Exhibit 1.1
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Depositor
Commercial Mortgage Pass-Through Certificates, Series 2007-GG9
UNDERWRITING AGREEMENT
February 21, 2007
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GREENWICH CAPITAL MARKETS, INC.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
BANC OF AMERICA SECURITIES LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
CREDIT SUISSE SECURITIES (USA) LLC
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
WACHOVIA CAPITAL MARKETS, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. Greenwich Capital Commercial Funding Corp., a Delaware
corporation (the "Depositor"), proposes to form one or more real estate mortgage
investment conduits (the "Trust"), which will issue securities entitled
Commercial Mortgage Trust 2007-GG9, Commercial Mortgage Pass-Through
Certificates, Series 2007-GG9 (the "Certificates"). Each Certificate will
evidence a fractional undivided, percentage interest or beneficial interest in
the Trust. The terms on which the Trust will issue the Certificates will be
specified in the Prospectus (as defined herein). The property of the Trust will
consist of a pool of fixed rate mortgage loans, secured by multifamily and
commercial properties (collectively, the "Mortgage Loans") that will be
purchased by the Depositor from Greenwich Capital Financial Products, Inc.,
Xxxxxxx Sachs Mortgage Company and Xxxxxx Brothers Bank, FSB, (each, a "Mortgage
Loan Seller and collectively, "the Mortgage Loan Sellers"), pursuant to separate
certain Mortgage Loan Purchase Agreements, each dated as of March 1, 2007 (each,
a "Mortgage Loan Purchase Agreement" and collectively, the "Mortgage Loan
Purchase Agreements"), and will be serviced by Wachovia Bank, National
Association, as master servicer (the "Master Servicer") and LNR Partners, Inc.,
as special servicer (the "Special Servicer"), pursuant to that certain Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
March 1, 2007, by and among the Depositor, the Master Servicer, the Special
Servicer, and LaSalle Bank National Association, as trustee (the "Trustee"), and
certain related property to be conveyed to the Trust by the Depositor (the
"Trust Fund"). The Mortgage Loans will be transferred to the Trust, and the
Certificates will be issued pursuant to the Pooling and Servicing Agreement. The
Class X-0, X-0, X-0, X-XX, X-0, A-1-A, A-M, A-J, B, C, D, E and F Certificates
that are subject to this Agreement and offered by means of the Registration
Statement are referred to herein as the "Publicly Offered Certificates."
Capitalized terms used herein but not defined herein have the respective
meanings given to them in the Pooling and Servicing Agreement.
At or prior to the time when sales to purchasers of the Publicly Offered
Certificates were first made, which was approximately 1:30 p.m. (Eastern
Standard Time) on February 21, 2007 (the "Time of Sale"), the Depositor had
prepared the following information (collectively, the "Time of Sale
Information"): (i) the Depositor's Free Writing Prospectus dated February 12,
2007 (the cover page of which is attached hereto as Annex A) to accompany the
Depositor's Prospectus dated February 12, 2007, relating to the Certificates,
(ii) the term sheet dated February 12, 2007 and (iii) each other "free-writing
prospectus" (as defined pursuant to Rule 405 under the Securities Act) (a "Free
Writing Prospectus") the first page of each of which is attached as Annex B
hereto. If, subsequent to the date of this Agreement, the Depositor and the
Underwriters (x) determine that such information included an untrue statement of
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and (y) terminate their old purchase contracts and enter
into new purchase contracts with investors in the Publicly Offered Certificates,
then "Time of Sale Information" will refer to the information conveyed to
purchasers at the time of entry into such new purchase contract, including any
information that corrects such material misstatements or omissions ("Corrective
Information") and "Time of Sale" will refer to the time and date on which such
new purchase contracts were entered into.
The offering of the Publicly Offered Certificates made pursuant to the
Registration Statement will be made through you as underwriters. This
Underwriting Agreement (this "Agreement") provides for the sale of such Publicly
Offered Certificates to, and the purchase and offering thereof by, you, as
underwriters (collectively, the "Underwriters" and each, an "Underwriter").
Schedule I shall specify the principal or notional balance of each Class of the
Publicly Offered Certificates to be issued and any terms thereof not otherwise
specified in the Pooling and Servicing Agreement, the Classes of Publicly
Offered Certificates, the price at which such Certificates are to be purchased
by the Underwriters from the Depositor, the aggregate amount of Publicly Offered
Certificates to be purchased by you and the initial public offering price or the
method by which the price at which such Publicly Offered Certificates are to be
sold will be determined. The offering of the Publicly Offered Certificates will
be governed by this Agreement.
2. Representations and Warranties of the Depositor.
The Depositor represents and warrants to you as of the date hereof as
follows:
(a) a registration statement on Form S-3, including a prospectus and such
amendments thereto as may have been required to the date hereof, relating to the
Publicly Offered Certificates and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Securities Act"), in the form heretofore delivered to you, has been filed with
the Securities and Exchange Commission (the "Commission") and has become
effective; such registration statement, including the exhibits thereto and any
information that is contained in the Prospectus (as defined herein) and is
deemed to be a part of and included in such registration statement, as such
registration statement may have been amended or supplemented at the date of the
Prospectus, is hereinafter referred to as the "Registration Statement"; the
prospectus first required to be filed to satisfy the condition set forth in Rule
172(c) and pursuant to Rule 424(b) under the Securities Act is hereinafter
referred to as the "Base Prospectus"; the supplement to the Base Prospectus
relating to the Publicly Offered Certificates in the form first required to be
filed to satisfy the condition set forth in Rule 172(c) and pursuant to Rule
424(b) under the Securities Act is hereinafter referred to as the "Prospectus
Supplement"; and the Base Prospectus and the Prospectus Supplement, including
the diskette delivered therewith, together, are hereinafter referred to as the
"Prospectus"); the conditions to the use of a registration statement on Form S-3
under the Securities Act, as set forth in the General Instructions to Form S-3,
and the conditions of Rule 415 under the Securities Act have been satisfied with
respect to the Registration Statement; and no other amendment to the
Registration Statement will be filed which shall have been reasonably
disapproved by you promptly after reasonable notice thereof.
(b) there is no request by the Commission for any further amendment of the
Registration Statement or the Prospectus or for any additional information; the
Commission has not issued any stop order suspending the effectiveness of the
Registration Statement and the Depositor is not aware of any proceeding for that
purpose having been instituted or threatened; and there has been no notification
with respect to the suspension of the qualification for sale of the Publicly
Offered Certificates for sale in any jurisdiction or any proceeding for such
purpose having been instituted or threatened.
(c) the Registration Statement on its effective date or deemed effective
date pursuant to Rule 430B under the Securities Act conformed in all respects to
the requirements of the Securities Act and the rules and regulations of the
Commission (the "Rules and Regulations") thereunder and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
the Prospectus, on the date of the Prospectus Supplement will conform in all
respects to the requirements of the Securities Act and the Rules and Regulations
thereunder and will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing does not apply to
statements in or omissions from either the Registration Statement or the
Prospectus to the extent based upon and in conformity with (A) the Underwriters'
Information (as defined in Section 7(a)), (B) the information as to which the
Mortgage Loan Sellers indemnify the Underwriters under their respective
Indemnification Agreements, each dated as of the date hereof (collectively, the
"Mortgage Loan Seller Indemnification Agreements"), by and among the Depositor,
each Mortgage Loan Seller, respectively, and each Underwriter) (the "Mortgage
Loan Seller Information"), (C) any information contained in or omitted from the
portions of the Prospectus for which the Master Servicer is obligated to
indemnify the Underwriters pursuant to the Indemnification Agreement, dated as
of February 21, 2007 (the "Master Servicer Indemnification Agreement"), between
the Master Servicer and the Depositor (the "Master Servicer Information"), (D)
any information contained in or omitted from the portions of the Prospectus for
which the Special Servicer is obligated to indemnify the Underwriters pursuant
to the Indemnification Agreement, dated as of February 21, 2007 (the "Special
Servicer Indemnification Agreement"), between the Special Servicer and the
Depositor (the "Special Servicer Information") or (E) any information contained
in or omitted from the portions of the Prospectus for which the Trustee is
obligated to indemnify the Underwriters pursuant to the Indemnification
Agreement, dated as of February 21, 2007 (the "Trustee Indemnification
Agreement" and collectively, the "Indemnification Agreements"), between the
Trustee and the Depositor (the "Trustee Information"). The documents
incorporated by reference in the Registration Statement and the Prospectus, when
they were filed with the Commission conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations thereunder; and
any further documents so filed and incorporated by reference in the Registration
Statement and the Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act
and the rules and regulations thereunder; provided, however, that the Company
makes no representations, warranties or agreements as to the information
contained in the Prospectus or any revision or amendment thereof or supplement
thereto in reliance upon and in conformity with the Underwriters' Information,
the Mortgage Loan Seller Information, the Master Servicer Information, the
Special Servicer Information and the Trustee Information.
(d) The Time of Sale Information, at the Time of Sale, did not, and at the
Specified Delivery Date (as defined in Section 3) will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Depositor makes no
representation and warranty with respect to (A) any statements or omissions made
in reliance upon and in conformity with the Underwriters' Information (as
defined in Section 7(a)) or (B) any Mortgage Loan Seller Information, the Master
Servicer Information, the Special Servicer Information and the Trustee
Information contained in or omitted from such Time of Sale Information.
(e) The Depositor (including its agents and representatives other than the
Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not make, use, prepare, authorize,
approve or refer to any "written communication" (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or solicitation of an
offer to buy the Certificates other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act, (ii) the Time of Sale Information, (iii) each other
written communication of the Depositor or its agents and representatives
approved by the Underwriters either in writing in advance or in any other manner
mutually agreed by the Underwriters and the Depositor (each such communication
referred to in clause (ii) and this clause (iii) constituting an "issuer free
writing prospectus", as defined in Rule 433(h) under the Securities Act, being
referred to herein as an "Issuer Free Writing Prospectus") and (iv) the
Prospectus. Each such Issuer Free Writing Prospectus complied or, if used after
the date hereof, will comply, in all material respects with the Securities Act
and the rules and regulations promulgated thereunder, has been filed or will be
filed in accordance with Section 8 (to the extent required thereby) and did not
at the Time of Sale, and at the Specified Delivery Date will not, contain any
untrue statements of a material fact or (when read in conjunction with all Time
of Sale Information) omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Depositor makes no representation and
warranty with respect to (i) any statements or omissions made in reliance upon
and in conformity with the Underwriters' Information or (ii) any Mortgage Loan
Seller Information, Master Servicer Information, Special Servicer Information or
Trustee Information contained in or omitted from any Issuer Free Writing
Prospectus.
(f) the Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as
described in the Prospectus, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Depositor or its execution and performance of the terms of this Agreement, and
is conducting its business so as to comply in all material respects with the
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting business;
(g) the Pooling and Servicing Agreement, the Mortgage Loan Purchase
Agreements and the Certificates conform, or will conform as of the Specified
Delivery Date (as defined herein), to the description thereof contained in the
Registration Statement and the Prospectus; and the Certificates have been duly
and validly authorized (or will have been so authorized prior to the issuance
thereof), and, when such Certificates are duly and validly executed by the
Depositor or Trustee, authenticated by the Trustee and delivered in accordance
with the Pooling and Servicing Agreement and delivered and paid for as provided
herein, will be validly issued and outstanding and entitled to the benefits
afforded by the Pooling and Servicing Agreement;
(h) the Depositor is not in violation of its certificate of incorporation
or by-laws or in default under any agreement, indenture or instrument the effect
of which violation or default would be material and adverse to the Depositor or
which violation or default would have a material adverse effect on the
performance by the Depositor of its obligations under this Agreement, the
Pooling and Servicing Agreement, the Certificates or the Mortgage Loan Purchase
Agreements; other than as set forth or contemplated in the Prospectus or in the
Time of Sale Information, there are no actions or proceedings against, or
investigations of, the Depositor pending, or, to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal required
to be described in the Prospectus or Time of Sale Information or (i) asserting
the invalidity of this Agreement, the Pooling and Servicing Agreement, any
Mortgage Loan Purchase Agreement or the Certificates, (ii) seeking to prevent
the issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, (iii) which might materially and adversely
affect the performance by the Depositor of its obligations under, or the
validity or enforceability against the Depositor of, this Agreement, the Pooling
and Servicing Agreement, any Mortgage Loan Purchase Agreement or the
Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Certificates described in the Prospectus or the Time of Sale
Information;
(i) there has not been, and as of the Specified Delivery Date there will
not be, any material adverse change in the business operations, financial
condition, properties or assets of the Depositor since the date as of which
information is given in the Prospectus that would have a material adverse effect
on the ability of the Depositor to perform its obligations under this Agreement,
the Pooling and Servicing Agreement or any Mortgage Loan Purchase Agreement;
(j) there are no contracts, indentures or other documents of a character
required by the Securities Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto;
(k) the Depositor possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Depositor has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Depositor;
(l) the issue and sale of the Certificates and the compliance by the
Depositor with all of the provisions of the Certificates, each Mortgage Loan
Purchase Agreement, this Agreement and the Pooling and Servicing Agreement, and
the execution and delivery by the Depositor of this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements are within the
corporate power of the Depositor and have been (in the case of this Agreement),
or will have been, duly authorized by all necessary corporate action on the part
of the Depositor; and neither the execution and delivery by the Depositor of
such instruments, nor the consummation by the Depositor of the transactions
herein or therein contemplated, nor the compliance by the Depositor with the
provisions hereof or thereof, will (A) conflict with or result in a breach of,
or constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Depositor, (B) conflict with any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on the Depositor or its properties, (C) conflict with any of the
provisions of any indenture, mortgage, contract or other instrument to which the
Depositor is a party or by which it is bound or (D) except as contemplated by
the Pooling and Servicing Agreement, result in the creation or imposition of any
lien, charge or encumbrance upon any of its property or assets pursuant to the
terms of any such indenture, mortgage, contract or other instrument;
(m) this Agreement has been duly authorized, executed and delivered by the
Depositor;
(n) on the Specified Delivery Date, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements will have been duly authorized,
executed and delivered by the Depositor and will be valid and binding agreements
of the Depositor, enforceable against the Depositor in accordance with their
respective terms, except to the extent that enforcement thereof may be limited
by (1) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and (2)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity);
(o) all approvals, authorizations, consents, orders or other actions of
any person, corporation or other organization, or of any court, governmental
agency or body or official (except with respect to the state securities or "blue
sky" laws of various jurisdictions) required in connection with the valid and
proper authorization, issuance and sale of the Publicly Offered Certificates
pursuant to this Agreement and the Pooling and Servicing Agreement have been or
will be taken or obtained on or prior to the Specified Delivery Date;
(p) at the Specified Delivery Date, each of the Mortgage Loans will meet
the criteria for selection described in the Prospectus Supplement;
(q) neither the Depositor nor the Trust Fund is, and neither the sale of
the Certificates in the manner contemplated by the Prospectus or an offering
memorandum, as applicable, nor the activities of the Trust Fund pursuant to the
Pooling and Servicing Agreement will cause the Depositor or the Trust Fund to be
an "investment company" or under the control of an "investment company" as such
terms are defined under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act");
(r) at the time of the execution and delivery of the Pooling and Servicing
Agreement, the Depositor (A) except as disclosed in the Prospectus, will convey
to the Trustee, or cause to be conveyed to the Trustee, all of the Depositor's
right, title and interest in and to the Mortgage Loans being transferred to the
Trustee pursuant to the Pooling and Servicing Agreement, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively "Liens") granted by or imposed upon the Depositor, (B)
will not have assigned to any person any of its right, title or interest in the
Mortgage Loans or in the Pooling and Servicing Agreement other than to the Trust
and the holders of the Certificates and (C) will have the power and authority to
transfer or cause to be transferred the Mortgage Loans to the Trustee and to
sell the Publicly Offered Certificates to the Underwriters. Upon execution and
delivery of the Pooling and Servicing Agreement by the Trustee, the Trustee will
have acquired ownership of all of the Depositor's right, title and interest in
and to the Mortgage Loans except to the extent disclosed in the Prospectus, and
upon delivery to the Underwriters of the Publicly Offered Certificates pursuant
hereto, each Underwriter will have good title to the Publicly Offered
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor;
(s) under generally accepted accounting principles and for federal income
tax purposes, the Depositor will report the transfer of the Mortgage Loans to
the Trustee in exchange for the Certificates and the sale of the Publicly
Offered Certificates to the Underwriters pursuant to this Agreement as a sale of
the interest in the Mortgage Loans evidenced by the Publicly Offered
Certificates. The consideration received by the Depositor upon the sale of the
Publicly Offered Certificates to the Underwriters will constitute reasonably
equivalent value and fair consideration for the Publicly Offered Certificates.
The Depositor will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Publicly Offered Certificates to the
Underwriters. The Depositor is not selling the Mortgage Loans to the Trust or
the Publicly Offered Certificates to the Underwriters with any intent to hinder,
delay or defraud any of the creditors of the Depositor;
(t) any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and Servicing
Agreement, the Mortgage Loan Purchase Agreements and the Certificates payable by
the Depositor (other than income taxes) have been paid or will be paid at or
prior to the Specified Delivery Date;
(u) the statements set forth in the Prospectus under the caption
"Description of the Offered Certificates," insofar as they purport to constitute
a summary of the terms of the Certificates and insofar as they purport to
describe the provisions of the documents referred to therein, are correct in all
material respects;
(v) following the election of the Trustee to treat certain assets of the
Trust Fund as one or more REMICs pursuant to Section 860D of the Internal
Revenue Code of 1986 (the "Code"), assuming that the 2006-LDP9 PSA is
administered in accordance with its terms and the REMICs formed thereunder
continue to qualify as REMICs, such assets will qualify as one or more REMICs
and each Certificate will qualify as a regular interest in one of such REMICs;
and
(w) the Depositor is not, and on the date on which the first bona fide
offer of the Certificates is made (within the meaning of Rule 164(h)(2) under
the Securities Act) will not be, an "ineligible issuer," as defined in Rule 405
under the Securities Act.
3. Purchase, Sale and Delivery of Certificates. Delivery of and payment
for the Publicly Offered Certificates will be made at such place and at such
time as shall be specified in Schedule I or at such other time thereafter as you
and the Depositor shall agree upon, each such time being hereinafter referred to
as a "Specified Delivery Date." Delivery of such Certificates shall be made by
the Depositor causing The Depository Trust Company ("DTC") to credit the
respective accounts of the Underwriters at DTC against payment of the purchase
price specified in Schedule I in same day funds wired to such bank as may be
designated by the Depositor, or by such other manner of payment as may be agreed
upon by the Depositor and you. The Certificates to be purchased by the
Underwriters will be represented by one or more definitive global Certificates
in book-entry form, which will be deposited by or on behalf of the Depositor
with DTC or its designated custodian in such denominations as you request, and
will be made available for checking and packaging at the office of Greenwich
Capital Markets, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (or at
some other location specified by the Underwriters at least 48 hours prior to
delivery), at least 24 hours prior to the Specified Delivery Date.
4. Offering by Underwriters. (a) It is understood that the Underwriters
propose to offer the Publicly Offered Certificates for sale to the public as set
forth in the Prospectus.
(b) Each Underwriter represents and warrants to, and agrees with the
Depositor, that:
(i) In relation to each Member State of the European Economic Area which
has implemented the Prospectus Directive (each, a "Relevant Member State"),
with effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the "Relevant Implementation
Date"), such Underwriter has not made and will not make an offer of Publicly
Offered Certificates to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Publicly Offered Certificates
which has been approved by the competent authority in that Relevant Member
State or, where appropriate, approved in another Relevant Member State and
notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect
from and including the Relevant Implementation Date, make an offer of
Publicly Offered Certificates to the public in that Relevant Member State at
any time:
(A) to legal entities which are authorized or regulated to operate in
the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(B) to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total balance
sheet of more than (euro)43,000,000 and (3) an annual net turnover of more
than (euro)50,000,000, as shown in its last annual or consolidated
accounts; or
(C) in any other circumstances which do not require the publication by
the Trust of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this provision, the expression an "offer of Publicly Offered
Certificates to the public" in relation to any Publicly Offered Certificates in
any Relevant Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Publicly Offered
Certificates to be offered so as to enable an investor to decide to purchase or
subscribe the Publicly Offered Certificates, as the same may be varied in that
Relevant Member State by any measure implementing the Prospectus Directive in
that Relevant Member State and the expression "Prospectus Directive" means the
European Commission Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
(ii) Each Underwriter is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of its business and it has not offered or sold and
will not offer or sell the Publicly Offered Certificates other than to
persons whose ordinary activities involve them in acquiring, holding,
managing, or disposing of investments (as principal or agent) for the
purposes of their businesses or who it is reasonable to expect will acquire,
hold, manage or dispose of investments (as principal or agent) for the
purposes of their businesses where the issue of the Publicly Offered
Certificates would otherwise constitute a contravention of Section 19 of the
United Kingdom Financial Services and Markets Xxx 0000 (the "FSMA").
(iii) Each Underwriter has only communicated or caused to be communicated
and will only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of Section 21
of the FSMA) received by it in connection with the issue or sale of the
Publicly Offered Certificates in circumstances in which Section 21(1) of the
FSMA does not apply to the Trust.
(iv) Each Underwriter has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Publicly Offered Certificates in, from or otherwise involving the United
Kingdom.
(v) Each Underwriter will not offer or sell any Publicly Offered
Certificates, directly or indirectly, in Japan or to, or for the benefit of,
any resident of Japan (which term as used herein means any person resident in
Japan, including any corporation or other entity organized under the laws of
Japan), or to others for reoffering or resale, directly or indirectly, in
Japan or to a resident of Japan, except pursuant to an exemption from the
registration requirements of, and otherwise in compliance with, the
Securities and Exchange Law of Japan and any other applicable laws,
regulations and ministerial guidelines of Japan.
5. Covenants of the Depositor. The Depositor covenants and agrees with you
that:
(a) the Depositor has prepared and/or shall prepare a Prospectus
Supplement setting forth the amount of Certificates covered thereby and the
terms thereof not otherwise specified in the Base Prospectus, the price at which
such Publicly Offered Certificates are to be purchased by the Underwriters from
the Depositor, either the initial public offering price or the method by which
the price at which such Publicly Offered Certificates are to be sold will be
determined, the selling concessions and reallowances, if any, and such other
information as you and the Depositor deem appropriate in connection with the
offering of such Publicly Offered Certificates, but the Depositor shall not file
any amendments to the Registration Statement as in effect with respect to the
Publicly Offered Certificates, or any amendments or supplements to the
Prospectus or prepare, use, authorize, approve, refer to or file any Issuer Free
Writing Prospectus, unless it has first delivered copies of such amendments or
supplements or Issuer Free Writing Prospectus to you and given you a reasonable
opportunity to review the same or if you have reasonably objected thereto
promptly after receipt thereof; the Depositor shall immediately advise you or
your counsel (i) when notice is received from the Commission that any
post-effective amendment to the Registration Statement has been filed or has
become or will become effective or any supplement to the Prospectus or any
amended Prospectus, in each case relating to the Publicly Offered Certificates
specified in Schedule I has been filed and will furnish you with copies thereof,
(ii) of any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information relating to the
Publicly Offered Certificates and (iii) of any order or communication suspending
or preventing, or threatening to suspend or prevent, the offer and sale of the
Publicly Offered Certificates or of any proceedings or examinations that may
lead to such an order or communication, whether by or of the Commission or any
authority administering any state securities or "blue sky" law, as soon as the
Depositor is advised thereof, and shall use its best efforts to prevent the
issuance of any such order or communication and to obtain as soon as possible
its lifting, if issued;
(b) if, at any time when a prospectus is required to be delivered under
the Securities Act, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend or supplement the Prospectus to comply with
the Securities Act or the Rules and Regulations, the Depositor shall prepare and
file with the Commission, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance;
(c) the Depositor shall make generally available to the holders of the
Publicly Offered Certificates (the "Holders of the Publicly Offered
Certificates"), in each case as soon as practicable, but in any event no later
than eighteen months after the Specified Delivery Date, earning statements
covering (i) a period of 12 months beginning not later than the first day of the
related Trust's fiscal quarter next following the effective date of the
Registration Statement and (ii) a period of 12 months beginning no later than
the first day of the Trust's fiscal quarter next following the date hereof which
will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
of the Commission with respect to the Publicly Offered Certificates. The
Depositor shall cause the Trustee to furnish or make available, within a
reasonable time after the end of each calendar year, to each Holder of the
Publicly Offered Certificate at any time during such year, such information as
the Depositor deems necessary or desirable to assist the Holders of the Publicly
Offered Certificates in preparing their federal income tax returns;
(d) the Depositor shall furnish to you copies of the Registration
Statement, the Prospectus and each Free Writing Prospectus, and all amendments
and supplements to such documents relating to the Publicly Offered Certificates,
in each case as soon as available and in such quantities as you reasonably
request as long as the Depositor is required to deliver a prospectus under the
Securities Act in connection with the sale of the Publicly Offered Certificates;
provided that any such documents requested by you on a date that is more than
nine (9) months after the Specified Delivery Date shall be provided at your
expense;
(e) the Depositor shall arrange for the qualification of the Publicly
Offered Certificates for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you designate and shall
continue such qualifications in effect so long as required for the distribution;
provided, however, that neither the Depositor nor the Trust shall be required to
qualify to do business in any jurisdiction where it is now not qualified or to
take any action which would subject it to general or unlimited service of
process in any jurisdiction in which it is now not subject to service of
process;
(f) the Depositor shall furnish to you, or cause to be furnished to you,
such information with respect to the Trust or its financial condition or results
of operations, as you may reasonably request, including but not limited to, any
reports or other communications (financial or other) furnished to the Holders of
the Publicly Offered Certificates and any information necessary or appropriate
to the maintenance of a secondary market in the Publicly Offered Certificates;
(g) as between itself and the Underwriters, the Depositor will pay all
expenses incidental to the performance of its obligations under this Agreement,
including without limitation (i) expenses of preparing, printing and reproducing
the Time of Sale Information, any Issuer Free Writing Prospectus, the Prospectus
(including any amendments thereof and supplements thereto), the Pooling and
Servicing Agreement and the Publicly Offered Certificates, (ii) the fees charged
by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. ("S&P"), Fitch, Inc. ("Fitch") and Xxxxx'x Investors Service, Inc.
("Moody's", and together with S&P and Fitch, the "Rating Agencies") for rating
of the Publicly Offered Certificates, (iii) the fees and expenses of the Trustee
and any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Pooling and Servicing Agreement and the Publicly
Offered Certificates, (iv) the cost of printing or producing any "blue sky"
memorandum in connection with the offer and sale of the Publicly Offered
Certificates under state securities laws and all expenses in connection with the
qualification of the Publicly Offered Certificates for offer and sale under
state securities laws, (v) any cost incurred in connection with the designation
of the Publicly Offered Certificates for trading in PORTAL and (vi) all other
costs and expenses incidental to the performance by the Depositor of its
obligations hereunder that are not otherwise specifically provided for in this
subsection. It is understood that, except as provided in this subsection (g) and
in Sections 7, 10 and 11 below, each Underwriter will pay all of its own
expenses including all out-of-pocket and/or internally allocated costs and
expenses incurred by them in connection with the transaction herein
contemplated, including, without limitation, fees and expenses of their counsel,
any transfer taxes on the Publicly Offered Certificates and the expenses of any
advertising of the offering of the Publicly Offered Certificates made by the
Underwriters;
(h) during the period when a prospectus is required by law to be delivered
in connection with the sale of the Publicly Offered Certificates pursuant to
this Agreement, the Depositor shall file, or cause the Trustee to file on behalf
of the Trust, on a timely and complete basis, all documents that are required to
be filed by the Trust with the Commission pursuant to Sections 13, 14 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(i) the Depositor is not and shall not become an open-end investment
company, unit investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under Section 8 of
the Investment Company Act; and
(j) the Depositor acknowledges and agrees that (i) the purchase and sale
of the Publicly Offered Certificates pursuant to this Agreement is an
arm's-length commercial transaction between the Depositor, on the one hand, and
the several Underwriters, on the other, (ii) in connection therewith and with
the process leading to such transaction each Underwriter is acting solely as a
principal and not the agent or fiduciary of the Depositor, (iii) no Underwriter
has assumed an advisory or fiduciary responsibility in favor of the Depositor
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Depositor on other matters) or any other obligation to the Depositor except
the obligations expressly set forth in this Agreement and (iv) the Depositor has
consulted its own legal and financial advisors to the extent it deemed
appropriate. The Depositor agrees that it will not claim that the Underwriters,
or any of them, has rendered advisory services of any nature or respect, or owes
a fiduciary or similar duty to the Depositor, in connection with such
transaction or the process leading thereto.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Publicly Offered Certificates will
be subject to the accuracy of the representations and warranties on the part of
the Depositor as of the date hereof and the Specified Delivery Date, to the
accuracy of the statements of the Depositor made pursuant to the provisions
hereof, to the performance by the Depositor in all material respects of its
obligations hereunder and to the following additional conditions precedent:
(a) you shall have received a letter from PricewaterhouseCoopers LLP,
dated the date hereof and, if requested by you, dated the Specified Delivery
Date, each in the forms heretofore agreed to;
(b) all actions required to be taken and all filings required to be made
by the Depositor under the Securities Act prior to the Specified Delivery Date
shall have been duly taken or made; and prior to the Specified Delivery Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted, or
to the knowledge of the Depositor or any Underwriter, shall be contemplated by
the Commission;
(c) the Publicly Offered Certificates shall be rated the ratings specified
in Schedule I, and shall not have been lowered or placed on any credit watch
with a negative implication for downgrade;
(d) you shall have received an opinion of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, special counsel to the Depositor and the Co-Lead Underwriters, dated the
Specified Delivery Date, in form and substance satisfactory to the Underwriters
and counsel to the Underwriters;
(e) you shall have received a letter from Cadwalader, Xxxxxxxxxx & Xxxx
LLP, special counsel to the Depositor and the Co-Lead Underwriters, relating to
the Prospectus and dated the Specified Delivery Date, in form and substance
satisfactory to the Underwriters and counsel to the Underwriters;
(f) you shall have received an opinion of special counsel to each Mortgage
Loan Seller, dated the Specified Delivery Date, in form and substance
satisfactory to the Underwriters and counsel to the Underwriters;
(g) you shall have received an opinion of counsel to the Trustee, dated
the Specified Delivery Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
(h) you shall have received an opinion of counsel to the Master Servicer,
dated the Specified Delivery Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
(i) you shall have received an opinion of counsel to the Special Servicer,
dated the Specified Delivery Date, in form and substance satisfactory to the
Underwriters and counsel to the Underwriters;
(j) you shall have received letters, dated the Specified Delivery Date,
from counsel rendering opinions to the Rating Agencies, to the effect that you
may rely upon their opinion to such Rating Agencies, as if such opinion were
rendered to you, or such opinions shall be addressed to you;
(k) you shall have received a certificate or certificates signed by such
of the principal executive, financial and accounting officers of the Depositor
as you may request, dated the Specified Delivery Date, in form and substance
satisfactory to the Underwriters and counsel to the Underwriters;
(l) you shall have received a certificate of the Trustee, signed by one or
more duly authorized officers of the Trustee, dated the Specified Delivery Date,
in form and substance satisfactory to the Underwriters and counsel to the
Underwriters;
(m) you shall have received a certificate of the Master Servicer, signed
by one or more duly authorized officers of the Master Servicer, dated the
Specified Delivery Date, in form and substance satisfactory to the Underwriters
and counsel to the Underwriters;
(n) you shall have received a certificate of the Special Servicer, signed
by one or more duly authorized officers of the Special Servicer, dated the
Specified Delivery Date, in form and substance satisfactory to the Underwriters
and counsel to the Underwriters;
(o) the Mortgage Loan Sellers shall have sold the Mortgage Loans to the
Depositor pursuant to the Mortgage Loan Purchase Agreements;
(p) the Pooling and Servicing Agreement and all of the other documents
identified therein or herein shall have been duly entered into by all of the
respective parties thereto;
(q) you shall have received such other documents, certificates, letters
and opinions as you may reasonably request; and
(r) the Registration Statement shall be effective under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or threatened
by the Commission and the Prospectus Supplement and each Free Writing Prospectus
required to be filed by the Depositor pursuant to Section 12 shall have been
filed or transmitted for filing by means reasonably calculated to result in a
filing with the Commission pursuant to Rule 424(b) or Rule 433 under the
Securities Act, as applicable.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter, each
of its officers and each of its directors and each person, if any, that controls
any Underwriter within the meaning of the Securities Act or the Exchange Act
against any expenses, losses, claims, damages or liabilities, joint or several,
to which such Underwriter or such officer, director or controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, and
shall reimburse any legal or other expenses reasonably incurred by such
Underwriter or any such director, officer, or controlling person in connection
with investigating or defending any such expense, loss, claim, damage, liability
or action, in each case insofar as such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment or supplement thereto or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
any untrue statement or alleged untrue statement of any material fact contained
in the Prospectus Supplement or the Base Prospectus or any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (iii) any untrue statement or alleged untrue statement of any
material fact contained in any Issuer Free Writing Prospectus (as defined in
Section 2(e) hereof) or any "issuer information," as defined in Rule 433(h)
under the Securities Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information") contained in any
Underwriter Free Writing Prospectus, or the omission or alleged omission to
state a material fact required to make the statements therein (when read in
conjunction with all Time of Sale Information), in light of the circumstances
under which they were made, not misleading, which error or omission was not
corrected by Corrective Information subsequently supplied by the Depositor or
any Mortgage Loan Seller to such Underwriter at least 1 Business Day prior to
the Time of Sale and the person asserting any such expense, loss, claim, damage
or liability, did not receive such Corrective Information prior to the Time of
Sale, or (iv) any breach of the representation and warranty in Section 2(w)
hereof; and the Depositor shall reimburse, as incurred, each Underwriter and
each such officer, director and controlling person for any legal or other
expenses reasonably incurred by such Underwriter and each such officer, director
and controlling person in connection with investigating or defending any such
expense, loss, claim, damage, liability or action; provided, however, that with
respect to clauses (i), (ii) and (iii) of this Section 7(a), the Depositor shall
not be liable in any such case to the extent that any such expense, loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement in, or omission or alleged omission from, any such
documents in reliance upon and in conformity with (x) written information
furnished to the Depositor by or on behalf of an Underwriter specifically for
use in the Prospectus or any Issuer Free Writing Prospectus (the "Underwriters'
Information"), or (y) any Mortgage Loan Seller Information, the Master Servicer
Information, the Special Servicer Information and the Trustee Information. The
parties acknowledge that the following statements constitute the only
Underwriters' Information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus or any Issuer Free Writing
Prospectus: (i) the statements set forth in the penultimate paragraph (other
than the third sentence thereof) and the entire last paragraph, above the
emboldened names of the Underwriters on the cover of the Prospectus Supplement
and each Issuer Free Writing Prospectus, (ii) the statements in the second
sentence under the caption "Summary of Prospectus Supplement--Relevant
Parties--Underwriters" in the Prospectus Supplement and the Free Writing
Prospectus, and (iii) the statements in the first and second sentences of the
fourth paragraph, the first sentence in the sixth paragraph, and the entire
seventh paragraph, under the caption "Method of Distribution" in the Prospectus
Supplement. This indemnity agreement shall be in addition to any liability that
the Depositor may otherwise have.
(b) Each Underwriter shall severally, and not jointly, indemnify and hold
harmless the Depositor, each of its directors, each of its officers who has
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of the Securities Act or the Exchange Act against
any expenses, losses, claims, damages or liabilities to which the Depositor or
any such director, officer or controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, and shall reimburse any legal or
other expenses reasonably incurred by the Depositor or any such director,
officer or controlling person in connection with investigating or defending any
such expense, loss, claim, damage, liability or action, in each case insofar as
such expenses, losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Underwriters' Information
and (ii) untrue statements or alleged untrue statements of a material fact in
any Underwriter Free Writing Prospectus or omission or alleged omission to state
in such Underwriter Free Writing Prospectus a material fact necessary in order
to make the statements therein (when read in conjunction with all Time of Sale
Information), in the light of the circumstances under which they were made, not
misleading, provided, that no Underwriter shall be obligated to so indemnify and
hold harmless the Depositor (A) to the extent such liabilities are caused by a
misstatement or omission resulting from an error or omission in the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Depositor or any Mortgage Loan Seller to any Underwriter at
least 1 Business Day prior to the Time of Sale or (B) with respect to
information that is also contained in the Time of Sale Information. This
indemnity agreement shall be in addition to any liability that such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party under Section 7(a) and (b),
except to the extent that such omission to notify materially prejudices the
indemnifying party and in no event relieves it of liability it may otherwise
then have under this Agreement. In case any such action is brought against any
indemnified party, after such indemnifying party has been notified of the
commencement thereof, such indemnifying party shall be entitled to participate
therein (at its own expense), and, if it elects by written notice delivered to
such indemnified party promptly after receiving the notice referred to in the
preceding sentence, such indemnifying party, shall be entitled to assume the
defense thereof (jointly with any other indemnifying party similarly notified)
with counsel reasonably satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election to so assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. In any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel, (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have failed to
designate within a reasonable period of time counsel reasonably satisfactory to
the indemnified party (in which case the fees and expenses shall be paid as
incurred by the indemnifying party). In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
An indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent. However, if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party shall
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing two sentences, if
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under this subsection, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. If an
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if such
settlement (i) provides for an unconditional release of the indemnified party in
connection with all matters relating to the proceeding that have been asserted
against the indemnified party in such proceeding by the other parties to such
settlement and (ii) does not require an admission of fault by the indemnified
party, without the consent of the indemnified party.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 7 or is insufficient in respect of any liabilities
referred to therein (on grounds of public policy or otherwise), the parties
entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent that contribution
is not permitted under Section 11(f) of the Securities Act. In determining the
amount of contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by the Depositor on the one hand
and each Underwriter on the other from the offering of the Publicly Offered
Certificates (taking into account the portion of the proceeds of the offering
realized by each). In the event contribution according to the foregoing sentence
is not permitted by law, in determining the amount of contribution to which the
respective parties are entitled, there shall be considered not only the relative
benefits but also the relative fault of the Depositor on the one hand, and of
the Underwriters on the other, in connection with the statements or omissions
which resulted in such losses, claims, damages, or other liabilities, as well as
any other relevant equitable considerations; provided, however, that no
Underwriter shall be required to contribute any amount under this subsection (d)
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter in connection with the offering of the
Publicly Offered Certificates exceeds the amount of damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of the
foregoing, the relative benefits received by the Depositor on the one hand, and
the Underwriters on the other, in connection with the offering of the Publicly
Offered Certificates shall be deemed to be in the same respective proportions
that the total proceeds from the sale of the Publicly Offered Certificates sold
by the Underwriters (before deducting expenses) received by the Depositor and
the total underwriting discounts, commissions and other fees received by the
Underwriters in connection with the offering of the Publicly Offered
Certificates, bear to the aggregate offering price of the Publicly Offered
Certificates. The relative fault of the Depositor on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Depositor or by the Underwriters, and the parties' relative
intent, knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission and any other equitable considerations appropriate under
the circumstances. The Depositor and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose). The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or other liabilities referred to in this Section 7 shall
be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies that
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, any
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Publicly Offered Certificates.
(g) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of any
Underwriter and to each person, if any, who controls any Underwriter within the
meaning of the Securities Act or the Exchange Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Depositor and to each
person, if any, who controls the Depositor within the meaning of the Securities
Act or Exchange Act.
(h) Each Underwriter will indemnify and hold harmless the other
Underwriters and each person, if any, who controls such Underwriters within the
meaning of either the Securities Act or the Exchange Act (the "Non-Indemnifying
Underwriters") from and against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which the Non-Indemnifying Underwriters
becomes subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, common law or otherwise, insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission (when read in
conjunction with all Time of Sale Information) to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading at the Time of Sale, contained in any
Underwriter Free Writing Prospectus prepared by such Indemnifying Underwriter or
(ii) the failure of such Indemnifying Underwriter, or any member of its selling
group, to comply with any provision of Section 8, and agrees to reimburse such
Non-Indemnifying Underwriter, as incurred for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, except to the extent such losses,
claims, damages or liabilities are caused by a misstatement or omission
resulting from an error or omission in the Issuer Information which was not
corrected by Corrective Information subsequently supplied by the Depositor or
any Mortgage Loan Seller to any Underwriter at least 1 Business Day prior to the
Time of Sale. This indemnity agreement will be in addition to any liability that
any Underwriter may otherwise have.
8. Offering Communications; Free Writing Prospectuses.
(a) The Underwriters may prepare and provide to prospective investors Free
Writing Prospectuses, or portions thereof, which the Depositor is required to
file with the Commission in electronic format and will use reasonable efforts to
provide to the Depositor such Free Writing Prospectuses, or portions thereof, in
either Microsoft Word(R) or Microsoft Excel(R) format and not in PDF, except to
the extent that the Depositor, in its sole discretion, waives such requirements,
subject to the following conditions (to which such conditions each Underwriter
agrees (provided that no Underwriter shall be responsible for any breach of the
following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the Underwriters
shall not convey or deliver any written communication to any person in
connection with the initial offering of the Publicly Offered Certificates,
unless such written communication (1) is made in reliance on Rule 134 under
the Securities Act, (2) constitutes a prospectus satisfying the requirements
of Rule 430B under the Securities Act or (3) constitutes Time of Sale
Information or a Free Writing Prospectus that does not constitute Time of
Sale Information. The Underwriters shall not convey or deliver in connection
with the initial offering of the Publicly Offered Certificates any materials
in reliance on any "ABS informational and computational material," as defined
in Item 1101(a) of Regulation AB under the Securities Act ("ABS Informational
and Computational Material"), in reliance upon Rules 167 and 426 under the
Securities Act.
(ii) Each Underwriter shall deliver to the Depositor, no later than two
Business Days prior to the date of first use thereof or such later date as
may be agreed to by the Depositor and that allows the Depositor to satisfy
the requirements of Rule 433 under the Securities Act, (a) any Free Writing
Prospectus that was prepared by or on behalf of such Underwriter (an
"Underwriter Free Writing Prospectus") and that contains the Issuer
Information (which the parties hereto agree includes, without limitation,
Mortgage Loan Seller Information), and (b) any Free Writing Prospectus or
portion thereof prepared by or on behalf of such Underwriter that contains
only a description of the final terms of the Publicly Offered Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains only
ABS Informational and Computational Materials may be delivered by an
Underwriter to the Depositor not later than the later of (A) two Business
Days prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the Securities Act or such later date as may be agreed to by the
Depositor or (B) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor that the
Free Writing Prospectuses to be furnished to the Depositor by such
Underwriter pursuant to Section 8(a)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to prospective
investors by such Underwriter in connection with its offer and sale of the
Publicly Offered Certificates.
(iv) Each Underwriter represents and warrants to the Depositor that each
Free Writing Prospectus required to be provided by it to the Depositor
pursuant to Section 8(a)(ii) did not, as of the Time of Sale, and will not as
of the Specified Delivery Date, include any untrue statement of a material
fact or omit any material fact necessary to make the statements contained
therein (when read in conjunction with all Time of Sale Information), in
light of the circumstances under which they were made, not misleading;
provided however, that such Underwriter makes no representation to the extent
such misstatements or omissions were the result of any inaccurate Issuer
Information, which information was not corrected by Corrective Information
subsequently supplied by the Depositor or any Mortgage Loan Seller to such
Underwriter within a reasonable period of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered by any
Underwriter to the Depositor pursuant to Section 8(a)(ii);
(C) Any Free Writing Prospectus for which the Depositor or any person
acting on its behalf provided, authorized or approved information that is
prepared and published or disseminated by a person unaffiliated with the
Depositor or any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise disseminating
communications.
Notwithstanding the foregoing, the Depositor shall not be required to file (1)
Issuer Information contained in any Underwriter Free Writing Prospectus or Free
Writing Prospectus of any other offering participant other than the Depositor,
if such information is included or incorporated by reference in a prospectus or
Free Writing Prospectus previously filed with the Commission that relates to the
offering of the Publicly Offered Certificates, or (2) any Free Writing
Prospectus or portion thereof that contains a description of the Publicly
Offered Certificates or the offering of the Publicly Offered Certificates which
does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to Section
8(a)(v)(C) by the Depositor shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof required to be filed
that contains only the description of the final terms of the Publicly
Offered Certificates shall be filed by the Depositor with the Commission
within two days of the later of the date such final terms have been
established for all classes of Publicly Offered Certificates and the date
of first use;
(B) Any Free Writing Prospectus or portion thereof required to be filed
that contains only ABS Informational and Computational Material shall be
filed by the Depositor with the Commission not later than the later of the
due date for filing the final Prospectus relating to the Publicly Offered
Certificates pursuant to Rule 424(b) under the Securities Act or two
Business Days after the first use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be filed pursuant to
Section 8(a)(v)(C) shall, if no payment has been made or consideration has
been given by or on behalf of the Depositor for the Free Writing
Prospectus or its dissemination, be filed by the Depositor with the
Commission not later than four Business Days after the Depositor becomes
aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
(vii) Each Underwriter shall file with the Commission, or provide to the
Depositor at least 2 Business Days prior to the time such filing is required,
any Free Writing Prospectus that is used or referred to by it and distributed
by or on behalf of such Underwriter in a manner reasonably designed to lead
to its broad, unrestricted dissemination not later than the date of the first
use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 8(a)(vii), each
Underwriter shall file, or cause to be filed, with the Commission any Free
Writing Prospectus for which such Underwriter or any person acting on its
behalf provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Depositor or any
other offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications and
for which no payment was made or consideration given by or on behalf of the
Depositor or any other offering participant, not later than four Business
Days after such Underwriter becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 8(a)(v) and 8(a)(vii),
neither the Depositor nor any Underwriter shall be required to file any Free
Writing Prospectus that does not contain substantive changes from or
additions to a Free Writing Prospectus previously filed with the Commission,
and no Underwriter shall be required to file any Free Writing Prospectus to
the extent that the information contained therein is included in a prospectus
or Free Writing Prospectus previously filed that relates to the offering of
the Publicly Offered Certificates.
(x) The Depositor and the Underwriters each agree that any Free Writing
Prospectuses prepared by it shall contain the following legend, or
substantially equivalent legend that complies with Rule 433 of the Securities
Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the depositor has filed with the SEC for more complete
information about the depositor, the issuing trust, and this
offering. You may get these documents for free by visiting XXXXX
on the SEC Web site at xxx.xxx.xxx. Alternatively, the
depositor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request
it by calling toll-free 0-000-000-0000.
(xi) The Depositor and each Underwriter agree to retain all Free Writing
Prospectus that they have used and that are not required to be filed pursuant
to this Section 8 for a period of three years following the initial bona fide
offering of the Publicly Offered Certificates.
(xii) (A) In the event that the Depositor becomes aware that, as of the
Time of Sale, any Issuer Free Writing Prospectus contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein (when read in conjunction with
all Time of Sale Information), in light of the circumstances under which they
were made, not misleading (a "Defective Issuer Free Writing Prospectus"), the
Depositor shall notify the Underwriters of such untrue statement or omission
within one Business Day after discovery and the Depositor shall, if requested
by the Underwriters, prepare and deliver to the Underwriters a Free Writing
Prospectus that corrects the material misstatement or omission in the
Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing
Prospectus, a "Corrected Issuer Free Writing Prospectus").
(B) In the event that any Underwriter becomes aware that, as of the
Time of Sale, any Underwriter Free Writing Prospectus delivered to an
investor in any Publicly Offered Certificates contained any untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements contained therein (when read in
conjunction with all Time of Sale Information), in light of the
circumstances under which they were made, not misleading (together with a
Defective Issuer Free Writing Prospectus, a "Defective Free Writing
Prospectus"), such Underwriter shall notify the Depositor of such untrue
statement or omission within one Business Day after discovery.
(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an Underwriter Free
Writing Prospectus, prepare a Free Writing Prospectus that corrects the
material misstatement in or omission from the Defective Free Writing
Prospectus (together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to each investor
which received the Defective Free Writing Prospectus prior to entering
into a contract of sale with such investor;
(3) notify such investor in a prominent fashion that the prior
contract of sale with the investor has been terminated, and of the
investor's rights as a result of termination of such agreement;
(4) provide such investor with an opportunity to affirmatively agree
to purchase the Publicly Offered Certificates on the terms described in
the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for reformation of the
original contract of sale with such investor, as described in Section
IV.A.2.c of Commission's Securities Offering Reform Release No.
33-8591.
(D) In the event that the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus, and the Underwriters shall in good faith
incur any costs to an investor in connection with the reformation of the
contract of sale with the investor, the Depositor agrees to reimburse the
Underwriters for such costs; provided that, before incurring such costs,
the Underwriters first permits the Depositor access to the applicable
investor and an opportunity to attempt to mitigate such costs through
direct negotiation with such investor.
(xiii) Each Underwriter covenants with the Depositor that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Publicly Offered Certificates to a prospective
investor unless such information is preceded or accompanied by the
Prospectus.
9. Default of Underwriters. If any Underwriter defaults in its obligations
to purchase Publicly Offered Certificates hereunder and the aggregate principal
amount of Publicly Offered Certificates that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Publicly Offered Certificates to be purchased hereunder,
Xxxxxxx, Sachs & Co. and Greenwich Capital Markets, Inc. (together, the "Co-Lead
Underwriters") may make arrangements satisfactory to the Depositor for the
purchase of such Publicly Offered Certificates by other persons, but if no such
arrangements are made by such Specified Delivery Date, the non-defaulting
Underwriters shall be obligated to purchase the Publicly Offered Certificates
that such defaulting Underwriter agreed but failed to purchase hereunder. If any
Underwriter so defaults and the aggregate principal amount of Publicly Offered
Certificates with respect to which such default occurs exceeds 10% of the total
principal amount of Publicly Offered Certificates to be purchased hereunder and
arrangements satisfactory to the Co-Lead Underwriters and the Depositor for the
purchase of such Publicly Offered Certificates by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Depositor, except
as provided in Section 10. In the event that, within the respective prescribed
periods, the Co-Lead Underwriters have arranged for the purchase of such
Publicly Offered Certificates by other persons or the non-defaulting
Underwriters become obligated to purchase such Publicly Offered Certificates,
the Co-Lead Underwriters and the Depositor may postpone the Specified Delivery
Date for a period of not more than seven days, in order to effect whatever
changes the Depositor and the Co-Lead Underwriters reasonably believe may
thereby be made necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Depositor agrees to file promptly
any amendments to the Registration Statement or the Prospectus that it and the
Co-Lead Underwriters reasonably believe may thereby be made necessary. As used
in this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. Termination of the Obligations of the Underwriters. (a) Any
Underwriter may terminate its obligations under this Agreement by notice to the
Depositor at any time at or prior to the Specified Delivery Date if the sale of
the Publicly Offered Certificates provided for herein is not consummated because
of any failure or refusal on the part of the Depositor to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the
Depositor shall be unable to perform its obligations under this Agreement.
(b) The obligations of the Underwriters to purchase on the Specified
Delivery Date the Publicly Offered Certificates described in Schedule I shall be
terminable by the Co-Lead Underwriters if at any time on or prior to the
Specified Delivery Date (i) any change, or any development or event involving a
prospective change in the condition (financial or other), business, properties
or results of operations of the Depositor or the Trust which, in the judgment of
a majority in interest of the Underwriters (based on Underwriting obligations)
including the Co-Lead Underwriters, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Publicly Offered Certificates; (ii) any
downgrading in the rating of any of the Certificates by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any of the
Certificates (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters including the Co-Lead
Underwriters, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Publicly Offered Certificates, whether in the
primary market or in respect of dealings in the secondary market; (iv) any
material suspension or material limitation of trading in securities generally on
the New York Stock Exchange or over-the-counter market, or any setting of
minimum prices for trading on such exchange or market, or any suspension of
trading of any Publicly Offered Certificates on any relevant exchange or in the
over-the-counter market; (v) any general moratorium on commercial banking
activities declared by any Federal or New York State authorities; (vi) any major
disruption of settlements of securities or clearance services in the United
States; or (vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Co-Lead Underwriters, the
effect of any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of any payment for the Publicly Offered
Certificates.
(c) If any Underwriter terminates its obligations under this Agreement in
accordance with Section 10(a), the Depositor shall reimburse such Underwriter
for all reasonable out-of pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by such
Underwriter in connection with the proposed purchase and sale of the Publicly
Offered Certificates.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by the
Depositor and of the several Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
or statement as to the results thereof made by or on behalf of such
Underwriters, the Depositor or any of their respective officers or directors or
any controlling person, and shall survive delivery of and payment of the related
Publicly Offered Certificates.
If this Agreement is terminated pursuant to Section 9 or 10 above or if
for any reason the purchase by the Underwriters of the Publicly Offered
Certificates described in Schedule I is not consummated, the Depositor shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5(g) above, and the obligations of the Depositor and such Underwriters
pursuant to Section 7 above shall remain in effect.
12. Notices. All communications hereunder shall be in writing and, if sent
to Xxxxxxx, Xxxxx & Co., shall be delivered to it at 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx Xxxxxxxx, Telecopy No.: (000) 000-0000,
with a telecopy to Xxxxx Xxxxxxxxxx, Esq., Telecopy No.: (000) 000-0000; if sent
to Greenwich Capital Markets, Inc., shall be delivered to it at 000 Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, Telecopy No.:
(000) 000-0000, with a telecopy to Xxxx Xxxxxxxxx, Esq., Telecopy No.: (203)
618-2132; if sent to Xxxxxx Xxxxxxx & Co. Incorporated, shall be delivered to it
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx, Telecopy
No.: (000) 000-0000, with a telecopy to Xxxxxxxx Xxxxx, Esq., Telecopy No.:
(000) 000-0000; if sent to Credit Suisse Securities (USA) LLC, shall be
delivered to it at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxxxx, fax number (000) 000-0000, with a copy to Xxxxx Xxxxxx, Esq.,
Legal Compliance Department, fax number (000) 000-0000; if sent to Banc of
America Securities LLC, shall be delivered to it at 000 X. Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, fax number: (704)
000-0000, with a copy to Xxxx Xxxxxxx, fax number (000) 000-0000; if sent to
Wachovia Capital Markets, LLC, shall be delivered to it at 000 X. Xxxxxxx
Xxxxxx, XX 16 NC0166, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxx,
Telecopy No.: (000) 000-0000, with a telecopy to Xxxx Xxxxxxxx, Esq., Telecopy
No.: (000) 000-0000 or, if sent to the Depositor, shall be delivered to
Greenwich Capital Commercial Funding Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxx Xxxx, Telecopy No.: (000) 000-0000, with a
telecopy to Xxxx Xxxxxxxxx, Esq., Telecopy No. (000) 000-0000; provided,
however, that any notice to an Underwriter pursuant to Section 7 shall be
mailed, delivered or telegraphed to such Underwriter at the address furnished by
it.
13. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 above, and
their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Publicly Offered Certificates from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS.
15. Entire Agreement. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Depositor and the
Underwriters, or any of them, with respect to the subject matter hereof.
16. Waiver of Jury Trial. The Depositor and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Depositor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Depositor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written communications.
Very truly yours,
GREENWICH CAPITAL COMMERCIAL
FUNDING CORP.,
as Depositor
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXX, XXXXX & CO.,
as Underwriter
/s/ Xxxxxxx, Sachs & Co.
----------------------------------------
(Xxxxxxx, Xxxxx & Co.)
GREENWICH CAPITAL MARKETS, INC.,
as Underwriter
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
BANC OF AMERICA SECURITIES LLC,
as Underwriter
By:
-------------------------------------
Name:
Title:
CREDIT SUISSE SECURITIES (USA) LLC,
as Underwriter
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED,
as Underwriter
By: /s/ Xxxxxx X. Friend
-------------------------------------
Name: Xxxxxx X. Friend
Title:
WACHOVIA CAPITAL MARKETS, LLC,
as Underwriter
By: /s/ X. Xxxxx Xxxx
-------------------------------------
Name: X. Xxxxx Xxxx
Title:
SCHEDULE I
Prospectus: Prospectus Supplement dated February 21, 2007 and Base Prospectus
dated February 12, 2007 (Registration Statement No.: (333-131400))
Aggregate Principal Amount of Offered Certificates: $6,007,389,000
(approximate)
Aggregate Purchase Price to be Paid by Greenwich Capital Markets, Inc.:
$___________ plus accrued interest.
Aggregate Purchase Price to be Paid by Xxxxxxx, Sachs & Co.: $___________ plus
accrued interest.
Aggregate Purchase Price to be Paid by Banc of America Securities LLC :
$___________.
Aggregate Purchase Price to be Paid by Credit Suisse Securities (USA) LLC:
$___________.
Aggregate Purchase Price to be Paid by Xxxxxx Xxxxxxx & Co. Incorporated:
$___________.
Aggregate Purchase Price to be Paid by Wachovia Capital Markets, LLC
$___________.
Certificate Balances:
Class A-1 $ 84,000,000
Class A-2 $ 1,180,078,000
Class A-3 $ 85,985,000
Class A-AB $ 88,000,000
Class A-4 $ 2,671,598,000
Class A-1-A $ 493,485,000
Class A-M $ 557,593,000
Class A-J $ 575,393,000
Class B $ 32,880,000
Class C $ 98,638,000
Class D $ 41,000,000
Class E $ 41,099,000
Class F $ 57,540,000
Ratings:
Class A-1 AAA/Aaa/AAA
Class A-2 AAA/Aaa/AAA
Class A-3 AAA/Aaa/AAA
Class A-AB AAA/Aaa/AAA
Class A-4 AAA/Aaa/AAA
Class A-1-A AAA/Aaa/AAA
Class A-M AAA/Aaa/AAA
Class A-J AAA/Aaa/AAA
Class B AA+/Aa1/AA+
Class C AA/Aa2/AA
Class D AA-/Aa3/AA-
Class E A+/A1/A+
Class F A/A2/A
Specified Delivery Date and Location: 10:00 a.m., March 8, 2007, at the
offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
Initial Pass-Through Rates:
Class A-1 Fixed
Class A-2 Fixed
Class A-3 Fixed
Class A-AB Fixed
Class A-4 Fixed
Class A-1-A Fixed
Class A-M Fixed
Class A-J Fixed(1)
Class B Fixed(1)
Class C Fixed(1)
Class D Fixed(1)
Class E Fixed(1)
Class F Fixed(1)
(1) Subject to a cap equal to the Weighted Average Net Mortgage Rate.
Certificates Purchased
Certificate Balances
Underwriter Class A-1 Class A-2 Class A-3 Class A-AB Class A-4 Class A-1-A
------------------------- ------------- --------------- ------------ ------------- -------------- ----------------
Xxxxxxx, Xxxxx & Co....... $42,000,000 $590,039,000 $42,992,500 $44,000,000 $1,335,799,000 $246,742,500
Greenwich Capital Markets,
Inc.................... $42,000,000 $590,039,000 $42,992,500 $44,000,000 $1,335,799,000 $246,742,500
Banc of America Securities
LLC.................... $0 $0 $0 $0 $0 $0
Credit Suisse Securities
(USA) LLC.............. $0 $0 $0 $0 $0 $0
Xxxxxx Xxxxxxx & Co.
Incorporated........... $0 $0 $0 $0 $0 $0
Wachovia Capital Markets,
LLC.................... $0 $0 $0 $0 $0 $0
Total..................... $84,000,000 $1,180,078,000 $85,985,000 $88,000,000 $2,671,598,000 $493,485,000
Underwriter Class A-M Class A-J Class B Class C Class D Class E Class F
------------------------- ------------ ------------ ----------- ----------- ----------- ----------- -----------
Xxxxxxx, Xxxxx & Co....... $278,796,500 $278,696,500 $16,440,000 $49,319,000 $20,550,000 $20,549,500 $28,770,000
Greenwich Capital
Markets, Inc. ......... $278,796,500 $278,696,500 $16,440,000 $49,319,000 $20,550,000 $20,549,500 $28,770,000
Banc of America
Securities LLC......... $0 $0 $0 $0 $0 $0 $0
Credit Suisse
Securities (USA) LLC... $0 $0 $0 $0 $0 $0 $0
Xxxxxx Xxxxxxx & Co.
Incorporated........... $0 $0 $0 $0 $0 $0 $0
Wachovia Capital
Markets, LLC........... $0 $0 $0 $0 $0 $0 $0
Total..................... $557,593,000 $575,393,000 $32,880,000 $98,638,000 $41,100,000 $41,099,000 $57,540,000
Annex A
THIS FREE WRITING PROSPECTUS, DATED FEBRUARY 12, 2007, MAY BE AMENDED OR
COMPLETED PRIOR TO TIME OF SALE
STATEMENT REGARDING THIS FREE WRITING PROSPECTUS
The depositor has filed a registration statement (including the prospectus) with
the SEC (SEC File No. 333-131400) for the offering to which this communication
relates. Before you invest, you should read the prospectus in the registration
statement and other documents the depositor has filed with the SEC for more
complete information about the depositor, the issuing trust and this offering.
You may get these documents for free by visiting XXXXX on the SEC website at
xxx.xxx.xxx. Alternatively, the depositor or Greenwich Capital Markets, Inc.,
any other underwriter, or any dealer participating in this offering will arrange
to send you the prospectus if you request it by calling toll-free
0-000-000-0000.
$6,107,389,000 (Approximate)
Greenwich Capital Commercial Funding Corp.
as Depositor
Greenwich Capital Financial Products, Inc.
Xxxxxxx Xxxxx Mortgage Company
as Sponsors
Commercial Mortgage Trust 2007-GG9
as Issuing Entity
Commercial Mortgage Pass-Through Certificates, Series 2007-GG9
Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1-A, Class
A-M, Class A-J, Class B, Class C, Class D, Class E and Class F
We, Greenwich Capital Commercial Funding Corp., have prepared this free
writing prospectus in order to offer the classes of commercial mortgage
pass-through certificates identified above. These certificates are the only
securities offered by this free writing prospectus. We will not list the offered
certificates on any national securities exchange or any automated quotation
system of any registered securities associations, such as NASDAQ.
The offered certificates will represent interests in, and represent
obligations of, the issuing entity only and do not represent the obligations of
the depositor, the sponsors or any of their affiliates. None of the offered
certificates or the mortgage loans are insured or guaranteed by any governmental
agency or instrumentality or by any private mortgage insurer or by the
depositor, the underwriters, any mortgage loan seller, or any other party. The
primary assets of the trust will be a pool of multifamily and commercial
mortgage loans. The initial balance of the mortgage loans that we expect to
transfer to the trust will be approximately $6,575,923,864 as of the cut-off
date.
Each class of offered certificates will receive, to the extent of
available funds, monthly distributions of interest, principal or both, on the
10th day of the month, or if such 10th day is not a business day, on the next
succeeding business day, commencing in April 2007. Credit enhancement will be
provided by certain classes of subordinate certificates that will be subordinate
to certain classes of senior certificates as described under "Description of the
Offered Certificates--Payments" in this free writing prospectus.
You should fully consider the risk factors beginning on page S-47 and on
page 14 in the accompanying prospectus prior to investing in the offered
certificates.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this free writing prospectus or the accompanying
prospectus. Any representation to the contrary is a criminal offense.
Approximate
Initial Initial Pass-Through Expected
Certificate Pass-Through Rate Principal Ratings
Class Principal Balance Rate Description Window S&P/Xxxxx'x/Fitch
----------- ----------------- ------------ -------------- ------------- -----------------
A-1(1) $ 84,000,000 % (2) 04/07 - 10/11 AAA/Aaa/AAA
A-2(1) $ 1,180,078,000 % (2) 10/11 - 07/12 AAA/Aaa/AAA
A-3(1) $ 85,985,000 % (2) 11/13 - 03/14 AAA/Aaa/AAA
A-AB(1) $ 88,000,000 % (2) 07/12 - 09/16 AAA/Aaa/AAA
A-4(1) $ 2,671,598,000 % (2) 09/16 - 01/17 AAA/Aaa/AAA
A-1-A(1) $ 493,485,000 % (2) 12/09 - 01/17 AAA/Aaa/AAA
A-M $ 657,593,000 % (2) 01/17 - 02/17 AAA/Aaa/AAA
A-J $ 575,393,000 % (2) 02/17 - 02/17 AAA/Aaa/AAA
B $ 32,880,000 % (2) 02/17 - 02/17 AA+/Aa1/AA+
C $ 98,638,000 % (2) 02/17 - 02/17 AA/Aa2/AA
D $ 41,100,000 % (2) 02/17 - 02/17 AA-/Aa3/AA-
E $ 41,099,000 % (2) 02/17 - 02/17 A+/A1/A+
F $ 57,540,000 % (2) 02/17 - 02/17 A/A2/A
(Footnotes to table on page S-9)
Xxxxxxx, Xxxxx & Co., Greenwich Capital Markets, Inc., Banc of America
Securities LLC, Credit Suisse Securities (USA) LLC, Xxxxxx Xxxxxxx & Co.
Incorporated and Wachovia Capital Markets, LLC are the underwriters for this
offering. The underwriters will purchase their respective allocations of the
offered certificates from us, subject to the satisfaction of specified
conditions. The underwriters currently intend to sell the offered certificates
at varying prices to be determined at the time of sale. The underwriters expect
to deliver the offered certificates to purchasers on or about March 8, 2007.
With respect to this offering, Xxxxxxx, Sachs & Co. and Greenwich Capital
Markets, Inc. are acting as co-lead bookrunning managers and Banc of America
Securities LLC, Credit Suisse Securities (USA) LLC, Xxxxxx Xxxxxxx & Co.
Incorporated and Wachovia Capital Markets, LLC are acting as co-managers.
Xxxxxxx, Sachs & Co. RBS Greenwich Capital
Banc of America Securities LLC Credit Suisse
Xxxxxx Xxxxxxx Wachovia Securities
February , 2007
Annex B
IMPORTANT NOTICE REGARDING THE CONDITIONS FOR THIS OFFERING OF ASSET-BACKED
SECURITIES
The asset-backed securities referred to in these materials are being offered
when, as and if issued. In particular, you are advised that asset-backed
securities, and the asset pools backing them, are subject to modification or
revision (including, among other things, the possibility that one or more
classes of securities may be split, combined or eliminated), at any time prior
to issuance or availability of a final prospectus. As a result, you may commit
to purchase securities that have characteristics that may change, and you are
advised that all or a portion of the securities may not be issued that have the
characteristics described in these materials. Our obligation to sell securities
to you is conditioned on the securities having the characteristics described in
these materials. If we determine that condition is not satisfied in any material
respect, we will notify you, and neither the issuer nor the underwriter will
have any obligation to you to deliver all or any portion of the securities which
you have committed to purchase, and there will be no liability between us as a
consequence of the non-delivery.
STATEMENT REGARDING THIS FREE WRITING PROSPECTUS
The Depositor has filed a registration statement (including the prospectus (the
"Prospectus")) with the SEC for the offering to which this communication
relates. Before you invest, you should read the Prospectus in the registration
statement and other documents the Depositor has filed with the SEC for more
complete information about the Depositor, the issuing trust and this offering.
You may get these documents for free by visiting XXXXX on the SEC website at
xxx.xxx.xxx. Alternatively, the Depositor or Xxxxxxx, Xxxxx & Co., the
underwriter for this offering, will arrange to send the Prospectus to you if you
request it by calling toll-free 0-000-000-0000.
IMPORTANT NOTICE RELATING TO AUTOMATICALLY GENERATED EMAIL DISCLAIMERS
ANY LEGENDS, DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR AT THE BOTTOM OF THE
E-MAIL COMMUNICATION TO WHICH THIS FREE WRITING PROSPECTUS IS ATTACHED RELATING
TO (1) THESE MATERIALS NOT CONSTITUTING AN OFFER (OR A SOLICITATION OF AN
OFFER), (2) NO REPRESENTATION THAT THESE MATERIALS ARE ACCURATE OR COMPLETE AND
MAY NOT BE UPDATED OR (3) THESE MATERIALS POSSIBLY BEING CONFIDENTIAL ARE NOT
APPLICABLE TO THESE MATERIALS AND SHOULD BE DISREGARDED. SUCH LEGENDS,
DISCLAIMERS OR OTHER NOTICES HAVE BEEN AUTOMATICALLY GENERATED AS A RESULT OF
THESE MATERIALS HAVING BEEN SENT VIA BLOOMBERG OR ANOTHER SYSTEM.
GCCFC 2007-GG9
Loans contributing to Class AAB
Repline # Loan Name Balance RemAm RemTerm RemIO
--------- ----------------------------------- ------------- ----- ------- -----
96 Hampton Inn Xxxxxx 4,382,746.10 356 80 0
41 Prestonwood Place 19,200,000.00 336 114 18
91 Mini U Storage - North Brunswick 5,000,000.00 336 114 18
37 Lake Forest Village 24,000,000.00 276 115 79
43 99-193 Aiea Heights 18,000,000.00 324 115 31
55 Resarch Corporate Center 14,080,000.00 336 115 19
106 0000 Xxxxxxx Xxxx, Xxxxxxxx X 1,610,000.00 300 115 55
107 5325 Xxxxx Xxxx 1,295,000.00 300 115 55
27 0000 Xxxxx xx Xxxx Xxxxxxxxx 31,000,000.00 300 116 56
46 Hartford Square North 17,500,000.00 288 116 68
61 Shoppes at Bellemead 13,500,000.00 348 116 8
65 DeMiguel and Xxxxxxx Portfolio 12,600,000.00 300 116 56
73 The Steelyard 9,600,000.00 336 116 20
75 Sunshine Lake Estates MHC 9,200,000.00 324 116 32
78 000 Xxxxx Xxxxx Xxxxx 8,250,000.00 300 116 56
82 Chouteau Crossing 6,800,000.00 336 116 20
87 Comfort Inn Colorado Springs 5,777,789.89 356 116 0
94 Holiday Inn Express Gastonia 4,624,304.51 296 116 0
98 Advance Auto Parts I 3,953,394.86 296 116 0
100 000 Xxxx Xxxxx (Winner's Corner) 3,548,884.17 356 116 0
120 The District II 45,200,000.00 336 116 20
144 Toringdon III 12,650,000.00 324 116 32
145 Corporate Center I 12,600,000.00 324 116 32
146 Glendale Center 12,250,000.00 300 116 56
152 Toringdon V 10,424,000.00 324 116 32
168 Xxxxxx Ranch 6,940,000.00 300 116 56
176 Lakewood at Georgia Avenue 5,300,000.00 324 116 32
177 West and Ironwood Building 5,250,000.00 324 116 32
189 Pyramid I 3,734,822.34 356 116 0
195 Bread & Butter 3,049,591.41 320 116 0
201 Social Security Administration 1,462,628.68 116 116 0
47 TBC Place 16,850,000.00 300 117 57
57 Polaris Center 14,000,000.00 324 117 33
66 0000 Xxxx Xxxxx Xxxxxx 11,700,000.00 300 117 56
69 000-000 Xxxx Xxxxxx 10,850,000.00 300 117 57
74 Comfort Inn Gunston Corner 9,558,403.85 297 117 0
77 StorQuest Self Storage Colorado 8,750,000.00 300 117 57
88 Fairfield Inn & Suites Asheville 5,476,633.26 297 117 0
000 Xxxxxxx Xxxxx Xxxxxx - Xxxxx L 3,350,000.00 336 117 21
103 Pointe X'Xxxxx Apartments 2,900,000.00 324 117 33
105 NTB Sachse 1,894,490.47 357 117 0
117 Branson Landing 90,000,000.00 336 117 21
142 Hillcroft I & II 13,500,000.00 324 117 33
000 Xxxxxxxx Xxxx Xxxxxxx Xxxx Building 11,200,000.00 336 117 21
167 Festival 6,968,812.83 297 117 0
182 JAMAD I 4,750,000.00 312 117 45
185 Palmhurst Shopping Center 4,200,000.00 300 117 57
193 Tamarac Business Center 3,489,841.10 357 117 0
196 Knightsbridge Apartments 3,000,000.00 324 117 33
000 Xxxxx Xxxxxx Station 2,871,012.22 357 117 0
21 Noble Tech 35,000,000.00 300 118 58
23 Aqua Via Apartments 34,000,000.00 300 118 58
29 Abercorn Common 30,000,000.00 300 118 58
30 Poipu Shopping Village 29,120,000.00 300 118 58
31 Arbrook Park Apartments 29,000,000.00 324 118 34
56 Linden Park 14,000,000.00 336 118 22
62 Enterprise Mill 13,100,000.00 300 118 58
67 Allston Lofts 11,500,000.00 300 118 58
79 Shops at Cypress 7,034,635.99 358 118 0
80 Mini U Storage - Chantilly 7,000,000.00 336 118 22
86 Chapel Ridge Shopping Center 6,400,000.00 324 118 34
104 Meadowview Apartments 2,700,000.00 324 118 34
134 HJA Industrial Portfolio 16,760,000.00 300 118 58
137 Tuileries Plaza Phase I 14,250,000.00 336 118 22
139 Xxxxxxxxx Xxxx 14,000,000.00 300 118 58
140 3400 Club Drive 13,900,000.00 300 118 58
143 000 Xxxxxxxx Xxxx 13,200,000.00 324 118 34
151 Atrium Office Building 10,500,000.00 300 118 58
158 University Business Park 8,500,000.00 276 118 82
159 200 Fillmore 8,200,000.00 300 118 58
161 Oakley Plaza 7,981,777.92 358 118 0
164 Frisco Plaza 7,570,000.00 300 118 58
171 Xxxxxxx Office Park 6,500,000.00 300 118 58
172 Academy Sports & Outdoors 6,379,664.34 298 118 0
174 Poway Executive Center 5,675,000.00 300 118 58
181 Streets of Toringdon 4,814,135.06 358 118 0
186 8404 North Xxxxxxx 4,200,000.00 324 118 34
000 Xxxxxxx Xxxxxx Shopping Center 3,841,259.29 358 118 0
192 2425 East Commercial 3,500,000.00 300 118 58
199 972 Partnership 2,000,000.00 300 118 58
