EXHIBIT 1.2
CITIGROUP MORTGAGE LOAN TRUST INC.
$__________
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES __________
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F
UNDERWRITING AGREEMENT
----------------------
as of __________, ____
Citigroup Mortgage Loan Trust Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ________________
[2nd Underwriter]
[3rd Underwriter]
Ladies and Gentlemen:
Citigroup Mortgage Loan Trust Inc., a Delaware corporation
("CMLTI"), proposes to sell to Citigroup Global Markets Inc. ("CGMI"), [2nd
Underwriter] ("[2ND UNDERWRITER]") and [3rd Underwriter] ("[3RD UNDERWRITER]";
and, collectively with CGMI, and [2nd Underwriter], the "UNDERWRITERS"),
pursuant to this Underwriting Agreement (this "AGREEMENT"), the classes of
Commercial Mortgage Pass-Through Certificates, Series __________ that are
identified on SCHEDULE I hereto (collectively, the "REGISTERED CERTIFICATES"),
each having the initial aggregate stated principal amount (the initial "CLASS
PRINCIPAL BALANCE") set forth on SCHEDULE I. The Registered Certificates,
together with the Class X-1, Class X-2, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class S, Class T, Class R and Class Y
Certificates (collectively, the "PRIVATE CERTIFICATES"; and, collectively with
the Registered Certificates, the "CERTIFICATES"), evidence the entire beneficial
ownership interest in the assets of a trust to be created by CMLTI (such trust,
the "TRUST"; and such assets collectively, the "TRUST FUND"). The Trust Fund
consists primarily of a pool (the "MORTGAGE POOL") of multifamily and commercial
mortgage loans (the "MORTGAGE LOANS") that will have, as of their respective due
dates in ________ ____ (individually, on a loan-by-loan basis, and collectively,
the "CUT-OFF DATE"), after taking into account all payments of principal due on
the Mortgage Loans on or before the Cut-off Date, whether or not received, an
aggregate principal balance of approximately $__________ (subject to a variance
of plus or minus 5.0%).
Certain of the Mortgage Loans will be acquired by CMLTI from
Citigroup Global Markets Realty Corp. ("CGMRC"; and such Mortgage Loans, the
"CGMRC MORTGAGE LOANS"), pursuant to a mortgage loan purchase agreement, dated
as of the date hereof (the "CGMRC/CMLTI MORTGAGE LOAN PURCHASE AGREEMENT"),
between CGMRC, as seller, and CMLTI, as purchaser. Certain other Mortgage Loans
will be acquired by CMLTI from [Loan Seller No. 2] (["LOAN SELLER
NO. 2]" and such Mortgage Loans, the "[LOAN SELLER NO. 2] MORTGAGE LOANS"),
pursuant to a mortgage loan purchase agreement, dated as of the date hereof (the
"[LOAN SELLER NO. 2]/CMLTI MORTGAGE LOAN PURCHASE AGREEMENT"), between [Loan
Seller No. 2], as seller, and CMLTI, as purchaser. The remaining Mortgage Loans
will be acquired by CMLTI from [Loan Seller No. 3] ("[LOAN SELLER NO. 3]"; and
such Mortgage Loans, the "[LOAN SELLER NO. 3] MORTGAGE LOANS"), pursuant to a
mortgage loan purchase agreement, dated as of the date hereof (the "[LOAN SELLER
NO. 3]/CMLTI MORTGAGE LOAN PURCHASE AGREEMENT"), between [Loan Seller No. 3], as
seller, and CMLTI, as purchaser. CGMRC, [Loan Seller No. 2] and [Loan Seller No.
3] are, collectively, the "MORTGAGE LOAN SELLERS"; and the CGMRC/CMLTI Mortgage
Loan Purchase Agreement, the [Loan Seller No. 2]/CMLTI Mortgage Loan Purchase
Agreement and the [Loan Seller No. 3]/CMLTI Mortgage Loan Purchase Agreement
are, collectively, the "MORTGAGE LOAN PURCHASE AGREEMENTS".
The Trust is to be created and the Certificates are to be
issued under a pooling and servicing agreement, dated as of __________, ____
(the "POOLING AND SERVICING AGREEMENT"), among CMLTI as depositor, __________ as
master servicer (the "MASTER SERVICER"), __________ as special servicer (the
"SPECIAL SERVICER") and __________ as trustee (the "TRUSTEE"). Capitalized terms
used but not defined herein have the respective meanings assigned thereto in the
Pooling and Servicing Agreement.
CMLTI intends to sell the Private Certificates to CGMI,
pursuant to a certificate purchase agreement dates as of __________, ____ (the
"CERTIFICATE PURCHASE AGREEMENT"), between CMLTI and CGMI.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. CMLTI represents
and warrants to, and covenants with, each of the Underwriters that:
(a) A registration statement (File No. 333-_____) on Form S-3
has been filed with the Securities and Exchange Commission (the "COMMISSION"),
and has become effective under the Securities Act of 1933, as amended (the
"SECURITIES ACT"); such registration statement includes a prospectus which, as
supplemented, shall be, and may include a preliminary prospectus supplement
which, as completed, is proposed to be, used in connection with the sale of the
Registered Certificates. Such registration statement, as amended to the date of
this Agreement, is hereinafter referred to as the "REGISTRATION STATEMENT"; such
prospectus (which shall be in the form in which it has most recently been filed,
as the same is proposed to be added to or changed), as first supplemented by a
prospectus supplement relating to the Registered Certificates, filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and used in connection with the sale of the Registered
Certificates, is hereinafter referred to as the "BASE PROSPECTUS"; such
prospectus supplement is hereinafter referred to as the "PROSPECTUS SUPPLEMENT";
and the Base Prospectus and the Prospectus Supplement are collectively referred
to as the "PROSPECTUS". The conditions to the use of a registration statement on
Form S-3 under the Securities Act, as set forth in the general instructions to
Form S-3, and the conditions of Rule 415 under the Securities Act have been
satisfied in all material respects with respect to the Registration Statement.
Any preliminary form of Prospectus that has heretofore been filed pursuant to
Rule 424 hereinafter is called the "PRELIMINARY PROSPECTUS". Any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer to and include
the filing of any document under the Securities Exchange Act of 1934, as amended
(the
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"EXCHANGE ACT"), deemed to be incorporated by reference therein after the date
hereof. CMLTI will file with the Commission (i) within fifteen (15) days of the
issuance of the Certificates a current report on Form 8-K (a "CURRENT REPORT")
for purposes of filing the Pooling and Servicing Agreement and other material
contracts and (ii) in the time period specified in SECTION 5(E) hereof, a
Current Report for purposes of filing certain Computational Materials and ABS
Term Sheets as described in SECTION 5(E) hereof.
(b) The Registration Statement, as of the date it became
effective and the date of the most recently filed Prospectus Supplement, and the
Prospectus, as of the date of the most recently filed Prospectus Supplement, and
any revisions or amendments thereof or supplements thereto filed prior to the
termination of the offering of the Registered Certificates, as of their
respective effective or issue dates, conformed or will conform, as applicable,
in all material respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder applicable to the use of such
documents as of such respective dates, and the Registration Statement and the
Prospectus, as revised, amended or supplemented as of the Closing Date (as
defined in SECTION 3), will conform in all material respects to the requirements
of the Securities Act and the rules and regulations of the Commission thereunder
applicable to the use of such documents as of the Closing Date; and neither the
Registration Statement nor the Prospectus, as of such respective dates and, in
the case of the Prospectus and any revisions or amendments thereof or
supplements thereto filed prior to the Closing Date, as of the Closing Date,
included or will include any untrue statement of a material fact or omitted or
will omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that CMLTI does not make any
representations, warranties or agreements as to (A) the information contained in
or omitted from the Prospectus or any revision or amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
electronically or in writing by or on behalf of the Underwriters specifically
for use in connection with the preparation of the Prospectus or any revision or
amendment thereof or supplement thereto, (B) any information in any
Computational Materials and ABS Term Sheets (each as defined in SECTION 9)
provided by the Underwriters to prospective investors in connection with the
sale of the Registered Certificates, or (C) the statements in or the omissions
from the Registration Statement, the Prospectus or any revisions or amendments
thereof or supplements thereto that are excluded from the indemnification
provisions of SECTION 7(A) pursuant to SECTION 7(A)(II). There are no contracts
or other documents relating to CMLTI of a character required to be described in
or to be filed as exhibits to the Registration Statement, as of the date of the
Prospectus Supplement, which were not described or filed as required.
(c) As of the Closing Date, the Registered Certificates and
the Private Certificates will be duly authorized by CMLTI, and, when the
Registered Certificates have been duly executed and authenticated in the manner
contemplated in the Pooling and Servicing Agreement and have been delivered to
and paid for by the Underwriters pursuant to this Agreement, the Registered
Certificates will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement.
(d) __________ ("____") is an independent public accountant
for CMLTI as required by the Securities Act and the rules and regulations
thereunder.
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(e) As of the Closing Date, the Pooling and Servicing
Agreement and each Mortgage Loan Purchase Agreement will have been duly
authorized, executed and delivered by CMLTI and, assuming the valid
authorization, execution and delivery thereof by the other parties thereto, will
constitute a valid and binding agreement of CMLTI enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights and by general principles of equity.
(f) This Agreement has been duly authorized, executed and
delivered by CMLTI and, assuming the valid authorization, execution and delivery
thereof by the other parties hereto, will constitute a valid and binding
agreement of CMLTI enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting the enforcement of creditors' rights and by
general principles of equity, and except as enforcement thereof may be limited
by public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport or are construed to provide
indemnification from liabilities under applicable securities laws.
(g) CMLTI has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus and now conducted by it, is duly qualified as a
foreign corporation in good standing in all jurisdictions in which the ownership
or lease of its property or the conduct of its business requires such
qualification, and is conducting its business so as to comply in all material
respects with the applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting its business, except where the failure
to be so qualified or to so comply, as the case may be, would not have a
material adverse effect on the performance by CMLTI of its obligations under
this Agreement, the Pooling and Servicing Agreement or the Mortgage Loan
Purchase Agreements. CMLTI is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would have a material
adverse effect on the performance by CMLTI of its obligations under this
Agreement, the Pooling and Servicing Agreement or the Mortgage Loan Purchase
Agreements.
(h) The issuance and sale of the Registered Certificates to
the Underwriters, the compliance by CMLTI with the provisions of this Agreement,
the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement and
the Certificates and the consummation by CMLTI of the other transactions herein
or therein contemplated do not, under any statute, regulation or rule of general
applicability in the United States or any decision, order, decree or judgment of
any judicial or other governmental body applicable to CMLTI, require any
consent, approval, authorization, order, registration or qualification of or
with any court or governmental authority, except (A) such as have been obtained
or effected with respect to the Registered Certificates under the Securities
Act, (B) the recordation of the assignments of the Mortgage Loans to the
Trustee, which recordation is to be completed pursuant to the Pooling and
Servicing Agreement on or following the Closing Date, and (C) such other
approvals as have been obtained; PROVIDED that CMLTI makes no representations or
warranties as to any consent, approval, authorization, registration or
qualification that may be required under state securities or "blue sky" laws.
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(i) Neither the execution and delivery of this Agreement, the
Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement, nor
the issuance and delivery of the Certificates, nor the consummation by CMLTI of
any other of the transactions contemplated herein or therein, nor the
fulfillment by CMLTI of the terms of this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement and the Certificates, will (A)
conflict with, violate, result in a breach of or constitute a default under the
certificate of incorporation or by-laws of CMLTI, any statute or regulation
currently applicable to CMLTI or its properties, or any order or judgment
currently applicable to CMLTI or its properties of any arbiter, court,
regulatory body, administrative agency or governmental body having jurisdiction
over CMLTI or its properties, or the terms of any indenture or other agreement
or instrument to which CMLTI is a party or by which it or any of its properties
are bound, or (B) result in the creation or imposition of any lien upon any of
its properties pursuant to the terms of any indenture or other agreement to
which CMLTI is a party or by which it or any of its properties are bound.
(j) There are no actions or proceedings against, or
investigations of, CMLTI pending, or, to the knowledge of CMLTI, threatened,
before any court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, the Mortgage Loan Purchase Agreements, the Pooling
and Servicing Agreement or the Registered Certificates, (B) seeking to prevent
the issuance of the Registered Certificates or the consummation by CMLTI of any
of the transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement, (C) that might materially and
adversely affect the performance by CMLTI of its obligations under, or the
validity or enforceability against CMLTI of, this Agreement, the Mortgage Loan
Purchase Agreements, the Pooling and Servicing Agreement or the Registered
Certificates or (D) seeking to affect adversely the federal income tax
attributes of the Registered Certificates described in the Prospectus.
(k) CMLTI has not received any request by the Commission for
any further amendment of the Registration Statement or the Prospectus or for any
additional information. CMLTI has not received any notice of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement and has no knowledge of the institution or threatening of any
proceeding for that purpose. CMLTI has not received any notification with
respect to the suspension of the qualification of the Registered Certificates
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(l) Any taxes, fees and other governmental charges (other than
income taxes, franchise taxes and recording and filing fees) that are due and
payable by CMLTI as of the Closing Date in connection with the execution,
delivery and performance of this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement and the Registered Certificates,
will have been paid at or prior to the Closing Date.
(m) Neither CMLTI nor the Trust is, and neither the sale of
the Registered Certificates in the manner contemplated by the Prospectus nor the
activities of the Trust pursuant to the Pooling and Servicing Agreement will
cause CMLTI or the Trust to be, an "investment company" or under the control of
an "investment company" as such terms are defined in the Investment Company Act
of 1940, as amended (the "INVESTMENT COMPANY ACT"); and the Pooling
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and Servicing Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
(n) At the time of the execution and delivery of the Pooling
and Servicing Agreement, CMLTI (i) except as disclosed in the Prospectus, will
convey to the Trustee, or cause to be conveyed to the Trustee, all of CMLTI's
right, title and interest in and to the Mortgage Loans, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "LIENS") granted by or imposed upon CMLTI, (ii) will not
have assigned to any other person any of its right, title or interest in the
Mortgage Loans or in the Pooling and Servicing Agreement or the Registered
Certificates, and (iii) will have the power and authority to transfer or cause
the transfer of the Mortgage Loans to the Trustee and to sell the Registered
Certificates to the Underwriters.
(o) Upon delivery to the Underwriters of the Registered
Certificates pursuant to this Agreement, each Underwriter will have good title
to the Registered Certificates purchased by such Underwriter, in each case free
and clear of Liens granted or imposed upon CMLTI.
(p) The consideration received by CMLTI upon the sale of the
Registered Certificates to the Underwriters will constitute at least reasonably
equivalent value and fair consideration for the Registered Certificates.
(q) CMLTI (i) will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Registered Certificates
to the Underwriters and (ii) is not selling the Registered Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the creditors of
CMLTI.
(r) At the Closing Date, the respective Classes of
Certificates shall have been assigned ratings no lower than those set forth in
Schedule I hereto by the Rating Agencies.
(s) The transfer of the Mortgage Loans to the Trust and the
sale of the Certificates to each of the Underwriters, at the Closing Date, will
be treated by CMLTI for financial accounting and reporting purposes as a sale of
assets and not as a pledge of assets to secure debt.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance on the representations and warranties herein set forth, CMLTI agrees
to sell to each of the Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase from CMLTI, their respective allotments of each
class of Registered Certificates specified on SCHEDULE I hereto, at the purchase
price for each such class as set forth on such SCHEDULE I (the "PURCHASE
PRICE").
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Registered Certificates shall be made in the manner, on the date and at the time
specified in SCHEDULE I hereto, which date and time may be changed by agreement
among the Underwriters and CMLTI (such date and time of delivery of and payment
for the Registered Certificates being hereinafter referred to as the "CLOSING
DATE"). Delivery of each Underwriter's allotment of the Registered Certificates
shall be made to the related Underwriter against payment by such Underwriter of
the purchase price therefor to or upon the order of CMLTI in same-day funds by
federal funds wire (or by such other method as such Underwriter and CMLTI may
agree). Unless delivery is made through the facilities of The
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Depository Trust Company, the Registered Certificates of each class thereof
shall be registered in such names and in such authorized denominations as the
related Underwriter may have requested not less than three (3) full business
days prior to the Closing Date.
CMLTI agrees to have the Registered Certificates available for
inspection, checking and packaging in New York, New York, at any time before
3:00 p.m. New York City time on the business day prior to the Closing Date.
4. OFFERING BY THE UNDERWRITERS. It is understood that the
Underwriters propose to offer the Registered Certificates for sale as set forth
in the Prospectus. It is further understood that CMLTI, in reliance upon Policy
Statement 105, has not filed and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Registered Certificates. As required by Policy Statement 105, each
Underwriter therefore covenants and agrees with CMLTI that sales of the
Registered Certificates made by such Underwriter in and from the State of New
York will be made only to institutional investors within the meaning of Policy
Statement 105.
5. AGREEMENTS. CMLTI and the Underwriters mutually agree that:
(a) CMLTI will not file any further supplement to the
Prospectus relating to or affecting the Registered Certificates at any time,
except as contemplated by SECTION 5(E) or unless CMLTI has furnished a copy to
the Underwriters for their review prior to filing, and will not file any such
proposed supplement to which the Underwriters reasonably object. CMLTI will not
file any amendment to the Registration Statement relating to or affecting the
Registered Certificates at any time subsequent to the date hereof and prior to
the Closing Date, except as contemplated by SECTION 5(E) or unless CMLTI has
furnished a copy to the Underwriters for their review prior to filing, and will
not file any such proposed amendment to which the Underwriters reasonably
object. Subject to the foregoing sentences, CMLTI will cause the Prospectus to
be filed, or transmitted for filing, with the Commission pursuant to Rule 424(b)
under the Securities Act and will promptly advise each Underwriter when the
Prospectus has been so filed, or transmitted for filing, and, prior to the
termination of the offering of the Registered Certificates, will also promptly
advise each Underwriter (i) when any amendment to the Registration Statement
relating to the Registered Certificates has become effective or any revision of
or supplement to the Prospectus has been so filed or transmitted for filing,
(ii) of any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (iv) of the receipt by CMLTI of any notification with respect
to the suspension of the qualification of the Registered Certificates for sale
in any jurisdiction or the institution or threatening of any proceeding for such
purpose. CMLTI will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Registered Certificates is required to be delivered under the Securities Act,
(i) any event occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances
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under which they were made, not misleading, or (ii) it shall be necessary to
revise, amend or supplement the Prospectus to comply with the Securities Act or
the rules and regulations of the Commission thereunder, CMLTI promptly will
prepare and file with the Commission, subject to PARAGRAPH (A) of this SECTION
5, a revision, amendment or supplement that will correct such statement or
omission or effect such compliance and will deliver a copy thereof to the
Underwriters.
(c) Upon request, so long as delivery of a prospectus relating
to the Registered Certificates is required under the Securities Act, CMLTI will
furnish to any Underwriter and counsel for such Underwriter, without charge, as
many copies of the Prospectus and any revisions or amendments thereof or
supplements thereto as may be reasonably requested.
(d) CMLTI will arrange for the qualification of the Registered
Certificates for sale under the laws of such jurisdictions as CGMI may
designate, maintain such qualifications in effect so long as required for the
distribution of the Registered Certificates and arrange for the determination of
the legality of the Registered Certificates for purchase by institutional
investors; PROVIDED, HOWEVER, that CMLTI shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(e) CMLTI will cause or, if appropriate, has caused any
Computational Materials and ABS Term Sheets (each as defined in SECTION 9) with
respect to the Registered Certificates, which are or have been delivered by the
Underwriters to CMLTI pursuant to or as contemplated by SECTION 9, to be filed
with the Commission on a Current Report pursuant to Rule 13a-11 under the
Exchange Act not later than, in each such case, the business day immediately
following the later of (i) the day on which such Computational Materials or ABS
Term Sheets are delivered to counsel for CMLTI by the Underwriters (it being
understood that any such material that is delivered after 10:30 a.m., New York
City time, on a business day shall be deemed to have been delivered on the next
business day) and (ii) the date hereof; and, if such filing is subsequent to the
date hereof, CMLTI will promptly advise the Underwriters when each such Current
Report has been so filed. If any Collateral Term Sheet (as defined in SECTION 9)
is provided by any Underwriter to potential investors in the Registered
Certificates, CMLTI will cause each such Collateral Term Sheet that is delivered
by such Underwriter to CMLTI to be filed with the Commission on a Current Report
pursuant to Rule 13a-11 under the Exchange Act on the business day immediately
following the day on which such Collateral Term Sheet is delivered to counsel
for CMLTI by such Underwriter (it being understood that any such material that
is delivered after 10:30 a.m., New York City time, on a business day shall be
deemed to have been delivered on the next business day). Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing, CMLTI shall have no obligation to file
materials provided by the Underwriters pursuant to or as contemplated by SECTION
9 which, in the reasonable determination of CMLTI after making reasonable
efforts to consult with the Underwriters, are not required to be filed pursuant
to the No-Action Letters (as defined in SECTION 9), or which contain erroneous
information or contain any untrue statement of a material fact, or which, when
read in conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
it being understood, however, that CMLTI shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any Computational
Materials or ABS Term Sheets provided by the Underwriters to CMLTI pursuant to
or as contemplated by SECTION 9 hereof.
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(f) The purchase of the Certificates by each of the
Underwriters, at the Closing Date, will be treated by each Underwriter for
financial accounting and reporting purposes as a sale of the Certificates by
CMLTI and not as a pledge of the Certificates to secure a debt. The Underwriters
agree to sell the Registered Certificates only to purchasers other than CMLTI,
the Mortgage Loan Sellers and their respective affiliates.
(g) CMLTI will make generally available to holders of the
Registered Certificates as soon as practicable, but in any event not later than
eighteen months after the filing of the Prospectus pursuant to Rule 424(b) under
the Securities Act, an earnings statement (which need not be audited) with
respect to the Mortgage Pool as contemplated by Section 11(a) of the Securities
Act), which pursuant to Rule 158 under the Securities Act may be the annual
report filed with the Commission with respect to the Trust.
6. CONDITIONS TO THE OBLIGATIONS OF EACH UNDERWRITER AND
CMLTI. The obligation of each Underwriter to purchase from CMLTI, and the
obligation of CMLTI to sell to such Underwriter, its allotment of the Registered
Certificates shall be subject to the accuracy of the representations and
warranties on the part of CMLTI and such Underwriter contained herein as of the
date hereof and as of the Closing Date, to the accuracy of the statements of
CMLTI and such Underwriter made in any officer's certificate delivered pursuant
to the provisions hereof, to the performance by CMLTI and such Underwriter of
their respective obligations hereunder and to the following additional
conditions:
(a) All actions required to be taken and all filings required
to be made by CMLTI under the Securities Act prior to the Closing Date shall
have been taken or made, and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted and be pending or shall have been threatened.
(b) CMLTI shall have furnished to the Underwriters:
(i) An executed copy of the Pooling and Servicing Agreement;
(ii) An opinion of _______________, in its capacity as counsel
for CMLTI, dated the Closing Date and addressed to the Underwriters,
substantially to the effect that:
(A) CMLTI is validly existing as a corporation in
good standing under the laws of the State of Delaware, with
corporate power and authority under such laws to enter into
and perform its obligations under this Agreement, the
Certificate Purchase Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement;
(B) The Registered Certificates and the Private
Certificates have been duly authorized by CMLTI and, when the
Certificates have been duly executed and authenticated in the
manner contemplated in the Pooling and Servicing Agreement
and, (i) in the case of the Registered Certificates, have been
delivered to and paid for by the Underwriters pursuant to this
Agreement, and (ii) in the case of the Private Certificates,
have been delivered to and paid for by CGMI in accordance with
the Certificate Purchase Agreement, the Certificates will be
validly issued and
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outstanding and entitled to the benefits provided by the
Pooling and Servicing Agreement;
(C) This Agreement, the Certificate Purchase
Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreements have each been duly
authorized, executed and delivered by CMLTI and, upon the due
authorization, execution and delivery by the other parties
thereto, will constitute a valid, legal and binding agreement
of CMLTI, enforceable against CMLTI in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights
generally, by general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, by
public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of any such agreement that
purport or are construed to provide indemnification for
securities laws liabilities, and by such other exceptions as
the Underwriters shall reasonably agree;
(D) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not required to be
registered under the Investment Company Act;
(E) The Registration Statement has become effective
under the Securities Act, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or have been
threatened under the Securities Act;
(F) The Registration Statement, at the time it became
effective, and the Prospectus, as of the date of the
Prospectus Supplement, and each revision or amendment thereof
or supplement thereto relating to the Registered Certificates,
as of its effective or issue date (except in each case for
accounting, financial and statistical statements included
therein or omitted therefrom and for Computational Materials
and ABS Term Sheets, as to which such counsel has not been
requested to comment), complied as to form in all material
respects with the requirements of the Securities Act and the
rules and regulations of the Commission thereunder applicable
to such documents as of such respective dates; and the
Prospectus, as revised, amended or supplemented as of the date
hereof (except for accounting, financial and statistical
statements included therein or omitted therefrom, as to which
such counsel has not been requested to comment), conforms in
all material respects to the requirements of the Securities
Act and the rules and regulations of the Commission thereunder
applicable to use of the Prospectus (as so revised, amended or
supplemented) as of the date hereof;
(G) No consent, approval, authorization or order of
any federal or State of New York court or agency or other
governmental body is required for the consummation by CMLTI of
the transactions contemplated by the terms of this
10
Agreement, the Certificate Purchase Agreement, the Mortgage
Loan Purchase Agreements or the Pooling and Servicing
Agreement, except such as may be required under the securities
or "blue sky" laws of any state in connection with the
purchase and the offer and sale of the Registered Certificates
by the Underwriters as to which such counsel need not express
any opinion, and except such as have been obtained;
(H) The execution, delivery and performance by CMLTI
of this Agreement, the Certificate Purchase Agreement, the
Mortgage Loan Purchase Agreements or the Pooling and Servicing
Agreement will not violate or result in a breach of any term
or provision of the certificate of incorporation or by-laws of
CMLTI or any federal or State of New York statute or
regulation of general applicability to transactions of the
type contemplated by those documents, except such counsel need
express no opinion as to compliance with the securities laws
of the State of New York or any other particular State in
connection with the purchase and sale of the Registered
Certificates by the Underwriters;
(I) Such counsel does not know, having made no
independent investigation, of any contracts or other documents
relating to the Certificates or to CMLTI of a character
required to be described in or to be filed as exhibits to the
Registration Statement, as of the date of the Prospectus
Supplement, that were not described or filed as required;
(J) The statements in each of the Base Prospectus and
the Prospectus Supplement under the headings "ERISA
Considerations", "Federal Income Tax Consequences" and "Legal
Investment", to the extent that they describe certain matters
of federal law or legal conclusions with respect thereto,
while not discussing all possible consequences of an
investment in the Registered Certificates to all investors,
provide in all material respects an accurate summary of such
matters and conclusions set forth under such headings;
(K) As described in the Prospectus Supplement and
assuming compliance with the provisions of the Pooling and
Servicing Agreement, (1) the individual Loan REMICs will each
qualify as a real estate mortgage investment conduit (a
"REMIC") within the meaning of Sections 860A through 860G of
the Internal Revenue Code of 1986, as amended, in effect on
the date hereof (the "REMIC PROVISIONS"), the Loan REMIC
Regular Interests will each constitute a "regular interest"
(as defined in the REMIC Provisions), and the Loan REMIC
Residual Interests will each constitute the sole "residual
interest" (as defined in the REMIC Provisions), in the
applicable Loan REMIC, (2) REMIC I will qualify as a REMIC
within the meaning the REMIC Provisions, and the REMIC I
Regular Interests will be "regular interests" and the REMIC I
Residual Interest will be the sole "residual interest" in
REMIC I, (3) REMIC II will qualify as a REMIC within the
meaning of the REMIC Provisions, and the REMIC II Regular
Interests will be "regular interests" and the REMIC II
Residual Interest will be the sole "residual interest" in
REMIC II and (4) REMIC III will qualify as a REMIC within the
meaning of the REMIC Provisions, and the Class A-1, Class A-2,
Class A-3, Class B, Class C, Class D, Class E, Class F, Class
X-1,
11
Class X-2, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class Q, Class S and Class T Certificates will
evidence the "regular interests", and the REMIC III Residual
Interest will be the sole class of "residual interests", in
REMIC III;
(L) 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,
REMIC II and REMIC III will each be classified as a REMIC and
not as a corporation, partnership or trust, in conformity with
the federal income tax treatment of REMIC I, REMIC II and
REMIC III. Accordingly, the Trust Fund 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;
(M) The portions of the Trust Fund consisting of
Grantor Trust Y and Grantor Trust R, respectively, will each
be classified as a grantor trust under Subpart E, Part I of
Subchapter J of the Code; and
(N) The statements set forth in the Prospectus
Supplement under the headings "Description of the Offered
Certificates" and "Servicing of the Underlying Mortgage Loans"
and in the Base Prospectus under the headings "Description of
the Certificates" and "Description of the Governing
Documents", insofar as such statements purport to summarize
certain material provisions of the Registered Certificates and
the Pooling and Servicing Agreement, provide in all material
respects an accurate summary of such provisions.
In giving such opinions, _______________, shall additionally
state that, based on conferences and telephone conversations with
representatives of the Mortgage Loan Sellers, the Underwriters, CMLTI,
the Trustee, the Master Servicer, the Special Servicer and their
respective counsel (but without having reviewed any of the mortgage
notes, mortgages or other documents relating to the Mortgage Loans or
made any inquiry of any originator of any Mortgage Loan not referenced
above), nothing has come to such counsel's attention that would lead it
to believe that the Registration Statement or the Prospectus (other
than any accounting, financial or statistical information contained in
or omitted from the Registration Statement or the Prospectus, any
information incorporated by reference into the Registration Statement
or the Prospectus, any information contained in or omitted from the
Registration Statement or the Prospectus relating to the nature and/or
characteristics of the [Loan Seller No. 2] Mortgage Loans and the
related Borrowers and Mortgaged Properties, any information contained
in or omitted from the Registration Statement or the Prospectus
relating to the nature and/or characteristics of the [Loan Seller No.
3] Mortgage Loans and the related Borrowers and Mortgaged Properties
and any information contained in or omitted from the Registration
Statement or the Prospectus relating to the servicing and/or
administration of the [Separately-Serviced] Mortgage Loan or any
related REO Property, all as to which such counsel has not been
requested to comment), at the date of effectiveness of the Registration
Statement (in the case of the Registration Statement) or at the date of
the Prospectus Supplement or at the Closing Date (in the case of the
Prospectus Supplement), included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
12
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives
of, the parties to this Agreement, the Certificate Purchase Agreement,
the Mortgage Loan Purchase Agreements and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than CMLTI. Such opinion need cover only the laws of the State of
New York, the General Corporation Law of the State of Delaware and the
federal law of the United States;
(iii) Copies of all legal opinion letters delivered to the
Rating Agencies by _______________, in its capacity as counsel to
CMLTI, in connection with the issuance of the Registered Certificates,
and each such opinion letter shall be either addressed to the
Underwriters or accompanied by a letter signed by _______________
stating that the Underwriters may rely on such opinion letter as if it
were addressed to them as of the date thereof;
(iv) A good standing certificate regarding CMLTI from the
Secretary of State of the State of Delaware, dated not earlier than 30
days prior to the Closing Date;
(v) A certificate of CMLTI, dated the Closing Date and signed
by an executive officer or authorized signatory of CMLTI, to the effect
that (A) the representations and warranties of CMLTI herein and in the
Pooling and Servicing Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if made
on the Closing Date, and (B) CMLTI has in all material respects
complied with all agreements and satisfied all the conditions on its
part set forth herein to be performed or satisfied at or prior to the
Closing Date; and
(vi) An officer's certificate, dated the Closing Date and
signed by the secretary or an assistant secretary of CMLTI, to the
effect that each individual who, as an officer or representative of
CMLTI, signed this Agreement, the Certificate Purchase Agreement, the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement
or any other document or certificate delivered on or before the Closing
Date in connection with the transactions contemplated herein or in the
Certificate Purchase Agreement, the Mortgage Loan Purchase Agreements
or in the Pooling and Servicing Agreement, was at the respective times
of such signing and delivery, and is as of the Closing Date, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures. Such officer's
certificate shall be accompanied by true and complete copies (certified
as such by the secretary or an assistant secretary of CMLTI) of the
organizational documents of CMLTI, as in effect on the Closing Date,
and of the resolutions of CMLTI and any required shareholder consent
relating to the transactions contemplated in this Agreement, the
Certificate Purchase
13
Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and
Servicing Agreement.
(c) The Underwriters shall have received, with respect to each
of the Master Servicer, the Special Servicer and the Trustee, a favorable
opinion of counsel, dated the Closing Date, addressing the valid existence and
good standing of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party, the enforceability of the Pooling and
Servicing Agreement against such party (subject to such limitations as are
reasonably acceptable to the Underwriters) and such other matters as the
Underwriters may reasonably request. Such opinion may express its reliance as to
factual matters on representations and warranties made by, and on certificates
or other documents furnished by officers and/or authorized representatives of
parties to the Pooling and Servicing Agreement and on certificates furnished by
public officials. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the party on behalf of which such opinion is being rendered.
Such opinion need cover only the laws of the jurisdiction in which the party on
whose behalf such opinion is being rendered is organized, the laws of the State
of New York and the federal law of the United States.
(d) The Underwriters shall have received such other documents,
certificates and opinions regarding the Master Servicer, the Special Servicer
and the Trustee as the Underwriters may reasonably request.
(e) CMLTI and the Underwriters shall have received from ____,
certified public accountants, various comfort letters, dated, as applicable, the
date of the Preliminary Prospectus, the date of the Prospectus Supplement or
such other date acceptable to CMLTI and the Underwriters, in form and substance
reasonably satisfactory to CMLTI and the Underwriters, stating in effect that:
(i) They have performed certain specified procedures as a
result of which they have determined that the information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement under the caption "Description of the Mortgage Pool" and on
Annex A-1 and Annex A-2 thereto agrees with the data sheet or computer
tape prepared by the Mortgage Loan Sellers, unless otherwise noted in
such letter(s); and
(ii) They have compared the data contained in the data sheet
or computer tape referred to in the immediately preceding CLAUSE (I) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and
found such data and information to be in agreement, unless otherwise
noted in such letter.
(f) CMLTI and the Underwriters shall have received from ____,
certified public accountants, a letter dated on or about the Closing Date, in
form and substance reasonably satisfactory to CMLTI and the Underwriters, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by CMLTI and the Underwriters, as a result of which they
confirmed the information of an accounting, financial or statistical nature
included in the Prospectus Supplement under the caption "Yield and Maturity
Considerations" and Annex B thereto.
14
(g) ____ shall have furnished to CMLTI and each Underwriter a
letter or letters, each in form and substance satisfactory to CMLTI, relating to
the Computational Materials and ABS Terms Sheets of such Underwriter filed in
accordance with SECTION 5(E), dated the date of the related Current Report and
stating in effect that:
(i) Using the assumptions and methodology used by such
Underwriter, all of which shall be described by reference in the
letter, they have recalculated the numerical data and dates set forth
in such Computational Materials and ABS Term Sheets of such Underwriter
(or portions thereof) attached to such letter, compared the results of
their calculations to the corresponding items in such Computational
Materials and ABS Term Sheets (or portions thereof) and found such
items to be in agreement with the respective results of such
calculation;
(ii) If such Computational Materials and ABS Term Sheets
include data reflecting the distribution of interest at other than a
fixed rate, or reflecting other characteristics that give rise to the
use of tables in such Computational Materials and ABS Term Sheets, such
letter shall also set forth such other statements as are customarily
set forth by ____ in such letter with respect to such data; and
(iii) They have performed certain specified procedures as a
result of which they have determined that the information of an
accounting, financial or statistical nature set forth in such
Computational Materials and ABS Term Sheets agrees with the data sheet
or computer tape prepared by each Mortgage Loan Seller, unless
otherwise indicated in such letter.
(h) The Underwriters shall have been furnished with all
documents, certificates and opinions required to be delivered by each Mortgage
Loan Seller in connection with its sale of Mortgage Loans to CMLTI, pursuant to
the related Mortgage Loan Purchase Agreement. The Underwriters shall be entitled
to rely on each such certificate executed and delivered by a Mortgage Loan
Seller or any of its officers and representatives, to the same extent that CMLTI
may so rely, and each such opinion addressed to CMLTI shall also be addressed to
the Underwriters or shall be accompanied by a letter signed by the counsel that
rendered such opinion stating that the Underwriters may rely on such opinion as
if it were addressed to them.
(i) The Mortgage Loan Sellers shall have sold the Mortgage
Loans to CMLTI, pursuant to the respective Mortgage Loan Purchase Agreements.
(j) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change, in or
affecting the business or properties of CMLTI that CGMI concludes, in its
opinion after consultation with CMLTI and the other Underwriters, materially
impairs the investment quality of the Registered Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Registered Certificates as contemplated by the Prospectus.
(k) The Registered Certificates shall have been assigned
ratings no less than those set forth on SCHEDULE I and such ratings shall not
have been rescinded or qualified.
15
7. INDEMNIFICATION AND CONTRIBUTION. (a) Subject to SECTION
7(C), CMLTI agrees to indemnify and hold harmless each Underwriter and each
person who controls such Underwriter within the meaning of either the Securities
Act or the Exchange Act against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which it or any such officer, director or
controlling person may become subject under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any revision or
amendment thereof or supplement thereto, or in any other filing incorporated by
reference therein, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it or
him in connection with investigating or defending any such expense, loss, claim,
damage, liability or action; PROVIDED that CMLTI shall not be liable under the
indemnity agreement in this SECTION 7(A) to the extent that any such expense,
loss, claim, damage or liability (or action in respect thereof) arises out of or
is based upon: (i) any such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in the
Registration Statement or in any Preliminary Prospectus, the Prospectus or any
revision or amendment thereof or supplement thereto that was made in reliance
upon and in conformity with written or electronic information furnished to CMLTI
by or on behalf of any Underwriter specifically for use in connection with the
preparation thereof; (ii) any such untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
revision or amendment thereof or supplement thereto that (A) arose out of or was
based upon an untrue statement, omission or other inaccuracy with respect to the
Mortgage Loan Seller Matters (as defined below) contained in the Master Tape
(also as defined below) (it being acknowledged that the Master Tape has been
used to prepare the Prospectus Supplement and any Computational Materials and
ABS Term Sheets (each as defined in SECTION 9) with respect to the Registered
Certificates), (B) was made in reliance upon and conformity with (1) any of the
representations and warranties made by a Mortgage Loan Seller contained in the
related Indemnification Agreement (as defined below) or the related Mortgage
Loan Purchase Agreement, or (2) any other information regarding the Mortgage
Loan Seller Matters furnished by a Mortgage Loan Seller, electronically or in
writing, to CMLTI or any Underwriter in connection with the preparation of any
Preliminary Prospectus, the Prospectus, any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates, or any revision or amendment
thereof or supplement thereto, (C) is contained in the information regarding the
Mortgage Loan Seller Matters set forth (1) in any Preliminary Prospectus or the
Prospectus Supplement under the headings "Summary of Prospectus Supplement--The
Underlying Mortgage Loans and the Mortgaged Real Properties" and "--Additional
Statistical Information", "Risk Factors--Risks Related to the Underlying
Mortgage Loans" and/or "Description of the Mortgage Pool", (2) on Annex A-1,
Annex A-2, Annex A-3 and/or Annex A-4 to any Preliminary Prospectus or the
Prospectus Supplement or (3) on the diskette accompanying any Preliminary
Prospectus or the Prospectus Supplement or (D) relates to the servicing and
administration of the [Separately-Serviced] Mortgage Loan or any related REO
Property (provided that CMLTI shall be liable to the extent that any such
expense, loss, claim, damage, liability or action arises out of or is based upon
an error in the
16
manipulation of, or any calculations based upon, or any aggregation (other than
an aggregation made in the Master Tape by a Mortgage Loan Seller) of information
concerning the Mortgage Loan Seller Matters); (iii) any such untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact that was made in any Computational Materials or ABS Term
Sheets provided by any Underwriter to prospective investors in connection with
the sale of the Registered Certificates and incorporated by reference into the
Registration Statement, any Preliminary Prospectus or the Prospectus as a result
of any filing pursuant to SECTION 5(E); or (iv) any breach, inaccuracy or
untruth of any of the statements, representations, warranties and/or covenants
made by any Underwriter pursuant to SECTION 9(B); and PROVIDED, FURTHER, that
CMLTI shall not be liable to any particular Underwriter or any person
controlling such Underwriter under the indemnity agreement in this SECTION 7(A)
for any such expense, loss, claim, damage or liability (or action in respect
thereof) that arises out of or is based upon any such untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in any Preliminary Prospectus to the extent that such
expense, loss, claim, damage or liability (or action in respect thereof) results
from the fact that such Underwriter sold Registered Certificates to a person as
to whom there was not sent or given, at or prior to the confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated therein by
reference) and such untrue statement or alleged untrue statement or omission or
alleged omission had been corrected in the Prospectus. This indemnity agreement
will be in addition to any liability that CMLTI may otherwise have.
The "MORTGAGE LOAN SELLER MATTERS" consist of the following
matters: the Mortgage Loans and the underlying real properties securing the
Mortgage Loans; the related loan documents and the obligors thereunder; and the
Mortgage Loan Sellers.
The "MASTER TAPE" is the compilation of underlying information
and data regarding the Mortgage Loans covered by the independent accountants'
report on applying agreed upon procedures dated __________, ____, as
supplemented to the date of initial issuance of the Certificates, and rendered
by ____.
The "INDEMNIFICATION AGREEMENTS" consist, collectively, of:
(i) the Indemnification Agreement dated as of the date hereof, among CGMRC,
CMLTI and the Underwriters; (ii) the Indemnification Agreement dated as of the
date hereof, among [Loan Seller No. 2], CMLTI and the Underwriters; and (iii)
the Indemnification Agreement dated as of the date hereof, among [Loan Seller
No. 3], CMLTI and the Underwriters.
(b) Subject to SECTION 7(C), each Underwriter, severally and
not jointly, agrees to indemnify and hold harmless CMLTI and each of its
directors, each of its officers who signed the Registration Statement or any
amendments thereof, and each person who controls CMLTI within the meaning of
either the Securities Act or the Exchange Act against any and all expenses,
losses, claims, damages or liabilities, joint or several, to which it or any of
them may become subject under the Securities Act, the Exchange Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such expenses, losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Prospectus or any revision or amendment thereof or supplement
thereto, or any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which
17
they were made, not misleading, which untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon or
conformity with written or electronic information furnished to CMLTI by or on
behalf of such Underwriter, specifically for use in connection with the
preparation of any Preliminary Prospectus, the Prospectus or any revision or
amendment thereof or supplement thereto, (ii) any untrue statement or alleged
untrue statement of a material fact made in Computational Materials or ABS Term
Sheets prepared or developed by such Underwriter and provided by such
Underwriter or any other Underwriter to prospective investors in connection with
the sale of the Registered Certificates and incorporated by reference into the
Registration Statement or Prospectus as a result of any filing pursuant to
SECTION 5(E), (iii) any omission or alleged omission to state in any
Computational Materials or ABS Term Sheets prepared or developed by such
Underwriter and provided by such Underwriter or any other Underwriter to
prospective investors in connection with the sale of the Registered Certificates
and incorporated by reference into the Registration Statement or Prospectus as a
result of any filing pursuant to SECTION 5(E), a material fact that, when read
in conjunction with any Preliminary Prospectus (or, if delivered on or after the
date hereof or if there is no Preliminary Prospectus, when read in conjunction
with the Prospectus), is required to be stated therein or necessary to make the
statements therein not misleading and (iv) any material breach, inaccuracy or
untruth on the part of such Underwriter of any of the statements,
representations, warranties and/or covenants made pursuant to SECTION 9(B);
PROVIDED that such Underwriter shall not be liable under the indemnity agreement
in this SECTION 7(B) for any such expense, loss, claim, damage or liability (or
action in respect thereof) that arises out of or is based upon any untrue
statement or omission in any such Computational Materials or ABS Term Sheets to
the extent that such expense, loss, claim, damage or liability (or action in
respect thereof) is covered by the indemnity agreement included in SECTION 1(A)
of any Indemnification Agreement, unless such Underwriter was notified
electronically or in writing of such untrue statement or omission within a
reasonable time period prior to the time of confirmation of sale to the person
that purchased the Certificates that are the subject of such expense, loss,
claim, damage or liability (or action in respect thereof) and such Underwriter
failed to deliver to such person corrected Computational Materials or ABS Term
Sheets (or, if the superseding or correcting information is contained in the
Prospectus, failed to deliver to such person the Prospectus) at or prior to
confirmation of such sale to such person. This indemnity agreement will be in
addition to any liability that the Underwriters may otherwise have. CMLTI
acknowledges that the statements set forth in the [___] paragraph[s] on the
cover page of the Prospectus Supplement, the subsection entitled "Summary of
Prospectus Supplement--Relevant Parties--Underwriters" in the Prospectus
Supplement, the [___] paragraph[s] under the heading "Risk Factors--Risks
Related to the Offered Certificates--Potential Conflicts of Interest" in the
Prospectus Supplement and the [___] paragraph[s] under the heading "Method of
Distribution" in the Prospectus Supplement, constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Prospectus and Preliminary Prospectus or any revision or amendment thereof or
supplement thereto, and each Underwriter confirms that such statements
attributable thereto are correct.
(c) Promptly after receipt by an indemnified party under
SECTION 7(A) or SECTION 7(B) above of notice of the commencement of any suit,
action, proceeding (including, without limitation, any governmental or
regulatory investigation), claim or demand, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
SECTION 7(A) or SECTION 7(B) above, notify the indemnifying party in writing of
the commencement thereof, but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any
18
liability that it may have to any indemnified party otherwise than under SECTION
7(A) or SECTION 7(B); PROVIDED, HOWEVER, that any increase in such liability as
a result of such failure to promptly notify shall not be an expense of the
indemnifying party. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; PROVIDED that,
if the defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party shall have reasonably concluded
that there may be additional or different legal defenses available to it that
conflict with those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for legal expenses of other counsel
or other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel),
representing the indemnified party or parties who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time period after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if CLAUSE (I)
or (III) is applicable, such liability shall be only in respect of the counsel
referred to in such CLAUSE (I) or (III).
Notwithstanding anything herein to the contrary, an
indemnifying party shall not be liable under SECTION 7(A) or SECTION 7(B) for
any settlement of any litigation, proceeding, action or claim effected without
its consent unless (i) at any time an indemnified party shall have requested
such indemnifying party to reimburse the indemnified party for fees and expenses
of counsel for which the indemnifying party is obligated under SECTION 7(A) or
SECTION 7(B), as applicable, (ii) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request AND more
than 15 days after receipt by such indemnifying party of written notice of the
proposed settlement and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the prior written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
the indemnified party.
19
(d) If the indemnification provided for in SECTION 7(A) or
SECTION 7(B) above is due in accordance with its terms but is for any reason
held by a court to be unavailable to any indemnified party on grounds of public
policy or otherwise, then the indemnifying party shall contribute to the
aggregate expenses, losses, claims, damages and liabilities (including legal and
other expenses reasonably incurred in connection with investigating or defending
same) to which such indemnified party may be subject and which were intended to
be covered under such SECTION 7(A) or SECTION 7(B), as the case may be, as
follows:
(i) in the case of any such expenses, losses, claims, damages
or liabilities (or actions in respect thereof) referred to in and
intended to be covered under SECTION 7(A) above, in such proportion so
that the Underwriters are responsible for that portion represented by
the percentage that the total underwriting discounts and/or fees bear
to the sum of such discounts and/or fees and the total purchase price
of the Registered Certificates specified in SCHEDULE I hereto and CMLTI
is responsible for the balance (or, if such allocation is not permitted
by applicable law or if the indemnified party failed to give the notice
required in SECTION 7(C) or in the last paragraph of this SECTION 7(D),
in such proportion as is appropriate to reflect not only such financial
considerations but also the factors referred to in the immediately
following CLAUSE (II)); PROVIDED, HOWEVER, that in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Registered Certificates)
be responsible under this CLAUSE (I) for more than the amount, if any,
by which the underwriting discounts and fees applicable to the
Registered Certificates purchased by such Underwriter hereunder exceeds
any damages otherwise paid by such Underwriter with respect to the
subject expense, loss, claim, damage or liability (or action in respect
thereof); and
(ii) in the case of any expenses, losses, claims, damages or
liabilities (or actions in respect thereof) referred to in and intended
to be covered under SECTION 7(B) above, in such proportion as is
appropriate to reflect the relative fault of CMLTI on the one hand and
the Underwriters on the other in connection with the untrue statement
or alleged untrue statement or omission or alleged omission which
resulted in such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact that is the basis for such expense, loss, claim, damage or
liability results from information prepared by CMLTI on the one hand or
the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
CMLTI and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this SUBSECTION (D) were determined by PER
CAPITA allocation which does not take account of the equitable considerations
referred to above in this SUBSECTION (D).
Notwithstanding the foregoing, however, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this SECTION 7,
each person who controls an Underwriter within the meaning of either the
20
Securities Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls CMLTI within the meaning of
either the Securities Act or the Exchange Act, each officer of CMLTI who shall
have signed the Registration Statement or any amendments thereof and each
director of CMLTI shall have the same rights to contribution as CMLTI. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
SUBSECTION (D), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this SUBSECTION
(D).
(e) The Underwriters further agree as follows:
(i) Each Underwriter will indemnify and hold harmless each of
the other Underwriters against any expenses, losses, claims, damages or
liabilities to which any of those other Underwriters may become
subject, under the Securities Act or otherwise, insofar as such
expenses, losses, claims, damages or liabilities arise out of or are
based upon (1) any untrue statements or misstatements of a material
fact made in Computational Materials or ABS Term Sheets prepared by the
indemnifying Underwriter (except when due solely to a Collateral Error,
other than a Corrected Collateral Error) or (2) the indemnifying
Underwriter's failure to comply with SECTION 9, and will reimburse each
of the other Underwriters for any legal or other expenses reasonably
incurred by any of those other Underwriters in connection with
investigating or defending any such action or claim as such expenses
are incurred. As used herein, "COLLATERAL ERROR" shall mean any error
in the Master Tape or any other information concerning the Mortgage
Loans furnished by a Mortgage Loan Seller to any Underwriter in writing
or by electronic transmission that was used in the preparation of any
Computational Materials or ABS Term Sheets; provided that Collateral
Error shall not include an error by an Underwriter in the manipulation
of, or any calculation based upon, or any aggregation of information
concerning the Mortgage Loans. "CORRECTED COLLATERAL ERROR" shall mean
any Collateral Error as to which the Underwriters, within a reasonable
time period prior to the dissemination of the materials from which any
expense, loss, claim, damage or liability or action in respect thereof
arose, were notified in writing or provided in written or electronic
form information superseding or correcting such Collateral Error,
including, without limitation, as part of the Prospectus.
(ii) Promptly after receipt by an indemnified party under
CLAUSE (I) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such clause, notify the
indemnifying party in writing of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such clause; PROVIDED, HOWEVER, that any increase in such
liability as a result of such failure to promptly notify shall not be
an expense of the indemnifying party. In case any such action shall be
brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party
21
to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under CLAUSE (I) above for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof unless (A)
the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
next sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) representing the indemnified
party or parties who are parties to such action), (B) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time period after notice of commencement of the action or
(C) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and
except that, if CLAUSE (A) or (C) is applicable, such liability shall
be only in respect of the counsel referred to in such CLAUSE (A) or
(C). If the defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party shall have
reasonably concluded that there may be additional or different legal
defenses available to it that conflict with those available to the
indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties.
An indemnifying party shall not be liable for any settlement
of any proceeding effected without its consent. However, if any
proceeding is settled with such consent or if there is a final judgment
for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any expense, loss, claim, damage or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing, an indemnifying party shall be liable to the same extent it
otherwise would be under CLAUSE (I) above, for any settlement of any
proceeding effected without its written consent if (X) at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for
which the indemnifying party is obligated under CLAUSE (I) above, (Y)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request AND more than 15 days after
receipt by such indemnifying party of written notice of the proposed
settlement and (Z) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date
of such settlement.
No indemnifying party shall, without the prior written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (A) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (B) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of
the indemnified party.
22
(iii) If the indemnification provided in CLAUSE (I) is due in
accordance with its terms in respect of any expenses, losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, but is for any reason held by a court to be unavailable on
grounds of public policy or otherwise, then the indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect both the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other, from the offering of the Registered Certificates, and the
relative fault of the indemnifying party on the one hand and the
indemnified party on the other in connection with the statements which
resulted in such expenses, losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the indemnifying
party on the one hand and indemnified party on the other shall be
deemed to be in the same proportion to the amount of Registered
Certificates underwritten by each such party. The relative fault shall
be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the indemnifying party on the one hand or the indemnified
party on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this CLAUSE (III) were determined
by PER CAPITA allocation or by any other method of allocation which
does not take into account the equitable considerations referred to
above in this CLAUSE (III). The amount paid or payable by an
indemnified party as a result of the expenses, losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in
this CLAUSE (III) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this CLAUSE (III), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Registered Certificates underwritten
by it and distributed to the public, were sold, exceeds the amount of
any damages which such party has otherwise been required to pay by
reason of such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(iv) The respective obligations of each of the Underwriters
under CLAUSES (I) through (III) above shall be in addition to any
liability which each may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls such
Underwriter within the meaning of the Securities Act or the Exchange
Act.
(f) The amount paid or payable by an indemnified party as a
result of the expenses, losses, claims, damages and liabilities referred to in
any subsection of this SECTION 7 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim (except where the indemnified party is required to bear such
expenses pursuant to this Agreement), which expenses the indemnifying party
shall pay as and when incurred, at the
23
request of the indemnified party, to the extent that it is reasonable to believe
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by an indemnifying party are subsequently determined not
to be required to be borne by such indemnifying party hereunder, the indemnified
party that received such payment shall promptly refund the amount so paid to
such indemnifying party.
8. FEES AND EXPENSES. Except as provided in any other
particular Section hereof, each Underwriter shall be responsible only for the
costs and expenses (including, but not limited to, the costs of any counsel
retained thereby) actually incurred by such Underwriter in connection with the
transactions contemplated by this Agreement, and otherwise, the costs and
expenses incurred in connection with the transactions herein contemplated shall
be payable by the Mortgage Loan Sellers as and to the extent provided in the
respective Mortgage Loan Purchase Agreements.
9. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS. (a) Not later
than 10:30 a.m., New York City time, on the date hereof, each Underwriter shall
deliver to CMLTI two (2) complete copies of all materials provided by such
Underwriter to prospective investors in the Registered Certificates that
constitute either (i) "COMPUTATIONAL MATERIALS" within the meaning of the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"XXXXXX/PSA LETTERS") or (ii) "ABS TERM SHEETS" within the meaning of the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (such letter,
together with the Xxxxxx/PSA Letters, the "NO-ACTION LETTERS"), if the filing of
such materials with the Commission is a condition of the relief granted in such
letters and, in the case of any such materials that constitute "COLLATERAL TERM
SHEETS" within the meaning of the PSA Letter, such Collateral Term Sheets have
not previously been delivered to CMLTI as contemplated by SECTION 9(B)(I) below.
Each delivery of Computational Materials pursuant to this PARAGRAPH (A) shall be
effected by delivering one (1) copy of such materials to counsel for CMLTI and
one (1) copy of such materials to CMLTI. Each delivery of ABS Term Sheets
pursuant to this PARAGRAPH (A) shall be effected by delivering such materials to
counsel for CMLTI on behalf of CMLTI at the address specified in SECTION 16
hereof in a format that will permit such materials to be promptly filed
electronically with the Commission.
(b) Each Underwriter represents and warrants to and agrees
with CMLTI, as of the date hereof and as of the Closing Date, as applicable,
that:
(i) If such Underwriter has provided any Collateral Term
Sheets to potential investors in the Registered Certificates prior to
the date hereof and if the filing of such materials with the Commission
is a condition of the relief granted in the No-Action Letters, then in
each such case such Underwriter delivered such materials in the format
contemplated by SECTION 9(A) to counsel for CMLTI on behalf of CMLTI at
the address specified in SECTION 16 hereof no later than 10:30 a.m.,
New York City time, on the first business day following the date on
which such materials were initially provided to a potential investor;
24
(ii) The Computational Materials (either in original,
aggregated or consolidated form) and ABS Term Sheets furnished to CMLTI
pursuant to SECTION 9(A) or as contemplated in SECTION 9(B)(I)
constitute all of the materials relating to the Registered Certificates
furnished by such Underwriter (whether in written, electronic or other
format) to prospective investors in the Registered Certificates prior
to the date hereof, except for any Preliminary Prospectus and any
Computational Materials and ABS Term Sheets that are not required to be
filed with the Commission in accordance with the No-Action Letters, and
all Computational Materials and ABS Term Sheets provided by such
Underwriter to potential investors in the Registered Certificates
comply with the requirements of the No-Action Letters;
(iii) On the respective dates any such Computational Materials
and/or ABS Term Sheets prepared by such Underwriter with respect to the
Registered Certificates referred to in SECTION 9(B)(II) were last
furnished by such Underwriter to each prospective investor, on the date
of delivery thereof to CMLTI pursuant to or as contemplated by this
SECTION 9 and on the Closing Date, such Computational Materials and/or
ABS Term Sheets did not and will not include any untrue statement of a
material fact or, when read in conjunction with the Prospectus, omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iv) At the time any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates were furnished to a
prospective investor and on the date hereof, such Underwriter
possessed, and on the date of delivery of such materials to CMLTI
pursuant to or as contemplated by this SECTION 9 and on the Closing
Date, such Underwriter will possess, the capability, knowledge,
expertise, resources and systems of internal control necessary to
ensure that such Computational Materials and/or ABS Term Sheets
prepared by it conform to the representations and warranties of such
Underwriter contained in CLAUSES (II) and, if applicable, (III) above
of this SUBSECTION (B);
(v) Unless CMLTI consents otherwise, all Computational
Materials and ABS Term Sheets with respect to the Registered
Certificates furnished by such Underwriter to potential investors
contained and will contain a legend, prominently displayed on the first
page thereof, to the effect that CMLTI has not prepared, reviewed or
participated in the preparation of such Computational Materials or ABS
Term Sheets, is not responsible for the accuracy thereof and has not
authorized the dissemination thereof;
(vi) All Collateral Term Sheets with respect to the Registered
Certificates furnished by such Underwriter to potential investors
contained and will contain a legend, prominently displayed on the first
page thereof, indicating that the information contained therein will be
superseded by the description of the Mortgage Loans contained in the
Prospectus and, except in the case of the initial Collateral Term
Sheet, that such information supersedes the information in all prior
Collateral Term Sheets; and
(vii) After the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS
Term Sheets or other materials relating to the Registered Certificates
(whether in written, electronic or other format) to any potential
25
investor unless such potential investor has received a Prospectus prior
to or at the same time as the delivery of such Computational Materials,
ABS Term Sheets or other materials.
Notwithstanding the foregoing, no Underwriter makes any
representation or warranty as to whether any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates included or will include any
untrue statement resulting from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from CMLTI or any Mortgage Loan Seller of notice of such Collateral
Error or materials superseding or correcting such Collateral Error).
(c) The Underwriters acknowledge and agree that CMLTI has not
authorized and will not authorize the distribution of any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates to any
prospective investor, and agree that any such Computational Materials and/or ABS
Term Sheets furnished to prospective investors shall include a disclaimer to the
effect set forth in CLAUSE (V) of SUBSECTION (B) above. The Underwriters agree
that they will not represent to potential investors that any Computational
Materials and/or ABS Term Sheets with respect to the Registered Certificates
were prepared or disseminated on behalf of CMLTI.
(d) If, at any time when a Prospectus relating to the
Registered Certificates is required to be delivered under the Securities Act
prior to 90 days from the date hereof, it shall be necessary in the opinion of
one or more of the Underwriters or their counsel to amend or supplement the
Prospectus as a result of an untrue statement of a material fact contained in
any Computational Materials or ABS Term Sheets provided by the Underwriters
pursuant to or as contemplated by this SECTION 9 or the omission to state a
material fact required, when considered in conjunction with the Prospectus, to
be stated therein or necessary to make the statements therein, when read in
conjunction with the Prospectus, not misleading, or if it shall be necessary in
the opinion of one or more of the Underwriters or their counsel to amend or
supplement any Current Report to comply with the Securities Act or the rules
thereunder, such Underwriter or Underwriters, at its or their expense (or, if
such amendment or supplement is necessary due to a Collateral Error relating to
the CGMRC Mortgage Loans (except any such Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriters from CMLTI
or CGMRC of notice of such Collateral Error or materials superseding or
correcting such Collateral Error), at the expense of CMLTI), shall promptly
prepare and furnish to CMLTI for filing with the Commission an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance and shall distribute such amendment or supplement to
each prospective investor in the Registered Certificates that received such
information being amended or supplemented. Such Underwriter or Underwriters will
represent and warrant to CMLTI, as of the date of delivery of such amendment or
supplement to CMLTI, that such amendment or supplement does not include any
untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. CMLTI shall have no
obligation to file such amendment or supplement if CMLTI reasonably determines
that (i) such amendment or supplement contains any untrue statement of a
material fact or, when read in conjunction with the Prospectus, omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (it being understood, however, that CMLTI shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any such amendment or supplement provided by such Underwriter or Underwriters to
26
CMLTI pursuant to this SECTION 9(D)) or (ii) such filing is not required under
the Securities Act. Notwithstanding the foregoing, such Underwriter or
Underwriters will make no representation or warranty as to whether any such
amendment or supplement of Computational Materials or ABS Term Sheets with
respect to the Registered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from CMLTI or CGMRC of notice of such Collateral Error or materials
superseding or correcting such Collateral Error).
(e) If, at any time when a Prospectus relating to the
Registered Certificates is required to be delivered under the Securities Act
prior to 90 days from the date hereof, it shall be necessary in the opinion of
CMLTI or its counsel to amend or supplement the Prospectus as a result of an
untrue statement of a material fact contained in any Computational Materials or
ABS Term Sheets provided by the Underwriters pursuant to or as contemplated by
this SECTION 9 or the omission to state therein a material fact required, when
considered in conjunction with the Prospectus, to be stated therein or necessary
to make the statements therein, when read in conjunction with the Prospectus,
not misleading, or if it shall be necessary in the opinion of CMLTI or its
counsel to amend or supplement any Current Report to comply with the Securities
Act or the rules thereunder, CMLTI promptly will notify the Underwriter(s) that
had prepared the subject Computational Materials and/or ABS Term Sheets of the
necessity of such amendment or supplement, and such Underwriter(s), at its or
their expense (or, if such amendment or supplement is necessary due to a
Collateral Error relating to the CGMRC Mortgage Loans (except any such Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from CMLTI or CGMRC of notice of such Collateral Error or materials
superseding or correcting such Collateral Error), at the expense of CMLTI),
shall promptly prepare and furnish to CMLTI for filing with the Commission an
amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance and shall distribute such amendment
or supplement to each prospective investor in the Registered Certificates that
received such information being amended or supplemented. Such Underwriter(s)
will represent and warrant to CMLTI, as of the date of delivery of such
amendment or supplement to CMLTI, that such amendment or supplement does not
include any untrue statement of a material fact or, when read in conjunction
with the Prospectus, omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. CMLTI shall have no
obligation to file such amendment or supplement if CMLTI reasonably determines
that such amendment or supplement contains any untrue statement of a material
fact or, when read in conjunction with the Prospectus, omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (it being understood, however, that CMLTI shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any such amendment or supplement provided by such Underwriter(s) to CMLTI
pursuant to this SECTION 9(E)). Notwithstanding the foregoing, such
Underwriter(s) will make no representation or warranty as to whether any such
amendment or supplement of Computational Materials or ABS Term Sheets with
respect to the Registered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from CMLTI or any Mortgage Loan Seller of notice of such Collateral
Error or materials superseding or correcting such Collateral Error).
27
(f) Computational Materials and ABS Term Sheets may be
distributed by the Underwriters through electronic means in accordance with SEC
Release 33-7233 or other applicable laws or regulations.
10. TERMINATION. This Agreement may be terminated by notice
given to CMLTI, if the sale of the Registered Certificates provided for herein
is not consummated because of any failure or refusal on the part of CMLTI to
comply in all material respects with the terms or to fulfill in all material
respects any of the conditions of this Agreement, or if for any reason CMLTI
shall be unable to perform in all material respects its obligations under this
Agreement. This Agreement also may be terminated by the Underwriters, by notice
given to CMLTI prior to delivery of and payment for the Certificates, if prior
to such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities, or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters after consultation with
CMLTI, impracticable to market the Registered Certificates.
11. DEFAULT BY AN UNDERWRITER. If any Underwriter shall fail
to purchase and pay for any of the Registered Certificates agreed to be
purchased by such Underwriter hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Underwriters shall be obligated (in proportion to their respective
allocations set forth in SCHEDULE I) to take up and pay for the Registered
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase; PROVIDED, HOWEVER, that in the event that the purchase price of the
Registered Certificates that the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate purchase price of the
Registered Certificates, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Registered Certificates, and if such nondefaulting Underwriters do not purchase
all of the Registered Certificates, this Agreement will terminate without
liability to the nondefaulting Underwriters or CMLTI. In the event of a default
by an Underwriter as set forth in this SECTION 11, the Closing Date for the
Registered Certificates shall be postponed for such period, not exceeding ten
(10) days, as the nondefaulting Underwriters shall determine in order that the
required changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to CMLTI and
to any nondefaulting Underwriter for damages occasioned by its default
hereunder.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
CMLTI, the Underwriters and their respective officers, directors, employees and
agents set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriters, CMLTI or any of the officers, directors or controlling persons
referred to in SECTION 7 hereof, and will survive delivery of and payment for
the Registered Certificates. The provisions of SECTIONS 7 and 9 hereof shall
survive the termination or cancellation of this Agreement.
28
13. BENEFICIARIES. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in SECTION 7 hereof, and
no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state.
15. MISCELLANEOUS. This Agreement supersedes all prior or
contemporaneous agreements and understandings between CMLTI and any of the
Underwriters relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, and that taken
together shall constitute one and the same instrument.
16. NOTICES. All communications hereunder will be in writing
and effective only upon receipt and, if sent to any Underwriter, will be
delivered to such Underwriter at the address, and to the attention of the person
or group, set forth on page 1 of this Agreement; and, if sent to CMLTI, will be
delivered to Citigroup Mortgage Loan Trust Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: __________, and, solely for purposes of SECTIONS 5(E)
and 9(A), [APPLICABLE LAW FIRM] Attention __________; or, in each such case, to
such other address, or to the attention of such other person or group, as may be
forwarded by any such party to the other parties hereto in writing.
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between you and CMLTI.
Very truly yours,
CITIGROUP MORTGAGE LOAN TRUST
INC.
By:
--------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
By:
-----------------------------------
Name:
Title:
[2ND UNDERWRITER]
By:
-----------------------------------
Name:
Title:
[3RD UNDERWRITER]
By:
-----------------------------------
Name:
Title:
SCHEDULE I
----------
As used in this Agreement, the term "REGISTRATION STATEMENT" refers to the
registration statement No. 333-_____ filed by CMLTI on Form S-3 and declared
effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
-----------------------------------------------------
Commercial Mortgage Pass-Through Certificates, Series __________, Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E and Class F
Certificates.
Underwriting Agreement, dated as of __________, ____
INITIAL CLASS PRINCIPAL INITIAL RATING
CLASS DESIGNATION PURCHASE PRICE(1) BALANCE (2)(3) PASS-THROUGH RATE BY __/__ (4)
----------------- ----------------- -------------- ----------------- ------------
A-1 % $ % /
A-2 % $ % /
A-3 % $ % /
B % $ % /
C % $ % /
D % $ % /
E % $ % /
F % $ % /
(1) The Purchase Price includes any Underwriter's discount. (2) Subject to
a variance of plus or minus 5.0%.
(3) Subject to rounding to the nearest whole dollar, [DESCRIPTION OF
ALLOCATION OF CERTIFICATES AMONG UNDERWRITERS].
(4) By each of [Rating Agency No. 1] and [Rating Agency No. 2].
PURCHASE PRICE: The purchase prices set forth in the above schedule for each
Class of Registered Certificates is expressed as a percentage of the Class
Principal Balance of such Class[, and is to be accompanied by interest on the
Class Principal Balance of such Class of Registered Certificates at the initial
Pass-Through Rate for such Class, from ___________, ____ to but not including
the Closing Date].
CLOSING TIME, DATE AND LOCATION: 10:00 a.m. New York City time on ___________,
____ at the offices of _______________.
ISSUANCE AND DELIVERY OF REGISTERED CERTIFICATES: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance of $10,000 and integral multiples of $1 in excess thereof.
S-1
