to the aggregate expenses, losses, claims, damages and
liabilities (including legal and other expenses reasonably incurred in
connection with investigating or defending same) to which such indemnified party
may be subject and which were intended to be covered under such Section 7(a) or
Section 7(b), as the case may be, as follows:
(i) in the case of any such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) referred to in and intended to
be covered under Section 7(a) above, in such proportion so that the
Underwriters are responsible for that portion represented by the percentage
that the total underwriting discounts and/or fees received by the
Underwriters bear to the sum of such discounts and/or fees received by the
Underwriters and the total purchase price of the Registered Certificates
specified in Schedule I hereto and CCMS is responsible for the balance (or,
if such allocation is not permitted by applicable law or if the indemnified
party failed to give the notice required in Section 7(c) or in the last
paragraph of this Section 7(d), in such proportion as is appropriate to
reflect not only such financial considerations but also the factors
referred to in the immediately following clause (ii)); provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Registered
Certificates) be responsible under this clause (i) for more than the
amount, if any, by which the underwriting discounts and fees applicable to
the Registered Certificates purchased by such Underwriter hereunder exceeds
any damages otherwise paid by such Underwriter with respect to any expense,
loss, claim, damage or liability (or action in respect thereof); and
(ii) in the case of any expenses, losses, claims, damages or
liabilities (or actions in respect thereof) referred to in and intended to
be covered under Section 7(b) above, in such proportion as is appropriate
to reflect the relative fault of CCMS on the one hand and the Underwriters
on the other in connection with the untrue statement or alleged untrue
statement or omission or alleged omission which resulted in such expenses,
losses, claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable
17
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
that is the basis for such expense, loss, claim, damage or liability
results from information prepared by CCMS on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
CCMS and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by per capita
allocation which does not take account of the equitable considerations referred
to above in this subsection (d).
Notwithstanding the foregoing, however, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Securities Act or the
Exchange Act and each officer and director of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls CCMS
within the meaning of either the Securities Act or the Exchange Act and each
officer and director of CCMS shall have the same rights to contribution as CCMS.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this subsection (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this subsection
(d).
(e) The Underwriters further agree as follows:
(i) Each Underwriter will indemnify and hold harmless each other
Underwriter, each of its officers and directors and each person who
controls such Underwriter within the meaning of either the Securities Act
or the Exchange Act against any expenses, losses, claims, damages or
liabilities to which it or any such officer, director or controlling person
may become subject, under the Securities Act or otherwise, insofar as such
expenses, losses, claims, damages or liabilities arise out of or are based
upon (1) any untrue statements or misstatements of a material fact made in
Computational Materials or ABS Term Sheets prepared by the indemnifying
Underwriter or (2) the indemnifying Underwriter's failure to comply with
Section 9, and will reimburse each of the other Underwriters for any legal
or other expenses reasonably incurred by any of those other Underwriters in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided that such Underwriter shall not be liable
under the indemnity agreement in Section 7(e)(i)(1) for any expense, loss,
claim, damage or liability (or action in respect thereof) that arises out
of or is based upon any untrue statement or omission in any Computational
Materials or ABS Term Sheets to the extent that such expense, loss, claim,
damage or liability (or action in respect thereof) is covered by the
indemnity agreement included in Section 7(a) of any Mortgage Loan Purchase
Agreement, in accordance with the terms thereof).
18
(ii) Promptly after receipt by an indemnified party under clause (i)
above 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 such clause, notify the indemnifying party in writing 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 otherwise than under such clause; provided, however, that
any increase in such liability as a result of such failure to promptly
notify shall not be an expense of the indemnifying party. In case any such
action shall be brought against any indemnified party, and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party under clause (i) above for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
unless (A) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the next
sentence (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) representing the indemnified party or
parties who are parties to such action), (B) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time period after
notice of commencement of the action or (C) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (A) or (C) is
applicable, such liability shall be only in respect of the counsel referred
to in such clause (A) or (C). If the defendants in any such action include
both the indemnified party and the indemnifying party, and the indemnified
party shall have reasonably concluded that there may be additional or
different legal defenses available to it that conflict with those available
to the indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties.
An indemnifying party shall not be liable for any settlement of any
proceeding effected without its consent. However, if any proceeding is
settled with such consent or if there is a final judgment for the
plaintiff, the indemnifying party shall indemnify the indemnified party
from and against any expense, loss, claim, damage or liability by reason of
such settlement or judgment. Notwithstanding the foregoing, an indemnifying
party shall be liable to the same extent it otherwise would be under clause
(i) above, for any settlement of any proceeding effected without its
written consent if (X) 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
clause (i) above, (Y) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request and more
than 15 days after receipt by such indemnifying party of written notice of
the proposed settlement and (Z) such indemnifying party shall not have
19
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or
judgment (A) includes an unconditional release of the indemnified party
from all liability arising out of such action or claim and (B) does not
include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
(iii) If the indemnification provided in clause (i) is due in
accordance with its terms in respect of any expenses, losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
but is for any reason held by a court to be unavailable on grounds of
public policy or otherwise or is insufficient in respect of any expenses,
losses, claims, damages or liabilities under clause (i), then the
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect both the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other,
from the offering of the Registered Certificates, and the relative fault of
the indemnifying party on the one hand and the indemnified party on the
other in connection with the statements which resulted in such expenses,
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the indemnifying party on the one hand and indemnified party on
the other shall be deemed to be in the same proportion to the amount of
Registered Certificates underwritten by each such party. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party on the one hand or the indemnified party on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contribution
pursuant to this clause (iii) were determined by per capita allocation or
by any other method of allocation which does not take into account the
equitable considerations referred to above in this clause (iii). The amount
paid or payable by an indemnified party as a result of the expenses,
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this clause (iii) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this clause (iii), no Underwriter shall
be required to contribute any amount pursuant to this clause (iii) in
excess of the amount by which the total price at which the Registered
Certificates underwritten by it and distributed to the public, were sold
(or, in the case of Deutsche Bank Securities Inc. or X.X. Xxxxxx Securities
Inc., provided that it is not the indemnifying party, the amount of the
underwriting discounts and fees received by it), exceeds the amount of any
damages which such party has otherwise been required to pay by reason of
any untrue or alleged untrue statement of a material fact or omission or
alleged
20
omission to state a material fact. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(iv) The respective obligations of each of the Underwriters under
clauses (i) through (iii) above shall be in addition to any liability which
each may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls such Underwriter within
the meaning of the Securities Act or the Exchange Act and each director and
officer of such Underwriter.
(f) The amount paid or payable by an indemnified party as a result of the
expenses, losses, claims, damages and liabilities referred to in any subsection
of this Section 7 shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim
(except where the indemnified party is required to bear such expenses pursuant
to this Agreement), which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that it is
reasonable to believe that the indemnifying party will be ultimately obligated
to pay such expenses. If any expenses so paid by an indemnifying party are
subsequently determined not to be required to be borne by such indemnifying
party hereunder, the indemnified party that received such payment shall promptly
refund the amount so paid to such indemnifying party.
8. FEES AND EXPENSES. Except as provided in any other particular Section
hereof, each Underwriter shall be responsible only for the costs and expenses
(including, but not limited to, the costs of any counsel retained thereby)
actually incurred by such Underwriter in connection with the transactions
contemplated by this Agreement, and otherwise, the costs and expenses incurred
in connection with the transactions herein contemplated shall be payable by the
Mortgage Loan Sellers, as and to the extent provided in the respective Mortgage
Loan Purchase Agreements, or by CCMS.
9. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS. 1. Not later than 10:30
a.m., New York City time, on the date hereof, each Underwriter shall deliver to
CCMS two (2) complete copies of all materials provided by such Underwriter to
prospective investors in the Registered Certificates that constitute either (i)
"Computational Materials" within the meaning of the no-action letter dated May
20, 1994 issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated,
and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx/PSA Letters") or (ii) "ABS
Term Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter" and, together with the Xxxxxx/PSA
Letters, the "No-Action Letters"), if the filing of such materials with the
Commission is a condition of the relief granted in such letters and, in the case
of any such materials that constitute "Collateral Term Sheets" within the
meaning of the PSA Letter, such Collateral Term Sheets have not previously been
delivered to CCMS as contemplated by Section 9(b)(i) below. Each delivery of
Computational Materials pursuant to this paragraph (a) shall be effected by
delivering one (1) copy of such materials
21
to counsel for CCMS and one (1) copy of such materials to CCMS. Each delivery of
ABS Term Sheets pursuant to this paragraph (a) shall be effected by delivering
such materials to counsel for CCMS on behalf of CCMS at the address specified in
Section 16 hereof in a format that will permit such materials to be promptly
filed electronically with the Commission.
(b) Each Underwriter represents and warrants to and agrees with CCMS, as of
the date hereof and as of the Closing Date, as applicable, that:
(i) If such Underwriter has provided any Collateral Term Sheets to
potential investors in the Registered Certificates prior to the date hereof
and if the filing of such materials with the Commission is a condition of
the relief granted in the No-Action Letters, then in each such case such
Underwriter delivered such materials in the format contemplated by Section
9(a) to counsel for CCMS on behalf of CCMS at the address specified in
Section 16 hereof no later than 10:30 a.m., New York City time, on the
first business day following the date on which such materials were
initially provided to a potential investor;
(ii) The Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to CCMS pursuant to
Section 9(a) or as contemplated in Section 9(b)(i) constitute all of the
materials relating to the Registered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to prospective
investors in the Registered Certificates prior to the date hereof, except
for any Preliminary Prospectus and any Computational Materials and ABS Term
Sheets that are not required to be filed with the Commission in accordance
with the No-Action Letters, and all Computational Materials and ABS Term
Sheets prepared by such Underwriter comply with the requirements of the
No-Action Letters;
(iii) On the respective dates any such Computational Materials and/or
ABS Term Sheets prepared by such Underwriter with respect to the Registered
Certificates referred to in Section 9(b)(ii) were last furnished by such
Underwriter to each prospective investor, on the date of delivery thereof
to CCMS pursuant to or as contemplated by this Section 9 and on the Closing
Date, such Computational Materials and/or ABS Term Sheets did not and will
not include any untrue statement of a material fact or, when read in
conjunction with the Prospectus, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(iv) At the time any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates were furnished to a prospective
investor and on the date hereof, such Underwriter possessed, and on the
date of delivery of such materials to CCMS pursuant to or as contemplated
by this Section 9 and on the Closing Date, such Underwriter will possess,
the capability, knowledge, expertise, resources and systems of internal
control necessary to ensure that such Computational Materials and/or ABS
Term Sheets prepared by it conform to the representations and warranties of
such Underwriter contained in clauses (ii) and, if applicable, (iii) above
of this subsection (b);
(v) Unless CCMS consents otherwise, all Computational Materials and ABS
Term Sheets with respect to the Registered Certificates furnished by such
Underwriter to
22
potential investors contained and will contain a legend, prominently
displayed on the first page thereof, to the effect that CCMS has not
prepared, reviewed or participated in the preparation of such Computational
Materials or ABS Term Sheets, is not responsible for the accuracy thereof
and has not authorized the dissemination thereof;
(vi) All Collateral Term Sheets with respect to the Registered
Certificates furnished by such Underwriter to potential investors contained
and will contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus and, except
in the case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets; and
(vii) After the date hereof, such Underwriter shall not deliver or
authorize the delivery of any Computational Materials, ABS Term Sheets or
other materials relating to the Registered Certificates (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time
as the delivery of such Computational Materials, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, no Underwriter makes any representation or
warranty as to whether any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates included or will include any untrue
statement resulting from any Collateral Error (except any Corrected Collateral
Error, with respect to materials prepared after the receipt by the Underwriters
from CCMS or any Mortgage Loan Seller of notice of such Collateral Error or
materials superseding or correcting such Collateral Error).
As used in this Agreement, "Collateral Error" shall mean any error in the
Master Tape or any other information concerning the Mortgage Loans furnished by
a Mortgage Loan Seller to any Underwriter in writing or by electronic
transmission that was used in the preparation of any Computational Materials or
ABS Term Sheets; provided that Collateral Error shall not include an error by an
Underwriter in the manipulation of, or any calculation based upon, or any
aggregation of information concerning the Mortgage Loans. As used in this
Agreement, "Corrected Collateral Error" shall mean any Collateral Error as to
which the Underwriters, within a reasonable time period prior to the
dissemination of the materials from which any expense, loss, claim, damage or
liability or action in respect thereof arose, were notified in writing or
provided in written or electronic form information superseding or correcting
such Collateral Error, including, without limitation, as part of the Prospectus.
(c) The Underwriters acknowledge and agree that CCMS has not authorized and
will not authorize the distribution of any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates to any prospective investor,
and agree that any such Computational Materials and/or ABS Term Sheets furnished
to prospective investors shall include a disclaimer to the effect set forth in
clause (v) of subsection (b) above. The Underwriters agree that they will not
represent to potential investors that any Computational Materials and/or ABS
Term Sheets with respect to the Registered Certificates were prepared or
disseminated on behalf of CCMS.
23
(d) If, at any time when a Prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to 90
days from the date hereof, it shall be necessary in the opinion of one or more
of the Underwriters or their counsel to amend or supplement the Prospectus as a
result of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state a material fact
required, when considered in conjunction with the Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Prospectus, not misleading, or if it shall be necessary in the opinion
of one or more of the Underwriters or their counsel to amend or supplement any
Current Report to comply with the Securities Act or the rules thereunder, such
Underwriter or Underwriters, at its or their expense (or, if such amendment or
supplement is necessary due to a Collateral Error relating to the CGMRC Mortgage
Loans (except any Corrected Collateral Error, with respect to materials prepared
after the receipt by the Underwriters from CCMS or CGMRC of notice of such
Collateral Error or materials superseding or correcting such Collateral Error),
at the expense of CCMS), shall promptly prepare and furnish to CCMS for filing
with the Commission an amendment or supplement that will correct such statement
or omission or an amendment that will effect such compliance and shall
distribute such amendment or supplement to each prospective investor in the
Registered Certificates that received such information being amended or
supplemented. Such Underwriter or Underwriters will represent and warrant to
CCMS, as of the date of delivery of such amendment or supplement to CCMS, that
such amendment or supplement does not include any untrue statement of a material
fact or, when read in conjunction with the Prospectus, omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. CCMS shall have no obligation to file such amendment or
supplement if CCMS reasonably determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (it being
understood, however, that CCMS shall have no obligation to review or pass upon
the accuracy or adequacy of, or to correct, any such amendment or supplement
provided by such Underwriter or Underwriters to CCMS pursuant to this Section
9(d)) or (ii) such filing is not required under the Securities Act.
Notwithstanding the foregoing, such Underwriter or Underwriters will make no
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriters from CCMS or CGMRC
of notice of such Collateral Error or materials superseding or correcting such
Collateral Error).
(e) If, at any time when a Prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to 90
days from the date hereof, it shall be necessary in the opinion of CCMS or its
counsel to amend or supplement the Prospectus as a result of an untrue statement
of a material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this Section 9 or
the omission to state therein a material fact required, when considered in
conjunction with the Prospectus, to be stated therein or necessary to make the
statements therein, when read in conjunction with the Prospectus, not
misleading, or if it shall be necessary in the opinion of CCMS or its counsel to
amend or supplement any Current Report to comply with the Securities Act or the
rules thereunder, CCMS promptly will notify the Underwriter(s) that had prepared
the subject Computational
24
Materials and/or ABS Term Sheets of the necessity of such amendment or
supplement, and such Underwriter(s), at its or their expense (or, if such
amendment or supplement is necessary due to a Collateral Error relating to the
CGMRC Mortgage Loans (except any Corrected Collateral Error, with respect to
materials prepared after the receipt by the Underwriters from CCMS or CGMRC of
notice of such Collateral Error or materials superseding or correcting such
Collateral Error), at the expense of CCMS), shall promptly prepare and furnish
to CCMS for filing with the Commission an amendment or supplement that will
correct such statement or omission or an amendment that will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Registered Certificates that received such information being
amended or supplemented. Such Underwriter(s) will represent and warrant to CCMS,
as of the date of delivery of such amendment or supplement to CCMS, that such
amendment or supplement does not include any untrue statement of a material fact
or, when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. CCMS shall have no obligation to file such amendment or supplement
if CCMS reasonably determines that such amendment or supplement contains any
untrue statement of a material fact or, when read in conjunction with the
Prospectus, omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (it being understood,
however, that CCMS shall have no obligation to review or pass upon the accuracy
or adequacy of, or to correct, any such amendment or supplement provided by such
Underwriter(s) to CCMS pursuant to this Section 9(e)). Notwithstanding the
foregoing, such Underwriter(s) will make no representation or warranty as to
whether any such amendment or supplement of Computational Materials or ABS Term
Sheets with respect to the Registered Certificates included or will include any
untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriters from CCMS or any Mortgage Loan Seller of notice of such
Collateral Error or materials superseding or correcting such Collateral Error).
(f) Computational Materials and ABS Term Sheets may be distributed by the
Underwriters through electronic means in accordance with SEC Release 33-7233 or
other applicable laws or regulations.
10. TERMINATION. This Agreement may be terminated by notice given to CCMS,
if the sale of the Registered Certificates provided for herein is not
consummated because of any failure or refusal on the part of CCMS to comply in
all material respects with the terms or to fulfill in all material respects any
of the conditions of this Agreement, or if for any reason CCMS shall be unable
to perform in all material respects its obligations under this Agreement. This
Agreement also may be terminated by the Underwriters, by notice given to CCMS
prior to delivery of and payment for the Certificates, if prior to such time (i)
trading in securities generally on the New York Stock Exchange or in any
over-the-counter market shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York shall have been
declared by either federal or New York State authorities, or (iii) there shall
have occurred any material outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Underwriters
after consultation with CCMS, impracticable to market the Registered
Certificates.
25
11. DEFAULT BY AN UNDERWRITER. If any Underwriter shall fail to purchase
and pay for any of the Registered Certificates agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its obligations under this Agreement, the remaining
Underwriters shall be obligated (in proportion to their respective allocations
set forth in Schedule I) to take up and pay for the Registered Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the purchase price of the Registered
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate purchase price of the Registered
Certificates, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Registered
Certificates, and if such nondefaulting Underwriters do not purchase all of the
Registered Certificates, this Agreement will terminate without liability to the
nondefaulting Underwriters or CCMS. In the event of a default by an Underwriter
as set forth in this Section 11, the Closing Date for the Registered
Certificates shall be postponed for such period, not exceeding ten (10) days, as
the nondefaulting Underwriters shall determine in order that the required
changes in the Registration Statement, the Prospectus or any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to CCMS and to any
nondefaulting Underwriter for damages occasioned by its default hereunder.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of CCMS, the
Underwriters and their respective officers, directors, employees and agents set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the
Underwriters, CCMS or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Registered Certificates. The provisions of Sections 7 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. BENEFICIARIES. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, applicable to
agreements negotiated, made and to be performed entirely in said state.
15. MISCELLANEOUS. This Agreement supersedes all prior or contemporaneous
agreements and understandings between CCMS and any of the Underwriters relating
to the subject matter hereof. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, and that taken together shall constitute one
and the same instrument.
16. NOTICES. All communications hereunder will be in writing and effective
only upon receipt and, if sent to any Underwriter, will be delivered to such
Underwriter at the address, and
26
to the attention of the person or group, set forth on page 1 of this Agreement;
and, if sent to CCMS, will be delivered to Citigroup Commercial Mortgage
Securities Inc., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxx, and, solely for purposes of Sections 5(e) and 9(a),
Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxx; or, in each such case, to such other address, or
to the attention of such other person or group, as may be forwarded by any such
party to the other parties hereto in writing.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
CCMS.
Very truly yours,
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
PNC CAPITAL MARKETS, INC.
By: /s/ X. Xxxxx Xxxxxx
------------------------------
Name: X. Xxxxx Xxxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx Xxxxxxxx
Title: Director Title: Vice President
28
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-108125 filed by CCMS on Form S-3 and declared
effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
-----------------------------------------------------
Commercial Mortgage Pass-Through Certificates, Series 2004-C2, Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5, Class A-1A, Class A-J, Class B, Class C
and Class D Certificates.
Underwriting Agreement, dated as of December 15, 2004
INITIAL CLASS PRINCIPAL INITIAL RATING
CLASS DESIGNATION PURCHASE PRICE(1) BALANCE (2) PASS-THROUGH RATE BY S&P/MOODY'S (3)
----------------- ----------------- ----------- ----------------- ------------------
A-1 100.2477% $ 44,979,000 3.7870% AAA/Aaa
A-2 100.4972% $ 110,215,000 4.1000% AAA/Aaa
A-3 100.4967% $ 65,639,000 4.3800% AAA/Aaa
A-4 100.4949% $ 32,298,000 4.6230% AAA/Aaa
A-5* 100.4934%* $ 440,496,000 4.7330% AAA/Aaa
A-1A 100.4971% $ 130,764,000 4.6200% AAA/Aaa
A-J 100.4975% $ 45,084,000 4.7970% AAA/Aaa
B 100.4993% $ 34,779,000 4.8390% AA/Aa2
C 100.4999% $ 10,304,000 4.8648% AA-/Aa3
D 100.4996% $ 18,034,000 4.9241% A/A2
* Price to Deutsche Bank Securities Inc.: 100.3684%
(1) The Purchase Price includes any Underwriter's discount.
(2) Subject to a variance of plus or minus 5.0%.
(3) By each of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") and Xxxxx'x Investors Service, Inc.
("Moody's").
(4) Approximate.
S-1
ALLOCATION OF CERTIFICATES AMONG UNDERWRITERS
---------------------------------------------
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
Citigroup Global Markets Inc. A-1 $ 44,979,000
000 Xxxxxxxxx Xxxxxx A-2 $ 110,215,000
New York, New York 10013 A-3 $ 65,639,000
A-4 $ 32,298,000
A-5 $ 390,496,000
A-1A $ 130,764,000
A-J $ 45,084,000
B $ 34,779,000
C $ 10,304,000
D $ 18,034,000
PNC Capital Markets, Inc. A-1 $ --
One PNC Plaza A-2 $ --
249 Fifth Avenue A-3 $ --
Pittsburgh, Pennsylvania 15222 A-4 $ --
A-5 $ --
A-1A $ --
A-J $ --
B $ --
C $ --
D $ --
Deutsche Bank Securities Inc. A-1 $ --
60 Wall Street A-2 $ --
New York, New York 10005 A-3 $ --
A-4 $ --
A-5 $ $25,000,000
A-1A $ --
A-J $ --
B $ --
C $ --
D $ --
X.X. Xxxxxx Securities Inc. A-1 $ --
000 Xxxx Xxxxxx A-2 $ --
New York, New York 10017 A-3 $ --
A-4 $ --
A-5 $ $25,000,000
A-1A $ --
A-J $ --
B $ --
C $ --
D $ --
PURCHASE PRICE: The purchase prices set forth in the above schedule for each
Class of Registered Certificates is expressed as a percentage of the Class
Principal Balance of such Class, and is to be accompanied by interest on the
Class Principal Balance of such Class of Registered Certificates at the initial
Pass-Through Rate for such Class, from December 1, 2004 to but not including the
Closing Date.
S-2
CLOSING TIME, DATE AND LOCATION: 10:00 a.m. New York City time on December 22,
2004 at the offices of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
ISSUANCE AND DELIVERY OF REGISTERED CERTIFICATES: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance of $10,000 and integral multiples of $1 in excess thereof.
S-3
