EXHIBIT 1.2
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
$____________ (APPROXIMATELY)
CITIGROUP MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ____-_
CLASS A $____________ _____%
CLASS R $____________ _____%
UNDERWRITING AGREEMENT
___________,_____
[Underwriter]
______________________
______________________
Ladies and Gentlemen:
Citigroup Commercial Mortgage Securities Inc., a Delaware corporation
(the "Company"), proposes to sell to you (also referred to herein as the
"Underwriter") Citigroup Mortgage Pass-Through Certificates, Series ____-__,
Class A and Class R Certificates other than a de minimis portion thereof
(collectively, the "Certificates"), having the aggregate principal amounts and
Pass-Through Rates set forth above. The Certificates, together with the Class M
and Class B Certificates of the same series, will evidence the entire beneficial
interest in the Trust Fund (as defined in the Pooling and Servicing Agreement
referred to below) consisting primarily of a pool (the "Pool") of conventional,
fixed-rate, one- to four-family residential mortgage loans (the "Mortgage
Loans") as described in the Prospectus Supplement (as hereinafter defined) to be
sold by the Company. A de minimis portion of the Class R Certificates will not
be sold hereunder and will be held by the Trustee.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
__________________, ____ (the "Cut-off Date") among the Company, as depositor,
[Name of Master Servicer], as master servicer (the "Master Servicer"), and
___________________________________, as trustee (the "Trustee"). The
Certificates are described more fully in the Basic Prospectus and the Prospectus
Supplement (each as hereinafter defined) which the Company has furnished to you.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees
with you that:
(a) The Company has filed with the Securities
and Exchange Commission (the "Commission") a registration
statement (No. 333-_____)
on Form S-3 for the registration under the Securities Act of
1933, as amended (the "Act"), of Mortgage Pass-Through
Certificates and Mortgage-Backed Notes (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 you. The Company
proposes to file with the Commission pursuant to Rule 424(b)
under the rules and regulations of the Commission under the
Act (the "1933 Act Regulations") a supplement dated
__________, ____ (the "Prospectus Supplement"), to the
prospectus dated __________, ____ (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"; and 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". 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."
(b) The Registration Statement has become
effective, and the Registration Statement as of the 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 Act and the
1933 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, 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 the information
contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto
relating to the information identified by underlining or other
highlighting as shown in Exhibit E (the "Excluded
Information"); and provided, further, that the Company makes
no representations or warranties as to either (i) any
information in any Computational Materials or ABS Term Sheets
(each as hereinafter defined) required to be provided by the
Underwriter to the Company pursuant to Section 4.2, except to
the extent of any information set forth therein that
constitutes Pool Information (as defined below), or (ii) as to
any information contained in or omitted from the portions of
then
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Prospectus identified by underlining or other highlighting as
shown in Exhibit F (the "Underwriter Information"). As used
herein, "Pool Information" means information with respect to
the characteristics of the Mortgage Loans and administrative
and servicing fees, as provided by or on behalf of the Company
to the Underwriter in final form and set forth in the
Prospectus Supplement. The Company acknowledges that, except
for any Computational Materials, the Underwriter Information
constitutes the only information furnished in writing by you
or on your behalf for use in connection with the preparation
of the Registration Statement, any preliminary prospectus or
the Prospectus, and you confirm that the Underwriter
Information is correct.
(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.
(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.
1.2 The Underwriter represents and warrants to and agrees
with the Company that:
(a) No purpose of the Underwriter relating to
the purchase of any of the Class R Certificates by the
Underwriter is or will be to enable the Company to impede the
assessment or collection of any tax.
(b) The Underwriter has no present knowledge or
expectation that it will be unable to pay any United States
taxes owed by it so long as any of the Certificates remain
outstanding.
(c) The Underwriter has no present knowledge or
expectation that it will become insolvent or subject to a
bankruptcy proceeding for so long as any of the Certificates
remain outstanding.
(d) No purpose of the Underwriter relating to
any sale of any of the Class R Certificates by the Underwriter
will be to enable it to impede the assessment or collection of
tax. In this regard, the Underwriter hereby represents to and
for the benefit of the Company that the Underwriter intends to
pay taxes associated with holding the Class R Certificates, as
they become due, fully understanding that it may incur tax
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liabilities in excess of any cash flows generated by the Class
R Certificates.
(e) The Underwriter will, in connection with any
transfer it makes of any of the Class R Certificates, obtain
from its transferee the affidavit required by Section
5.02(g)(i)(B)(I) of the Pooling and Servicing Agreement, will
not consummate any such transfer if it knows or believes that
any representation contained in such affidavit is false and
will provide the Trustee with the Certificate required by
Section 5.02(g)(i)(B)(II) of the Pooling and Servicing
Agreement.
(f) The Underwriter hereby certifies that (i)
with respect to any classes of Certificates issued in
authorized denominations or Percentage Interests of less than
$______ or __%, as the case may be, the fair market value of
each such Certificate sold to any person on the date of
initial sale thereof by the Underwriter will not be less than
$_______, and (ii) with respect to each class of Certificates
to be maintained on the book-entry records of The Depository
Trust Company ("DTC"), the interest in each such class of
Certificates sold to any person on the date of initial sale
thereof by the Underwriter will not be less than an initial
Certificate Principal Balance of $______.
(g) The Underwriter will use its best reasonable
efforts to cause Xxxxx & Co. to issue a commitment letter,
prior to the Closing Date, to DTC stating that Xxxxx & Co.
will value the DTC Registered Certificates (hereinafter
defined) on an ongoing basis subsequent to the Closing Date.
(h) The Underwriter will have funds available at
__________________ _______________, in the Underwriter's
account at such bank at the time all documents are executed
and the closing of the sale of the Certificates is completed,
except for the transfer of funds and the delivery of the
Certificates. Such funds will be available for immediate
transfer into the account of the Company maintained at such
bank.
(i) As of the date hereof and as of the Closing
Date, the Underwriter has complied with all of its obligations
hereunder including Section 4.2, and, with respect to all
Computational Materials and ABS Term Sheets provided by the
Underwriter to the Company pursuant to Section 4.2, if any,
such Computational Materials and ABS Term Sheets are accurate
in all material respects when read in conjunction with the
Prospectus Supplement (taking into account the assumptions
explicitly set forth in the Computational Materials, except to
the extent of any errors therein that are caused by errors in
the Pool Information). The Computational Materials and ABS
Term Sheets provided by the Underwriter to the Company
constitute a complete set of all
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Computational Materials and ABS Term Sheets that are required
to be filed with the Commission.
1.3 The Underwriter covenants and agrees to pay directly,
or reimburse the Company upon demand for (i) any and all taxes
(including penalties and interest) owed or asserted to be owed by the
Company as a result of a claim by the Internal Revenue Service that the
transfer of any of the Class R Certificates to the Underwriter
hereunder or any transfer thereof by the Underwriter may be disregarded
for federal tax purposes and (ii) any and all losses, claims, damages
and liabilities, including attorney's fees and expenses, arising out of
any failure of the Underwriter to make payment or reimbursement in
connection with any such assertion as required in (i) above. In
addition, the Underwriter acknowledges that on the Closing Date
immediately after the transactions described herein it will be the
owner of the Class R Certificates for federal tax purposes, and the
Underwriter covenants that it will not assert in any proceeding that
the transfer of the Class R Certificates from the Company to the
Underwriter should be disregarded for any purpose.
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
you, and you agree to purchase from the Company, the Certificates (other than
for a de minimis portion of the Class R Certificates, which shall be transferred
by the Company to the Trustee) at a price equal to __________% of the aggregate
principal balance of the Certificates as of the Closing Date. There will be
added to the purchase price of the Certificates an amount equal to interest
accrued thereon from the Cut-off Date to but not including the Closing Date. The
purchase price for the Certificates was agreed to by the Company in reliance
upon the transfer from the Company to the Underwriter of the tax liabilities
associated with the ownership of the Class R Certificates.
3. DELIVERY AND PAYMENT.
Delivery of and payment for the Certificates shall be made at the
office of _______________________ at ___________________ time, on
______________, ____ or such later date as you shall designate, which date and
time may be postponed by agreement between you and the Company (such date and
time of delivery and payment for the Certificates being herein called the
"Closing Date"). Delivery of the Certificates (except for the Class R
Certificates (the "Definitive Certificates")) shall be made to you through the
Depository Trust Company ("DTC") (such Certificates, the "DTC Registered
Certificates"), and delivery of the Definitive Certificates shall be made in
registered, certified form, in each case against payment by you of the purchase
price thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Certificates shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Certificates available for inspection, checking and
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packaging by you in New York, New York not later than ___________ on the
business day prior to the Closing Date.
4. OFFERING BY UNDERWRITER.
4.1 It is understood that you propose to offer the
Certificates for sale to the public as set forth in the Prospectus and
you agree that all such offers and sales by you shall be made in
compliance with all applicable laws and regulations.
4.2 It is understood that you may prepare and provide to
prospective investors certain Computational Materials (as defined
below) in connection with your offering of the Certificates, subject to
the following conditions:
(a) The Underwriter shall comply with all
applicable laws and regulations in connection with the use of
Computational Materials, including the No-Action Letter of May
20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated
and Xxxxxx Structured Asset Corporation, as made applicable to
other issuers and underwriters by the Commission in response
to the request of the Public Securities Association dated May
24, 1994 (collectively, the "Xxxxxx/PSA Letter") as well as
the PSA Letter referred to below. The Underwriter shall comply
with all applicable laws and regulations in connection with
the use of ABS Term Sheets, including the No-Action Letter of
February 17, 1995 issued by the Commission to the Public
Securities Association (the "PSA Letter" and, together with
the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational
Materials" as used herein shall have the meaning given such
term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered
to prospective investors by or at the direction of the
Underwriter. For purposes hereof, "ABS Term Sheets" and
"Collateral Term Sheets" as used herein shall have the
meanings given such terms in the PSA Letter but shall include
only those ABS Term Sheets or Collateral Term Sheets that have
been prepared or delivered to prospective investors by or at
the direction of the Underwriter.
(c) All Computational Materials and ABS Term
Sheets provided to prospective investors that are required to
be filed pursuant to the No-Action Letters shall bear a legend
on each page including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY
[Underwriter]. NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY
OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY
OR COMPLETENESS OF THE INFORMATION
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HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND WILL BE
SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY
OTHER INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION."
In the case of Collateral Term Sheets, such legend shall also include
the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE CERTIFICATES AND [Except with
respect to the initial Collateral Term Sheet prepared by the
Underwriter] SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL
PREVIOUSLY PROVIDED BY [the Underwriter]."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing, this
subsection (c) will be satisfied if all such Computational Materials and ABS
Term Sheets bear a legend in the form set forth in Exhibit I hereto.
(d) The Underwriter shall provide the Company
with representative forms of all Computational Materials and
ABS Term Sheets prior to their first use, to the extent such
forms have not previously been approved by the Company for use
by the Underwriter. The Underwriter shall provide to the
Company, for filing on Form 8-K as provided in Section 5.9,
copies (in such format as required by the Company) of all
Computational Materials that are required to be filed with the
Commission pursuant to the No-Action Letters. The Underwriter
may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be
filed. All Computational Materials and ABS Term Sheets
described in this subsection (d) must be provided to the
Company not later than 10:00 a.m. New York time one business
day before filing thereof is required pursuant to the terms of
this Agreement. The Underwriter agrees that it will not
provide to any investor or prospective investor in the
Certificates any Computational Materials or ABS Term Sheets on
or after the day on which Computational Materials and ABS Term
Sheets are required to be provided to the Company pursuant to
this Section 4.2(d) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the
Company in accordance with this Section 4.2(d) for filing
pursuant to Section 5.9), unless such Computational Materials
or ABS Term Sheets are preceded or
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accompanied by the delivery of a Prospectus to such investor
or prospective investor.
(e) All information included in the
Computational Materials shall be generated based on
substantially the same methodology and assumptions that are
used to generate the information in the Prospectus Supplement
as set forth therein; provided that the Computational
Materials and ABS Term Sheets or ABS Term Sheets, as the case
may be, may include information based on alternative
assumptions if specified therein. If any Computational
Materials or ABS Term Sheets that are required to be filed
were based on assumptions with respect to the Pool that differ
from the final Pool Information in any material respect or on
Certificate structuring terms that were revised prior to the
printing of the Prospectus, the Underwriter shall prepare
revised Computational Materials or ABS Term Sheets, as the
case may be, based on the final Pool Information and
structuring assumptions, circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the
preliminary versions thereof that indicated orally to the
Underwriter they would purchase all or any portion of the
Certificates and include such revised Computational Materials
and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to subsection (d) above.
(f) The Company shall not be obligated to file
any Computational Materials that have been determined to
contain any material error or omission. In the event that any
Computational Materials or ABS Terms Sheets are determined,
within the period which the Prospectus relating to the
Certificates is required to be delivered under the Act, to
contain a material error or omission, the Underwriter shall
prepare a corrected version of such Computational Materials or
ABS Term Sheets, shall circulate such corrected Computational
Materials to all recipients of the prior versions thereof that
indicated orally to the Underwriter they would purchase all or
any portion of the Certificates and shall deliver copies of
such corrected Computational Materials and ABS Term Sheets
(marked, "as corrected") to the Company for filing with the
Commission in a subsequent Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect
of such corrected Computational Materials, which shall be at
the expense of the Underwriter), provided that if any such
letter is required to be revised solely because of a change in
the Pool Information, fifty percent of any additional expenses
for such letter resulting from the change in Pool Information
shall be paid by each of the Underwriter and the Company.
(g) If the Underwriter does not provide any
Computational Materials or ABS Term Sheets to the Company
pursuant to subsection (d) above, the Underwriter shall be
deemed to have represented, as of the Closing Date, that it
did not provide any prospective investors with any
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information in written or electronic form in connection with
the offering of the Certificates that is required to be filed
with the Commission in accordance with the No-Action Letters,
and the Underwriter shall provide the Company with a
certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by
the Underwriter to the Company of all Computational Materials
and ABS Term Sheets required to be delivered in accordance
with subsection (d) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to
Section 5.9, the Company shall have the right to delay the
release of the Prospectus to investors or to the Underwriter,
to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5.9
to file the Computational Materials and ABS Term Sheets by the
time specified therein.
(i) The Underwriter represents that it has in
place, and covenants that it shall maintain internal controls
and procedures which it reasonably believes to be sufficient
to ensure full compliance with all applicable legal
requirements of the No-Action Letters with respect to the
generation and use of Computational Materials and ABS Term
Sheets in connection with the offering of the Certificates.
4.3 You further agree that on or prior to the sixth day
after the Closing Date, you shall provide the Company with a
certificate, substantially in the form of Exhibit G attached hereto,
setting forth (i) in the case of each class of Certificates, (a) if
less than 10% of the aggregate principal balance of such class of
Certificates has been sold to the public as of such date, the value
calculated pursuant to clause (b)(iii) of Exhibit G hereto, or, (b) if
__% or more of such class of Certificates has been sold to the public
as of such date but no single price is paid for at least __% of the
aggregate 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 principal balance of such class
of Certificates sold, or (c) the first single price at which at least
__% of the aggregate principal balance of such class of Certificates
was sold to the public, (ii) the prepayment assumption used in pricing
each class of 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
Certificates to the extent such information can in the good faith
judgment of the Underwriter be determined by it.
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5. AGREEMENTS. The Company agrees with you that:
5.1 Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Certificates, the
Company will furnish you with a copy of each such proposed amendment or
supplement.
5.2 The Company will cause the Prospectus Supplement to
be transmitted to the Commission for filing pursuant to Rule 424(b)
under the Act by means reasonably calculated to result in filing with
the Commission pursuant to said rule.
5.3 If, during the period after the first date of the
public offering of the Certificates in which a prospectus relating to
the Certificates is required to be delivered under the 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
Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to you, 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.
5.4 The Company will furnish to you, 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 Act, as many copies of the Prospectus, any documents
incorporated by reference therein and any amendments and supplements
thereto as you may reasonably request.
5.5 The Company agrees, so long as the Certificates shall
be outstanding, or until such time as you shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to
deliver to you the annual statement as to compliance delivered to the
Trustee pursuant to Section 3.18 of the Pooling and Servicing Agreement
and the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section 3.19 of the Pooling and
Servicing Agreement, as soon as such statements are furnished to the
Company.
5.6 The Company will endeavor to arrange for the
qualification of the Certificates for sale under the laws of such
jurisdictions as you may reasonably designate and will maintain such
qualification in effect so long as required for the initial
distribution of the Certificates; provided, however, that the Company
shall not be required to qualify to do business in any jurisdiction
where it is not now so
10
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.
5.7 If the transactions contemplated by this Agreement
are consummated, the Company will pay or cause to be paid all expenses
incident to the performance of the obligations of the Company under
this Agreement, and will reimburse you for any reasonable expenses
(including reasonable fees and disbursements of counsel) reasonably
incurred by you in connection with qualification of the Certificates
for sale and determination of their eligibility for investment under
the laws of such jurisdictions as you have reasonably requested
pursuant to Section 5.6 above and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Certificates, and for expenses incurred in distributing
the Prospectus (including any amendments and supplements thereto) to
the Underwriter. Except as herein provided, you shall be responsible
for paying all costs and expenses incurred by you, including the fees
and disbursements of your counsel, in connection with the purchase and
sale of the Certificates.
5.8 If, during the period after the Closing Date in which
a prospectus relating to the Certificates is required to be delivered
under the Act, the Company receives notice that a stop order suspending
the effectiveness of the Registration Statement or preventing the offer
and sale of the Certificates is in effect, the Company will advise you
of the issuance of such stop order.
5.9 The Company shall file the Computational Materials
and ABS Term Sheets (if any) provided to it by the Underwriter under
Section 4.2(d) with the Commission pursuant to a Current Report on Form
8-K by ___________ on the morning the Prospectus is delivered to the
Underwriter or, the case of any Collateral Term Sheet required to be
filed prior to such date, by ____________ on the second business day
following the first day on which such Collateral Term Sheet has been
sent to a prospective investor; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets (other than
any Collateral Term Sheets that are not based on the Pool Information)
by the Company, the Underwriter must comply with its obligations
pursuant to Section 4.2 and the Company must receive a letter from
_______________, certified public accountants, satisfactory in form and
substance to the Company and its counsel, to the effect that such
accountants have performed certain specified procedures, all of which
have been agreed to by the Company, as a result of which they
determined that all information that is included in the Computational
Materials (if any) provided by the Underwriter to the Company for
filing on Form 8-K, as provided in Section 4.2 and this Section 5.9, is
accurate without exception. The foregoing letter shall be at the sole
expense of the Underwriter. The Company shall file any corrected
Computational Materials described in Section 4.2(f) as soon as
practicable following receipt thereof. The Company also will file with
the Commission within fifteen days of the issuance of the Certificates
a Current Report on Form 8-K (for purposes of filing the Pooling and
Servicing Agreement).
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6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. THE
UNDERWRITER'S OBLIGATION TO PURCHASE THE CERTIFICATES SHALL BE SUBJECT TO THE
FOLLOWING CONDITIONS:
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 Act.
6.2 Since _________ 1, ____ there shall have been no
material adverse change (not in the ordinary course of business) in the
condition of the Company.
6.3 The Company shall have delivered to you 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.
6.4 You shall have received the opinions of Xxxxxxx
Xxxxxxxx & Xxxx, counsel for the Company and the Master Servicer, dated
the Closing Date and substantially to the effect set forth in Exhibit
A-1 and Exhibit A-2, and the opinion of [counsel to Master Servicer],
dated the Closing Date and substantially to the effect set forth in
Exhibit B.
6.5 You shall have received from _______________, counsel
for the Underwriter, an opinion dated the Closing Date in form and
substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from
________________________, certified public accountants, a letter dated
the date hereof and satisfactory in form and substance to the
Underwriter and the Underwriter's counsel, to the effect that they have
performed certain specified procedures, all of which have been agreed
to by the Underwriter, as a result of which they determined that
certain information of an accounting, financial or statistical nature
set forth in the Prospectus Supplement under the captions "Description
of the Mortgage Pool", "Pooling and Servicing Agreement", "Description
of the Certificates" and "Certain Yield and Prepayment
12
Considerations" agrees with the records of the Company excluding any
questions of legal interpretation.
6.7 The Certificates shall have been rated "AAA" by
[Standard & Poor's Ratings Services] and [Fitch Ratings]
6.8 You shall have received the opinion of [Trustee's
Counsel], dated the Closing Date, substantially to the effect set forth
in Exhibit C.
6.9 You shall have received from Xxxxxxx Xxxxxxxx & Xxxx,
counsel to the Company, reliance letters with respect to any opinions
delivered to Standard & Poor's Ratings Services and Fitch Ratings.
The Company will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Company agrees to indemnify and hold harmless you
and each person, if any, who controls you within the meaning of either
Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement for the
registration of the Certificates as originally filed or in any
amendment thereof or other filing incorporated by reference therein, or
in the Prospectus or incorporated by reference therein (if used within
the period set forth in Section 5.3 hereof and as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any 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, except insofar as such
losses, claims, damages, or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based
upon any information with respect to which the Underwriter has agreed
to indemnify the Company pursuant to Section 7.2; provided, that
neither the Company, or you will be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein relating to the Excluded
Information.
7.2 You agree to indemnify and hold harmless the Company,
its directors or officers and any person controlling the Company to the
same extent as the indemnity set forth in clause 7.1 above from the
Company to you, but only with respect to (i) the Underwriter
Information and (ii) the Computational Materials and ABS Term Sheets,
except to the extent of any errors in the Computational Materials or
ABS Term Sheets that are caused by errors in the Pool Information. In
addition, you agree to indemnify and hold harmless the Company its
directors or officers and any person controlling the Company against
13
any and all losses, claims, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees) caused by,
resulting from, relating to, or based upon any legend regarding
original issue discount on any Certificate resulting from incorrect
information provided by the Underwriter in the certificates described
in Section 4.3 hereof.
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 clause 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 you, in the case of parties
indemnified pursuant to clause 7.1 and by the Company, in the case of
parties indemnified pursuant to clause 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 that 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.
7.4 If the indemnification provided for in this Section 7
is unavailable to an indemnified party under clause 7.1 or 7.2 hereof
or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then the
14
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 the Underwriter on
the other from the offering of the Certificates but also the relative
fault of the Company on the one hand and of the Underwriter, 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 the Underwriter 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 the Underwriter, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
7.5 The Company and the Underwriter 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 clause 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 clause 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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
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 the Underwriter or on behalf of the Underwriter
or any person controlling the Underwriter or by or on behalf of the
Company and its respective directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of
the Certificates.
15
8. TERMINATION. This Agreement shall be subject to termination by
notice given to the Company, if the sale of the 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 you terminate this Agreement in accordance
with this Section 8, the Company will reimburse you for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriter in connection with
the proposed purchase and sale of the Certificates.
9. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or the officers of the Company, and you 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
you or on your behalf or made by or on behalf of the Company or any of its
officers, directors or controlling persons, and will survive delivery of and
payment for the Certificates.
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter will be mailed,
delivered or telegraphed and confirmed to you at____________________, Attention:
_____________________ or if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Citigroup Commercial Mortgage Securities
Inc., ____________________.
11. 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.
12. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
13. 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.
16
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 between the
Company and you.
Very truly yours,
CITIGROUP COMMERCIAL
MORTGAGE SECURITIES INC.
By:___________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
______________________________
By:___________________________
Name:
Title:
17
EXHIBIT A-1
[XXXXXXX XXXXXXXX & XXXX LETTERHEAD]
_________________,_____
Citigroup Commercial Mortgage Securities Inc. [Underwriter]
000 Xxxxxxxxx Xxxxxx ___________________________
New York, New York 10013 ___________________________
[Name of Master Servicer] [TRUSTEE]
[Address of Master Servicer] ___________________________
___________________________
Opinion: Underwriters Agreement
Citigroup Commercial Mortgage Securities Inc.
Citigroup Mortgage Pass-Through Certificates, Series
Ladies and Gentlemen:
We have acted as counsel to Citigroup Commercial Mortgage Securities
Inc. (the "Company") and [Name of Master Servicer] (the "Master Servicer") in
connection with the issuance and sale by the Company of Citigroup Mortgage
Pass-Through Certificates, Series ____- ____ (the "Certificates"), pursuant to
the Pooling and Servicing Agreement, dated as of _______________ 1, ____ (the
"Pooling and Servicing Agreement"), among the Company, the Master Servicer and
___________________, as trustee (the "Trustee"). The Certificates consist of
____________ classes designated as Class A and Class R (collectively, the
"Senior Certificates") and ____________ classes of subordinated certificates
designated as Class M and Class B. Only the Senior Certificates and the Class M
Certificates (collectively, the "Offered Certificates") are being offered under
the Prospectus, ________, and the Prospectus Supplement, the Prospectus
Supplement together with the Prospectus, the "Prospectus")
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided ownership interests, in a trust fund (the "Trust
Fund") consisting primarily of a pool of one- to four-family first mortgage
loans (the "Mortgage Loans") held by ______________________________
______________, as custodian (the "Custodian"), pursuant to the Custodial
Agreement, dated as of _______________ 1, ____, among the Company, the Master
Servicer, the Custodian and the Trustee (the
Citigroup Commercial Mortgage Securities Inc.
Series ________________
_______________ _____, ________
"Custodial Agreement"). ______________________ (the "Purchaser") acquired the
Mortgage Loans through its mortgage loan purchase program from various
seller/servicers. The Purchaser transferred the Mortgage Loans to the Company
pursuant to the Assignment and Assumption Agreement, dated _________ __, ____
(the "Assignment and Assumption Agreement"), in exchange for immediately
available funds, and the Class M and Class B Certificates. The Company will sell
the Class A and the Class R Certificates other than a de minimis portion thereof
(the "Underwritten Certificates") to _______________________ (the
"Underwriter"), pursuant to the Underwriting Agreement, dated _____________ __,
____, between the Company and the Underwriter (the "Underwriting Agreement"; the
Pooling and Servicing Agreement, the Custodial Agreement, the Underwriting
Agreement and the Assignment and Assumption Agreement, collectively, the
"Agreements"). Capitalized terms not defined herein have the meanings ascribed
to them in the Agreements. This opinion letter is rendered pursuant to Section
6.4 of the Underwriting Agreement.
In rendering this opinion letter, we have examined the documents
described above and such other documents as we have deemed necessary including,
where we have deemed appropriate, representations or certifications of officers
of parties thereto or public officials. In rendering this opinion letter, except
for the matters that are specifically addressed in the opinions expressed below,
we have assumed (i) the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents submitted to us
as copies, (ii) the necessary entity formation and continuing existence in the
jurisdiction of formation, and the necessary licensing and qualification in all
jurisdictions, of all parties to all documents, (iii) the necessary
authorization, execution, delivery and enforceability of all documents, and the
necessary entity power with respect thereto and (iv) that there is not any other
agreement that modifies or supplements the agreements expressed in the documents
to which this opinion letter relates and that renders any of the opinions
expressed below inconsistent with such documents as so modified or supplemented.
In rendering this opinion letter, we have made no inquiry, have conducted no
investigation and assume no responsibility with respect to (a) the accuracy of
and compliance by the parties thereto with the representations, warranties and
covenants contained in any document or (b) the conformity of the underlying
assets and related documents to the requirements of the agreements to which this
opinion letter relates.
Our opinions set forth below with respect to the enforceability of any
right or obligation under any agreement are subject to (i) general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealings and the possible unavailability of specific performance and injunctive
relief, regardless of whether considered in a proceeding in equity or at law,
(ii) the effect of certain laws, regulations and judicial and other decisions
upon the availability and enforceability of certain covenants, remedies and
other provisions, including the remedies of specific performance and self-help
and provisions imposing penalties and forfeitures and waiving objections to
venue and forum, (iii) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar
A-1-2
Citigroup Commercial Mortgage Securities Inc.
Series ________________
_______________ _____, ________
laws affecting the rights of creditors or secured parties and (iv) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of any
agreement which purport or are construed to provide indemnification with respect
to securities law violations. Wherever we indicate that our opinion with respect
to the existence or absence of facts is based on our knowledge, our opinion is
based solely on the current actual knowledge of the attorneys in this firm who
are involved in the representation of parties to the transactions described
herein. In that regard we have conducted no special or independent investigation
of factual matters in connection with this opinion letter.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the federal laws of the United States, the laws of
the State of New York and the General Corporation Law of the State of Delaware.
We do not express any opinion with respect to the securities laws of any
jurisdiction or any other matter not specifically addressed in the opinions
expressed below.
Based upon and subject to the foregoing, it is our opinion that:
1. The Registration Statement has become effective under the 1933
Act, and, to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, and no proceedings for
that purpose have been instituted or threatened under Section 8(d) of the 1933
Act.
2. The Registration Statement as of the date of the Prospectus
Supplement and the date hereof, and the Prospectus as of the date of the
Prospectus Supplement and the date hereof, other than any financial or
statistical information, Computational Materials and ABS Term Sheets contained
or incorporated by reference therein, as to which we express no opinion herein,
complied as to form in all material respects with the requirements of the Act
and the applicable rules and regulations thereunder.
3. To our knowledge, there are no material contracts, indentures
or other documents of a character required to be described or referred to in
either the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement, other than Computational Materials and ABS Term
Sheets as to which we express no opinion herein, and those described or referred
to therein or filed or incorporated by reference as exhibits thereto.
4. The statements made in the Prospectus under the heading
"Description of the Securities," insofar as such statements purport to summarize
certain provisions of the Offered Certificates and the Pooling and Servicing
Agreement, provide a fair summary of such provisions. The statements made in the
Basic Prospectus and the Prospectus Supplement, as the case may be, under the
headings "Federal Income Tax Consequences," "Certain Legal Aspects of Mortgage
Loans_Applicability of Usury Laws" and "_Alternative Mortgage Instruments" and
"ERISA Considerations," to the extent that they constitute matters of State of
New York or federal law or legal conclusions with respect thereto, while not
purporting to discuss all possible
A-1-3
Citigroup Commercial Mortgage Securities Inc.
Series ________________
_______________ _____, ________
consequences of investment in the Offered Certificates, are correct in all
material respects with respect to those consequences or matters that are
discussed therein.
5. The Offered Certificates, assuming the execution,
authentication and delivery thereof in accordance with the Pooling and Servicing
Agreement and the delivery thereof and payment therefor in accordance with the
Underwriting Agreement, are validly issued and outstanding and are entitled to
the benefits of the Pooling and Servicing Agreement.
6. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended. The Trust Fund
created by the Pooling and Servicing Agreement is not an "investment company" or
"controlled by" an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
7. The Class A Certificates will be "mortgage related securities"
as defined in Section 3(a)(41) of the 1934 Act, as amended, so long as such
class is rated in one of the two highest rating categories by at least one
"nationally recognized statistical rating organization" as that term is used in
that Section.
8. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, REMIC I and REMIC II will
each qualify as a real estate mortgage investment conduit ("REMIC") within the
meaning of Sections 860A through 860G (the "REMIC Provisions") of the Internal
Revenue Code of 1986, the Class R-I Certificates will constitute the sole class
of "residual interests" in REMIC I, each class of Offered Certificates will
represent ownership of "regular interests" in REMIC II and will generally be
treated as debt instruments of REMIC II and the Class R-II Certificates will
constitute the sole class of "residual certificates" in REMIC II, within the
meaning of the REMIC Provisions in effect on the date hereof.
9. Assuming compliance with the provisions of the Pooling and
Servicing Agreement, for City and State of New York income and corporation
franchise tax purposes, REMIC I and REMIC II will each be classified as a REMIC
and not as a corporation, partnership or trust, in conformity with the federal
income tax treatment of the Trust Fund. Accordingly, REMIC I and REMIC II will
be exempt from all City and State of New York taxation imposed on its income,
franchise or capital stock, and its assets will not be included in the
calculation of any franchise tax liability.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be made available, and this opinion letter may not be
quoted or referred to in any other document made available, to any other person
or entity except to (i) any applicable rating agency, credit enhancer or
governmental authority, (ii) any accountant or attorney for any person or entity
entitled hereunder to rely hereon or to whom or which this opinion letter may be
made available as provided herein or (iii) as otherwise required by law.
A-1-4
Citigroup Commercial Mortgage Securities Inc.
Series ________________
_______________ _____, ________
Very truly yours,
XXXXXXX XXXXXXXX & XXXX
By
A-1-5
EXHIBIT A-2
[XXXXXXX XXXXXXXX & XXXX LETTERHEAD]
____________________,______
Supplemental Letter:
Citigroup Commercial Mortgage Securities Inc.
Citigroup Mortgage Pass-Through Certificates, Series ____-_____
Ladies and Gentlemen:
We have acted as counsel to Citigroup Commercial Mortgage Securities
Inc. (the "Company") and [Name of Master Servicer] (the "Master Servicer") in
connection with the issuance and sale by the Company of Citigroup Mortgage
Pass-Through Certificates, Series ____- ____ (the "Certificates"), pursuant to
the Pooling and Servicing Agreement, dated as of _______________ 1, ____ (the
"Pooling and Servicing Agreement"), among the Company, the Master Servicer and
___________________, as trustee (the "Trustee"). The Certificates consist of
____________ classes designated as Class A and Class R (collectively, the
"Senior Certificates") and ____________ classes of subordinated certificates
designated as Class M and Class B. Only the Senior Certificates and the Class M
Certificates (collectively, the "Offered Certificates") are being offered under
the Prospectus, ________, and the Prospectus Supplement, the Prospectus
Supplement together with the Prospectus, the "Prospectus")
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided ownership interests, in a trust fund (the "Trust
Fund") consisting primarily of a pool of one- to four-family first mortgage
loans (the "Mortgage Loans") held by ______________________________
______________, as custodian (the "Custodian"), pursuant to the Custodial
Agreement, dated as of _______________ 1, ____, among the Company, the Master
Servicer, the Custodian and the Trustee (the "Custodial Agreement").
____________________________________ (the "Purchaser") acquired the Mortgage
Loans through its mortgage loan purchase program from various seller/servicers.
The Purchaser transferred the Mortgage Loans to the Company pursuant to the
Assignment and Assumption Agreement, dated _________ __, ____ (the "Assignment
and Assumption Agreement"), in exchange for immediately available funds, and the
Class M and Class B Certificates. The Company will sell the Class A and the
Class R Certificates other than a de minimis portion thereof (the "Underwritten
Certificates") to _______________________ (the "Underwriter"), pursuant to the
Underwriting Agreement, dated _____________ __, ____, between the Company and
the
Citigroup Commercial Mortgage Securities Inc.
[Underwriter]
[Trustee]
_______________ _____, ________
Underwriter (the "Underwriting Agreement"; the Pooling and Servicing Agreement,
the Custodial Agreement, the Underwriting Agreement and the Assignment and
Assumption Agreement, collectively, the "Agreements"). Capitalized terms not
defined herein have the meanings ascribed to them in the Agreements. This
opinion letter is rendered pursuant to Section 6.4 of the Underwriting
Agreement.
The primary purpose of our professional engagement was to advise with
respect to legal matters and not to establish factual matters. Many
determinations involved in the preparation of the Prospectus Supplement were
factual. However, at the request of the Seller we reviewed the information
contained in the Prospectus Supplement (other than the information presented in
tabular form) under the captions "SUMMARY OF PROSPECTUS SUPPLEMENT _ THE
MORTGAGE LOANS," "RISK FACTORS" and "THE MORTGAGE POOL" (collectively, the
"Information"). We were not engaged to and did not review any other portion of
the Prospectus Supplement or any portion of the Prospectus, and we did not
prepare any of the documents evidencing, or close, any of the Mortgage Loans.
We have not otherwise undertaken any procedures that were intended or
likely to elicit information concerning the accuracy, completeness or fairness
of the Information other than as provided below. We are not otherwise advising
in this letter with respect to the accuracy, completeness or fairness of
statistical, accounting or other financial information contained in the
Information or not contained in the Information and from which the Information
was derived. It is our position that we are not "experts" within the meaning of
Section 11 of the Securities Act of 1933, or "persons" within the meaning of
Section 11(a)(4) thereof, with respect to any portion of the Prospectus
Supplement or the Prospectus, including without limitation such accounting,
financial and statistical information.
Based upon and subject to the foregoing, this is to inform you that no
information has come to the attention of the attorneys in this firm who are
involved in the representation of the Seller in this matter that causes us to
believe that the Information, as of the date of the Prospectus Supplement or
hereof, contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
This letter is rendered for the sole benefit of each addressee hereof,
and no other person or entity is entitled to rely hereon. Copies of this letter
may not be made available, and this letter may not be quoted or referred to in
any other document made available, to any other person or entity except to (i)
any applicable rating agency, credit enhancer or governmental authority, (ii)
any accountant or attorney for any person or entity entitled hereunder to rely
hereon or to whom or which this letter may be made available as provided herein
or (iii) as otherwise required by law.
A-2-2
Citigroup Commercial Mortgage Securities Inc.
[Underwriter]
[Trustee]
_______________ _____, ________
Very truly yours,
XXXXXXX XXXXXXXX & XXXX
By
A-2-3
EXHIBIT B
[COUNSEL TO MASTER SERVICER LETTERHEAD]
__________________________,_______
[TRUSTEE]
____________________
____________________
[UNDERWRITER]
____________________
____________________
Citigroup Commercial Mortgage Securities Inc.
Citigroup Mortgage Pass-Through Certificates, Series ____-____
Ladies and Gentlemen:
We have acted as counsel to Citigroup Commercial Mortgage Securities
Inc. (the "Company") and [Name of Master Servicer] (the "Master Servicer") in
connection with the issuance and sale by the Company of Citigroup Mortgage
Pass-Through Certificates, Series ____- ____ (the "Certificates"), pursuant to
the Pooling and Servicing Agreement, dated as of _______________ 1, ____ (the
"Pooling and Servicing Agreement"), among the Company, the Master Servicer and
___________________, as trustee (the "Trustee"). The Certificates consist of
____________ classes designated as Class A and Class R (collectively, the
"Senior Certificates") and ____________ classes of subordinated certificates
designated as Class M and Class B. Only the Senior Certificates and the Class M
Certificates (collectively, the "Offered Certificates") are being offered under
the Prospectus, ________, and the Prospectus Supplement, the Prospectus
Supplement together with the Prospectus, the "Prospectus")
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided ownership interests, in a trust fund (the "Trust
Fund") consisting primarily of a pool of one- to four-family first mortgage
loans (the "Mortgage Loans") held by ______________________________
______________, as custodian (the "Custodian"), pursuant to the Custodial
Agreement, dated as of _______________ 1, ____, among the Company, the Master
Servicer, the Custodian and the Trustee (the "Custodial Agreement").
____________________________________ (the "Purchaser") acquired the Mortgage
Loans through its mortgage loan purchase program from various seller/servicers.
The Purchaser transferred the Mortgage Loans to the Company pursuant to the
Assignment and Assumption Agreement, dated _________ __, ____ (the "Assignment
and Assumption Agreement"), in exchange for immediately available funds, and the
Class M and Class B Certificates. The Company will sell the Class A and
[Trustee]
[Underwriter]
__________________,________
the Class R Certificates other than a de minimis portion thereof (the
"Underwritten Certificates") to _______________________ (the "Underwriter"),
pursuant to the Underwriting Agreement, dated _____________ __, ____, between
the Company and the Underwriter (the "Underwriting Agreement"; the Pooling and
Servicing Agreement, the Custodial Agreement, the Underwriting Agreement and the
Assignment and Assumption Agreement, collectively, the "Agreements").
Capitalized terms not defined herein have the meanings ascribed to them in the
Agreements. This opinion letter is rendered pursuant to Section 6.4 of the
Underwriting Agreement.
Based upon and stated in the foregoing, we are of the opinion that:
1. The Company and the Master Servicer are duly incorporated and
are validly existing as corporations in good standing under the laws of the
State of Delaware and the State of __________, respectively, and each has the
requisite power and authority, corporate or other, to own its properties and
conduct its business, as presently conducted by it, and to enter into and
perform its obligations under the Agreements.
2. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and the Master Servicer and, upon due
authorization, execution and delivery by other parties thereto, will constitute
the valid, legal and binding agreements of the Company and the Master Servicer,
enforceable against the Company and the Master Servicer in accordance with its
terms.
3. No consent, approval, authorization or order of the State of
__________ or federal court or governmental agency or body is required for the
consummation by the Company or the Master Servicer of the transactions
contemplated by the terms of the Agreements, except for those consents,
approvals, authorizations or orders which previously have been obtained.
4. Neither the sale, issuance and delivery of the Underwritten
Certificates as provided in the Agreements, nor the consummation of any other of
the transactions contemplated by, or the fulfillment of any other of the terms
of, the Agreements, will result in a breach of any term or provision of the
charter or bylaws of the Company or the Master Servicer or any State of
Minnesota or federal statute or regulation or conflict with, result in a breach,
violation or acceleration of or constitute a default under the terms of any
indenture or other material agreement or instrument to which the Company or the
Master Servicer is a party or by which it is bound or any order or regulation of
any State of Minnesota or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or the Master
Servicer.
Very truly yours,
COUNSEL TO MASTER SERVICER
B-2
EXHIBIT C
[TRUSTEE'S COUNSEL'S LETTERHEAD]
______________________,___________
[UNDERWRITER] [Name of Master Servicer]
_____________________ Address of Master Servicer]
_____________________
Citigroup Commercial Mortgage Securities Inc. [TRUSTEE]
000 Xxxxxxxxx Xxxxxx ___________________________
New York, New York 10013 ___________________________
Re: Citigroup Commercial Mortgage Securities Inc.
Citigroup Mortgage Pass-Through Certificates,
Series ___-_____
Ladies and Gentlemen:
In connection with the issuance of the above-referenced Certificates
pursuant to the Pooling and Servicing Agreement, dated as of ____________ 1,
_____ (the "Pooling and Servicing Agreement"), among Citigroup Commercial
Mortgage Securities Inc., as Company, [Name of Master Servicer], as Master
Servicer and _____________________, as Trustee (the "Trustee"), we have been
asked to furnish this opinion. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In arriving at the opinions expressed below, we have examined and
relied upon the originals or copies, certified or otherwise identified to our
satisfaction, of the Pooling and Servicing Agreement and of such documents,
instruments and certificates, and we have made such investigations of law, as we
have deemed appropriate as the basis for the opinions expressed below. We have
assumed but have not verified that the signatures on all documents that we have
examined are genuine and that each person signing each such document was duly
authorized to sign such document on behalf of the person or entity purported to
be bound thereby.
Based on the foregoing, we are of the opinion that:
1. The Trustee has full corporate power and authority to execute
and deliver the Pooling and Servicing Agreement, the Custodial Agreement and the
Certificates and
Citigroup Commercial Mortgage Securities Inc.
______________________,_________
to perform its obligations under the Pooling and Servicing Agreement and the
Custodial Agreement.
2. Each of the Pooling and Servicing Agreement and the Custodial
Agreement has been duly authorized, executed and delivered by the Trustee, and
the Trustee has duly executed and delivered the Certificates as provided in the
Pooling and Servicing Agreement.
3. The Pooling and Servicing Agreement is a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, receivership and similar laws affecting the rights of creditors
generally, and subject, as to enforceability, to general principles of equity,
regardless of whether such enforcement is considered in a proceeding at law or
in equity.
4. In the event that the Master Servicer defaults in its
obligation to make Advances pursuant to Section 4.03(b) of the Pooling and
Servicing Agreement, the Trustee is not, as of the date hereof, prohibited by
any provision of its Restated Organization Certificate or By-Laws or by any
provision of the banking and trust laws of the State of New York from assuming,
pursuant to Section 7.02 of the Pooling and Servicing Agreement, the obligation
to make such Advances.
We express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York.
We are furnishing this opinion to you solely for your benefit. This
opinion may not be used, circulated, quoted or otherwise referred to for any
other purpose.
Very truly yours,
___________________________
C-2
EXHIBIT D
EXHIBIT E
Excluded Information
EXHIBIT F
Underwriter Information
EXHIBIT G
________________________,_________
Citigroup Commercial Mortgage Securities Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Citigroup Commercial Mortgage Securities Inc.
Citigroup Mortgage Pass-Through Certificates,
Series __-______, Class A and Class R ______
Pursuant to Section 4 of the Underwriting Agreement, dated
_______________, ____, between Citigroup Commercial Mortgage Securities Inc. and
________________________ (the "Underwriter") relating to the Certificates
referenced above (the "Underwriting Agreement"), the undersigned does hereby
certify that:
(a) The prepayment assumption used in pricing the Certificates was
______% SPA.
(b) Set forth below is (i), the first price, as a percentage of
the principal balance of each class of Certificates, at which 10% of the
aggregate 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 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 principal balance of such class of
Certificates, or (iii) if less than 10% of the aggregate 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 Underwriter expressed as a percentage of
the principal balance of such class of Certificates calculated by: (1)
estimating the fair market value of each such class of Certificates as of
__________________, _____; (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
Underwriter 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 principal balance of such class of Certificates:
Class A: __________________
Class R: __________________
Citigroup Commercial Mortgage Securities Inc.
______________________,________,________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect to
periods before closing.
________________________________
By:_____________________________
Name:___________________________
Title:__________________________
G-2
EXHIBIT I
[Form of Legend]
