Exhibit 1.1
GE COMMERCIAL MORTGAGE CORPORATION
$_____________ (Approximate)
Commercial Mortgage Pass-Through Certificates
Series 00__-
XXXXXXXXXXXX XXXXXXXXX
Xxx Xxxx, Xxx Xxxx
______, 20__
[Names and Addresses of Underwriters]
Ladies and Gentlemen:
GE Commercial Mortgage Corporation, a Delaware corporation (the
"Company"), proposes to cause to be issued its Commercial Mortgage Pass-Through
Certificates, Series 20__-__ (the "Certificates"), consisting of __classes
designated as the Class [A-1], Class [A-1A], Class [A-2], [Class A-3FL], Class
[B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], [Class
X], Class [R] and Class [LR] Certificates under a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of ____, 20__ among
the Company, [Name of master servicer], as master servicer (the "Servicer"),
[Name of special servicer], as special servicer (the "Special Servicer") and
[Name of trustee], as trustee (the "Trustee"). The Company proposes to sell the
Class [A-1], Class [A-1A], Class [A-2], [Class A-3FL], Class [B], Class [D] and
Class [E] [and Class X] Certificates (collectively, the "Offered Certificates")
to [Names of underwriters] (the "Underwriters"). The Certificates will represent
in the aggregate the entire beneficial ownership interest in a trust fund (the
"Trust Fund") primarily consisting of a segregated pool (the "Mortgage Pool") of
commercial and multifamily mortgage loans (the "Mortgage Loans"). The Mortgage
Loans will be purchased by the Company from (i) [General Electric Capital
Corporation ("GECC") pursuant to a Mortgage Loan Purchase and Sale Agreement
(the "GECC Purchase Agreement"), dated as of ____, 20__, between the Company and
GECC] and (ii) [insert names of other mortgage loan sellers] (, together with
[GECC] Bank of America, the "Mortgage Loan Sellers") pursuant to a Mortgage Loan
Purchase and Sale Agreement ([together with the GECC Purchase Agreement,] the
"Purchase Agreements"), dated as of ____, 20__, among the Company and [insert
names of other mortgage loan sellers], in exchange for immediately available
funds. The Offered Certificates are described more fully in Schedule I hereto
and the Registration Statement (as hereinafter defined). This is to confirm the
arrangements with respect to your purchase of the Offered Certificates.
At or prior to the time when sales to investors of the Offered
Certificates were first made (the "Time of Sale"), the Company had prepared the
following information (collectively, the "Time of Sale Information": (i) a Term
Sheet dated as of ____ , 20__ (the "Term Sheet"), (ii) any written materials
prepared by the Underwriters and provided to the Company for filing with the
Commission prior to the Time of Sale ("Company Filed Information"), (iii) the
information attached hereto on Schedule III and (iv) a Free Writing Prospectus
dated ____ , 20__ to the Basic Prospectus (defined below) and the Basic
Prospectus (collectively with the Free Writing Prospectus, the "Transaction
FWP")). The Company Filed Information is listed on Schedule III attached hereto.
If, subsequent to the date of this Agreement, the Company and the Underwriters
have determined that such information included an untrue statement of material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and have terminated their old purchase contracts and
entered into new purchase contracts with purchasers of the Offered Certificates,
then "Time of Sale Information" will refer to the information provided by the
Company or the Underwriters to purchasers at the time of entry into the first
such new purchase contract, including any information that corrects such
material misstatements or omissions ("Corrective Information"), and "Time of
Sale" will refer to the time of entry into the first such new purchase contract.
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Final Prospectus (as hereinafter defined).
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the file
numbers of which are set forth in Schedule I hereto) for the registration of the
Offered Certificates, among other mortgage pass-through certificates, under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement has become effective and copies of which have heretofore been
delivered to you. Such registration statement, as amended at the date hereof,
meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with the 1933 Act and the rules and
regulations thereunder. The Company proposes to file with the Commission
pursuant to Rule 424 under the 1933 Act a supplement to the form of prospectus
included in such registration statement relating to the Offered Certificates and
the plan of distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Offered Certificates and
the Mortgage Pool to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date hereof, is hereinafter
called the "Registration Statement"; the prospectus included in the Registration
Statement, after the Registration Statement, as amended, became effective, or as
subsequently filed with the Commission pursuant to Rule 424 under the 1933 Act,
is hereinafter called the "Basic Prospectus"; such form of prospectus
supplemented by the supplement to the form of prospectus relating to the Offered
Certificates, in the form in which it shall be first filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so supplemented) is
hereinafter called the "Final Prospectus."
(b) (i) The Registration Statement, as of its effective date or the
effective date of any post-effective amendment thereto filed prior to the
Closing Date, and the Final Prospectus, as of the date that it is first filed
pursuant to Rule 424 under the 1933 Act or, as amended or supplemented, as of
the date such amendment or supplement is filed pursuant to Rule 424 under the
1933 Act, complied or will comply, as applicable, in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement as of its effective date and as of
the date of this Agreement, and, as amended by any such post-effective
amendment, as of the effective date of such amendment, did not and will not
contain any untrue statement of a material fact and did not omit and will not
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) the Final Prospectus as of
its issue date and as of the Closing Date, or as amended or supplemented, as of
the issue date of such amendment or supplement and as of the Closing Date, will
not contain any untrue statement of a material fact or omit to state any
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 Final
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 Final Prospectus or (ii) the
Mortgage Loan Seller Information (as defined in Section 1(a) of the Mortgage
Loan Seller Indemnification Agreements, 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
[Name of accountants].
(c) The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to
(i) the information contained in or omitted from the Time of Sale Information 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 Time
of Sale Information, (ii) any Mortgage Loan Seller Information in such Time of
Sale 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.
(d) Other than the Term Sheet, Company Filed Information, the
Transaction FWP and the Final Prospectus, the Company (including its agents and
representatives other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the 0000 Xxx) that constitutes an offer to sell or
solicitation of an offer to buy the Offered Certificates other than (i) any
communication by the Company or its agents and representatives that constitutes
an "issuer free writing prospectus", as defined in Rule 433(h) under the 1933
Act (other than a communication referred to in clause (ii) below, an "Issuer
Free Writing Prospectus"), (ii) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of or Rule 134 under the 1933 Act or (iii) other
written communication approved in writing in advance by the Underwriters. Any
such Issuer Free Writing Prospectus complied in all material respects with the
1933 Act and does not conflict with the Registration Statement or the Final
Prospectus as required by Rule 433 under the 1933 Act, has been filed in
accordance with Section 10 (to the extent required thereby) and, when taken
together with the Time of Sale Information, such Issuer Free Writing Prospectus,
did not at the Time of Sale, and at the Closing Date will not, contain any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) the information contained in or
omitted from any Issuer Free Writing 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 Issuer Free
Writing Prospectus, (ii) any Mortgage Loan Seller Information in such Issuer
Free Writing Prospectus 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.
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
full power and authority (corporate and other) to own its properties and conduct
its business, as now conducted by it, and to enter into and perform its
obligations under this Agreement, the Purchase Agreements and the Pooling and
Servicing Agreement; and the Company has received no notice of proceedings
relating to the revocation or modification of any license, certificate,
authority or permit applicable to its owning such properties or conducting such
business which singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the conduct
of the business, operations, financial condition or income of the Company.
(f) When the Final Prospectus is first filed pursuant to Rule 424
under the 1933 Act, when, prior to the Closing Date (as hereinafter defined),
any amendment to the Registration Statement becomes effective, when any
supplement to the Final Prospectus is filed with the Commission, and at the
Closing Date, there has not and will not have been (i) any request by the
Commission for any further amendment of the Registration Statement or the Final
Prospectus or for any additional information, (ii) any issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification of
the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(g) This Agreement and the Purchase Agreements have been, and the
Pooling and Servicing Agreement when executed and delivered as contemplated
hereby and thereby will have been, duly authorized, executed and delivered by
the Company, and each constitutes, or will constitute when so executed and
delivered, a legal, valid and binding agreement of the Company, enforceable
against the Company (assuming the due authorization, execution and delivery of
this Agreement, the Purchase Agreements and the Pooling and Servicing Agreement
by each other party thereto) in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors, (ii) general principles of equity,
whether enforcement is sought 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 from securities law
liabilities.
(h) The Offered Certificates and the Pooling and Servicing Agreement
will each conform in all material respects to the descriptions thereof contained
in the Final Prospectus, and the Offered Certificates, when duly and validly
authorized, executed, authenticated and delivered in accordance with the Pooling
and Servicing Agreement and paid for by the Underwriters as provided herein,
will be entitled to the benefits of the Pooling and Servicing Agreement.
(i) Neither the issuance and sale of the Certificates, nor the
execution and delivery by the Company of this Agreement, the Purchase Agreements
or the Pooling and Servicing Agreement, nor the consummation by the Company of
any of the transactions herein or therein contemplated, nor compliance by the
Company with the provisions hereof or thereof, will conflict with or result in a
breach of any term or provision of the certificate of incorporation or by-laws
of the Company or conflict with, result in a breach, violation or acceleration
of or constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound, or any
statute, order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company, which, in any such case, would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement, the
Purchase Agreements or the Pooling and Servicing Agreement. The Company is not a
party to, bound by or in breach or violation of any indenture or other agreement
or instrument, or subject to or in violation of any statute, order or regulation
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects, or is reasonably
likely in the future to materially and adversely affect, the ability of the
Company to perform its obligations under this Agreement, the Purchase Agreements
or the Pooling and Servicing Agreement.
(j) There are no actions or proceedings against, or investigations
of, the Company pending, or, to the knowledge of the Company, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Purchase Agreements, the Pooling and Servicing Agreement
or the Certificates, (ii) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement, the
Purchase Agreements or the Pooling and Servicing Agreement, (iii) that might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement, the
Purchase Agreements, the Pooling and Servicing Agreement or the Certificates or
(iv) seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Time of Sale Information and the Final
Prospectus.
(k) The Trust Fund created by the Pooling and Servicing Agreement
will not be required to be registered as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(l) The sale of the Mortgage Loans to the Trust Fund on the Closing
Date and the sale by the Company of the Offered Certificates will be treated by
the Company for financial accounting and reporting purposes as a sale of assets
and not as a pledge of assets to secure debt.
(m) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and the
Pooling and Servicing Agreement, except such as have been, or as of the Closing
Date will have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and offer and
sale of the Offered Certificates by the Underwriters and the recordation of the
respective assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement.
(n) Immediately prior to the assignment of the Mortgage Loans to the
Trustee as contemplated by the Pooling and Servicing Agreement, the Company (i)
had good title to, and was the sole owner of, each Mortgage Loan and the other
property purported to be transferred by it to the Trustee pursuant to the
Pooling and Servicing Agreement (but only to the extent sole ownership was
transferred to the Company by the applicable Mortgage Loan Seller) free and
clear of any pledge, mortgage, lien, security interest or other encumbrance
created by the Company (collectively, "Liens"), (ii) had not assigned to any
person any of its right, title or interest in such Mortgage Loans or property or
in the Purchase Agreements and (iii) will have the power and authority to sell
such Mortgage Loans and property to the Trustee (but only to the extent such
Mortgage Loans and property were transferred to the Company by the applicable
Mortgage Loan Seller) and upon the execution and delivery of the Pooling and
Servicing Agreement by all of the parties thereto, the Trust will have acquired
all of the Company's right, title and interest in and to such Mortgage Loans and
property free and clear of any Lien created by the Company (except for any Lien
created pursuant to this transaction).
(o) The Company is not, and on the date on which the first bona fide
offer of the Offered Certificates is made will not be, an "ineligible issuer",
as defined in Rule 405 under the 0000 Xxx.
2. Representations of the Several Underwriters.
(a) Each Underwriter hereby represents and agrees, severally and not
jointly, that in relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") it has not made and will not make an offer of the Offered
Certificates to the public in that Relevant Member State, except that it may,
with effect from and including the Relevant Implementation Date, make an offer
of the Offered Certificates to the public in that Relevant Member State:
(i) in (or in Germany, where the offer starts within) the period
beginning on the date the publication of a prospectus in relation to the
Offered Certificates which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive and
ending on the date which is 12 months after the date of publication;
(ii) at any time to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1)
an average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iv) in any other circumstances which do not require the publication
by the Company of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this representation, the expression an "offer of
the certificates to the public" in relation to any Offered Certificates in any
Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Offered Certificates to
be offered so as to enable an investor to decide to purchase or subscribe the
Offered Certificates, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State, and the
expression "Prospectus Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(b) Each Underwriter, severally and not jointly, hereby further
represents and agrees, with respect to the United Kingdom, that:
(i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act) received by it in connection with the
issue or sale of the Notes in circumstances in which Section 21(1) of the
Financial Services and Markets Act does not apply to the Company; and
(ii) it has complied and will comply with all applicable provisions
of the Financial Services and Markets Act with respect to anything done by
it in relation to the certificates in, from or otherwise involving the
United Kingdom.
3. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, 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, at the applicable
purchase price set forth in Schedule I hereto, the respective portions of the
Offered Certificates set forth opposite such Underwriter's name in Schedule II
hereto, plus accrued interest at the related Pass-Through Rate from ____, 20__
to but not including the Closing Date.
4. Delivery and Payment. Delivery of and payment for the Offered
Certificates shall be made in the manner, on the date and at the time specified
in Schedule I hereto (or such later date not later than seven business days
after such specified date as the Underwriters shall designate), which date and
time may be postponed by agreement between the Underwriters and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Offered Certificates being herein called the "Closing Date"). Delivery of
the Offered Certificates, as set forth on Schedule I hereto, shall be made to
the Underwriters for their respective accounts against payment by wire transfer
of immediately available funds by the Underwriters of the applicable purchase
price. Unless delivery is made through the facilities of The Depository Trust
Company, the Offered Certificates shall be registered in such names and in such
authorized denominations as the Underwriters may request not less than three
full business days in advance of the Closing Date.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
5. Offering by Underwriters. (a) It is understood that the several
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Final Prospectus. (b) Each Underwriter agrees that any Offered
Certificates sold by it in the State of New York will be sold solely to
institutional "accredited investors" within the meaning of Rule 501 (a)(l), (2)
and (3) of Regulation D under the 1933 Act in order to ensure compliance with
the exemption from Section 352-e of the Real Estate Syndicate Act of New York.
6. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will not prepare, use, authorize, approve, refer to
or file any Issuer Free Writing Prospectus, or file, on or prior to the Closing
Date, any amendment to the Registration Statement or file any supplement to
(including the supplement relating to the Offered Certificates included in the
Final Prospectus) the Basic Prospectus unless the Company has furnished to you a
copy for your review prior to filing and will not prepare, use, authorize,
approve, refer to or file any Issuer Free Writing Prospectus, or file any such
proposed amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
transmitted to the Commission for filing pursuant to Rule 424 under the 1933
Act, and subject to Section 10, will file any Issuer Free Writing Prospectus to
the extent required by Rule 433 under the 1933 Act. The Company will promptly
advise the Underwriters (i) when the Final Prospectus shall have been filed or
transmitted to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration Statement or
the Final Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply with the
1933 Act or the rules and regulations thereunder, the Company will promptly
prepare and file with the Commission, subject to paragraph (a) of this Section
6, an amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance and, if such amendment or supplement
is required to be contained in a post-effective amendment of the Registration
Statement, will use its reasonable best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible.
(c) The Company will (i) furnish to the Underwriters and counsel for
the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto that shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer in connection with the Offered
Certificates may be required by the 1933 Act, as many copies of any Transaction
FWP and each Issuer Free Writing Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Underwriters may reasonably
request, and (ii) file promptly all reports and any information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), subsequent to the date of the Final Prospectus and for so long
as the delivery of a prospectus by an Underwriter or dealer in connection with
the Offered Certificates may be required under the 1933 Act. The Company will
file with the Commission within 15 days of the issuance of the Offered
Certificates a report on Form 8-K (the "8-K") setting forth specific information
concerning the Offered Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Final Prospectus.
(d) The Company agrees that, so long as the Offered Certificates
shall be outstanding, it will make available to the Underwriters the annual
statement as to compliance delivered to the Trustee pursuant to Section [__]of
the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section
[___]of the Pooling and Servicing Agreement, as soon as such statements are
furnished to the Company. The Pooling and Servicing Agreement will provide that
the Servicer and the Special Servicer furnish to the Underwriters all reports
compiled by any of them pursuant to the Pooling and Servicing Agreement, if and
when requested in writing by the Underwriters, under the same terms and
conditions applicable to holders of the Offered Certificates.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Offered 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.
(f) The Company will pay or cause to be paid all costs and expenses
in connection with the transactions herein contemplated, including, but not
limited to: (i) the fees and disbursements of its counsel; (ii) the costs and
expenses of printing (or otherwise reproducing), preparing and delivering the
Pooling and Servicing Agreement and the Offered Certificates; (iii) accounting
fees and disbursements; (iv) the costs and expenses in connection with the
qualification or exemption of the Offered Certificates under state securities or
blue sky laws not to exceed $10,000, including filing fees and reasonable fees
and disbursements of counsel in connection with the preparation of any blue sky
survey and in connection with any determination of the eligibility of the
Offered Certificates for investment by institutional investors and the
preparation of any legal investment survey; (v) the expenses of printing any
such blue sky survey and legal investment survey; (vi) the costs and expenses in
connection with the preparation, printing and filing of the Registration
Statement (including exhibits thereto), the Transaction FWP and the Final
Prospectus, the preparation and printing of this Agreement and the furnishing to
the Underwriters of such copies of each Transaction FWP, Registration Statement
and Final Prospectus as the Underwriters may reasonably request, and (vii) the
fees of each Rating Agency (as defined herein). The Underwriters shall be
responsible for paying all costs and expenses incurred by them in connection
with the offering of the Offered Certificates.
(g) The Company acknowledges and agrees that: (i) the purchase and
sale of the Underwritten Certificates pursuant to this Agreement, including the
determination of the public offering price of the Underwritten Certificates and
any related discounts and commissions, is an arm's-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the other
hand, and the Company is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated by
this Agreement; (ii) in connection with each transaction contemplated hereby and
the process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company, or its
affiliates, stockholders, creditors or employees or any other party; (iii) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company with respect to any of the transactions contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this
Agreement; (iv) the several Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Company and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any fiduciary or advisory
relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
(h) The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus or any
materials used in a Road Show (as defined in Rule 433 of the 0000 Xxx) that are
required to be retained by the Company pursuant to the 1933 Act, to the extent
not filed with the Commission in accordance with Rule 433 under the 1933 Act.
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the several Underwriters, or
any of them, with respect to the subject matter hereof. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or
alleged breach of fiduciary duty.
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed after the
date hereof and prior to the Closing Date and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus and each Issuer Free Writing Prospectus
shall have been filed or transmitted for filing with the Commission in
accordance with Rule 424 under the 1933 Act (in the case of an Issuer Free
Writing Prospectus, to the extent required by Rule 433 of the 1933 Act).
(b) The Company shall have delivered to you a certificate of the
Company, signed by an authorized signatory pursuant to a power of attorney from
the Chairman, the President, a vice president or an assistant vice president of
the Company and dated the Closing Date, to the effect that representatives of
the Company have carefully examined the Registration Statement, the Time of Sale
Information, the Final Prospectus and this Agreement and that: (i) the
representations and warranties of the Company in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date; (ii) 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 at or prior to the Closing Date; (iii) 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, to the Company's knowledge, threatened, and (iv) nothing has come
to the attention of the Company that would lead the Company to believe that the
Time of Sale Information or the Final Prospectus contains any untrue statement
of a material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) The Underwriters shall have received from [Name of counsel],
special counsel for the Company, one or more favorable opinions, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Company is a corporation in good standing under the laws of
the State of Delaware with corporate power to enter into and perform its
obligations under this Agreement, the Purchase Agreements and the Pooling
and Servicing Agreement;
(ii) The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued, and not withdrawn, no proceedings for that
purpose have been instituted or threatened, and not terminated, and the
Registration Statement, the Time of Sale Information, the Final Prospectus
and each amendment thereof or supplement thereto as of their respective
effective or issue dates complied as to form in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder; and no facts have come to such counsel's attention that have
led such counsel to believe that the Registration Statement (which, for
purposes of this clause, shall not be deemed to include any exhibits
thereto or any documents or other information incorporated therein by
reference), or any amendment thereof, at the time it became effective and
at the date of this Agreement, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Time of Sale Information and the Final Prospectus as of their
respective issue date and as of the Closing Date, or as amended or
supplemented, as of the issue date of such amendment or supplement and as
of the Closing Date, contains any untrue statement of a material fact 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;
(iii) This Agreement, the Pooling and Servicing Agreement and the
Purchase Agreements have been duly authorized, executed and delivered by
the Company and each such agreement constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other laws
relating to creditors' rights generally, and to general principles of
equity including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding
at law or in equity), and except that the enforcement of rights with
respect to indemnification and contribution obligations may be limited by
applicable law;
(iv) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for by the Underwriters as provided herein, will be
entitled to the benefits of the Pooling and Servicing Agreement;
(v) The statements in the Basic Prospectus and the Final Prospectus,
as the case may be, under the headings "Certain Federal Income Tax
Consequences", "Legal Investment", "Certain ERISA Considerations" and
"ERISA Considerations," to the extent that they constitute matters of
federal law or legal conclusions with respect thereto, are correct in all
material respects;
(vi) The statements made in the Final Prospectus under the caption
"Description of the Certificates" insofar as they purport to constitute
summaries of terms of the Certificates constitute accurate summaries of
such terms in all material aspects;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and the Trust Fund created by the
Pooling and Servicing Agreement is not required to be registered under the
Investment Company Act;
(viii) No consent, approval, authorization or order of any New York,
Delaware or federal court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated herein,
except such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Offered
Certificates by the Underwriters, and any recordation of the assignment of
the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement that have not yet been completed and such other approvals as
have been obtained;
(ix) Neither the issuance and sale or transfer of the Certificates,
nor the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of the Purchase Agreements or
the Pooling and Servicing Agreement will conflict with or result in a
breach or violation of any term or provision of, or constitute a default
(or an event which with the passing of time or notification, or both,
would constitute a default) under, the certificate of incorporation or
by-laws of the Company, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Company is a party
or by which it is bound, or any New York, Delaware or federal statute or
regulation applicable to the Company or, to the knowledge of such counsel,
any order of any New York, Delaware or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company; and
(x) The Trust Fund will qualify as one or more "real estate mortgage
investment conduits," as defined in Section 860D of the Code.
Such opinion may (x) express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the Purchase
Agreements and the Pooling and Servicing Agreement, (y) assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company and (z) be qualified as
an opinion only on the federal laws of the United States of America, the laws of
the State of New York and the laws of the State of Delaware. Additionally, if so
rendered, Name of counsel] may rely on the opinion of in-house counsel for the
Company as to matters relating to the Company.
(d) The Underwriters shall have received from [Name of accountants]
(the "Accountants"), certified public accountants, one or more letters, dated
the date hereof and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(e) The Certificates have been given the rating, if any, set forth
in Schedule I hereto by [specify rating agencies] (the "Rating Agencies").
(f) The Underwriters shall have received from counsel for the
Underwriters, dated the Closing Date, one or more favorable opinions in form and
substance satisfactory to the Underwriters.
(g) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
(h) The Underwriters shall have received from counsel for each
Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters.
(i) The Underwriters shall have received from counsel for each of
the Servicer and the Special Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(j) The Underwriters shall have received copies of any opinions of
counsel to the Company, each Mortgage Loan Seller, the Special Servicer or the
Servicer supplied to the Rating Agencies or the Trustee relating to certain
matters with respect to the Offered Certificates, the Mortgage Loan Sellers, the
Mortgage Loans, the Special Servicer or the Servicer. Any such opinions shall be
dated the Closing Date and addressed to the Underwriters or accompanied by the
reliance letters to the Underwriters or shall state that the Underwriters may
rely upon them.
(k) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
8. Indemnification and Contribution. The Company and the several
Underwriters agree that:
(a) The Company will indemnify and hold harmless each Underwriter,
and each person who controls any Underwriter within the meaning of either the
1933 Act or the 1934 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 1933 Act, the 1934 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 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 or arising out of any untrue statement or alleged untrue statement of
a material fact contained in 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, except to the extent that such untrue statement, alleged untrue
statement, omission or alleged omission arises out of or is based upon any
Mortgage Loan Seller Information (as defined in Section 1(a) of the Mortgage
Loan Seller Indemnification Agreements), (2) any untrue statement or alleged
untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, any Time of Sale Information or any "issuer information" (as defined
in Section 433(h) of the 1933 Act, the "Issuer Information")) contained in any
free-writing prospectus (as defined pursuant to Rule 405 under the 1933 Act, a
"Free Writing Prospectus") prepared by or on behalf of any Underwriter or in any
Free Writing Prospectus which is required to be filed pursuant to Section 10, 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 was not corrected by Corrective Information subsequently
supplied by the Company to the Underwriter at any time prior to the Time of Sale
or (3) any error in the information supplied to the Underwriters by or on behalf
of the Company or any of its affiliates relating to the Mortgage Loans (other
than the information contained in the Transaction FWP or the Final Prospectus)
except for information supplied to the Company by [Mortgage Loan Sellers] with
respect to each of their Mortgage Loans (the "Collateral Information") provided
that such Collateral Information is used in a manner not inconsistent with the
1933 Act; provided further, that no indemnity shall be provided if the
Collateral Information was corrected and such corrected materials were supplied
to the Underwriters at least 24 hours prior to the dissemination of the
materials from which such loss, liability, claim, damage or expense arose; and
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;
provided, however, that the indemnification provided by this subsection (a)
shall not apply 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 10 hereof or (C) is
indemnifiable by any Mortgage Loan Seller pursuant to Section 1(a) of any
Mortgage Loan Seller Indemnification Agreement; provided further, that the
indemnification provided by this subsection (a) 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 Time of Sale Information or the Final Prospectus or any other
document or information described in clauses (1) through (3) above. 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.
(b) 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 1933 Act or the 1934 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 1933 Act, the 1934 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 Transaction FWP 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 prepared by or on behalf of such Underwriter; or the omission or
alleged omission to state therein a material fact which, when read together with
the Transaction FWP and the Final Prospectus, was 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 (2) the failure of the
Underwriters to comply with any provisions of Section 10 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 Transaction FWP or the Final Prospectus; provided further, that no
Underwriter shall have any liability under this section to the extent that (1)
except as provided in Section 8(f) below, such untrue statement or omission of a
material fact was made as a result of an error in the manipulation of or in any
calculation based upon or any aggregation of the information regarding the
Mortgage Loans, the related Mortgagors and/or the related Mortgaged Properties,
(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 any Free Writing Prospectus prepared by an Underwriter
or (3) such losses, claims, damages or liabilities are caused by a misstatement
or omission resulting from an error or omission in the Information or Mortgage
Loan Seller supplied by the Company or any Mortgage Loan Seller to the
Underwriter which was not corrected by Corrective Information subsequently
supplied by the Company or any Mortgage Loan Seller to the Underwriter at any
time prior to the Time of Sale. This indemnity agreement will be in addition to
any liability that any Underwriter may otherwise have.
The Company and each Underwriter acknowledge and agree that for all
purposes of this Agreement the statements set forth in the [specify paragraphs]
of the cover page of the Final Prospectus, [specify paragraphs], under the
heading "Method of Distribution" in the Final Prospectus, together with the
Underwriter Information (as defined in Section 10 hereof) constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnities, and each
Underwriter confirms that such statements are or will be, at the time made,
correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party (x) under Section 8 unless such failure to notify prejudices
the position of the indemnifying party or results in the loss of one or more
defenses to the related cause of action or (y) otherwise than under this Section
8. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel (and one local
counsel, if it deems so necessary) to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by any indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for expenses incurred by the
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Underwriters in the case of subsection (a), representing the
indemnified parties under subsection (a) who are parties to such action), (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii). The indemnifying party shall not be liable for
any settlement of any action effected without its prior written consent, which
consent shall not be unreasonably withheld, but if settled with such consent,
the indemnifying party shall indemnify the indemnified party from and against
any indemnifiable losses, claims, damages and liabilities by reason of such
settlement. No indemnifying party who has elected to assume the defense of such
action shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable in accordance with its terms to an indemnified party
under this Section 8 or if such indemnification is provided for in Section 8
hereof is insufficient in respect of any losses, claims, damages, expenses and
liabilities referred to herein, then the Company and each Underwriter, to the
extent of underwriting discounts and commissions received by it, shall
individually contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages, expenses or liabilities referred to
in subsection (a) or (b) above, in such proportion as is appropriate to reflect
(i) the relative benefits received by the Company on the one hand and each
Underwriter on the other from the offering of the Offered Certificates (taking
into account the portion of the proceeds of the offering realized by each party)
and (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also to reflect the
relative fault of the Company on the one hand and each Underwriter on the other
in connection with the statement or omission or failure to comply that resulted
in such losses, claims, damages, expenses or liabilities, as well as any other
relevant equitable considerations (taking into account the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission or failure to comply, and any other equitable consideration appropriate
under the circumstances). The relative benefits received by the Company on the
one hand and each Underwriter, including any member of its selling group, on the
other shall be in such proportion as the total net proceeds from the offering of
the Offered Certificates (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by each
Underwriter, including any member of its selling group, with respect to such
offering. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the respective Underwriter, or any member of its
selling group, and the parties relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission or
failure to comply. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were to be
determined by per capita allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
expenses or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating, preparing or defending
against any action or claim which is the subject of this subsection (d) subject
to the limitations therein provided under subsection (c). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter for the Offered
Certificates underwritten and distributed by it exceeds the amount of any
damages that such Underwriter has otherwise paid or become liable to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) or willful failure to comply with Section 10
hereof shall be entitled to contribution from any person who was not also guilty
of such fraudulent misrepresentation or willful failure to comply. The
Underwriters obligation in this subsection (d) to contribute shall be several in
proportion to their respective underwriting obligations and not joint. [For
purposes of this Section 8(d), and notwithstanding anything to the contrary in
this Agreement, [specify underwriter shall be deemed to have received
underwriting discounts and commissions equal to [___]% of the initial principal
amount of the [specify classes of Offered Certificates] purchased by such
Underwriter, as set forth on Schedule II hereto, and [specify underwriter] shall
be deemed to have received underwriting discounts and commissions equal to
[___]% of the initial principal amount of the [specify classes of Offered
Certificates] purchased by such Underwriter, as set forth on Schedule II hereto.
(e) Each Underwriter will indemnify and hold harmless any other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either the 1933 Act or the 1934 Act (collectively, the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages, expenses or liabilities, joint or several, to which any
Non-Indemnifying Underwriter becomes subject under the 1933 Act, the 1934 Act or
other federal or state statutory law or regulation, 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 (i) any untrue statement of
material fact necessary to make the statements contained in any Free Writing
Prospectus prepared by, on behalf of, or used or referred to by, such
indemnifying Underwriter not misleading at the Time of Sale or (ii) the failure
of such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Section 10 hereof, and agrees to reimburse each such
Non-Indemnifying Underwriter, 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; provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent any such untrue statement of material fact
arises out of or is based upon an untrue statement or omission with respect to
any Mortgage Loan Seller Information (as defined in Section 7(a) of the Purchase
Agreements); provided that the indemnification provided by this Section 8(e)
shall apply (solely with respect to [specify lead underwriter] in the case of
clause (1) below) notwithstanding the preceding proviso, to the extent that (1)
such untrue statement 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 set forth in the Master Tape and Annex A to the
Final Prospectus, including without limitation the aggregation of such
information relating to the Mortgage Loans in the Trust Fund by such
indemnifying Underwriter or (2) the information provided by the related Mortgage
Loan Seller was not represented accurately in the Master Tape, and consequently
information based thereon was not represented accurately in the Transaction FWP
or the Final Prospectus. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have.
(f) [specify lead underwriter] hereby agrees to indemnify and hold
harmless (i) each of the Company, [GECC] and [specify other Mortgage Loan
Seller], their officers and directors, and each person, if any, who controls the
Company, [GECC] and [specify other Mortgage Loan Seller] within the meaning of
Section 15 of the 1933 Act and Section 20 of the 1934 Act and (ii) each
Underwriter, and each person who controls any Underwriter within the meaning of
Section 15 of the 1933 Act and Section 20 of the 1934 Act, in each case 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 1933 Act, the 1934 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 any untrue statement
or alleged untrue statement of a material fact contained in the Time of Sale
Information or in any amendment thereof or supplement thereto, or arising out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made, but
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged 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 provided by the Mortgage Loan Sellers.
9. Default by an Underwriter. (a) If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the non-defaulting Underwriters may make arrangements for the purchase of the
Offered Certificates which such defaulting Underwriter agreed but failed to
purchase by other persons satisfactory to the Company, but if no such
arrangements are made within 36 hours after such default, this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters or
the Company, except that the Company will continue to be liable for the payment
of expenses to the extent set forth in Section 6(f) and except that the
provisions of Sections 8 and 10 shall not terminate and shall remain in effect.
As used in this Agreement, the term "Underwriters" includes, for all purposes of
this Agreement unless the context otherwise requires, any party not listed on
Schedule I hereto that, pursuant to this Section 9, purchases Offered
Certificates which the defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company or the non-defaulting Underwriters
for damages caused by its default. If other persons are obligated or agree to
purchase the Offered Certificates of the defaulting Underwriter, any of the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in
the Registration Statement and/or the Final Prospectus or in any other document
or arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and/or the Final Prospectus that
effects any such changes.
10. Offering Communications; Free Writing Prospectuses.
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the 1933 Act, no Underwriter shall convey or
deliver any written communication to any person in connection with the initial
offering of the Offered Certificates, unless such written communication (1) is
made in reliance on Rule 134 under the 1933 Act, (2) constitutes a prospectus
satisfying the requirements of Rule 430B under the 1933 Act, or (3) constitutes
Time of Sale Information or a Free Writing Prospectus that does not constitute
Time of Sale Information. The Underwriter shall not 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 1933 Act ("ABS Informational and Computational Material"), in reliance upon
Rules 167 and 426 under the 1933 Act.
(b) Each Underwriter shall deliver to the Company, no later than one
business day prior to the date of first use thereof, (a) any Free Writing
Prospectus prepared by or on behalf of the Underwriter that contains any Issuer
Information or Mortgage Loan Seller Information, and (b) any Free Writing
Prospectus or portion thereof that contains only a description of the final
terms of the Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that contains only ABS Informational and Computational Materials may
be delivered by the Underwriter to the Company not later than the later of (a)
one business day prior to the due date for filing of the Prospectus pursuant to
Rule 424(b) under the 1933 Act or (b) the date of first use of such Free Writing
Prospectus.
(c) Each Underwriter represents and warrants to the Company that the
Free Writing Prospectuses to be furnished to the Company by the Underwriter
pursuant to Section 10(b) hereof will constitute all Free Writing Prospectuses
of the type described therein that were furnished to prospective purchasers of
Offered Certificates by the Underwriter in connection with its offer and sale of
the Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 10(b) hereof, when viewed together with all other Time of
Sale Information, does not, as of the Time of Sale, and will not as of the
Closing Date, include any untrue statement of material fact or omit any material
fact necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided however, that
the Underwriter makes no representation with respect to any such Free Writing
Prospectus that is misleading or inaccurate as a result of any misleading or
inaccurate Issuer Information or Mortgage Loan Seller Information supplied by
the Company or any Seller to the Underwriter, which information was not
corrected by Corrective Information subsequently supplied by the Company or any
Seller to the Underwriter prior to the Time of Sale.
(e) The Company agrees to file with the Commission the following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof delivered by the
Underwriter to the Company pursuant to Section 10(b) hereof; and
(iii) Any Free Writing Prospectus for which the Company 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 Company 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 10(b) hereof by the Company 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 shall be filed by the Company with the Commission within two
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
shall be filed by the Company with the Commission not later than the later
of the due date for filing the final Prospectus relating to the Offered
Certificates pursuant to Rule 424(b) under the 1933 Act or two business
days after the first use of such Free Writing Prospectus;
(iii) Any Free Writing Prospectus required to be filed pursuant to
Section 10(e)(iii) shall, if no payment has been made or consideration has
been given by or on behalf of the Company for the Free Writing Prospectus
or its dissemination, be filed by the Company with the Commission not
later than four business days after the Company becomes aware of the
publication, radio or television broadcast or other dissemination of the
Free Writing Prospectus; and
(iv) The Company shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an Underwriter or
any other offering participant other than the Company, 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 not reflect the final terms
thereof.
(g) Each Underwriter shall file with the Commission any Free Writing
Prospectus that is used or referred to by such Underwriter 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. Each Underwriter shall deliver such Free Writing
Prospectus to the Company, not later than one business day prior to filing of
such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 10(g), each
Underwriter shall file with the Commission any Free Writing Prospectus for which
the 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 Company 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 Company or any other offering
participant, not later than four business days after the Underwriter becomes
aware of the publication, radio or television broadcast or other dissemination
of the Free Writing Prospectus. Each Underwriter shall deliver such Free Writing
Prospectus to the Company, not later than one business day prior to filing of
such Free Writing Prospectus with the Commission.
(i) Notwithstanding the provisions of Sections 10(e) and 10(g),
neither the Issuer nor the 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 Company and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain substantially the following
legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information about
the depositor, the issuing trust and this offering. You may get
these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any
dealer participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free [insert phone
number] or emailing a request to [insert email address].
(k) 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 10 for a period of three years following the initial bona fide
offering of the Offered Certificates.
(l) (i) In the event that any Underwriter becomes aware that, as of
the Time of Sale, any Free Writing Prospectus prepared by or on behalf of the
Underwriter and delivered to a purchaser of an Offered Certificate 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 the light of the
circumstances under which they were made, not misleading (such Free Writing
Prospectus, a "Defective Free Writing Prospectus"), the Underwriter shall notify
the Company thereof within one business day after discovery.
(ii) Provided that if the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus or contained Issuer Information, the
Underwriter shall, if requested by the Company:
(A) Prepare a Free Writing Prospectus with Corrective Information
that 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 purchaser
of an Offered Certificate which received the Defective Free Writing
Prospectus prior to entering into an agreement to purchase any Offered
Certificates;
(C) Notify such purchaser in a prominent fashion that the prior
agreement to purchase Offered Certificates has been terminated, and of
such purchaser's rights as a result of termination of such agreement; and
(D) Provide such purchaser with an opportunity to affirmatively
agree to purchase such Offered Certificates on the terms described in the
Corrected Free Writing Prospectus.
(m) Each Underwriter covenants with the Company that after the Final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Offered Certificates to a prospective purchaser of
Offered Certificates unless such information is preceded or accompanied by the
Final Prospectus.
11. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for all Certificates if prior to such time (i)
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Offered Certificates on the terms specified herein.
12. Reimbursement of Underwriters' Expenses. If the sale of the
Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 7 is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of (i) a default by any of the Underwriters or (ii) a
termination of this Agreement pursuant to Section 11 hereof, the Company will
reimburse the Underwriters severally, upon demand, for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Offered Certificates, except as otherwise obligated to be paid pursuant to
the Memorandum of Understanding among [specify parties].
13. Representations and Indemnities and Agreements to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Offered Certificates.
The provisions of Section 6(f) regarding the payment of costs and expenses and
the provisions of Section 8 hereof shall survive the termination or cancellation
of this Agreement.
14. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
hand delivered or sent by facsimile transmission and confirmed to them at
[insert names and addresses of underwriters]; or, if sent to the Company, will
be mailed, hand delivered or sent by facsimile transmission and confirmed to it
at GE Commercial Mortgage Corporation, [c/o General Electric Capital
Corporation, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Capital Markets/Xxxxxx Xxxxxx, telecopy number (000) 000-0000, Ref. GE 20__-__;
with a copy to Xxxxxxxx X. Xxxxxx, Esq., General Electric Capital Corporation,
000 Xxxx Xxxxx Xx., Xxxxxxxx, Xxxxxxxxxxx, 00000, telecopy number
(000)000-0000].
15. 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 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
16. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument.
[Signature Page Follows]
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,
GE COMMERCIAL MORTGAGE CORPORATION
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[NAME[S] OF UNDERWRITERS]
By:
--------------------------------
Name:
Title:
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
SCHEDULE I
Underwriting Agreement, dated ____ , 20__
As used in this Agreement, the term "Registration Statement" refers collectively
to the Company's registration statements on Form S-3 (File No. 333-[130174]).
Title and Description of Certificates: GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 20__-__.
Initial aggregate Certificate Balance of the Offered Certificates: $_____
(Approximate).
Initial Certificate Initial Pass- [specify [specify
Balance Through agency] agency]
Certificates or Notional Amount(1) Rate (2) Rating Rating
------------------ --------------------- ------------- -------- --------
Class A-[1]
Class A-[1A]
Class A-[2]
[Class A-3FL]
Class [B]
Class [C]
Class [D]
Class [E]
Class [F]
Class [G]
Class [H]
[Class X]
(1) Approximate (subject to a permitted variance of plus or minus 5%).
(2) Approximate.
The aggregate purchase price for the Offered Certificates purchased from the
Company by [specify underwriter] will be equal to [__]% of the aggregate initial
Certificate Balance of the Offered Certificates purchased by it, the aggregate
purchase price for the Offered Certificates purchased from the Company by
[specify underwriter] will be equal to [__]% of the aggregate initial
Certificate Balance of the Offered Certificates purchased by it, in each case
including accrued interest on the Certificate Balance at their respective Pass
Through Rates, if any, from ____ , 20__.
[Closing Time, Date and Location: 10:00 A.M. on ____, 20__ at the offices of
Cadwalader, Xxxxxxxxxx & Xxxx LLP, One World Financial Center, New York, New
York.]
Issuance and Delivery of Certificates: The Offered Certificates will be
delivered in book-entry form through the Same-Day Funds Settlement System of The
Depository Trust Company.
SCHEDULE II
Certificates [Name of Underwriter] [Name of Underwriter]
------------------ ---------------------------- ----------------------------
Class A-[1]
Class A-[1A]
Class A-[2]
[Class A-3FL]
Class [B]
Class [C]
Class [D]
Class [E]
Class [F]
Class [G]
Class [H]
[Class X]
SCHEDULE III
