Exhibit 1.1
GE COMMERCIAL MORTGAGE CORPORATION
$__________________ (Approximate)
Commercial Mortgage Pass-Through Certificates
Series ▇▇▇_-_
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
_______________ __, 200_
[Names and Addresses of Underwriters]
Ladies and Gentlemen:
GE Commercial Mortgage Corporation, a Delaware corporation (the
"Company"), proposes to cause to be issued its Commercial Mortgage Pass-Through
Certificates, Series 200_-_ (the "Certificates"), consisting of [12] classes
designated as the Class [A-1], Class [A-2], Class [X], Class [B], Class [C],
Class [D], Class [E], Class [F], Class [G], Class [H], Class [R] and Class [LR]
Certificates under a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of _____________ __, 200_, among the Company,
________________________, as servicer (in such capacity, the "Servicer"),
______________________, as special servicer (in such capacity, the "Special
Servicer"), ________________________, as trustee (the "Trustee"), and
__________________, as fiscal agent (the "Fiscal Agent"), and proposes to sell
the Class [A-1], Class [A-2], Class [X], Class [B], Class [C], Class [D], Class
[E], Class [F], Class [G] and Class [H] Certificates (collectively, the "Offered
Certificates") to ______________________ and _________________ (together, the
"Underwriters"). The Certificates will represent in the aggregate the entire
beneficial ownership interest in a trust fund (the "Trust Fund") primarily
consisting of a segregated pool (the "Mortgage Pool") of commercial and
multifamily mortgage loans (the "Mortgage Loans"). The Mortgage Loans will be
purchased by the Company from __________________ and __________________
(collectively, the "Mortgage Loan Sellers") pursuant to ___ Mortgage Loan
Purchase and Sale Agreements (the "Purchase Agreements"), each by and between
the Company and the applicable Mortgage Loan Seller, in exchange for immediately
available funds. The Offered Certificates are described more fully in Schedule I
hereto and the Registration Statement (as hereinafter defined). This is to
confirm the arrangements with respect to your purchase of the Offered
Certificates.
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Final Prospectus (as hereinafter defined).
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the file
numbers of which are set forth in Schedule I hereto) for the registration of the
Offered Certificates, among other mortgage pass-through certificates, under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement has become effective and copies of which have heretofore been
delivered to you. Such registration statement, as amended at the date hereof,
meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with the 1933 Act and the rules and
regulations thereunder. The Company proposes to file with the Commission
pursuant to Rule 424 under the 1933 Act a supplement to the form of prospectus
included in such registration statement relating to the Offered Certificates and
the plan of distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Offered Certificates and
the Mortgage Pool to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date hereof, is hereinafter
called the "Registration Statement"; the prospectus included in the Registration
Statement, after the Registration Statement, as amended, became effective, or as
subsequently filed with the Commission pursuant to Rule 424 under the 1933 Act,
is hereinafter called the "Basic Prospectus"; such form of prospectus
supplemented by the supplement to the form of prospectus relating to the Offered
Certificates, in the form in which it shall be first filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so supplemented) is
hereinafter called the "Final Prospectus." Any preliminary form of the Final
Prospectus that has heretofore been filed pursuant to Rule 424 or, prior to the
effective date of the Registration Statement, pursuant to Rule 402(a) or Rule
424(a) is hereinafter called a "Preliminary Final Prospectus."
(b) (i) The Registration Statement, as of its effective date or the
effective date of any post-effective amendment thereto filed prior to the
Closing Date, and the Final Prospectus, as of the date that it is first filed
pursuant to Rule 424 under the 1933 Act or, as amended or supplemented, as of
the date such amendment or supplement is filed pursuant to Rule 424 under the
1933 Act, complied or will comply, as applicable, in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement as of its effective date and as of
the date of this Agreement, and, as amended by any such post-effective
amendment, as of the effective date of such amendment, did not and will not
contain any untrue statement of a material fact and did not omit and will not
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) the Final Prospectus as of
its issue date and as of the Closing Date, or as amended or supplemented, as of
the issue date of such amendment or supplement and as of the Closing Date, will
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (i) the
information contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with the information furnished in writing to the Company by or on
behalf of any Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus or (ii) the
Mortgage Loan Seller Covered Information (as defined in Section 7 hereof). As
used herein, the "Master Tape" shall mean the compilation of information and
data regarding the Mortgage Loans covered by the Report on Applying Agreed-Upon
Procedures dated _____________ __, 200_ and rendered by _______________________.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
full power and authority (corporate and other) to own its properties and conduct
its business, as now conducted by it, and to enter into and perform its
obligations under this Agreement, the Purchase Agreements and the Pooling and
Servicing Agreement; and the Company has received no notice of proceedings
relating to the revocation or modification of any license, certificate,
authority or permit applicable to its owning such properties or conducting such
business which singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the conduct
of the business, operations, financial condition or income of the Company.
(d) When the Final Prospectus is first filed pursuant to Rule 424
under the 1933 Act, when, prior to the Closing Date (as hereinafter defined),
any amendment to the Registration Statement becomes effective, when any
supplement to the Final Prospectus is filed with the Commission, and at the
Closing Date, there has not and will not have been (i) any request by the
Commission for any further amendment of the Registration Statement or the Final
Prospectus or for any additional information, (ii) any issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification of
the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) This Agreement and the Purchase Agreements have been, and the
Pooling and Servicing Agreement when executed and delivered as contemplated
hereby and thereby will have been, duly authorized, executed and delivered by
the Company, and each constitutes, or will constitute when so executed and
delivered, a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors, (ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law and (iii) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport to provide
indemnification from securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing Agreement
will each conform in all material respects to the descriptions thereof contained
in the Final Prospectus, and the Offered Certificates, when duly and validly
authorized, executed, authenticated and delivered in accordance with the Pooling
and Servicing Agreement and paid for by the Underwriters as provided herein,
will be entitled to the benefits of the Pooling and Servicing Agreement.
(g) Neither the issuance and sale of the Certificates, nor the
execution and delivery by the Company of this Agreement, the Purchase Agreements
or the Pooling and Servicing Agreement, nor the consummation by the Company of
any of the transactions herein or therein contemplated, nor compliance by the
Company with the provisions hereof or thereof, will conflict with or result in a
breach of any term or provision of the certificate of incorporation or by-laws
of the Company or conflict with, result in a breach, violation or acceleration
of or constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound, or any
statute, order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company, which, in any such case, would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement, the
Purchase Agreements or the Pooling and Servicing Agreement. The Company is not a
party to, bound by or in breach or violation of any indenture or other agreement
or instrument, or subject to or in violation of any statute, order or regulation
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects, or is reasonably
likely in the future to materially and adversely affect, the ability of the
Company to perform its obligations under this Agreement, the Purchase Agreements
or the Pooling and Servicing Agreement.
(h) There are no actions or proceedings against, or investigations
of, the Company pending, or, to the knowledge of the Company, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Purchase Agreements, the Pooling and Servicing Agreement
or the Certificates, (ii) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement, the
Purchase Agreements or the Pooling and Servicing Agreement, (iii) that might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement, the
Purchase Agreements, the Pooling and Servicing Agreement or the Certificates or
(iv) seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Final Prospectus.
(i) The Trust Fund created by the Pooling and Servicing Agreement
will not be required to be registered as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(j) The sale of the Mortgage Loans to the Trust Fund on the Closing
Date and the sale by the Company of the Offered Certificates will be treated by
the Company for financial accounting and reporting purposes as a sale of assets
and not as a pledge of assets to secure debt.
(k) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and the
Pooling and Servicing Agreement, except such as have been, or as of the Closing
Date will have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and offer and
sale of the Offered Certificates by the Underwriters and the recordation of the
respective assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement.
(l) Immediately prior to the assignment of the Mortgage Loans to the
Trustee as contemplated by the Pooling and Servicing Agreement, the Company (i)
had good title to, and was the sole owner of, each of the Mortgage Loans and the
other property purported to be transferred by it to the Trustee pursuant to the
Pooling and Servicing Agreement (but only to the extent sole ownership was
transferred to the Company by the applicable Mortgage Loan Seller) free and
clear of any pledge, mortgage, lien, security interest or other encumbrance
created by the Company (collectively, "Liens"), (ii) except as contemplated by
the Pooling and Servicing Agreement, had not assigned to any person any of its
right, title or interest in such Mortgage Loans or property or in the Purchase
Agreements and (iii) will have the power and authority to sell such Mortgage
Loans and property to the Trustee (but only to the extent such Mortgage Loans
and property were transferred to the Company by the applicable Mortgage Loan
Seller) and upon the execution and delivery of the Pooling and Servicing
Agreement by the Trustee on behalf of the Trust, the Trust will have acquired
all of the Company's right, title and interest in and to such Mortgage Loans and
property free and clear of any Lien created by the Company (except for the Lien
of this transaction).
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the applicable
purchase price set forth in Schedule I hereto, the respective portions of the
Offered Certificates set forth opposite such Underwriter's name in Schedule II
hereto, plus accrued interest at the related Pass-Through Rate from __________
__, 200_ to but not including the Closing Date. \
3. Delivery and Payment. Delivery of and payment for the Offered
Certificates shall be made in the manner, on the date and at the time specified
in Schedule I hereto (or such later date not later than seven business days
after such specified date as the Underwriters shall designate), which date and
time may be postponed by agreement between the Underwriters and the Company or
as provided in Section 8 hereof (such date and time of delivery and payment for
the Offered Certificates being herein called the "Closing Date"). Delivery of
the Offered Certificates, as set forth on Schedule I hereto, shall be made to
the Underwriters for their respective accounts against payment by wire transfer
of immediately available funds by the Underwriters of the applicable purchase
price. Unless delivery is made through the facilities of The Depository Trust
Company, the Offered Certificates shall be registered in such names and in such
authorized denominations as the Underwriters may request not less than 3 full
business days in advance of the Closing Date.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
4. Offering by Underwriters. (a) It is understood that the several
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Final Prospectus.
(b) Each Underwriter agrees that any Offered Certificates sold by it
in the State of New York will be sold solely to institutional "accredited
investors" within the meaning of Rule 501(a)(1), (2) and (3) of Regulation D
under the 1933 Act in order to ensure compliance with the exemption from Section
352-e of the Real Estate Syndicate Act of New York.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will not file, on or prior to the Closing Date, any
amendment to the Registration Statement or file any supplement to (including the
supplement relating to the Offered Certificates included in the Final
Prospectus) the Basic Prospectus unless the Company has furnished to you a copy
for your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence,
the Company will cause the Final Prospectus to be transmitted to the Commission
for filing pursuant to Rule 424 under the 1933 Act. The Company will promptly
advise the Underwriters (i) when the Final Prospectus shall have been filed or
transmitted to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration Statement or
the Final Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply with the
1933 Act or the rules and regulations thereunder, the Company will promptly
prepare and file with the Commission, subject to paragraph (a) of this Section
5, an amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance and, if such amendment or supplement
is required to be contained in a post-effective amendment of the Registration
Statement, will use its reasonable best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible.
(c) The Company will (i) furnish to the Underwriters and counsel for
the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto that shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer in connection with the Offered
Certificates may be required by the 1933 Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriters may reasonably request, and (ii) file
promptly all reports and any information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), subsequent to the
date of the Final Prospectus and for so long as the delivery of a prospectus by
an Underwriter or dealer in connection with the Offered Certificates may be
required under the 1933 Act. The Company will file with the Commission within 15
days of the issuance of the Offered Certificates a report on Form 8-K (the
"8-K") setting forth specific information concerning the Offered Certificates
and the Mortgage Pool to the extent that such information is not set forth in
the Final Prospectus.
(d) The Company agrees that, so long as the Offered Certificates
shall be outstanding, it will make available to the Underwriters the annual
statement as to compliance delivered to the Trustee pursuant to Section 3.13 of
the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section 3.14
of the Pooling and Servicing Agreement, as soon as such statements are furnished
to the Company. The Pooling and Servicing Agreement will provide that the
Servicer and the Special Servicer furnish to the Underwriters all reports
compiled by either of them pursuant to the Pooling and Servicing Agreement under
the same terms and conditions applicable to holders of the Offered Certificates.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(f) The Company will pay, to the extent not paid by the Mortgage
Loan Sellers pursuant to the Purchase Agreements, all costs and expenses in
connection with the transactions herein contemplated, including, but not limited
to: (i) the fees and disbursements of its counsel; (ii) the costs and expenses
of printing (or otherwise reproducing) preparing and delivering the Pooling and
Servicing Agreement and the Offered Certificates; (iii) accounting fees and
disbursements (except as set forth in Section 9(f)); (iv) the costs and expenses
in connection with the qualification or exemption of the Offered Certificates
under state securities or blue sky laws not to exceed $10,000, including filing
fees and reasonable fees and disbursements of counsel in connection with the
preparation of any blue sky survey and in connection with any determination of
the eligibility of the Offered Certificates for investment by institutional
investors and the preparation of any legal investment survey; (v) the expenses
of printing any such blue sky survey and legal investment survey; (vi) the costs
and expenses in connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto), the Basic Prospectus, the
Preliminary Final Prospectus and the Final Prospectus, the preparation and
printing of this Agreement and the furnishing to the Underwriters of such copies
of each Preliminary Final Prospectus, Registration Statement and Final
Prospectus as the Underwriters may reasonably request and (vii) the fees of each
Rating Agency (as defined herein). The Underwriters shall be responsible for
paying all costs and expenses incurred by them in connection with the offering
of the Offered Certificates.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed after the
date hereof and prior to the Closing Date and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or transmitted for
filing with the Commission in accordance with Rule 424 under the ▇▇▇▇ ▇▇▇.
(b) The Company shall have delivered to you a certificate of the
Company, signed by the Chairman, the President, a vice president or an assistant
vice president of the Company and dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Final Prospectus and this Agreement and that: (i) the representations and
warranties of the Company in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date; (ii) the Company has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date; (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's knowledge, threatened
and (iv) nothing has come to the attention of such officer that would lead such
officer to believe that the Final Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇, special counsel for the Company, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to counsel for the Underwriters, to
the effect that:
(i) The Company is a corporation in good standing under the laws of
the State of Delaware with corporate power to enter into and perform its
obligations under this Agreement, the Purchase Agreements and the Pooling
and Servicing Agreement;
(ii) The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued, and not withdrawn, no proceedings for that
purpose have been instituted or threatened, and not terminated, and the
Registration Statement, the Final Prospectus and each amendment thereof or
supplement thereto as of their respective effective or issue dates
complied as to form in all material respects with the applicable
requirements of the 1933 Act and the rules and regulations thereunder; and
such counsel does not believe that the Registration Statement (which, for
purposes of this clause, shall not be deemed to include any exhibits
thereto or any documents or other information incorporated therein by
reference), or any amendment thereof, at the time it became effective and
at the date of this Agreement, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Final Prospectus as of its issue date and as of the Closing Date, or
as amended or supplemented, as of the issue date of such amendment or
supplement and as of the Closing Date, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(iii) This Agreement, the Pooling and Servicing Agreement and the
Purchase Agreements have been duly authorized, executed and delivered by
the Company and each such agreement constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other laws
relating to creditors' rights generally, and to general principles of
equity including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding
at law or in equity), and except that the enforcement of rights with
respect to indemnification and contribution obligations may be limited by
applicable law;
(iv) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for by the Underwriters as provided herein, will be
entitled to the benefits of the Pooling and Servicing Agreement;
(v) The statements in the Basic Prospectus and the Final Prospectus,
as the case may be, under the headings "Certain Federal Income Tax
Consequences," "Legal Investment" and "ERISA Considerations," to the
extent that they constitute matters of federal law or legal conclusions
with respect thereto, are correct in all material respects;
(vi) The statements made in the Final Prospectus under the caption
"Description of Certificates" insofar as they purport to constitute
summaries of terms of the Certificates constitute accurate summaries of
such terms in all material aspects;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and the Trust Fund created by the
Pooling and Servicing Agreement is not required to be registered under the
Investment Company Act;
(viii) No consent, approval, authorization or order of any New York
or federal court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated herein,
except such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Offered
Certificates by the Underwriters, and any recordation of the assignment of
the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement that have not yet been completed and such other approvals as
have been obtained; and
(ix) Neither the issuance and sale or transfer of the Certificates,
nor the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of the Purchase Agreements or
the Pooling and Servicing Agreement will conflict with or result in a
breach or violation of any term or provision of, or constitute a default
(or an event which with the passing of time or notification, or both,
would constitute a default) under, the certificate of incorporation or
by-laws of the Company, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Company is a party
or by which it is bound, or any New York or federal statute or regulation
applicable to the Company or, to the knowledge of such counsel, any order
of any New York or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company.
Such opinion may (x) express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the Purchase
Agreements and the Pooling and Servicing Agreement, (y) assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company and (z) be qualified as
an opinion only on the federal laws of the United States of America and the laws
of the State of New York. Additionally, if so rendered, Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ may rely on the opinion of in-house counsel for the Company as to matters
relating to the Company.
(d) The Underwriters shall have received from
__________________________ and _____________________ (the "Accountants"),
certified public accountants, one or more letters, dated the date hereof and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
(e) The Certificates have been given the rating, if any, set forth
in Schedule I hereto by _______________________ and ______________________ (the
"Rating Agencies").
(f) The Underwriters shall have received from counsel for the
Underwriters, dated the Closing Date, an opinion in form and substance
satisfactory to the Underwriters.
(g) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion, dated the Closing Date, and in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
(h) The Underwriters shall have received from counsel for each
Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters.
(i) The Underwriters shall have received from counsel for each of
the Servicer and Special Servicer, a favorable opinion, dated the Closing Date,
in form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(j) The Underwriters shall have received copies of any opinions of
counsel to the Company, each Mortgage Loan Seller or the Servicer supplied to
the Rating Agencies or the Trustee relating to certain matters with respect to
the Offered Certificates, the Mortgage Loan Sellers and the Mortgage Loans. Any
such opinions shall be dated the Closing Date and addressed to the Underwriters
or accompanied by the reliance letters to the Underwriters or shall state that
the Underwriters may rely upon them.
(k) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company and the several
Underwriters agree that:
(a) The Company will indemnify and hold harmless each Underwriter,
and each person who controls any Underwriter within the meaning of either the
1933 Act or the 1934 Act against any and all losses, claims, damages, expenses
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act, or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) arise out of or
are based upon (1) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or
(2) any error in the information supplied to the Underwriters relating to the
Mortgage Loans other than the information contained in the Basic Prospectus,
Preliminary Final Prospectus or the Final Prospectus (the "Collateral
Information"); provided that such Collateral Information is used in a manner not
inconsistent with the 1933 Act; provided further, that no indemnity shall be
provided if the Collateral Information was corrected and such corrected
materials were supplied to the Underwriters at least 24 hours prior to the
dissemination of the materials from which such loss, liability, claim, damage or
expense arose; and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating, preparing or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein (A) in reliance upon and in conformity with
written information furnished to the Company as herein stated by or on behalf of
any Underwriter specifically for use in connection with the preparation thereof,
(B) arising out of or based upon the failure of any Underwriter to comply with
any provision of Section 9 hereof or (C) arising out of or based upon an untrue
statement or omission with respect to information subject to the provisions of
Section 2(b) of each of the related Purchase Agreements (the "Mortgage Loan
Seller Covered Information"); provided that the indemnification provided by this
subsection (a) shall apply notwithstanding the proviso contained in (C) above,
to the extent that (1) such untrue statement or omission of a material fact was
made as a result of an error in the manipulation of, or in any calculations
based upon, or in any aggregation of the information regarding the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties set forth
in the Master Tape and Annex A to the Preliminary Final Prospectus or the Final
Prospectus, including without limitation the aggregation of such information
relating to the Mortgage Loans in the Mortgage Pool or (2) the information
provided by the related Mortgage Loan Seller was not represented accurately in
the Master Tape, Preliminary Final Prospectus or the Final Prospectus.
Notwithstanding the foregoing, with respect to any untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, the indemnity contained in
this subsection (a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages, expenses or liabilities
purchased the Offered Certificates (or to the benefit of any person controlling
such Underwriter), to the extent that any such loss, claim, damage or liability
of such Underwriter or controlling person results from the fact that a copy of
the Basic Prospectus or the Final Prospectus correcting such misstatement or
omission and previously delivered to such Underwriter was not sent or given to
the person asserting any such losses, claims, damages, expenses or liabilities
at or prior to the written confirmation of the sale of such Offered Certificates
to such person or from the fact that any amendment of or supplement to the
registration statement for the registration of the Offered Certificates, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
correcting such misstatement or omission and delivered to such Underwriter at
least 24 hours prior to the Closing Date was not sent or given to such person
prior to the settlement of the sale of the Offered Certificates to such person
(unless the Company shall have agreed that such amendment or supplement need not
be so sent or given). This indemnity agreement will be in addition to any
liability which the Company may otherwise have; provided, however, that the
Company shall not be liable to any Underwriter for losses of anticipated profits
from the transactions covered by this Agreement.
(b) Each Underwriter severally, but not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person, if any, who controls the Company
within the meaning of either the 1933 Act or the 1934 Act, against any and all
losses, claims, damages, expenses or liabilities, joint or several, to which the
Company or any of them may become subject under the 1933 Act, the 1934 Act, or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon (1) any untrue statement or
alleged untrue statement of a material fact contained in (A) the Registration
Statement (or any amendment thereto), or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (B) the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (C) any ABS Term Sheets or Computational Materials (as defined
herein) or the omission or alleged omission to state therein a material fact
which, when read together with any Basic Prospectus, Preliminary Final
Prospectus and the Final Prospectus, was required to be stated therein or
necessary to make the statements therein not misleading; provided, that no such
material misstatement or omission arises from an error or omission in
information relating to the underlying data regarding the Mortgage Loans or the
related mortgagors or Mortgaged Properties provided by or at the direction of
the Company or any Mortgage Loan Seller to such Underwriter; and provided,
further, that any such ABS Term Sheets or Computational Materials were prepared
by such Underwriter and distributed by such Underwriter, or (2) the failure of
the Underwriters to comply with any provisions of Section 9 hereof and each
Underwriter agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating, preparing or defending any such loss, claim, damage, liability or
action, but, in the case of clause 1(A) and (B) above, only with reference to
written information furnished to the Company by or on behalf of such Underwriter
or any member of its selling group, specifically for use in the Registration
Statement, or in any revision or amendment thereof, or supplement thereto, or in
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
and, in the case of clauses 1(C) and (2) above, only an Underwriter who prepared
and furnished the related ABS Term Sheets or Computational Materials or who
failed to comply with Section 9 hereof shall have the foregoing obligations for
such failure, provided however, that each such Underwriter shall have the
foregoing obligations for any such failure by any member of its selling group.
This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have.
The Company and each Underwriter acknowledge and agree that for all
purposes of this Agreement the statements set forth in the first, second and
third sentences of the last paragraph of the cover page of the Final Prospectus,
the first paragraph, the first, third and fourth sentences of the third
paragraph, the fourth paragraph and the second sentence of the fifth paragraph
commencing on page S-___ of the Final Prospectus under the heading "Method of
Distribution", together with the Underwriter Information (as defined in Section
9) constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnities, and each Underwriter confirms that such statements are or will be,
at the time made, correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party (x) hereunder unless such failure to notify prejudices the
position of the indemnifying party or results in the loss of one or more
defenses to the related cause of action or (y) otherwise than under this Section
7. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel (and one local
counsel, if it deems so necessary) to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by any indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for expenses incurred by the
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Underwriters in the case of subsection (a), representing the
indemnified parties under subsection (a) who are parties to such action), (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii). The indemnifying party shall not be liable for
any settlement of any action effected without its prior written consent, which
consent shall not be unreasonably withheld, but if settled with such consent,
the indemnifying party shall indemnify the indemnified party from and against
any indemnifiable losses, claims, damages and liabilities by reason of such
settlement. No indemnifying party who has elected to assume the defense of such
action shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable in accordance with its terms to an indemnified party
under this Section 7, or if such indemnification is provided for in Section 7
hereof is insufficient in respect of any losses, claims, damages and liabilities
referred to herein, then the Company and each Underwriter, to the extent of
underwriting discounts and commissions received by it, shall individually
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages, expenses or liabilities referred to in
subsection (a) or (b) above, in such proportion as is appropriate to reflect (i)
the relative benefits received by the Company on the one hand and each
Underwriter on the other from the offering of the Offered Certificates (taking
into account the portion of the proceeds of the offering realized by each party)
and (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also to reflect the
relative fault of the Company on the one hand and each Underwriter on the other
in connection with the statement or omission or failure to comply that resulted
in such losses, claims, damages, expenses or liabilities, as well as any other
relevant equitable considerations (taking into account the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission or failure to comply, and any other equitable consideration appropriate
under the circumstances). The relative benefits received by the Company on the
one hand and each Underwriter, including any member of its selling group, on the
other shall be in such proportion as the total net proceeds from the offering of
the Offered Certificates (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by each
Underwriter, including any member of its selling group, with respect to such
offering. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the respective Underwriter, or any member of its
selling group, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission or failure to comply. Notwithstanding anything to the contrary in this
Section 7(d), if the losses, claims, damages, expenses or liabilities (or
actions in respect thereof) referred to in this Section 7(d) arise out of an
untrue statement or alleged untrue statement of a material fact contained in any
Underwriter 8-K (as such term is defined in Section 9 hereof) or the failure of
any Underwriter or any member of its selling group, to comply with any provision
of Section 9 hereof, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the respective Underwriter or any member of its selling group, on
the other (determined in accordance with the preceding sentence) in connection
with the statements or omissions in such Underwriter 8-K, or such failure to
comply, which resulted in such losses, claims, damages, expenses or liabilities
(or actions in respect thereof), as well as any other equitable considerations.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were to be determined by per
capita allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, expenses or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating, preparing or defending
against any action or claim which is the subject of this subsection (d) subject
to the limitations therein provided under subsection (c). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Certificates underwritten and distributed by it were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
paid or become liable to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) or
willful failure to comply with Section 10 hereof shall be entitled to
contribution from any person who was not also guilty of such fraudulent
misrepresentation or willful failure to comply. The Underwriters' obligation in
this subsection (d) to contribute shall be several in proportion to their
respective underwriting obligations and not joint. For purposes of this Section
7(d), and notwithstanding anything to the contrary in this Agreement, ___ shall
be deemed to have received underwriting discounts and commissions equal to
________% of the initial principal amount of the Class [A-1], Class [A-2], Class
[B], Class [C], Class [D], Class [E], Class [F], Class [G] and Class [H]
Certificates and ________% of the Notional Amount of the Class [X] Certificates
purchased by ____ and ___ shall be deemed to have received underwriting
discounts and commissions equal to _______% of the initial principal amount of
the Class [A-2] purchased by ___.
(e) Each Underwriter will indemnify and hold harmless any other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either the 1933 Act or the 1934 Act (collectively, the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages, expenses or liabilities, joint or several, to which any
Non-Indemnifying Underwriter becomes subject under the 1933 Act, the 1934 Act or
other federal or state statutory law or regulation, common law or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement of
material fact contained in any Computational Materials or ABS Term Sheets
distributed by such indemnifying Underwriter or any member of its selling group,
in connection with the Underwritten Certificates or in any revision or amendment
thereof or supplement thereto or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 9 hereof, and agrees to reimburse each such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating, preparing or defending any such loss,
claim, damage, liability or action; provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to
the extent any such untrue statement of material fact arises out of or is based
upon an untrue statement or omission with respect to the Mortgage Loan Seller
Covered Information; provided that the indemnification provided by this Section
7 shall apply notwithstanding the preceding proviso, to the extent that (1) such
untrue statement of a material fact was made as a result of an error in the
manipulation of, or in any calculations based upon, or in any aggregation of the
information regarding the Mortgage Loans, the related Mortgagors and/or the
related Mortgaged Properties set forth in the Master Tape and Annex A to the
Prospectus Supplement, including without limitation the aggregation of such
information relating to the Mortgage Loans in the Trust Fund or (2) the
information provided by the related Mortgage Loan Seller was not represented
accurately in the Master Tape, the Preliminary Final Prospectus or the Final
Prospectus. This indemnity agreement will be in addition to any liability that
any Underwriter may otherwise have.
8. Default by an Underwriter. (a) If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the non-defaulting Underwriter may make arrangements for the purchase of the
Offered Certificates which such defaulting Underwriter agreed but failed to
purchase by other persons satisfactory to the Company, but if no such
arrangements are made within 36 hours after such default, this Agreement shall
terminate without liability on the part of the non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses to the extent set forth in Section 5(f) and except that the provisions
of Sections 7 and 9 shall not terminate and shall remain in effect. As used in
this Agreement, the term "Underwriters" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed on
Schedule 1 hereto that, pursuant to this Section 8, purchases Offered
Certificates which the defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company or the non-defaulting Underwriter
for damages caused by its default. If other persons are obligated or agree to
purchase the Offered Certificates of the defaulting Underwriter, either the
non-defaulting Underwriter or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in
the Registration Statement and/or the Final Prospectus or in any other document
or arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and/or the Final Prospectus that
effects any such changes.
9. Computational Materials and ABS Term Sheets.
(a) The parties acknowledge that, subsequent to the date on which
the Registration Statement became effective and up to and including the date on
which the Final Prospectus with respect to the Offered Certificates is first
made available to the Underwriters, the Underwriters, including any member of
its selling group, may furnish to various potential investors in Offered
Certificates, in writing: (i) "Computational Materials," as defined in a
no-action letter (the "▇▇▇▇▇▇ No-Action Letter") issued by the staff of the
Commission on May 20, 1994 to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, et al.,
as modified by a no-action letter (the "First PSA No-Action Letter") issued by
the staff of the Commission on May 27, 1994 to the Public Securities Association
(the "PSA") and as further modified by a no-action letter (the "Second PSA
No-Action Letter," and together with the ▇▇▇▇▇▇ No-Action Letter and the First
PSA No-Action Letter, the "No-Action Letters") issued by the staff of the
Commission on February 17, 1995 to the PSA; (ii) "Structural Term Sheets," as
defined in the Second PSA No-Action Letter and/or (iii) "Collateral Term
Sheets," as defined in the Second PSA No-Action Letter. Structural Term Sheets
and Collateral Term Sheets are collectively referred to herein as "ABS Term
Sheets").
(b) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, at least 1 business day prior to the time of
filing of the Final Prospectus pursuant to Rule 424 under the 1933 Act, all
Computational Materials used by such Underwriter, or any member of its selling
group, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Computational Materials, the "Furnished Computational Materials").
(c) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, at least 1 business day prior to the time of
filing of the Final Prospectus pursuant to Rule 424 under the Act, all
Structural Term Sheets used by such Underwriter, or any member of its selling
group, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Structural Term Sheets, the "Furnished Structural Term Sheets").
(d) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, within 1 business day after the first use thereof,
all Collateral Term Sheets used by such Underwriter, or any member of its
selling group, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Collateral Term Sheets, the "Furnished Collateral Term Sheets") and shall advise
the Company of the date on which each such Collateral Term Sheet was first used.
(e) Each Underwriter shall prepare for signature by the Company and
filing and (following signature by the Company) cause to be filed with the
Commission one or more current reports on Form 8-K (collectively, together with
any amendments and supplements thereto, the "Underwriter 8-Ks," and each an
"Underwriter 8-K") with respect to all Furnished Computational Materials,
Structural Term Sheets and Collateral Term Sheets used by it or any member of
its selling group (pro-rating the costs and expenses thereof on the basis of the
number of pages of each such Underwriter 8-K to the extent that more than one
Underwriter contributes such sheets to such Underwriter 8-K) such that such
Underwriter may avail itself of the relief granted in the No-Action Letters. In
particular, each Underwriter shall cause to be filed with the Commission (i) all
of its Furnished Computational Materials and all of its Furnished Structural
Term Sheets on an Underwriter 8-K prior to or concurrently with the filing of
the Final Prospectus with respect to the Offered Certificates pursuant to Rule
424 under the 1933 Act; and (ii) all of its Furnished Collateral Term Sheets on
an Underwriter 8-K not later than 2 business days after the first use thereof.
(f) Each Underwriter shall, if required by the Company, reasonably
cooperate with the Company and with the Accountants in obtaining a letter or
letters, in form and substance satisfactory to the Company and such Underwriter,
of the Accountants regarding the information in the Underwriter 8-K consisting
of Furnished Computational Materials and/or Furnished Structural Term Sheets;
provided, however, that the fee payable by each Underwriter with respect to any
such letter shall not exceed $3,000, severally and not in the aggregate. Any
such letter shall be obtained prior to the filing of any such Underwriter 8-K
with the Commission.
(g) Each Underwriter represents and warrants to, and covenants with,
the Company that as presented in any Underwriter 8-K, the Underwriter
Information (defined below) is not misleading and not inaccurate in any material
respect and that any Collateral Information contained in any Underwriter 8-K
prepared by it which is not otherwise inaccurate in any material respect is not
presented in such Underwriter 8-K prepared by it in a way that is either
misleading or inaccurate in any material respect. Each Underwriter further
covenants with the Company that if any Computational Materials or ABS Term
Sheets contained in any Underwriter 8-K are found to include any information
that is misleading or inaccurate in any material respect, such Underwriter
promptly shall inform the Company of such finding, provide the Company with
revised and/or corrected Computational Materials or ABS Term Sheets, as the case
may be, and promptly prepare for signature by the Company and filing and
(following signature by the Company) cause to be delivered for filing to the
Commission in accordance herewith, an Underwriter 8-K containing such revised
and/or corrected Computational Materials or ABS Term Sheets, as the case may be.
(h) Each Underwriter covenants that all Computational Materials and
ABS Term Sheets used by it shall contain the following legend:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY [THE UNDERWRITER]
AND NOT BY GE COMMERCIAL MORTGAGE CORPORATION ("GECMC") OR ANY OF
ITS AFFILIATES (OTHER THAN _______________________)."
(i) Each Underwriter covenants that all Collateral Term Sheets used
by it shall contain the following additional legend:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE LOANS CONTAINED IN THE PROSPECTUS
SUPPLEMENT."
(j) Each Underwriter covenants that all Collateral Term Sheets
(other than the initial Collateral Term Sheet) shall contain the following
additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN ALL
PRIOR COLLATERAL TERM SHEETS, IF ANY."
(k) [Reserved]
(l) Each Underwriter shall deliver to the Company a copy of each
Underwriter 8-K prepared by it (including written evidence of filing) promptly
upon filing the same with the Commission (but in any event not later than the
earlier to occur of (i) the second business day after filing and (ii) the
Closing Date).
(m) For purposes of this Agreement, the term "Underwriter
Information" means such portion, if any, of the information contained in any
Underwriter 8-K that is not Collateral Information or Prospectus Information;
provided, however, that information contained in an Underwriter 8-K that is not
Collateral Information or Prospectus Information shall not constitute
Underwriter Information to the extent such information is inaccurate or
misleading in any material respect directly as a result of it being based on
Collateral Information or Prospectus Information that is inaccurate or
misleading in any material respect. "Prospectus Information" means the
information contained in (but not incorporated by reference in) any Preliminary
Final Prospectus, provided, however, that if any information that would
otherwise constitute Collateral Information or Prospectus Information is
presented in any Underwriter 8-K in a way that is either inaccurate or
misleading in any material respect, such information shall not be Collateral
Information or Prospectus Information.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for all Certificates if prior to such time (i)
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Offered Certificates on the terms specified herein.
11. Reimbursement of Underwriters' Expenses. If the sale of the
Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of (i) a default by any of the Underwriters or (ii) a
termination of this Agreement pursuant to Section 10 hereof, the Company will
reimburse the Underwriters severally, upon demand, for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Offered Certificates.
12. Representations and Indemnities and Agreements to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Offered Certificates.
The provisions of Section 5(f) regarding the payment of costs and expenses and
the provisions of Section 7 hereof shall survive the termination or cancellation
of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
hand delivered or sent by facsimile transmission and confirmed to them at, in
the case of ___________________, to it at _______________________________,
Attention: ___________________, fax number ________________ in the case of
_______________________, Attention: ______________, fax number
____________________; or, if sent to the Company, will be mailed, hand delivered
or sent by facsimile transmission and confirmed to it at GE Commercial Mortgage
Corporation, [125 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇], Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, fax number ________________________.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Underwriters.
Very truly yours,
GE COMMERCIAL MORTGAGE
CORPORATION
By:
-------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
--------------------------
By:
------------------------
Name:
Title:
--------------------------
By:
------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement, dated ______________, __, 200_
As used in this Agreement, the term "Registration Statement" refers collectively
to the Company's registration statements on Form S-3 (File No. 333-_____).
Title and Description of Certificates: GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 200_-_.
Initial aggregate Certificate Balance of the Offered Certificates:
$_______________ (Approximate)
Initial Certificate Initial Pass-
Balance or Through S&P DCR
Certificates Notional Amount(1) Rate(2) Rating Rating
------------ ------------------ ------- ------ ------
Class A-1 $ %
Class A-2 $ %
Class X $ (3) %(4)
Class B $ %
Class C $ %
Class D $ %(5)
Class E $ %(5)
Class F $ %(5)
Class G (6) (7) %
Class H (6) (7) % (8)
Class R (6) N/A N/A (8) (8)
Class LR (6) N/A N/A (8) (8)
------------------
(1) Approximate (subject to a permitted variance of plus or minus 5%).
(2) Approximate.
(3) Notional Amount.
(4) The Pass-Through Rate on the Class X Certificates will be equal to [the
excess, if any, of (i) the weighted average of the Net Mortgage Rate on the
Mortgage Loans (in each case adjusted, if necessary, to accrue on the basis of a
360-day year consisting of 12 30-day months), over (ii) the weighted average of
the Pass-Through Rates of the other Classes of Certificates (other than the
Residual Certificates).]
(5) [For any Distribution Date, if the weighted average Net Mortgage Rate as
of the first day of the related Due Period is less than the rate specified for
the Class D, Class E or Class F Certificates with respect to such Distribution
Date, then the Pass-Through for such Class of Certificates for such Distribution
Date will equal the weighted average of the Net Mortgage Rate.]
(6) These Classes are not Offered Certificates.
(7) The aggregate initial Certificate Balance of these Classes is
approximately $____________.
(8) Not Rated.
The aggregate purchase price for the Offered Certificates purchased from the
Depositor by __________________ will be equal to _________% of the aggregate
initial Certificate Balance of the Offered Certificates purchased by it, and the
aggregate purchase price for the Offered Certificates purchased from the
Depositor by _________________ will be equal to ________% of the aggregate
initial Certificate Balance of the Offered Certificates purchased by it, in each
case including accrued interest on the Certificate Balance at their respective
Pass Through Rates, if any, from the Cut-Off Date. Closing Time, Date and
Location: 10:00 A.M. on ____________ ___, 200_ at the offices of Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
Issuance and Delivery of Certificates: The Offered Certificates will be
delivered in book-entry form through the Same-Day Funds Settlement System of The
Depository Trust Company.
SCHEDULE II
Class
----------------------- ----------------------------- ------------------------
Class A-1 $ $
Class A-2 $ $
Class X $ $
Class B $ $
Class C $ $
Class D $ $
Class E $ $
Class F $ $
Class G $ $
Class H $ $
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