EXHIBIT 1.1
CWCAPITAL COMMERCIAL FUNDING CORP.
[ ]
Commercial Mortgage Pass-Through Certificates, Series 20[ ]-[ ]
Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E
UNDERWRITING AGREEMENT
[ ], 20[ ]
[UNDERWRITERS]
Ladies and Gentlemen:
CWCapital Commercial Funding Corp., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), the respective classes of Commercial Mortgage Pass-Through
Certificates, Series 20[ ]-[ ], that are identified on Schedule I, in each case,
having the initial aggregate stated principal amount (a "Class Principal
Balance") and initial pass-through rate set forth on Schedule I (such
Certificates, the "Underwritten Certificates"). The Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D and Class E Certificates, together
with the Class XC, Class XP, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class Q, Class R-I and Class
R-II Certificates issued therewith (collectively, the "Certificates"), will
evidence the entire interest in the Trust Fund (as defined in the Pooling and
Servicing Agreement referred to below) consisting primarily of a pool of
multifamily and commercial mortgage loans as described in the Prospectus
Supplement (as hereinafter defined) to be sold by the Company.
The Certificates will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of [ ], 20[ ]
among the Company, as depositor, [ ], as master servicer (in such capacity, the
"Master Servicer"), [ ], as special servicer (in such capacity, the "Special
Servicer"), and [ ], as trustee (the "Trustee"). The Certificates are described
in the Basic Prospectus and the Prospectus Supplement (each as hereinafter
defined) which the Company has furnished to the Underwriters.
Certain of the Mortgage Loans (the "CW Mortgage Loans") will be
acquired by the Company from CWCapital LLC ("CW") pursuant to a mortgage loan
purchase agreement, dated as of [ ], 20[ ] (the "Mortgage Loan Purchase
Agreement"), between the Company and CW. Certain of the Mortgage Loans (the
"[SELLER] Mortgage Loans") will be acquired by the Company from [SELLER]
("[SELLER]") pursuant to a mortgage loan purchase agreement, dated as of [ ],
20[ ] (the "[SELLER] Mortgage Loan Purchase Agreement"), between the Company and
[ ].
The CW Mortgage Loans and the [SELLER] Mortgage Loans together are
referred to herein as the "Mortgage Loans." CW and [SELLER] are collectively
referred to herein as the "Mortgage Loan Sellers." The CW and the [SELLER]
Mortgage Loan Purchase Agreement are collectively referred to herein as the
"Purchase Agreements." The "Cut-off Date" with respect to each Mortgage Loan
shall be [ ].
SECTION 1. Representations, Warranties, and Covenants.
Section 1.1. The Company represents and warrants to, and agrees with
the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. [ ]) on Form S-3 for
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of Mortgage Pass-Through Certificates (issuable in series), including the
Certificates, which registration statement has become effective, and a copy of
which, as amended to the date hereof, has heretofore been delivered to the
Underwriters. The Company proposes to file with the Commission pursuant to Rule
424(b) under the rules and regulations of the Commission under the Securities
Act (the "Securities Act Regulations") a supplement dated [ ], 20[ ] (the
"Prospectus Supplement"), to the prospectus dated [ ], 20[ ] (the "Basic
Prospectus"), relating to the Certificates and the method of distribution
thereof. Such registration statement (No. 333-[ ]) including exhibits thereto
and any information incorporated therein by reference, as amended at the date
hereof, is hereinafter called the "Registration Statement", the Basic Prospectus
and the Prospectus Supplement and any information incorporated therein by
reference, together with any amendment thereof or supplement thereto authorized
by the Company on or prior to the Closing Date for use in connection with the
offering of the Certificates, are hereinafter called the "Prospectus" and any
diskette attached to the Prospectus is hereinafter called the "Diskette." Any
preliminary form of the Prospectus Supplement which has heretofore been filed
pursuant to Rule 424, or prior to the effective date of the Registration
Statement pursuant to Rule 402(a) or 424(a) is hereinafter called a "Preliminary
Prospectus Supplement", and any diskette attached to the Preliminary Prospectus
Supplement is hereinafter referred to as the "Preliminary Diskette."
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the "Effective Date"), and the
Prospectus, as of the date of the Prospectus Supplement, complied in all
material respects with the applicable requirements of the Securities Act and the
Securities Act Regulations; and the Registration Statement, as of the Effective
Date, did not contain any untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and the Prospectus and any Diskette, as of
the date of the Prospectus Supplement, did not, and as of the Closing Date will
not, contain an untrue statement of a material fact and did not and will not
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, however, that the Company makes no representations or warranties as to
(i) the information contained in or omitted from the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with the information furnished in writing to the Company by or
on behalf of any Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Prospectus or (ii) the
information as to which each Mortgage Loan Seller has agreed to indemnify the
Underwriters pursuant to the related [indemnification agreement] (the "Mortgage
Loan Seller Information") or (iii) the manipulation of, or any calculation based
upon, or any aggregation of the information regarding the Mortgage Loans, the
related Mortgagors and the Mortgaged Properties. As used herein, the "Master
Tape" shall mean the compilation of information and data regarding the Mortgage
Loans covered by the Report on Applying Agreed-Upon Procedures dated [ ], 20[ ]
and rendered by [ ].
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware and
has the requisite corporate power to own its properties and to conduct its
business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by the
Underwriters, constitutes a valid, legal and binding obligation of the Company,
enforceable against the Company in accordance with the terms hereof, subject to
(i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, (ii) generally
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement that
purport to provide indemnification for securities laws liabilities.
(e) As of the Closing Date (as defined herein), the Certificates
will conform in all material respects to the description thereof contained in
the Prospectus and the representations and warranties of the Company in the
Pooling and Servicing Agreement will be true and correct in all material
respects.
(f) The Depositor is not, and on the date on which the first bona
fide offer of the Certificates is made will not be, an "ineligible issuer," as
defined in Rule 405 under the Securities Act.
Section 1.2. Each Underwriter represents and warrants to and agrees
with the Company that:
(a) With respect to each class of Underwritten Certificates, if any,
to be issued in authorized denominations of $25,000 or lesser initial principal
balance or evidencing percentage interests in such class of less than 20%, as
the case may be, the fair market value of all such Underwritten Certificates
sold to any single Person on the date of initial sale thereof by such
Underwriter will not be less than $100,000.
(b) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder, including,
without limitation, Section 4.2.
Section 1.3. Each Underwriter agrees with the Company that it will
cause the Person(s) acquiring the Residual Certificates on the Closing Date, to
execute and deliver, the Transfer Affidavit and Agreement referred to in Section
5.02 of the Pooling and Servicing Agreement, substantially in the form of
Exhibit A to the Pooling and Servicing Agreement.
SECTION 2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, the actual
principal amounts or percentage interests set forth in Schedule I hereto in the
respective classes of Underwritten Certificates at a price for each such class
set forth in Schedule I hereto. There will be added to the purchase prices of
the Underwritten Certificates an amount equal to interest accrued thereon from [
], 20[ ] to but not including the Closing Date.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made at the offices of Cadwalader, Xxxxxxxxxx
& Xxxx LLP, New York, New York 10281 at 10:00 a.m., New York City time, on [ ],
20[ ] or such later date as the Underwriters shall designate, which date and
time may be postponed by agreement between the Underwriters and the Company
(such date and time of delivery and payment for the Underwritten Certificates
being herein called the "Closing Date"). Delivery of the Underwritten
Certificates (also referred to herein as the "DTC Registered Certificates")
shall be made to the respective accounts of the Underwriters through DTC, in
each case against payment by the Underwriters to or upon the order of each
Mortgage Loan Seller by wire transfer in immediately available funds of the
amount that has been agreed to by each such Mortgage Loan Seller and the Company
(net of certain expenses, which will be paid by the Underwriters on behalf of
the Company). As a further condition to the delivery of the DTC Registered
Certificates, each Underwriter shall have furnished by telephonic notice to the
applicable Mortgage Loan Seller the federal reference number for the related
wire transfer to such Mortgage Loan Seller and shall have furnished to the
Company each such federal reference number as soon as practicable after such
federal reference number becomes available.
SECTION 4. Offering by Underwriters.
Section 4.1. It is understood that the Underwriters propose to offer
the Underwritten Certificates for sale to the public as set forth in the
Prospectus, and the Underwriters agree that all offers and sales by the
Underwriters shall be made in compliance with all applicable laws and
regulations. [It is further understood that the Company, in reliance upon a
no-filing letter from the Attorney General of the State of New York granted
pursuant to Policy Statement 105, has not and will not file an offering
statement pursuant to Section 352-e of the General Business Law of the State of
New York with respect to the Underwritten Certificates. As required by Policy
Statement 105, each Underwriter therefore covenants and agrees with the Company
that sales of the Underwritten Certificates made by such Underwriter in and from
the State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.]
Section 4.2. (a) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Securities Act, no
Underwriter shall convey or deliver any written communication to any person in
connection with the initial offering of the Certificates, unless such written
communication (i) is made in reliance on Rule 134 under the Securities Act, (ii)
constitutes a prospectus satisfying the requirements of Rule 430B under the
Securities Act or (iii) constitutes a "free writing prospectus," as defined in
Rule 405 under the Securities Act (a "Free Writing Prospectus"). Without
limitation thereby, without the prior written consent of the Depositor (which
consent may be withheld for any reason), no Underwriter shall convey or deliver
in connection with the initial offering of the Certificates 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.
(b) (i) Each Underwriter shall deliver to the Depositor, no later
than [two (2)] business days prior to the date of first use thereof, (A) any
Free Writing Prospectus prepared by or on behalf of such Underwriter that
contains any "issuer information," as defined in Rule 433(h) under the
Securities Act ("Issuer Information"), and (B) any Free Writing Prospectus or
portion thereof that contains only a description of the final terms of the
Certificates.
(ii) Notwithstanding the provisions of clause (i) of this subsection
4.2(b), any Free Writing Prospectus described therein that contains only
ABS Informational and Computational Materials, may be delivered by such
Underwriter to the Depositor no later than the later of (a) [two (2)]
business days prior to the due date for filing of the Prospectus pursuant
to Rule 424(b) under the Securities Act or (b) the date of first use of
such Free Writing Prospectus.
(c) 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 4.2(b) hereof will constitute all Free Writing
Prospectuses of the type described therein that were furnished to prospective
investors by such Underwriter in connection with its offer and sale of the
Certificates.
(d) Each Underwriter represents and warrants to the Depositor that
each Free Writing Prospectus required to be provided by it to the Depositor
pursuant to Section 4.2(b) hereof did not, as of the date such Free Writing
Prospectus was conveyed or delivered to any prospective investor, include any
untrue statement of a material fact or omit any material fact required to be
stated therein necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading; provided however,
that no Underwriter makes any representation to the extent such misstatements or
omissions were the result of any inaccurate Issuer Information supplied by the
Depositor to such Underwriter, which information was not corrected by
information subsequently supplied by the Depositor to such Underwriter prior to
the sale to the investor of the Certificates which resulted in a loss, claim,
damage or liability arising out of a based upon such misstatement or omission.
(e) The Depositor agrees to file with the Commission the following:
(i) Any Free Writing Prospectus that constitutes an "issuer free
writing prospectus," as defined in Rule 433(h) under the Securities Act
(each, an "Issuer Free Writing Prospectus");
(ii) Any Free Writing Prospectus or portion thereof delivered by the
Underwriter to the Depositor pursuant to Section 4.2(b) hereof; and
(iii) 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.
(f) Any Free Writing Prospectus required to be filed pursuant to
Section 4.2(e) hereof by the Depositor shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except that:
(i) any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
Certificates may be filed by the Depositor within [two (2)] days of the
later of the date such final terms have been established for all classes
of Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be
filed that contains only ABS Informational and Computational Material may
be filed by the Depositor with the Commission not later than the later of
the due date for filing the final Prospectus relating to the Certificates
pursuant to Rule 424(b) under the Securities Act or [two (2)] business
days after the first use of such Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be filed pursuant to
Section 4.2(e)(iii) hereof may, 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 (4)] business days after the Depositor
becomes aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus; and
(iv) the Issuer shall not be required to file (A) Issuer Information
contained in any Free Writing Prospectus of an offering participant other
than the Issuer, 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 Certificates, or (B)
any Free Writing Prospectus or portion thereof that contains a description
of the Certificates or the offering of the Certificates which does reflect
the final terms thereof.
(g) Each Underwriter shall file with the Commission 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.
(h) Notwithstanding the provisions of Section 4.2(g) hereof, each
Underwriter shall file with the Commission any Free Writing Prospectus for which
such Underwriter or any person acting on its behalf provided, authorized or
approved information that is prepared and published or disseminated by a person
unaffiliated with the 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 (4)] business days after the Underwriter
becomes aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 4.2(e) and 8(g)
hereof, neither the Issuer 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.
(j) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend:
The issuer has filed a registration statement (including a
prospectus) with the Commission (File No. 333-132103) for the offering to which
this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the
Commission for more complete information about the issuer and this offering. You
may get these documents for free by visiting XXXXX on the Commission's website
at "xxxx://xxx.xxx.xxx." Alternatively, the issuer, 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-XXX-0000.
(k) The Depositor and the Underwriters each agree to retain all Free
Writing Prospectuses that they have used and that are not required to be filed
pursuant to this Section 4.2 for a period of three (3) years following the
initial bona fide offering of the Certificates
(l) (i) In the event that any Underwriter becomes aware that, as of
the date on which an investor entered into an agreement to purchase any
Certificates, any Free Writing Prospectus prepared by or on behalf of such
Underwriter and delivered to such investor contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading (such Free Writing Prospectus, a "Defective Free
Writing Prospectus"), such Underwriter shall notify the Depositor thereof within
[one (1)] business day after discovery.
(ii) Provided that the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus or contained Issuer Information, the
Underwriter shall, if requested by the Depositor:
(A) Prepare a Free Writing Prospectus which corrects the
material misstatement in or omission from the Defective Free Writing
Prospectus (such corrected Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(B) Deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus prior
to entering into an agreement to purchase any Offered Certificates;
(C) [Notify such investor in a prominent fashion that the
prior agreement to purchase Offered Certificates has been
terminated, and of the investor's rights as a result of termination
of such agreement] [This assumes that the investor has previously
agreed that a material change in terms of the offering automatically
terminates the agreement with the investor]; and
(D) Provide such investor with an opportunity to affirmatively
agree to purchase such Certificates on the terms described in the
Corrected Free Writing Prospectus.]
(iii) Notwithstanding any other provision herein, the Underwriters,
on the one hand, and the Depositor, on the other hand, agree to pay all
costs and expenses of the other party or parties, as applicable,
including, without limitation, legal fees and expenses, incurred in
connection with any successful action by the Underwriters, on the one
hand, or the Depositor, on the other hand, against the other party or
parties, as applicable, to enforce any of its rights set forth in this
Section 4.2.
(iv) Each Underwriter covenants with the Depositor that it will make
available to the Depositor such personnel as are familiar with the
Underwriter's compliance procedures for the purpose of answering questions
concerning the Underwriter's practices and procedures for the preparation
and dissemination of written materials concerning the Certificates to
prospective investors prior to the delivery of the final Prospectus to
such investors.
(v) Each Underwriter covenants with the Depositor that after the
final Prospectus is available the Underwriter shall not distribute any
written information concerning the Certificates to a prospective investor
unless such information is preceded or accompanied by the final
Prospectus.
Section 4.3. Each Underwriter further agrees that, on or prior to
the sixth day after the Closing Date, it shall provide the Company with a
certificate, substantially in the form of Exhibit A attached hereto, setting
forth (i) in the case of each class of Underwritten Certificates, (a) if less
than 10% of the aggregate actual principal balance of such class of Underwritten
Certificates has been sold to the public as of such date, the value calculated
pursuant to clause (b)(iii) of Exhibit A hereto, or (b) if 10% or more of such
class of Underwritten Certificates has been sold to the public as of such date
but no single price is paid for at least 10% of the aggregate actual principal
balance of such class of Underwritten Certificates, then the weighted average
price at which the Underwritten Certificates of such class were sold expressed
as a percentage of the aggregate actual principal balance of such class of
Underwritten Certificates sold, or (c) the first single price at which at least
10% of the aggregate actual principal balance of such class of Underwritten
Certificates was sold to the public, (ii) the prepayment assumption used in
pricing each class of Underwritten Certificates, and (iii) such other
information as to matters of fact as the Company may reasonably request to
enable it to comply with its reporting requirements with respect to each class
of Underwritten Certificates to the extent such information can in the good
faith judgment of such Underwriter be determined by it.
SECTION 5. Agreements. The Company agrees with the several
Underwriters that:
Section 5.1. Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Underwritten Certificates, the
Company will furnish the Underwriters with a copy of each such proposed
amendment or supplement.
Section 5.2. The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the
Securities Act by means reasonably calculated to result in filing with the
Commission pursuant to said rule.
Section 5.3. If, during the period after the first date of the
public offering of the Underwritten Certificates in which a prospectus relating
to the Underwritten Certificates is required to be delivered under the
Securities Act, any event occurs as a result of which it is necessary to amend
or supplement the Prospectus, as then amended or supplemented, in order to make
the statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the Securities Act or the Securities
Act Regulations, the Company promptly will prepare and furnish, at its own
expense, to the Underwriters, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law.
Section 5.4. The Company will furnish to the Underwriters, without
charge, a copy of the Registration Statement (including exhibits thereto) and,
so long as delivery of a prospectus by an underwriter or dealer may be required
by the Securities Act, as many copies of the Prospectus, any documents
incorporated by reference therein, and any amendments and supplements thereto as
the Underwriters may reasonably request.
Section 5.5. The Company will endeavor to arrange for the
qualification of the Underwritten Certificates for sale under the laws of such
jurisdictions as the Underwriters may reasonably designate and will maintain
such qualification in effect so long as required for the initial distribution of
the Underwritten Certificates; provided, however, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
Section 5.6. Except as herein provided, the several Underwriters
shall be responsible only for paying all costs and expenses incurred by them,
including the fees and disbursements of their counsel, in connection with the
purchase and sale of the Underwritten Certificates.
Section 5.7. If, during the period after the Closing Date in which a
prospectus relating to the Underwritten Certificates is required to be delivered
under the Securities Act, the Company receives notice that a stop order
suspending the effectiveness of the Registration Statement or preventing the
offer and sale of the Underwritten Certificates is in effect, the Company will
advise the Underwriters of the issuance of such stop order.
SECTION 6. Conditions to the Obligations of the Underwriters. The
Underwriters' obligation to purchase the Underwritten Certificates shall be
subject to the following conditions:
Section 6.1. No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the knowledge of the Company, threatened by the
Commission; and the Prospectus Supplement 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) under the Securities Act.
Section 6.2. Since [ ], 20[ ], there shall have been no material
adverse change (not in the ordinary course of business) in the condition of the
Company.
Section 6.3. The Company shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the [President, a Senior Vice President
or a Vice President] of the Company to the effect that the signer of such
certificate has examined this Agreement, the Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that, to the best
of his or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and correct in all
material respects; and
(b) the Company has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
Section 6.4. The Underwriters shall have received the opinions of
Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP, special counsel for the Company, dated the
Closing Date as to such matters reasonably requested by the Underwriters, the
opinion of [ ], Esq., associate counsel for the Company dated the Closing Date,
as to such matters reasonably requested by the Underwriters.
Section 6.5. The Underwriters shall have received from their counsel
an opinion dated the Closing Date in form and substance reasonably satisfactory
to the Underwriters.
Section 6.6. The Underwriters shall have received from [ ],
certified public accountants, a letter dated the date hereof and reasonably
satisfactory in form and substance to the Underwriters and their counsel.
Section 6.7. The respective classes of Underwritten Certificates
shall have been rated as set forth on Schedule I.
Section 6.8. The Underwriters shall have received, with respect to
the Trustee, a favorable opinion of counsel, dated the Closing Date, addressing
the valid existence of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party and, subject to standard limitations regarding
laws affecting creditors' rights and general principles of equity, the
enforceability of the Pooling and Servicing Agreement against such party. Such
opinion may express its reliance as to factual matters on representations and
warranties made by, and on certificates or other documents furnished by officers
and/or authorized representatives of, parties to this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered. Such opinion may be
qualified as an opinion only on the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States.
Section 6.9. The Underwriters shall have received from Cadwalader,
Xxxxxxxxxx & Xxxx LLP, special counsel to the Company, and from [ ], associate
counsel, to the Company, reliance letters with respect to any opinions delivered
to the rating agencies identified on Schedule I hereto.
Section 6.10. The Underwriters shall have received from counsel to
each Mortgage Loan Seller, the opinions substantially to the effect set forth in
Section [ ] of each Mortgage Loan Seller's respective Purchase Agreement.
Section 6.11. The Company will furnish the Underwriters with
conformed copies of the above opinions, certificates, letters and documents as
they reasonably request.
SECTION 7. Indemnification and Contribution.
Section 7.1. The Company agrees to indemnify and hold harmless each
Underwriter, and each person who controls any Underwriter within the meaning of
either the Securities Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against any and all losses, claims, damages, expenses or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) arise out of or
are based upon (a) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
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 in which they were made, not misleading or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof 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 the light of the
circumstances under which they were made, not misleading, (b) any untrue
statement or alleged untrue statement of any material fact contained in any
Issuer Free Writing Prospectus (as defined in Section 4.2(a) hereof) or any
Issuer Information (as defined in Section 4.2(b)(i) hereof) contained in any
Free Writing Prospectus prepared by or on behalf of such Underwriter, or in any
Free Writing Prospectus that is required to be filed pursuant to Section
4.2(e)(iii) or Section 4.2(h) hereof, or the omission or alleged omission to
state a material fact required to make the statements therein, in light of the
circumstances under which they were made, not misleading, which error or
omission was not corrected by information subsequently supplied by the Depositor
to such Underwriter at any time prior to the sale to the applicable investor of
the Certificates (including without limitation a contract of sale), or (c) any
breach of the representation and warranty in Section 2(t) hereof; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability (A) arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by or on behalf of any
Underwriter specifically for use in connection with the preparation thereof, (B)
arises out of or is based upon the failure of any Underwriter to comply with any
provision of Section 4.2 hereof or (C) arises out of or is based upon any
Mortgage Loan Seller Information; provided, further, that the indemnification
provided by this Section 7.1 shall not apply to the extent that (1) such untrue
statement or omission of a material fact was made as a result of an error in the
manipulation of, or in any calculations based upon, or in any aggregation of the
information regarding the Mortgage Loans, the related Mortgagors and/or the
related Mortgaged Properties or (2) the information provided by any Mortgage
Loan Seller was not represented accurately in the Master Tape, and consequently,
information based thereon was not represented accurately in the Preliminary
Final Prospectus or the Final Prospectus.
As used herein, the "Master Tape" shall mean the compilation of
information and data regarding the Mortgage Loans covered by the Report on
Applying Agreed-Upon Procedures dated [_______], 2005 and rendered by
[ACCOUNTANTS].
Notwithstanding the foregoing, with respect to any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement or in any amendment thereof, or in the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, the indemnity
contained in this Section 7.1 shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages, expenses or
liabilities purchased the Offered Certificates (or to the benefit of any person
controlling such Underwriter), to the extent that any such loss, claim, damage
or liability of such Underwriter or controlling person results from the fact
that a copy of the Basic Prospectus or the Final Prospectus correcting such
misstatement or omission and previously delivered to such Underwriter was not
sent or given to the person asserting any such losses, claims, damages, expenses
or liabilities at or prior to the written confirmation of the sale of such
Offered Certificates to such person or from the fact that any amendment of or
supplement to the registration statement for the registration of the Offered
Certificates, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus correcting such misstatement or omission and delivered to such
Underwriter by 3:00 P.M. at least two business days prior to the Closing Date
was not sent or given to such person prior to the settlement of the sale of the
Offered Certificates to such person (unless the Company shall have agreed that
such amendment or supplement need not be so sent or given). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have; provided, however, that the Company shall not be liable to any Underwriter
for losses of anticipated profits from the transactions covered by this
Agreement.
Section 7.2. Each Underwriter severally, but not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person, if any, who
controls the Company within the meaning of either the Securities Act or the
Exchange Act, against any and all losses, claims, damages, expenses or
liabilities, joint or several, to which the Company or any of them may become
subject under the Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages, expenses or liabilities (or actions in respect thereof) arise
out of or are based upon (1) any untrue statement or alleged untrue statement of
a material fact contained in (A) the Registration Statement (or any amendment
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, (B) the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof 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 the light of the
circumstances under which they were made, not misleading, or (C) any Free
Writing Prospectus (as defined in Section 4.2(a) hereof) prepared by or on
behalf of such Underwriter specifically for use in the preparation of the
documents referred to the foregoing indemnity or the omission or the alleged
omission to state a material fact in any Free Writing Prospectus prepared by or
on behalf of such Underwriter (when read together with the Prospectus) required
to be stated therein or necessary to make the statements therein not misleading;
provided, that no such material misstatement or omission arises from an error or
omission in information relating to the underlying data regarding the Mortgage
Loans or the related Mortgagors or Mortgaged Properties provided by or at the
direction of the Company or any Mortgage Loan Seller to such Underwriter; or (2)
the failure of the Underwriters to comply with any provisions of Section 4.2
hereof; and each Underwriter agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating, preparing or defending any such loss, claim,
damage, liability or action, but, in the case of clause (l)(A) and (B) above,
only with reference to written information furnished to the Company by or on
behalf of such Underwriter or any member of its selling group, specifically for
use in the Registration Statement, or in any revision or amendment thereof, or
supplement thereto, or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, and, in the case of clauses (1)(C) and (2) above, only
an Underwriter who prepared and furnished the related Free Writing Prospectus or
who failed to comply with Section 4.2 hereof shall have the foregoing
obligations for such failure, except that each such Underwriter shall have the
foregoing obligations for any such failure by any member of its selling group;
provided further, that no Underwriter shall have any liability under this
section to the extent that the information provided by any Mortgage Loan Seller
was not represented accurately in the Master Tape and consequently information
based thereon was not represented accurately in the Free Writing Prospectuses.
This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have.
Section 7.3. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either Section 7.1 or 7.2 such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the reasonable 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 mutually agreed to the retention of
such counsel or (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. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by the Underwriters, in the case of
parties indemnified pursuant to Section 7.1, and by the Company, in the case of
parties indemnified pursuant to Section 7.2. The indemnifying party may, at its
option, at any time upon written notice to the indemnified party, assume the
defense of any proceeding and may designate counsel reasonably satisfactory to
the indemnified party in connection therewith; provided, the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. Unless it shall assume the defense of any proceeding
the indemnifying party shall not be liable for any settlement of any proceeding,
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If the indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
Section 7.4. If the indemnification provided for in this Section 7
is unavailable to an indemnified party under Section 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company on the one hand and any of the Underwriters, on the
other from the offering of the Underwritten Certificates but also the relative
fault of the Company on the one hand and any of the Underwriters, on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages, or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand and of any 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 Company or by an Underwriter, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Section 7.5. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the considerations referred to in Section 7.4 above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in this Section 7 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim except where the indemnified party is
required to bear such expenses pursuant to Section 7.4, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party believes that it
will be ultimately obligated to pay such expenses. 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Section 7.6. The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of an Underwriter or any person controlling an Underwriter or by or on behalf of
the Company and their respective directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Underwritten
Certificates.
SECTION 8. Termination. This Agreement shall be subject to
termination by notice given to the Company, if the sale of the Underwritten
Certificates provided for herein is not consummated because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company shall be
unable to perform their respective obligations under this Agreement. If the
Underwriters terminate this Agreement in accordance with this Section 8, the
Company will reimburse the Underwriters for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been reasonably incurred by the Underwriters in connection with the
proposed purchase and sale of the Underwritten Certificates.
SECTION 9. Default by an Underwriter. If any Underwriter shall fail
to purchase and pay for any of the Underwritten Certificates agreed to be
purchased by such Underwriter hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Underwriters shall be obligated to take up and pay for the
Underwritten Certificates that the defaulting Underwriter agreed but failed to
purchase; provided, however, that in the event that the initial principal amount
of Underwritten Certificates that the defaulting Underwriter agreed but failed
to purchase shall exceed 10% of the aggregate principal balance of all of the
Underwritten Certificates set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Certificates, and if such
nondefaulting Underwriters do not purchase all of the Underwritten Certificates,
this Agreement will terminate without liability to the nondefaulting
Underwriters, the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date for the Underwritten Certificates
shall be postponed for such period, not exceeding seven days, as the
nondefaulting Underwriters shall determine in order that the required changes in
the Registration Statement, the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and to any
nondefaulting Underwriter for damages occasioned by its default hereunder.
SECTION 10. Certain Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities, and other
statements of the Company, the Underwriters, or the officers of any of the
Company and the Underwriters set forth in or made pursuant to this Agreement,
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter or
made by or on behalf of the Company or any of their respective officers,
directors or controlling persons, and will survive delivery of and payment for
the Underwritten Certificates.
SECTION 11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of the Underwriters, will be
mailed, delivered or telegraphed and confirmed to each Representative at the
following address: [ ], [ ], Attention: [ ], telecopy number [ ],
with a copy to [ ], at [ ], [ ], telecopy number [ ]; or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at One
Xxxxxxx River Place, 00 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Structured Finance Manager with a copy to the General Counsel.
SECTION 12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder.
SECTION 13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK.
SECTION 14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
[SIGNATURES FOLLOW]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Underwriters.
Very truly yours,
CWCAPITAL COMMERCIAL FUNDING CORP.
By:____________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
[UNDERWRITER]
By:____________________________________
Name:
Title:
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to,
collectively, the registration statement No. 333-[ ] filed by CWCapital
Commercial Funding Corp. on Form S-3 and declared effective by the Commission.
Title and Description of the Registered Certificates
Commercial Mortgage Pass-Through Certificates, Series 20[ ]-[ ], Class A-1,
Class A-2, Class A-3, Class A-4, Class B, Class C, Class D and Class E.
Underwriters: [ ].
Underwriting Agreement, dated [ ], 20[ ]
Cut-off Date: [ ]
Allocations: Subject to the terms and conditions of the Underwriting Agreement,
each Underwriter has agreed to purchase the percentage of each class of
Certificates as set forth below:
Allocation Table
----------------------------------------------------------------------------
Underwriter Class Class Class Class Class Class Class Class
A-1 A-2 A-3 A-4 B C D E
----------------------------------------------------------------------------
[ ] [ ]% [ ]% [ ]% [ ]% [ ]% [ ]% [ ]% [ ]%
----------------------------------------------------------------------------
---------------------------------------------------------------------------------------
Class Initial Class Initial Purchase Ratings
Designation Principal Balance(1) Pass-Through Rate Price(2) Fitch/S&P
---------------------------------------------------------------------------------------
A-1 $[ ] [ ]% [ ] [ ]
A-2 $[ ] [ ]% [ ] [ ]
A-3 $[ ] [ ]% [ ] [ ]
A-4 $[ ] [ ]% [ ] [ ]
B $[ ] [ ]% [ ] [ ]
C $[ ] [ ]% [ ] [ ]
D $[ ] [ ]% [ ] [ ]
E $[ ] [ ]% [ ] [ ]
---------------------------------------------------------------------------------------
------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance of the relevant
class of Certificates to be purchased hereunder. In addition, as to each
such class of Certificates, the Underwriters will pay CWCapital Commercial
Funding Corp. accrued interest at the initial Pass-Through Rate therefor
from December 1, 2004 to, but not including, the Closing Date.
[ADD FOOTNOTES DESCRIBING PASS-THROUGH RATES.]
Closing Time, Date and Location: 10:00 a.m. New York City time on [ ], 20[ ]
at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP. Issuance and delivery of
Registered Certificates: Each class of Registered Certificates will be issued as
one or more Certificates registered in the name of Cede & Co., as nominee of The
Depository Trust Company. Beneficial owners will hold interests in such
Certificates through the book-entry facilities of The Depository Trust Company,
in minimum denominations of initial principal balance of [ ].
EXHIBIT A
[ ], 20[ ]
Re: CWCapital Commercial Funding Corp., Commercial Mortgage Pass-Through
Certificates. Series [ ]-[ ]
Pursuant to Section 4.3 of the Underwriting Agreement, dated [ ],
20[ ] (the "Underwriting Agreement"), among CWCapital Commercial Funding
Corp., [UNDERWRITERS], each an underwriter set forth therein (collectively the
"Underwriters") relating to the Certificates referenced above, each of the
undersigned does hereby certify that:
The prepayment assumption used in pricing the Certificates was 0%
CPR.
With respect to each class of Certificates, set forth below is (i)
the first price at which 10% of the aggregate actual principal balance of each
such class of Certificates was sold to the public at a single price, if
applicable, or (ii) if more than 10% of a class of Certificates have been sold
to the public but no single price is paid for at least 10% of the aggregate
actual principal balance of such class of Certificates, then the weighted
average price at which the Certificates of such class were sold expressed as a
percentage of the actual principal balance of such class of Certificates, or
(iii) if less than 10% of the aggregate actual principal balance of a class of
Certificates has been sold to the public, the purchase price for each such class
of Certificates paid by the Underwriters expressed as a percentage of the actual
principal balance of such class of Certificates calculated by: (1) estimating
the fair market value of each such class of Certificates as of [ ], 20[ ]; (2)
adding such estimated fair market value to the aggregate purchase price of each
class of Certificates described in clause (i) or (ii) above; (3) dividing each
of the fair market values determined in clause (1) by the sum obtained in clause
(2); (4) multiplying the quotient obtained for each class of Certificates in
clause (3) by the purchase price paid by the Underwriters for all the
Certificates; and (5) for each class of Certificates, dividing the product
obtained from such class of Certificates in clause (4) by the original actual
principal balance of such class of Certificates:
Class A-1: [ ]
Class A-1A: [ ]
Class A-2: [ ]
Class A-3: [ ]
Class A-4: [ ]
Class B: [ ]
Class C: [ ]
Class D: [ ]
Class E: [ ]
The prices set forth above do not include accrued interest with
respect to periods before closing.
[UNDERWRITERS]
By:____________________________________
Name:
Title:
