EXECUTION VERSION
CITIGROUP COMMERCIAL MORTGAGE TRUST 2005-C3
$1,318,565,000
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-C3
CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-SB, CLASS A-4, CLASS A-1A,
CLASS A-MFL, CLASS A-M, CLASS A-J, CLASS B, CLASS C AND CLASS D
UNDERWRITING AGREEMENT
as of June 15, 2005
Citigroup Global Markets Inc. Deutsche Bank Securities Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx Attention: Xxxxxx Xxxx
IXIS Securities North America Inc. Wachovia Capital Markets, LLC
0 Xxxx 00xx Xxxxxx, 36th Floor 000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-1075
Attention: Xxxx Xxxxxx Attention: Xxxxxxx X. Xxxxxx
Ladies and Gentlemen:
Citigroup Commercial Mortgage Securities Inc., a Delaware corporation
("CCMS"), proposes to sell to Citigroup Global Markets Inc. ("CGMI"), IXIS
Securities North America Inc. ("IXIS Securities"), Deutsche Bank Securities Inc.
("DBSI") and Wachovia Capital Markets, LLC ("WCM" and, collectively with CGMI,
IXIS Securities and DBSI, the "Underwriters"), pursuant to this Underwriting
Agreement (this "Agreement"), the classes of Commercial Mortgage Pass-Through
Certificates, Series 2005-C3 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 XC, Class XP,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class CP-1, Class CP-2, Class CP-3, 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 CCMS (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 the Cut-off Date (as
defined below), 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 $1,450,972,921(subject to a
variance of plus or minus 5.0%). As used in this Agreement, "Cut-off Date" shall
mean, individually and collectively, as the context may require: (i) with
respect to each Mortgage Loan with a due date
in June 2005, such due date in June 2005; and (ii) with respect to one (1)
Mortgage Loan originated in May 2005 and having its first due date in July 2005,
June 11, 2005.
Certain of the Mortgage Loans will be acquired by CCMS 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/CCMS Mortgage Loan Purchase Agreement"), between
CGMRC, as seller, and CCMS, as purchaser. The remaining Mortgage Loans will be
acquired by CCMS from IXIS Real Estate Capital Inc. ("IXIS" and such Mortgage
Loans, the "IXIS Mortgage Loans"), pursuant to a mortgage loan purchase
agreement, dated as of the date hereof (the "IXIS/CCMS Mortgage Loan Purchase
Agreement"), between IXIS, as seller, and CCMS, as purchaser. CGMRC and IXIS
are, together, the "Mortgage Loan Sellers" and the CGMRC/CCMS Mortgage Loan
Purchase Agreement and the IXIS/CCMS Mortgage Loan Purchase Agreement are,
together, 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 June 1, 2005 (the "Pooling and
Servicing Agreement"), among CCMS as depositor, Wachovia Bank, National
Association, as master servicer (the "Master Servicer"), Allied Capital
Corporation, as special servicer (the "Special Servicer"), LaSalle Bank National
Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent
(the "Fiscal Agent"). Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Pooling and Servicing Agreement.
CCMS intends to sell the Private Certificates to CGMI pursuant to a
certificate purchase agreement dated as of the date hereof (the "Certificate
Purchase Agreement"), between CCMS and CGMI.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. CCMS represents and
warrants to, and covenants with, each of the Underwriters that:
(a) A registration statement (File No. 333-108125) 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
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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 "Exchange Act"),
deemed to be incorporated by reference therein after the date hereof. CCMS 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 CCMS 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 CCMS 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 CCMS, 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.
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(d) Ernst & Young LLP ("Ernst & Young") and PricewaterhouseCoopers LLP
("PricewaterhouseCoopers") are each an independent public accountant for CCMS as
required by the Securities Act and the rules and regulations thereunder.
(e) As of the Closing Date, the Pooling and Servicing Agreement and
the Mortgage Loan Purchase Agreements will each have been duly authorized,
executed and delivered by CCMS and, assuming the valid authorization, execution
and delivery thereof by the other parties thereto, will each constitute a valid
and binding agreement of CCMS 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
CCMS and, assuming the valid authorization, execution and delivery thereof by
the other parties hereto, will constitute a valid and binding agreement of CCMS
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) CCMS 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 CCMS of its obligations under this
Agreement, the Pooling and Servicing Agreement or the Mortgage Loan Purchase
Agreements. CCMS 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 CCMS 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 CCMS with the provisions of this Agreement, the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement and the
Certificates and the consummation by CCMS 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 CCMS, 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,
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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 CCMS 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.
(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 CCMS of any
other of the transactions contemplated herein or therein, nor the fulfillment by
CCMS 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 CCMS, any statute or regulation currently applicable
to CCMS or its properties, or any order or judgment currently applicable to CCMS
or its properties of any arbiter, court, regulatory body, administrative agency
or governmental body having jurisdiction over CCMS or its properties, or the
terms of any indenture or other agreement or instrument to which CCMS 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 CCMS 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,
CCMS pending, or, to the knowledge of CCMS, 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 CCMS 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 CCMS of its obligations under, or the
validity or enforceability against CCMS 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) CCMS has not received any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information. CCMS 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. CCMS 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 CCMS 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.
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(m) Neither CCMS nor the Trust is, and the sale of the Registered
Certificates in the manner contemplated by the Prospectus will not cause CCMS 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 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, CCMS (i) except as disclosed in the Prospectus, will convey
to the Trustee, or cause to be conveyed to the Trustee, all of CCMS'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 CCMS, (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
all of its right, title and interest in and to 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 CCMS.
(p) The consideration received by CCMS 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) CCMS (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
CCMS.
(r) 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 CCMS 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, CCMS agrees to
sell to each of the Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase from CCMS, 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 CCMS (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 CCMS in same-day funds by
federal funds wire (or by such other method as
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such Underwriter and CCMS may agree). Unless delivery is made through the
facilities of The 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.
CCMS 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 CCMS, 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 CCMS 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.
Each Underwriter represents and agrees that: (A) it has not offered or
sold and, during the period up to but excluding the date on which the Prospectus
Directive (Directive 2003/71/EU) is implemented in the United Kingdom, it will
not offer or sell any Registered Certificates to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their business or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995, as amended; (B) it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the Financial Services and Markets Act 2000
(the "FSMA")) received by it in connection with the issue or sale of any
Registered Certificates in circumstances in which section 21(1) of the FSMA does
not apply to CCMS; and (C) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Registered Certificates in, from or otherwise involving the United Kingdom.
5. AGREEMENTS. CCMS and the Underwriters mutually agree that:
(a) CCMS 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 CCMS 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. CCMS 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 CCMS 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, CCMS will cause the Prospectus to be
filed, or transmitted for filing, with the Commission pursuant to Rule 424(b)
under the Securities Act and, until the termination of the offering of the
Registered Certificates, will also promptly advise each Underwriter (i) when any
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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 CCMS 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. CCMS 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 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, CCMS
promptly will, to the extent it has knowledge thereof, 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, CCMS 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) CCMS 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 CCMS 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) CCMS 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
CCMS 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 CCMS 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,
CCMS 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
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Registered Certificates, CCMS will cause each such Collateral Term Sheet that is
delivered by such Underwriter to CCMS 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 CCMS 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, CCMS 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 CCMS 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 CCMS 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
CCMS pursuant to or as contemplated by Section 9 hereof.
(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 CCMS 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 CCMS, the Mortgage Loan
Sellers and their respective affiliates.
(g) CCMS 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 CCMS. The
obligation of each Underwriter to purchase from CCMS, and the obligation of CCMS
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
CCMS and such Underwriter contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of CCMS and such Underwriter
made in any officer's certificate delivered pursuant to the provisions hereof,
to the performance by CCMS 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 CCMS 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.
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(b) CCMS shall have furnished to the Underwriters:
(i) an executed copy of the Pooling and Servicing Agreement;
(ii) an opinion of in-house counsel for CCMS, dated the Closing
Date and addressed to the Underwriters, substantially in the form attached
hereto as Exhibit A-1;
(iii) an opinion of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, in its
capacity as special counsel for CCMS, dated the Closing Date and addressed
to the Underwriters, substantially in the form attached hereto as Exhibit
A-2;
(iv) a letter from Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, in its
capacity as special counsel to CCMS, dated the Closing Date and addressed
to the Underwriters, substantially to the effect that, based on conferences
and telephone conversations with representatives of the Mortgage Loan
Sellers, the Underwriters, CCMS, the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer and their respective counsel (but, except as
otherwise expressly set forth in that letter, 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 and any information contained in or omitted from the
Registration Statement or the Prospectus relating to the IXIS Mortgage
Loans and the related obligors and mortgaged properties), 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 necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(v) copies of all legal opinion letters delivered to the Rating
Agencies by Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, in its capacity as special
counsel to CCMS, in connection with the issuance of the Registered
Certificates, with each such opinion letter to be either addressed to the
Underwriters or accompanied by a letter signed by Xxxxxx Xxxxxx Xxxxx &
Wood LLP stating that the Underwriters may rely on such opinion letter as
if it were addressed to them as of the date thereof;
(vi) a good standing certificate regarding CCMS from the
Secretary of State of the State of Delaware, dated not earlier than 30 days
prior to the Closing Date;
(vii) a certificate of CCMS, dated the Closing Date and signed by
an executive officer or authorized signatory of CCMS, to the effect that
(A) the representations and warranties of CCMS 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) CCMS has in all material respects complied with all
agreements
10
and satisfied all the conditions on its part set forth herein to be
performed or satisfied at or prior to the Closing Date; and
(viii) an officer's certificate, dated the Closing Date and
signed by the secretary or an assistant secretary of CCMS, to the effect
that each individual who, as an officer or representative of CCMS, 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 CCMS) of the organizational documents of CCMS, as in effect on
the Closing Date, and of the resolutions of CCMS and any required
shareholder consent relating to the transactions contemplated in this
Agreement, the Certificate Purchase 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, the Trustee and the Fiscal Agent 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,
the Trustee and the Fiscal Agent as the Underwriters may reasonably request.
11
(e) CCMS and the Underwriters shall have received from Ernst & Young
and PricewaterhouseCoopers, 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 CCMS and the
Underwriters, in form and substance reasonably satisfactory to CCMS 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,
Annex A-2, Annex A-3, Annex A-4, Annex A-5 and Annex B 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) CCMS and the Underwriters shall have received from Ernst & Young,
certified public accountants, a letter dated on or about the Closing Date, in
form and substance reasonably satisfactory to CCMS and the Underwriters, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by CCMS 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 C thereto.
(g) Xxxxx & Xxxxx shall have furnished to CCMS and each Underwriter a
letter or letters, each in form and substance satisfactory to CCMS, 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 Xxxxx &
Xxxxx in such letter with respect to such data; and
12
(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 CCMS, 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 CCMS may so rely, and
each such opinion addressed to CCMS 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
CCMS, 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 CCMS that CGMI concludes, in its opinion after
consultation with CCMS 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.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Subject to Section 7(c), CCMS
agrees to indemnify and hold harmless each Underwriter, each of its officers and
directors 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 CCMS 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
13
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 CCMS by or on behalf of any
Underwriter specifically for use in connection with the preparation thereof, as
set forth in Section 7(b); (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, without limitation, any Preliminary Prospectus Supplement,
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 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 CCMS 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, or (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 -
Relevant Parties - Mortgage Loan Sellers," "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties",
"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,
Annex A-4, Annex A-5 and/or Annex B to any Preliminary Prospectus or the
Prospectus Supplement or (3) on the diskette accompanying any Preliminary
Prospectus or the Prospectus Supplement (provided that CCMS 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 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 CCMS shall not
be liable 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, unless the Underwriter did not receive the
Prospectus
14
or such corrected and amended Prospectus prior to the written confirmation of
the sale of such Certificates to such person (despite the Underwriter's timely
request for copies of the Prospectus or such corrected and amended Prospectus).
This indemnity agreement will be in addition to any liability that CCMS 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'
reports on applying agreed upon procedures dated June 6, 2005 and June 15, 2005,
as supplemented to the date of initial issuance of the Certificates, and
rendered by Xxxxx & Xxxxx and covered by the agreed upon procedures letters
dated June 2, 2005 and June 23, 2005 and rendered by PricewaterhouseCoopers.
(b) Subject to Section 7(c), each Underwriter, severally and not
jointly, agrees to indemnify and hold harmless CCMS, each of its officers,
directors and each person who controls CCMS 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: (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 they were made, not misleading, which untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written or electronic information furnished to CCMS
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,
15
damage or liability (or action in respect thereof) is covered by the indemnity
agreement included in Section 7(a) of any Mortgage Loan Purchase Agreement, in
accordance with the terms thereof. Notwithstanding the foregoing, the indemnity
in clause (ii) and clause (iii) above will not apply if such untrue statement or
alleged untrue statement or omission or alleged omission was also an untrue
statement or alleged untrue statement or omission or alleged omission in the
Prospectus to which the indemnity agreement in Section 7(a) applies. This
indemnity agreement will be in addition to any liability that the Underwriters
may otherwise have. CCMS acknowledges that the statements set forth in the first
and fourth sentences of the paragraph beginning "Citigroup Global Markets Inc.,
IXIS Securities North America Inc., Deutsche Bank Securities Inc. and Wachovia
Capital Markets, LLC", and the entire following paragraph, on the cover page of
the Prospectus Supplement, the subsection entitled "Summary of Prospectus
Supplement--Relevant Parties--Underwriters" in the Prospectus Supplement, the
last paragraph under the heading "Risk Factors--Risks Related to the Underlying
Mortgage Loans--Potential Conflicts of Interest Exist with Respect to Property
Managers, the Borrowers and the Mortgage Loan Sellers" in the Prospectus
Supplement and the second paragraph, the third paragraph, the fourth paragraph
and the fifth paragraph 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 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 under Section 7(a) or Section 7(b),
as applicable, 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
16
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.
(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 or is insufficient in respect of any expenses, losses, claims, damages
or liabilities under Section 7(a) or Section 7(b), 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 received by the
Underwriters bear to the sum of such discounts and/or fees received by the
Underwriters and the total purchase price of the Registered Certificates
specified in Schedule I hereto and CCMS 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
17
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 any 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 CCMS 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 CCMS 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.
CCMS 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 Securities Act or the
Exchange Act and each officer and director of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls CCMS
within the meaning of either the Securities Act or the Exchange Act and each
officer and director of CCMS shall have the same rights to contribution as CCMS.
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 other
Underwriter, each of its officers and directors and each person who
controls such Underwriter within the meaning of either the Securities Act
or the Exchange Act against any expenses, losses, claims, damages or
liabilities to which such other Underwriter or any such officer, director
or
18
controlling person 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 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; provided
that such Underwriter shall not be liable under the indemnity agreement in
Section 7(e)(i)(1) for any 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 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 7(a) of any Mortgage Loan Purchase Agreement, in accordance with
the terms thereof).
(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 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
19
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.
(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 or is insufficient in respect of any expenses,
losses, claims, damages or liabilities under clause (i), 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
20
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 pursuant to this clause (iii) 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
(or, in the case of Deutsche Bank Securities Inc. or Wachovia Capital
Markets, LLC, provided that it is not the indemnifying party, the amount of
the underwriting discounts and fees received by it), exceeds the amount of
any damages which such party has otherwise been required to pay by reason
of any 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 and each director and
officer of such Underwriter.
(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 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, or by CCMS.
21
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 CCMS 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 (the "PSA Letter"
and, 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 CCMS 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 CCMS and one (1) copy of such materials to CCMS. Each delivery of
ABS Term Sheets pursuant to this paragraph (a) shall be effected by delivering
such materials to counsel for CCMS on behalf of CCMS 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 CCMS,
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 CCMS on behalf of CCMS 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;
(ii) The Computational Materials (either in original, aggregated
or consolidated form) and ABS Term Sheets furnished to CCMS 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 prepared by such Underwriter 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 CCMS pursuant to or as contemplated by this
22
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 CCMS 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 CCMS 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
CCMS 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 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 CCMS or any Mortgage Loan Seller of notice of such Collateral Error or
materials superseding or correcting such Collateral Error).
As used in this Agreement, "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
23
information concerning the Mortgage Loans. As used in this Agreement, "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.
(c) The Underwriters acknowledge and agree that CCMS 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 CCMS.
(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 Corrected Collateral Error, with respect to materials prepared
after the receipt by the Underwriters from CCMS or CGMRC of notice of such
Collateral Error or materials superseding or correcting such Collateral Error),
at the expense of CCMS), shall promptly prepare and furnish to CCMS 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
CCMS, as of the date of delivery of such amendment or supplement to CCMS, 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. CCMS shall have no obligation to file such amendment or
supplement if CCMS 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 CCMS 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 CCMS 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
24
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 CCMS 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 CCMS 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 CCMS or its counsel to
amend or supplement any Current Report to comply with the Securities Act or the
rules thereunder, CCMS 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 Corrected Collateral Error,
with respect to materials prepared after the receipt by the Underwriters from
CCMS or CGMRC of notice of such Collateral Error or materials superseding or
correcting such Collateral Error), at the expense of CCMS), shall promptly
prepare and furnish to CCMS 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 CCMS, as of the date of delivery of such amendment or supplement
to CCMS, 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. CCMS shall have no obligation to file such
amendment or supplement if CCMS 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 CCMS 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 CCMS 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 CCMS or any
Mortgage Loan Seller of notice of such Collateral Error or materials superseding
or correcting such Collateral Error).
(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.
25
10. TERMINATION. This Agreement may be terminated by notice given to
CCMS, if the sale of the Registered Certificates provided for herein is not
consummated because of any failure or refusal on the part of CCMS 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 CCMS 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 CCMS
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 or in any
over-the-counter market 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 CCMS, 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 CCMS. 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 CCMS 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
CCMS, 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, CCMS 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.
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.
26
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 CCMS 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 CCMS, will be delivered
to Citigroup Commercial Mortgage Securities Inc., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, and, solely for
purposes of Sections 5(e) and 9(a), Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx; 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.
27
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 CCMS.
Very truly yours,
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
IXIS SECURITIES NORTH AMERICA INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-108125 filed by CCMS on Form S-3 and declared
effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
Commercial Mortgage Pass-Through Certificates, Series 2005-C3, Class A-1, Class
A-2, Class A-3, Class A-SB, Class A-4, Class A-1A, Class A-MFL, Class A-M, Class
A-J, Class B, Class C and Class D Certificates.
Underwriting Agreement, dated as of June 15, 2005
INITIAL CLASS INITIAL
CLASS PURCHASE PRINCIPAL PASS-THROUGH RATING
DESIGNATION PRICE(1) BALANCE(2) RATE BY S&P/MOODY'S(3)
----------- -------- ------------- -------------- -----------------
A-1 100.2484% $ 75,811,000 4.3910% AAA/Aaa
A-2 100.4983% $164,149,000 4.6390% AAA/Aaa
A-3 100.4956% $ 52,867,000 4.7380% AAA/Aaa
A-SB 100.4990% $ 92,945,000 4.7550% AAA/Aaa
A-4* 100.4931%* $329,125,000 4.8600% AAA/Aaa
A-1A 100.4950% $289,724,000 4.7710% AAA/Aaa
A-MFL 100.0000% $ 50,000,000 LIBOR + AAA/Aaa
0.2400% (5)
A-M 99.8176% $ 93,517,000 4.8300% AAA/Aaa
A-J 100.4951% $102,256,000 4.9600% AAA/Aaa
B 100.4935% $ 30,497,000 5.0290% AA/Aa2
C 100.4961% $ 16,146,000 5.0590% AA-/Aa3
D 100.4974% $ 21,528,000 5.1580% A/A2
* Price to Deutsche Bank Securities Inc. and Wachovia Capital Markets, LLC:
100.3681%
(1) Exclusive of interest.
(2) Subject to a variance of plus or minus 5.0%.
(3) By each of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") and Xxxxx'x Investors Service, Inc.
("Moody's").
(4) Approximate.
(5) The initial value of LIBOR will be calculated on June 24, 2005.
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 (except in the case of the Class A-MFL
Certificates) 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 June 1, 2005 to but not including the Closing Date.
Sch-1
CLOSING TIME, DATE AND LOCATION: 10:00 a.m. New York City time on June 29, 2005
at the offices of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
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.
Sch-2
ALLOCATION OF CERTIFICATES AMONG UNDERWRITERS
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
Citigroup Global Markets Inc. A-1 $ 75,811,000
000 Xxxxxxxxx Xxxxxx A-2 $164,149,000
New York, New York 10013 A-3 $ 52,867,000
A-SB $ 92,945,000
A-4 $279,125,000
A-1A $289,724,000
A-MFL $ 50,000,000
A-M $ 93,517,000
A-J $102,256,000
B $ 30,497,000
C $ 16,146,000
D $ 21,528,000
IXIS Securities North America Inc. A-1 --
9 West 57th Street, 36th Floor A-2 --
New York, New York 10019 A-3 --
A-SB --
A-4 --
A-1A --
A-MFL --
A-M --
A-J --
B --
C --
D --
Deutsche Bank Securities Inc. A-1 --
60 Wall Street A-2 --
New York, New York 10005 A-3 --
A-SB --
A-4 $ 25,000,000
A-1A --
A-MFL --
A-M --
A-J --
B --
C --
D --
Wachovia Capital Markets, LLC A-1 --
000 Xxxxx Xxxxxxx Xxxxxx X-0 --
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-1075 A-3 --
A-SB --
A-4 $ 25,000,000
A-1A --
A-MFL --
A-M --
A-J --
B --
C --
D --
Sch-3
EXHIBIT A-1
FORM OF OPINION OF IN-HOUSE COUNSEL TO CCMS
A-1-1
June 28, 2005
Citigroup Global Markets Inc. Standard & Poor's Ratings Services,
000 Xxxxxxxxx Xxxxxx a division of The XxXxxx-Xxxx Companies,
New York, New York 10013 Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Commercial Mortgage Xxxxx'x Investors Service Inc.
Securities Inc. 00 Xxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
IXIS Securities North America Inc. LaSalle Bank National Association
0 Xxxx 00xx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Deutsche Bank Securities Inc. ABN AMRO Bank N.V.
00 Xxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Wachovia Capital Markets, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Citigroup Commercial Mortgage Trust 2005-C3
Commercial Mortgage Pass-Through Certificates, Series 2005-C3
Ladies and Gentlemen:
I am employed as counsel to Citigroup Global Markets Inc. ("CGMI"). I
am familiar with the activities of Citigroup Global Markets Realty Corp.
("CGMRC") and Citigroup Commercial Mortgage Securities Inc. (the "Depositor") in
connection with the issuance of the Depositor's Series 2005-C3 Commercial
Mortgage Pass-Through Certificates (the "Certificates").
Reference is hereby made to the following documents (collectively, the
"Relevant Agreements"): (i) the Pooling and Servicing Agreement, dated as of
June 1, 2005 (the "Pooling and Servicing Agreement"), between the Depositor,
Wachovia Bank, National Association, as master servicer, Allied Capital
Corporation, as special servicer, LaSalle Bank National Association, as trustee,
and ABN AMRO Bank N.V., as fiscal agent; (ii) the Underwriting Agreement, dated
as of June 15, 2005 (the "Underwriting Agreement"), between the Depositor, CGMI,
IXIS Securities North America Inc. ("IXIS Securities"), Deutsche Bank Securities
Inc. ("Deutsche Bank") and Wachovia Capital Markets, LLC ("WCM"; CGMI, IXIS
Securities, Deutsche Bank and WCM, collectively in such capacity, the
"Underwriters"), pursuant to which agreement the Certificates specified therein
will be sold by the Depositor to the Underwriters; (iii) the Certificate
Purchase Agreement, dated June 15, 2005 (the "Certificate Purchase
A-1-1
Agreement"), between the Depositor and CGMI (in such capacity, the "Initial
Purchaser"), pursuant to which agreement the Certificates specified therein will
be sold by the Depositor to the Initial Purchaser; (iv) the Mortgage Loan
Purchase Agreement, dated as of June 15, 2005 (the "CGMRC Mortgage Loan Purchase
Agreement"), between the Depositor and CGMRC, pursuant to which agreement the
Depositor shall purchase certain multifamily and commercial mortgage loans from
CGMRC; and (v) the Mortgage Loan Purchase Agreement, dated as of June 15, 2005
(the "IXIS Mortgage Loan Purchase Agreement"), between the Depositor and IXIS
Real Estate Capital Inc. ("IXIS"), pursuant to which agreement the Depositor
shall purchase certain multifamily and commercial mortgage loans from IXIS. This
opinion letter is being provided to you pursuant to Section 6(f) of the CGMRC
Mortgage Loan Purchase Agreement, Section 6(b)(ii) of the Underwriting Agreement
and Section 5(a)(ii) of the Certificate Purchase Agreement.
As to matters of fact material to this opinion letter, I have relied,
without independent investigation, upon such certifications of public officials,
corporate documents and records, certificates of officers and instruments as I
have deemed appropriate. I have assumed, without independent investigation, the
genuineness of all signatures (other than those of officers or agents of CGMRC
or the Depositor), the authenticity of all documents and certificates submitted
to me as originals and the conformity to the originals of all documents
submitted to me as copies.
On the basis of and subject to the foregoing, it is my opinion that:
1. CGMRC is a corporation duly incorporated and validly existing
under the laws of the State of New York, with the requisite corporate power
and authority to enter into and consummate the transactions contemplated by
the CGMRC Mortgage Loan Purchase Agreement.
2. The Depositor is a corporation duly incorporated and validly
existing under the laws of the State of Delaware, with the requisite
corporate power and authority to enter into and consummate the transactions
contemplated by the Relevant Agreements.
3. The CGMRC Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by CGMRC.
4. The Relevant Agreements have been duly authorized, executed
and delivered by the Depositor.
5. The execution, delivery and performance of the CGMRC Mortgage
Loan Purchase Agreement by CGMRC do not contravene its articles of
incorporation or by-laws and, to my knowledge, do not and will not result
in a material breach or violation of the terms or provisions of, or
constitute a default under, any material agreement or instrument known to
me to which CGMRC is a party nor contravene any order of any court,
regulatory body, administrative agency or governmental agency having
jurisdiction over CGMRC (in each case, except for such breaches,
violations, defaults or contraventions as would not have a material adverse
effect on the ability of CGMRC to perform its obligations under the CGMRC
Mortgage Loan Purchase Agreement).
6. The execution, delivery and performance of the Relevant
Agreements by the Depositor do not contravene its articles of incorporation
or by-laws and, to my knowledge, do not and will not result in a material
breach or violation of the terms or provisions of, or constitute a default
under, any material agreement or instrument known to me to which the
Depositor is a party nor contravene any order of any court, regulatory
body, administrative agency or governmental
A-1-2
agency having jurisdiction over the Depositor (in each case, except for
such breaches, violations, defaults or contraventions as would not have a
material adverse effect on the ability of the Depositor to perform its
obligations under the Relevant Agreements).
7. To my knowledge, there are no pending or threatened actions or
proceedings against CGMRC before any court, administrative agency or other
tribunal which purport to affect the legality, validity, binding effect or
enforceability of the CGMRC Mortgage Loan Purchase Agreement or CGMRC's
ability to perform its obligations thereunder and which, if adversely
determined, would materially and adversely affect the performance by CGMRC
of its obligations under the CGMRC Mortgage Loan Purchase Agreement.
8. To my knowledge, there are no pending or threatened actions or
proceedings against the Depositor before any court, administrative agency
or other tribunal which purport to affect the legality, validity, binding
effect or enforceability of the Relevant Agreements or the Depositor's
ability to perform its obligations thereunder and which, if adversely
determined, would materially and adversely affect the performance by the
Depositor of its obligations under the Relevant Agreements.
9. To my knowledge, no authorization or approval or other action
by, and no notice to or filing with, any governmental authority or
regulatory body is required for CGMRC to enter into the CGMRC Mortgage Loan
Purchase Agreement or to consummate the transactions contemplated thereby,
other than such as is being sought or has been obtained by CGMRC.
10. To my knowledge, no authorization or approval or other action
by, and no notice to or filing with, any governmental authority or
regulatory body is required for the Depositor to enter into the Relevant
Agreements or to consummate the transactions contemplated thereby, other
than such as is being sought or has been obtained by the Depositor.
I express no opinion as to any matter other than as expressly set
forth herein, and no other opinion is to be, or may be, inferred or implied
herefrom. This opinion is given as of the date hereof and is based on facts and
conditions presently known to me, and I do not undertake, and hereby disclaim,
any obligation to advise you of any change in any matters set forth herein. Any
limited inquiry undertaken by me in connection with the preparation of this
opinion letter should not be regarded as an independent investigation to
determine the accuracy of any statement.
I am a member of the Bar of the State of New York and render no
opinion as to the laws of any jurisdiction other than the laws of the State of
New York, the General Corporation Law of the State of Delaware and the federal
laws of the United States of America.
This opinion letter is being delivered to you for your sole use in
connection with each of the Relevant Agreements and the related transactions.
This opinion letter may not otherwise be used, quoted, relied upon or referred
to without my prior written consent.
Very truly yours,
A-1-3
EXHIBIT A-2
FORM OF OPINION OF XXXXXX XXXXXX XXXXX & XXXX LLP,
SPECIAL COUNSEL TO CCMS
A-2-1
XXXXXX XXXXXX XXXXX & XXXX LLP
BEIJING 000 XXXXXXX XXXXXX XXX XXXXXXX
XXX XXXX, XXX XXXX 00000
XXXXXXXX TELEPHONE 000 000 0000 NEW YORK
FACSIMILE 212 839 5599
CHICAGO xxx.xxxxxx.xxx SAN FRANCISCO
DALLAS FOUNDED 1866 SHANGHAI
GENEVA SINGAPORE
HONG KONG TOKYO
LONDON WASHINGTON, D.C.
June 28, 2005
Citigroup Commercial Mortgage Standard & Poor's Ratings Services
Securities Inc. A Division of The McGraw Hill Companies
000 Xxxxxxxxx Xxxxxx Inc.
New York, New York 00000 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
IXIS Securities North America Inc. Citigroup Global Markets Realty Corp.
0 Xxxx 00xx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc. LaSalle Bank National Association
00 Xxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Wachovia Capital Markets, LLC ABN AMRO Bank N.V.
000 Xxxxx Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Re: Citigroup Commercial Mortgage Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3
Ladies and Gentlemen:
We have acted as special counsel to Citigroup Commercial Mortgage
Securities Inc. (the "Depositor") and Citigroup Global Markets Realty Corp.
("CGMRC"), in connection with certain matters relating to the following
transactions (collectively, the "Transactions"):
17. the sale by CGMRC, and the purchase by the Depositor, of certain
XXXXXX XXXXXX XXXXX & XXXX LLP IS A DELAWARE LIMITED LIABILITY PARTNERSHIP
PRACTICING IN AFFILIATION WITH OTHER XXXXXX XXXXXX XXXXX & XXXX PARTNERSHIPS
XXXXXX XXXXXX XXXXX & XXXX LLP NEW YORK
Citigroup Commercial Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3
June 28, 2005
multifamily and commercial mortgage loans (the "CGMRC Mortgage Loans"),
pursuant to that certain Mortgage Loan Purchase Agreement, dated as of June
15, 2005 (the "CGMRC Mortgage Loan Purchase Agreement"), between CGMRC as
seller and the Depositor as purchaser;
18. the sale by IXIS Real Estate Capital Inc. ("IXIS"), and the
purchase by the Depositor, of certain multifamily and commercial mortgage
loans (the "IXIS Mortgage Loans"), pursuant to that certain Mortgage Loan
Purchase Agreement, dated as of June 15, 2005 (the "IXIS Mortgage Loan
Purchase Agreement"), between IXIS as seller and the Depositor as
purchaser;
19. the creation of a common law trust (the "Trust") and the issuance
of an aggregate $1,450,972,920 Certificate Principal Balance of Commercial
Mortgage Pass-Through Certificates, Series 2005-C3 (the "Certificates"),
consisting of multiple classes designated Class A-1, Class A-2, Class A-3,
Class A-SB, Class A-4, Class A-1A, Class A-MFL, Class A-M, Class A-J, Class
B, Class C, Class D, Class XC, Class XP, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
CP-1, Class CP-2, Class CP-3, Class R and Class Y, pursuant to that certain
Pooling and Servicing Agreement, dated as of June 1, 2005 (the "Pooling and
Servicing Agreement"), between the Depositor as depositor, Wachovia Bank,
National Association as master servicer, Allied Capital Corporation as
special servicer, LaSalle Bank National Association as trustee (the
"Trustee") and ABN AMRO Bank N.V. as fiscal agent;
20. the transfer of the CGMRC Mortgage Loans and the IXIS Mortgage
Loans (collectively, the "Mortgage Loans") by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the
issuance of the Certificates;
21. the sale by the Depositor, and the purchase by Citigroup Global
Markets Inc. ("CGMI"), IXIS Securities North America Inc. ("IXIS
Securities"), Deutsche Bank Securities Inc. ("Deutsche Bank") and Wachovia
Capital Markets, LLC ("WCM"; CGMI, IXIS Securities, Deutsche Bank and WCM,
collectively in such capacity, the "Underwriters"), of the Class A-1, Class
A-2, Class A-3, Class A-SB, Class A-4, Class A-1A, Class A-MFL, Class A-M,
Class A-J, Class B, Class C and Class D Certificates (collectively, the
"Publicly Offered Certificates"), pursuant to that certain Underwriting
Agreement, dated as of June 15, 2005 (the "Underwriting Agreement"),
between the Depositor and the Underwriters; and
22. the sale by the Depositor, and the purchase by CGMI (in such
capacity, the "Initial Purchaser"), of the Class XC, Class XP, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class CP-1, Class CP-2, Class CP-3, Class R and Class Y
Certificates (collectively, the "Privately Offered Certificates"), pursuant
to that certain Certificate Purchase Agreement, dated as of June 15, 2005
(the "Certificate Purchase Agreement"), between the Depositor and the
Initial Purchaser.
3
XXXXXX XXXXXX XXXXX & XXXX LLP NEW YORK
Citigroup Commercial Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3
June 28, 2005
The CGMRC Mortgage Loan Purchase Agreement and the IXIS Mortgage Loan
Purchase Agreement are collectively referred to herein as the "Mortgage Loan
Purchase Agreements". The Mortgage Loan Purchase Agreements, the Pooling and
Servicing Agreement, the Underwriting Agreement and the Certificate Purchase
Agreement are collectively referred to herein as the "Agreements". Capitalized
terms not defined herein have the respective meanings set forth in the Pooling
and Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
For purposes of this opinion letter, we have reviewed:
(a) (a) the Agreements;
(b) the Depositor's registration statement on Form S-3 (No.
333-108125) (the "Registration Statement") filed with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act");
(c) the Prospectus, dated June 15, 2005, relating to publicly offered
mortgage pass-through certificates evidencing interests in trust
funds established by the Depositor (the "Basic Prospectus ");
(d) the Prospectus Supplement, dated June 15, 2005, specifically
relating to the Trust and the Publicly Offered Certificates
(including all exhibits and annexes thereto, the "Prospectus
Supplement"; and, together with the Basic Prospectus, the
"Prospectus"); and
(e) the Offering Memorandum, dated June 15, 2005, relating to the
Trust and certain classes of the Privately Offered Certificates
(including all exhibits and annexes thereto, the "Offering
Memorandum").
In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents and records as
we have deemed relevant or necessary as the basis for the opinions contained in
this letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which such opinions are
based. We have also assumed (i) the truthfulness and accuracy of each of the
representations and warranties as to factual matters contained in the
Agreements, (ii) the legal capacity of natural persons, (iii) the genuineness of
all signatures, (iv) the authenticity of all documents submitted to us as
originals, (v) the conformity to authentic originals of all documents submitted
to us as certified, conformed, photostatic or electronic copies, (vi) the due
organization of the parties to each of the Agreements and the valid existence of
each such entity in good
4
XXXXXX XXXXXX XXXXX & XXXX LLP NEW YORK
Citigroup Commercial Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3
June 28, 2005
standing under the laws of its jurisdiction of organization, (vii) except as
addressed in opinion paragraph 6 below, the power and authority of the parties
to each of the Agreements to enter into, perform under and consummate the
transactions contemplated by the Agreements, without any resulting conflict with
or violation of the organizational documents of any such party or with or of any
law, rule, regulation, order, writ or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by the parties thereto, (ix) except as
addressed in opinion paragraph 4 below, the constitution of each of the
Agreements as the legal, valid and binding obligation of each party thereto,
enforceable against each such party in accordance with its terms, (x) compliance
with the Agreements by the parties thereto and, in the case of the Pooling and
Servicing Agreement, by the registered holders and beneficial owners of the
Certificates, (xi) the conformity, to the requirements of the Pooling and
Servicing Agreement and the respective Mortgage Loan Purchase Agreements, of the
Mortgage Notes, the Mortgages and the other documents relating to the Mortgage
Loans delivered to the Trustee (or a Custodian on its behalf) by, on behalf of
or at the direction of the Depositor, CGMRC and IXIS, respectively, and (xii)
the absence of any other agreement that supplements or otherwise modifies the
express terms of the Agreements.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any
5
XXXXXX XXXXXX XXXXX & XXXX LLP NEW YORK
Citigroup Commercial Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3
June 28, 2005
agreement or any particular provision thereof is to be governed by or construed
in accordance with the laws of any jurisdiction other than the State of New
York; (4) bankruptcy, insolvency, receivership, reorganization, liquidation,
voidable preference, fraudulent conveyance and transfer, moratorium and other
similar laws affecting the rights of creditors or secured parties generally; and
(5) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of any provision
of any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
When used in this opinion, the term "knowledge" and words of similar
import mean that the Xxxxxx Xxxxxx Xxxxx & Xxxx LLP attorneys currently
practicing law with this firm who have been actively involved in representing
the Depositor and/or CGMRC in connection with any matters relating to the
Transactions, have no current conscious awareness of any contrary facts or
information. In that regard we have conducted no special or independent
investigation of factual matters in connection with this opinion letter.
In rendering the opinions below, we do not express any opinion
concerning the laws of any jurisdiction other than the laws of the State of New
York and, where expressly referred to below, the federal laws of the United
States of America (in each case without regard to conflicts of laws principles).
Furthermore, we do not express any opinion with respect to the securities,
"doing business" or tax laws of any particular State or with respect to any
matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
The Registration Statement has become effective under the 1933 Act. To
our 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 1933
Act.
(b) 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
Publicly Offered Certificates, as of its effective or issue date (except in
each case for financial statements, schedules and other financial and
statistical information contained therein or omitted therefrom and except
for Computational Materials and ABS Terms Sheets, as to which we express no
opinion), complied as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations 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 financial statements, schedules and other financial and
statistical information contained therein or omitted therefrom, as to which
we express no opinion), conforms in all material respects to the
requirements of the 1933 Act and the rules and regulations thereunder
applicable to use of the Prospectus (as so revised, amended or
supplemented) as of the date hereof.
(c) To our knowledge, there are no material contracts, indentures or
other
6
XXXXXX XXXXXX XXXXX & XXXX LLP NEW YORK
Citigroup Commercial Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3
June 28, 2005
documents relating to the Certificates or the Depositor of a character
required to be described or referred to in the Registration Statement or
the Prospectus Supplement or to be filed as exhibits to the Registration
Statement, other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(d) Each of the Agreements constitutes a valid, legal and binding
agreement of the Depositor, enforceable against the Depositor in accordance
with its terms. The CGMRC Mortgage Loan Purchase Agreement constitutes a
valid, legal and binding agreement of CGMRC, enforceable against CGMRC in
accordance with its terms.
(e) The Certificates have been duly authorized by the Depositor and,
when duly and validly executed, authenticated and delivered in accordance
with the Pooling and Servicing Agreement and paid for in accordance with
the Underwriting Agreement and the Certificate Purchase Agreement, will be
validly issued and outstanding and entitled to the benefits of the Pooling
and Servicing Agreement.
(f) The execution, delivery and performance by the Depositor of the
respective Agreements, and the execution, delivery and performance by CGMRC
of the CGMRC Mortgage Loan Purchase Agreement, will not conflict with or
result in a breach or violation of any federal or State of New York law,
statute or regulation of general applicability to transactions of the type
contemplated by the Agreements or, in the case of CGMRC, by the CGMRC
Mortgage Loan Purchase Agreement, except we express no opinion as to
compliance with the securities or "blue sky" laws of the State of New York
or any other particular State in connection with the purchase and the offer
and sale of the Publicly Offered Certificates by the Underwriters or the
purchase and the offer and sale of the Privately Offered Certificates by
the Initial Purchaser.
(g) No consent, approval, authorization or order of any federal or
State of New York court, agency or other governmental body is required for
the consummation by the Depositor of the transactions contemplated by the
terms of the Agreements or for the consummation by CGMRC of the
transactions contemplated by the terms of the CGMRC Mortgage Loan Purchase
Agreement, except such as may be required under the securities or "blue
sky" laws of the State of New York and other particular states in
connection with the purchase and the offer and sale of the Publicly Offered
Certificates by the Underwriters or the purchase and the offer and sale of
the Privately Offered Certificates by the Initial Purchaser, as to which we
express no opinion, and except such as have been obtained.
(h) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended. The Trust is
not required to be registered under the Investment Company Act of 1940, as
amended.
(i) The statements set forth in the Prospectus Supplement under the
headings "Servicing of the Underlying Mortgage Loans" and "Description of
the Offered Certificates", in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing
Documents" and in the Offering Memorandum under the heading "Summary of
Offering Memorandum--Description of the Privately Offered Certificates",
7
XXXXXX XXXXXX XXXXX & XXXX LLP NEW YORK
Citigroup Commercial Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3
June 28, 2005
insofar as such statements purport to summarize certain material provisions
of the Certificates and the Pooling and Servicing Agreement, provide in all
material respects an accurate summary of such provisions.
(j) The statements set forth in the Prospectus Supplement under the
heading "Legal Investment", in the Basic Prospectus under the heading
"Legal Investment" and in the Offering Memorandum under the heading "Legal
Investment", to the extent that they purport to describe certain matters of
federal law or legal conclusions with respect thereto, while not discussing
all possible consequences of an investment in the Certificates to all
investors, provide in all material respects an accurate summary of such
matters and conclusions set forth under such headings.
(k) Assuming (a) the accuracy of the Initial Purchaser's and the
Depositor's respective representations and warranties contained in the
Certificate Purchase Agreement, (b) in the case of investors who purchase
from the Initial Purchaser, the accuracy of the deemed representations and
warranties under the heading "Notice to Investors" in the Offering
Memorandum, (c) the performance by the Initial Purchaser and the Depositor
of their respective covenants contained in the Certificate Purchase
Agreement, and (d) compliance by all relevant persons with the Pooling and
Servicing Agreement, the offer and sale of the Privately Offered
Certificates by the Depositor to the Initial Purchaser, and by the Initial
Purchaser to investors that purchase from it, in the manner contemplated in
the Offering Memorandum, the Certificate Purchase Agreement and the Pooling
and Servicing Agreement, are transactions that do not require registration
under the 1933 Act.
The opinions expressed herein are being delivered to you as of the
date hereof, and we assume no obligation to advise you of any changes of law or
fact that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is being rendered solely to and for the benefit of the persons to whom it is
addressed in connection with the Transactions and may not be quoted, used or
relied upon in any manner for any other purpose or by any other person without
our prior written consent.
Very truly yours,
8
