CD 2007-CD4 COMMERCIAL MORTGAGE TRUST
$6,081,077,000
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES CD 2007-CD4
CLASS A-1, CLASS A-2A, CLASS A-2B, CLASS A-3, CLASS A-SB, CLASS A-4,
CLASS A-1A, CLASS A-MFX, CLASS A-J, CLASS B, CLASS C, CLASS D, CLASS E,
CLASS F AND CLASS XP
UNDERWRITING AGREEMENT
as of March 14, 2007
Citigroup Global Markets Inc. PNC Capital Markets LLC
000 Xxxxxxxxx Xxxxxx Xxx XXX Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxx Xxxxxx
Attention: Xxxx Xxxxxxxxxxx Pittsburgh, Pennsylvania 15222
Attention: Xxxxx Xxxxxx
Deutsche Bank Securities, Inc. LaSalle Financial Services, Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx Attention: Xxxx Xxxx
RBC Capital Markets Corporation
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Ladies and Gentlemen:
Citigroup Commercial Mortgage Securities Inc., a Delaware
corporation ("CCMS"), proposes to sell to Citigroup Global Markets Inc.
("CGMI"), Deutsche Bank Securities, Inc. ("Deutsche Bank"), LaSalle Financial
Services, Inc. ("LaSalle"), RBC Capital Markets Corporation ("RBCCM") and PNC
Capital Markets LLC ("PNC"; CGMI, Deutsche Bank, LaSalle, RBCCM and PNC,
collectively, the "Underwriters"), pursuant to this Underwriting Agreement (this
"Agreement"), the classes of commercial mortgage pass-through certificates that
are identified on Schedule I hereto (collectively, the "Registered
Certificates"), each having the initial aggregate stated principal amount (the
initial "Class Principal Balance") or notional amount (the initial "Class
Notional Amount") set forth on Schedule I. The Registered Certificates, together
with the other classes of commercial mortgage pass-through certificates of the
same series (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 multifamily, commercial and manufactured housing community
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 $6,640,315,279 (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
that has its first Due Date on or prior to March 2007, the related Due Date of
such Mortgage Loan in March 2007; and (ii) with respect to each Mortgage Loan
that has its first Due Date in or after April 2007, the later of March 1, 2007
and the related date of origination.
CCMS intends to sell the Private Certificates to CGMI and Deutsche
Bank pursuant to a certificate purchase agreement dated as of the date hereof
(the "Certificate Purchase Agreement"), between CCMS, CGMI and Deutsche Bank.
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 Mortgage Loan Purchase Agreement"), between
CGMRC, as seller, and CCMS, as purchaser. Certain other Mortgage Loans will be
acquired by CCMS from German American Capital Corporation ("GACC" and such
Mortgage Loans, the "GACC Mortgage Loans"), pursuant to a mortgage loan purchase
agreement, dated as of the date hereof (the "GACC Mortgage Loan Purchase
Agreement"), between GACC, as seller, and CCMS, as purchaser. Certain other
Mortgage Loans will be acquired by CCMS from LaSalle Bank National Association
("LaSalle Bank" and such Mortgage Loans, the "LaSalle Bank Mortgage Loans"),
pursuant to a mortgage loan purchase agreement, dated as of the date hereof (the
"LaSalle Bank Mortgage Loan Purchase Agreement"), between LaSalle Bank, as
seller, and CCMS, as purchaser. Certain other Mortgage Loans will be acquired by
CCMS from Royal Bank of Canada ("Royal Bank") and such Mortgage Loans, the
"Royal Bank Mortgage Loans"), pursuant to a mortgage loan purchase agreement,
dated as of the date hereof (the "Royal Bank Mortgage Loan Purchase Agreement"),
between Royal Bank, as seller, and CCMS, as purchaser. The remaining Mortgage
Loans will be acquired by CCMS from PNC Bank, National Association ("PNC Bank"
and such Mortgage Loans, the "PNC Bank Mortgage Loans"), pursuant to a mortgage
loan purchase agreement, dated as of the date hereof (the "PNC Bank Mortgage
Loan Purchase Agreement"), between PNC Bank, as seller, and CCMS, as purchaser.
CGMRC, GACC, LaSalle Bank, Royal Bank and PNC Bank are, collectively, the
"Mortgage Loan Sellers"; and, the CGMRC Mortgage Loan Purchase Agreement, the
GACC Mortgage Loan Purchase Agreement, the LaSalle Bank Mortgage Loan Purchase
Agreement, the Royal Bank Mortgage Loan Purchase Agreement and the PNC Bank
Mortgage Loan Purchase Agreement are, collectively, the "Mortgage Loan Purchase
Agreements".
In connection with the sale by CGMRC to CCMS of the CGMRC Mortgage
Loans, CGMRC, CCMS, CGMI and the other Underwriters entered into an
indemnification agreement dated as of the date hereof (the "CGMRC
Indemnification Agreement"). In connection with the sale by GACC to CCMS of the
GACC Mortgage Loans, GACC, CCMS, CGMI and the other Underwriters entered into an
indemnification agreement dated as of the date hereof (the "GACC Indemnification
Agreement") and American Capital Strategies, Ltd. ("ACS"), CCMS, CGMI and the
other Underwriters entered into an indemnification agreement dated as of the
date hereof (the "ACS Indemnification Agreement"). In connection with the sale
by LaSalle Bank to CCMS of the LaSalle Bank Mortgage Loans, LaSalle Bank, CCMS,
CGMI and the other Underwriters entered into an indemnification agreement dated
as of the date hereof (the "LaSalle Bank Indemnification Agreement". In
connection with the sale by Royal Bank to CCMS of the Royal Bank Mortgage Loans,
Royal Bank, CCMS, CGMI and the other Underwriters entered into an
indemnification
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agreement dated as of the date hereof (the "Royal Bank Indemnification
Agreement". In connection with the sale by PNC Bank to CCMS of the PNC Bank
Mortgage Loans, PNC Bank, CCMS, CGMI and the other Underwriters entered into an
indemnification agreement dated as of the date hereof (the "PNC Bank
Indemnification Agreement"). The CGMRC Indemnification Agreement, the GACC
Indemnification Agreement, the ACS Indemnification Agreement, the LaSalle Bank
Indemnification Agreement, the Royal Bank Indemnification Agreement and the PNC
Bank Indemnification Agreement are, collectively, the "Mortgage Loan Seller
Indemnification Agreements".
The Trust is to be created and the Certificates are to be issued
under a pooling and servicing agreement to be dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among CCMS as depositor, Midland Loan
Services, Inc. ("Midland"), Wachovia Bank, National Association ("Wachovia") and
Capmark Finance Inc. ("Capmark") as master servicers (each, in such capacity, a
"Master Servicer" and, collectively, in such capacity, the "Master Servicers"),
LNR Partners, Inc. ("LNR") as special servicer (in such capacity, the "Special
Servicer"), Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo") as trustee (in such capacity,
the "Trustee") and LaSalle Bank, as certificate administrator (in such capacity,
the "Certificate Administrator").
In connection with the execution and delivery of the Pooling and
Servicing Agreement: (i) Xxxxx Fargo, CCMS, CGMI and the other Underwriters
entered into an indemnification agreement dated as of the date hereof (the
"Trustee Indemnification Agreement"); (ii) LaSalle Bank, CCMS, CGMI and the
other Underwriters entered into an indemnification agreement dated as of the
date hereof (the "Certificate Administrator Indemnification Agreement"); (iii)
Midland, CCMS, CGMI and the other Underwriters entered into an indemnification
agreement dated as of the date hereof (the "Midland Master Servicer
Indemnification Agreement"); (iv) Wachovia, CCMS, CGMI and the other
Underwriters entered into an indemnification agreement dated as of the date
hereof (the "Wachovia Master Servicer Indemnification Agreement"); (v) Capmark,
CCMS, CGMI and the other Underwriters entered into an indemnification agreement
dated as of the date hereof (the "Capmark Master Servicer Indemnification
Agreement"); and (vi) LNR, CCMS, CGMI and the other Underwriters entered into an
indemnification agreement dated as of the date hereof (the "Special Servicer
Indemnification Agreement"). In addition, X.X. Xxxxxx Company, Inc. ("JER"),
CCMS, CGMI and the other Underwriters entered into an indemnification agreement
dated as of the date hereof (the "JER Indemnification Agreement"). The Trustee
Indemnification Agreement, the Certificate Administrator Indemnification
Agreement, the Midland Master Servicer Indemnification Agreement, the Wachovia
Master Servicer Indemnification Agreement, the Capmark Master Servicer
Indemnification Agreement, the Special Servicer Indemnification Agreement, the
JER Indemnification Agreement and the Mortgage Loan Seller Indemnification
Agreements are, collectively, the "Indemnification Agreements".
CCMS has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-132746) for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "Securities Act"), which registration statement has become effective. The
rules and regulations of the Commission promulgated under the Securities Act are
collectively referred to in this Agreement as the "Securities Act Rules." As
used in this Underwriting Agreement (this "Agreement" or this "Underwriting
Agreement"): (i) "Registration Statement" means the foregoing registration
statement and all exhibits thereto, as amended or supplemented to the date of
this Agreement, together with any information that is contained in the
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Prospectus (as defined below) that is deemed to be a part of and included in
that registration statement pursuant to Rule 430B under the Securities Act as of
the date hereof; (ii) "Base Prospectus" means the base prospectus included in
the Registration Statement at the time it became effective, as amended or
supplemented up to the date of filing of the Prospectus Supplement (as defined
below) by any base prospectus filed with the Commission pursuant to paragraph
(b) of Rule 424 under the Securities Act; (iii) "Prospectus Supplement" means
the prospectus supplement to the Base Prospectus, specifically relating to the
Certificates and any amendment thereof or supplement thereto, filed or to be
filed with the Commission pursuant to paragraph (b) of Rule 424 under the
Securities Act, that is deemed to be part of and included in the Registration
Statement on the date hereof in accordance with paragraph (f) of Rule 430B under
the Securities Act; and (iv) "Prospectus" means the Base Prospectus, together
with the Prospectus Supplement.
At or prior to the time when sales to purchasers of the Registered
Certificates were first made in accordance with Rule 159 under the Securities
Act, which was approximately 2:50 p.m. (New York City time) on the date hereof
(the "Time of Sale"), CCMS had prepared the following information, which is
collectively referred to as the "Time of Sale Information": (i) the Base
Prospectus dated March 5, 2007; (ii) the Free Writing Prospectus (as defined
below) dated March 5, 2007, relating to the Registered Certificates and filed by
CCMS pursuant to Rule 433 under the Securities Act (the "Offering Prospectus"),
which Free Writing Prospectus refers to itself therein as "this offering
prospectus", consists of approximately 348 printed pages (not including annexes
thereto) and was accompanied by the Base Prospectus dated March 5, 2007; (iii)
the Free Writing Prospectus dated March 5, 2007, in the form of a term sheet,
relating to the Registered Certificates and filed by CCMS pursuant to Rule 433
under the Securities Act (the "Term Sheet"), which Free Writing Prospectus
consists of approximately 113 pages; and (iv) the Free Writing Prospectuses
attached hereto as Exhibit A and disseminated through xxxxxxxxx.xxx. If,
subsequent to the date of this Agreement, CCMS and the Underwriters determine
that, as to the investors in one or more Classes of the Registered Certificates,
such initial Time of Sale Information includes an untrue statement of material
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Underwriters terminate their old purchase contracts and
enter into new purchase contracts with investors in the Registered Certificates,
then "Time of Sale Information" shall refer to the information conveyed to
investors at the time of entry into the last such new purchase contract,
including any information that corrects such material misstatements or omissions
("Corrective Information"). For the purposes of this Underwriting Agreement,
"Free Writing Prospectus" means a "free writing prospectus" within the meaning
of Rule 405 under the Securities Act; and "Issuer Free Writing Prospectus" means
an "issuer free writing prospectus" within the meaning of Rule 433 under the
Securities Act.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CCMS. CCMS
represents and warrants to, and covenants with, each of the Underwriters that:
(a) The Registration Statement has become effective under the
Securities Act. The aggregate principal amount of the Registered Certificates
does not exceed the remaining amount
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of mortgage-backed securities that may be offered and sold under the
Registration Statement as of the date hereof. The Registration Statement, as of
the date it was declared effective (its "Effective Date"), and the portion of
the Registration Statement relating to the Registered Certificates (including,
without limitation, the Prospectus), as of the deemed effective date thereof
pursuant to Rule 430B under the Securities Act (its "Deemed Effective Date")
complied, complies and/or will comply, as applicable, as to form in all material
respects with the requirements of the Securities Act and the Securities Act
Rules; and the information in the Registration Statement, as of its Effective
Date, and the information in the portion of the Registration Statement relating
to the Registered Certificates (including, without limitation, the Prospectus),
as of its Deemed Effective Date, did not, does not and/or will not, as
applicable, contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the information in the Prospectus as of the date
hereof, does not, and as of the Closing Date (as hereinafter defined), will not,
contain an 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; provided, however, that CCMS makes
no representation or warranty as to the Excluded Information (as defined below).
The "Excluded Information" shall mean, collectively, the information
contained in or omitted from the Registration Statement or the Prospectus or the
Time of Sale Information or any Issuer Free Writing Prospectus or any Issuer
Information (as defined below), or any revision, amendment or supplement to any
of the foregoing, (i) in reliance upon and in conformity with written or
electronic information furnished to CCMS by any Underwriter specifically for use
in connection with the preparation of the Prospectus, or any revision, amendment
or supplement thereto, the Time of Sale Information or any such Issuer Free
Writing Prospectus (collectively, the "Underwriter Information"), or (ii) to
which the indemnities provided for in Section 2 of any of the Indemnification
Agreements are applicable in accordance with the respective terms thereof
(collectively, the "Third-Party Information"). It is hereby acknowledged that
the information set forth on Schedule II hereto constitutes the only Underwriter
Information in the Offering Prospectus and the Prospectus.
(b) If and to the extent that it has not done so already, CCMS
will make a good faith and reasonable effort to file the Prospectus with the
Commission within the time period required under Rule 424 and, in the event that
it fails to do so, the CCMS shall file the Prospectus with the Commission as
soon as practicable thereafter.
(c) The Time of Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that CCMS makes no representation and warranty with respect
to any Excluded Information.
(d) CCMS (including its agents and representatives other than the
Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to, and will not make, use, prepare, authorize,
approve or refer to, any "written communication" (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or solicitation of an
offer to buy the Registered Certificates other than (i) the Prospectus, (ii) any
document not constituting a prospectus
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under Section 2(a)(10)(a) of the Securities Act, including, without limitation,
any document that complies with Rule 134 under the Securities Act, (iii) the
Time of Sale Information, and (iv) any other Free Writing Prospectus that
complied or, if used after the date hereof, will comply in all material respects
with the Securities Act and the Securities Act Rules. Each Issuer Free Writing
Prospectus prepared by or on behalf of CCMS or its affiliates or delivered to
CCMS for filing in accordance with Section 9 has been filed or will be filed in
accordance with Section 9 (to the extent required thereby). Each Issuer Free
Writing Prospectus included under clause (iv) of the second preceding sentence,
at the Time of Sale, did not, and at the Closing Date will not, contain any
untrue statements of a material fact or (when read in conjunction with the other
Time of Sale Information) omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that CCMS makes no representation or
warranty with respect to any Excluded Information.
(e) As of the Closing Date, the 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.
(f) Ernst & Young LLP ("Ernst & Young") is an independent public
accountant for CCMS as required by the Securities Act and the rules and
regulations thereunder.
(g) 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.
(h) 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 against CCMS 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.
(i) 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
6
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.
(j) 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,
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.
(k) Neither the execution and delivery of this Agreement, the
Mortgage Loan Purchase Agreements, 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.
(l) 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
7
(D) seeking to affect adversely the federal income tax attributes of the
Registered Certificates described in the Prospectus.
(m) 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.
(n) Any taxes, fees and other governmental charges (other than
income taxes, franchise taxes and recording and filing fees) that are or will be
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.
(o) 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").
(p) 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.
(q) 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.
(r) 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.
(s) 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 or on account of an antecedent debt.
8
(t) 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.
(u) The statements set forth in the Prospectus under the caption
"Description of the Offered Certificates," insofar as they purport to constitute
a summary of the terms of the Registered Certificates and insofar as they
purport to describe the provisions of the documents referred to therein, are
correct in all material respects.
(v) There has not been, and as of the Closing Date, there will not
be, any material adverse change in the business operations, financial condition,
properties or assets of CCMS since the date as of which information is given in
the Prospectus that would have a material adverse effect on the ability of CCMS
to perform its obligations under this Agreement, the Pooling and Servicing
Agreement or any Mortgage Loan Purchase Agreement.
(w) CCMS possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and CCMS has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of CCMS.
(x) CCMS is not, and on the date on which the first bona fide
offer of the Registered Certificates is made (within the meaning of Rule
164(h)(2) under the Securities Act) will not be, an "ineligible issuer," as
defined in Rule 405 under the Securities Act.
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 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.
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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. (a) 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.
(b) Each Underwriter represents and warrants to, and agrees with,
CCMS that: (i) 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 (ii) 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.
(c) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Underwriter hereby represents and warrants to, and agrees with,
CCMS that with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") such Underwriter has not made and will not make an offer
of the Registered Certificates to the public in that Relevant Member State prior
to the publication of a prospectus in relation to the Registered Certificates
which has been approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State and notified to
the competent authority in that Relevant Member State, all in accordance with
the Prospectus Directive, except that such Underwriter may, with effect from and
including the Relevant Implementation Date, make an offer of the Registered
Certificates to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year, (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by CCMS of a prospectus pursuant to Article 3 of the
Prospectus Directive.
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For the purposes of this provision, the expression an "offer of the
Registered Certificates to the public" in relation to any Registered
Certificates in any Relevant Member State means the communication in any form
and by any means of sufficient information on the terms of the offer and the
Registered Certificates so as to enable an investor to decide to purchase or
subscribe the Registered Certificates, as the same may be varied in that Member
State by any measure implementing the Prospectus Directive in that Member State
and the expression "Prospectus Directive" means Directive 2003/71/EC and
includes any relevant implementing measure in each Relevant Member State.
(d) No Underwriter shall take any action relating to the offer or
sale of any of the Registered Certificates in any jurisdiction that would result
in CCMS being obligated to register or file any further prospectus or
corresponding document relating to the Registered Certificates in such
jurisdiction, other than as expressly contemplated hereby.
(e) If any Underwriter does not have an allocation of Registered
Certificates, then such Underwriter nevertheless acknowledges that it has
actively participated in the marketing and distribution of the Registered
Certificates.
(f) Each Underwriter hereby advises CCMS that it currently intends
to make a market in the Registered Certificates, although it has no obligation
to do so and may terminate such market making at any time.
5. ADDITIONAL 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
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.
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(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 each Issuer Free Writing Prospectus prepared
by or on behalf of CCMS 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 file any documents and any amendments thereof as may
be required to be filed by it pursuant to the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission under the Securities Act and the Exchange Act,
including, but not limited to, the filing with the Commission, to the extent
required under Rule 433 of the Securities Act Rules, of all Free Writing
Prospectuses that CCMS is required to file under Section 9(c) hereof, within the
time frames set forth in Section 9(d) hereof. Subject to compliance by each
Underwriter with the requirements of Section 9 hereof, CCMS represents and
warrants that, to the extent required by Rule 433 under the Securities Act, CCMS
has timely filed with the Commission any Free Writing Prospectuses contemplated
to be filed by it under Section 9(c) hereof.
(f) Each Underwriter agrees that its purchase of Registered
Certificates, at the Closing Date, will be treated by such Underwriter for
financial accounting and reporting purposes as a sale of such Certificates by
CCMS and not as a pledge of such Certificates to secure a debt.
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
12
performance by CCMS and such Underwriter of their respective obligations
hereunder and to satisfaction, as of the Closing Date, of 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.
(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, in form and substance
reasonably acceptable to the Underwriters;
(iii) an opinion of Xxxxxxx Xxxxxxxx & Xxxx LLP, in its
capacity as special counsel for CCMS, dated the Closing Date and addressed
to the Underwriters, in form and substance reasonably acceptable to the
Underwriters;
(iv) a letter from Xxxxxxx Xxxxxxxx & Xxxx LLP, in its
capacity as special counsel to CCMS, dated the Closing Date and addressed
to the Underwriters, containing a statement substantially to the effect
that, based on conferences and telephone conversations with
representatives of CCMS, the Mortgage Loan Sellers, the Underwriters, the
Trustee, the Certificate Administrator, the Master Servicers, 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 any
documents, records, agreements, ratings or portfolio data or any other
information regarding the business or operations of the sponsors, the
Trustee, the Certificate Administrator, the Master Servicers or the
Special Servicer (other than the Pooling and Servicing Agreement) or made
any inquiry of any originator of any Mortgage Loan not referenced above
and without having made any independent check or verification of the
statements contained in the Prospectus or the Time of Sale Information),
nothing has come to such counsel's attention that would lead it to believe
that the Time of Sale Information (when read as a whole), at the Time of
Sale, or the Prospectus, at the date of the Prospectus Supplement or at
the Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that such counsel need not comment on
(i) information regarding any party to any agreement other than CCMS, (ii)
information regarding the Mortgage Loans or the related mortgaged real
properties, (iii) the servicing and administration of the Outside Serviced
Trust Mortgage Loans (as defined in the Pooling and Servicing Agreement),
(iv) statistical, accounting, numerical or other financial information,
(v) information contained in any accompanying computer disk, CD-ROM or
other electronic media, (vi) information incorporated by reference and
(vii) other marketing materials including without limitation any ABS
13
informational and computational materials used in reliance on Rule 167
under the Securities Act.
(v) copies of all legal opinion letters delivered to the
Rating Agencies by Xxxxxxx Xxxxxxxx & 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 Xxxxxxx Xxxxxxxx & Xxxx
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 the agreements and satisfied all the conditions on its part set forth
herein to be performed or satisfied at or prior to the Closing Date; and
(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 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, which 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 Servicers, the Special Servicer, the Trustee and the Certificate
Administrator 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
14
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 Servicers, the Special Servicer,
the Trustee and the Certificate Administrator as the Underwriters may reasonably
request.
(e) CCMS and the Underwriters shall have received from Ernst &
Young, certified public accountants, various comfort letters, dated, as
applicable, 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 such information of an
accounting, financial or statistical nature set forth in the Time of Sale
Information, as was agreed upon by the Underwriters, agrees with the data
sheet or computer tape prepared by or on behalf of the Mortgage Loan
Sellers, unless otherwise noted in such letter(s);
(ii) they have performed certain specified procedures as a
result of which they have determined that such information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement, as was agreed upon by the Underwriters, agrees with the data
sheet or computer tape prepared by or on behalf of the Mortgage Loan
Sellers, unless otherwise noted in such letter(s); and
(iii) they have compared the data contained in the data sheet
or computer tape referred to in the immediately preceding clauses (i) and
(ii) 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 in all material
respects, unless otherwise noted in such letter.
(f) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by each Mortgage Loan Seller
and/or any affiliate thereof in connection with the sale of Mortgage Loans by
such Mortgage Loan Seller 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, any affiliate
thereof or any of their respective 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.
(g) The Underwriters shall have been furnished with such other
documents and opinions as the Underwriters may reasonably require, for the
purpose of enabling them to pass upon
15
the issuance and sale of the Registered Certificates as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained.
(h) The Mortgage Loan Sellers shall have sold the Mortgage Loans
to CCMS, pursuant to the respective Mortgage Loan Purchase Agreements.
(i) 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.
(j) 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) (A) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, 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 or (B) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any Issuer
Free Writing Prospectus prepared by or on behalf of CCMS or any Issuer
Information (as defined in Section 9(a)) contained in any Underwriter Free
Writing Prospectus (as defined in Section 9(a)), or the omission or alleged
omission therefrom of a material fact necessary to make the statements therein
(when read in conjunction with the other Time of Sale Information), in light of
the circumstances under which they were made, not misleading, which was not
corrected by Corrective Information subsequently supplied by CCMS or any
Mortgage Loan Seller to any Underwriter within a reasonable period of time prior
to the Time of Sale; 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 untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact contemplated by this
Section 7(a) that was made in the Excluded Information or (ii) any material
breach, inaccuracy or untruth of any of the statements, representations,
warranties and/or covenants made by any Underwriter pursuant to Section 9; and
provided, further, that CCMS shall not be liable
16
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
contemplated in this Section (7)(a) as to which any Underwriter has agreed to
indemnify CCMS pursuant to Section 7(b). This indemnity agreement will be in
addition to any liability that CCMS may otherwise have.
(b) Subject to Section 7(c), each Underwriter, severally and not
jointly, agrees to indemnify and hold harmless CCMS, each of its officers and
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
the Underwriter Information (insofar as the Underwriter Information relates to
such Underwriter), 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; (ii) any untrue
statements or alleged untrue statements of a material fact made in any
Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter
or omissions or alleged omissions to state in such Underwriter Free Writing
Prospectus a material fact necessary in order to make the statements therein
(when read in conjunction with the Time of Sale Information), in the light of
the circumstances under which they were made, not misleading; and (iii) 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; 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 (A) any untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact contemplated by
this Section 7(b) that was caused by or resulted from an error or omission in
the Issuer Information which was not corrected by Corrective Information
subsequently supplied by CCMS or any Mortgage Loan Seller to any Underwriter
within a reasonable period of time prior to the Time of Sale or (B) any material
breach, inaccuracy or untruth of any of the statements, representations,
warranties and/or covenants made by CCMS pursuant to Section 9. Notwithstanding
the foregoing, the indemnity in clause (ii) of the preceding sentence 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, the Offering Prospectus or the
Term Sheet 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.
(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
17
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 (in addition to local
counsel) to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party for legal expenses of other counsel or other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel), representing the indemnified party or parties
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time period after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
Notwithstanding anything herein to the contrary, an indemnifying
party shall not be liable under Section 7(a) or Section 7(b) for any settlement
of any litigation, proceeding, action or claim effected without its consent
unless (i) at any time an indemnified party shall have requested such
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which the indemnifying party is obligated under Section 7(a) or
Section 7(b), as applicable, (ii) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request and more
than 15 days after receipt by such indemnifying party of written notice of the
proposed settlement and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the prior written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of the indemnified
party.
18
(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 referred to in and intended to be covered 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 applicable Underwriter is responsible for that portion
represented by the percentage that the total underwriting discounts,
commissions and/or fees received by such Underwriter bear to the sum of
such discounts, commissions 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 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, commissions 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 applicable
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 applicable
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).
19
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 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.
(f) Each Underwriter agrees to indemnify and hold harmless each
other Underwriter, such other Underwriter's officers and directors and each
person who controls such other Underwriter within the meaning of the Securities
Act or the Exchange Act to the same extent that the indemnifying Underwriter has
agreed to indemnify and hold harmless CCMS pursuant to Section 7(b).
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.
9. FREE WRITING PROSPECTUSES. (a) In connection with the offering
of the Registered Certificates, the Underwriters may each prepare and provide to
prospective investors Free Writing Prospectuses, or portions thereof, which CCMS
is required to file with the Commission in electronic format and will use
reasonable efforts to provide to CCMS such Free Writing Prospectuses, or
portions thereof, in either Microsoft Word(R) or Microsoft Excel(R) format and
not in a
20
PDF, except to the extent that CCMS, in its sole discretion, waives such
requirements, subject to the following conditions and any additional conditions
set forth in any other subsection of this Section 9 (to which such conditions
each Underwriter agrees (provided that no Underwriter shall be responsible for
any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication (other
than the Prospectus) to any person in connection with the initial offering
of the Registered Certificates, unless such written communication (1) is
made in reliance on Rule 134 under the Securities Act, (2) constitutes
Time of Sale Information, (3) constitutes an Underwriter Free Writing
Prospectus (as defined below) (that does not constitute Time of Sale
Information) that has been approved by CCMS in advance of its use, or (4)
contains no more than the following: (x) information relating to the
class, size, rating, price, CUSIPS, coupon, yield, spread, benchmark,
status and/or legal maturity date, the weighted average life, expected
final payment date, the trade date and payment window of one or more
classes of Registered Certificates, (y) the eligibility of the Registered
Certificates to be purchased by ERISA plans and (z) a column or other
entry showing the status of the subscriptions of the Registered
Certificates (both for the issuance as a whole or for the Underwriter's
retention) and/or expected pricing parameters of the Registered
Certificates (provided that to the extent any of the information in
clauses (x) through (z) constitutes a description of the terms of the
securities other than information permitted under Rule 134, then such
information will be included in a description of the final terms of the
securities that is filed as a Free Writing Prospectus).
(ii) Each Underwriter shall deliver (and, if used on or
prior to the date hereof, represents and warrants that it has delivered)
to CCMS, no later than two business days prior to the date of first use
thereof or such later date as may be agreed to by CCMS: (a) any Free
Writing Prospectus that was prepared by or on behalf of such Underwriter
or any affiliate thereof (each, an "Underwriter Free Writing Prospectus")
and that contains any "issuer information," as defined in Rule 433(h)
under the Securities Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information") (which the
parties hereto agree includes, without limitation, Third-Party Information
covered by the indemnity agreements set forth in any of the
Indemnification Agreements); and (b) any Free Writing Prospectus or
portion thereof prepared by or on behalf of such Underwriter that contains
only a description of the final terms of the Registered Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains
only ABS Informational and Computational Materials (as defined below) may
be delivered by an Underwriter to CCMS not later than the later of (A) two
business days prior to the due date for filing of the Prospectus pursuant
to Rule 424(b) under the Securities Act or such later date as may be
agreed to by CCMS or (B) the date of first use of such Free Writing
Prospectus.
(b) Each Underwriter represents and warrants to CCMS that:
(i) The Free Writing Prospectuses that were prepared by or
on behalf of such Underwriter or an affiliate thereof complied or, if used
after the date hereof, will comply, in all material respects with the
Securities Act and the Securities Act Rules.
21
(ii) The Free Writing Prospectuses furnished or to be
furnished to CCMS by such Underwriter pursuant to or as contemplated by
Section 9(a)(ii) or Section 9(e) hereof will constitute all Free Writing
Prospectuses of the type described in such section that were furnished to
prospective investors by the Underwriter in connection with its offer and
sale of the Registered Certificates.
(iii) The Free Writing Prospectuses to be furnished to CCMS
by such Underwriter pursuant to Section 9(a)(ii) hereof will constitute
all Free Writing Prospectuses that were furnished to a sponsor or servicer
(as defined in Item 1101 of Regulation AB) for use or referral by any such
person in connection with its offer and sale of the Registered
Certificates.
(iv) Each Free Writing Prospectus provided or required to be
provided by it to CCMS pursuant to or as contemplated by Section 9(a)(ii)
hereof did not, as of the Time of Sale, and will not, as of the Closing
Date, contain any untrue statement of a material fact or omit any material
fact necessary to make the statements contained therein (when read in
conjunction with the other Time of Sale Information), in light of the
circumstances under which they were made, not misleading; provided,
however, that such Underwriter makes no representation to the extent such
misstatements or omissions were the result of any inaccurate Issuer
Information, which information was not corrected by Corrective Information
subsequently supplied by CCMS, any other Underwriter or any Mortgage Loan
Seller to such Underwriter within a reasonable period of time prior to the
Time of Sale.
(v) Such Underwriter has not and will not convey any ABS
Informational and Computational Material in reliance upon Rule 167 and
Rule 426 under the Securities Act. ABS Informational and Computational
Material shall mean "ABS informational and computational material" as
defined in Item 1101 of Regulation AB.
(c) CCMS agrees to file with the Commission the following:
(i) each Issuer Free Writing Prospectus that was prepared
by or on behalf of CCMS or its affiliates or delivered to CCMS for filing;
(ii) any Free Writing Prospectus or portion thereof
delivered by any Underwriter to CCMS pursuant to Section 9(a)(ii) or
Section 9(e) hereof; and
(iii) any Free Writing Prospectus for which CCMS or any
person acting on its behalf provided, authorized or approved information
that is prepared and published or disseminated by a person unaffiliated
with CCMS or any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise disseminating
communications;
provided, however, that CCMS shall not be required to file (1) Issuer
Information contained in any Underwriter Free Writing Prospectus or Free Writing
Prospectus of any other offering participant other than CCMS, if such
information is included or incorporated by reference in a prospectus or Free
Writing Prospectus previously filed with the Commission that relates to the
offering of the Registered Certificates, or (2) any Free Writing Prospectus or
portion thereof that contains a
22
description of the Registered Certificates or the offering of the Registered
Certificates which does not reflect the final terms thereof or (3) any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
(d) Any Free Writing Prospectus required to be filed pursuant to
Section 9(c) hereof by CCMS shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus (subject, in the case of
any Free Writing Prospectus required to be filed pursuant to Section 9(c)(ii)
hereof, to compliance by the Underwriters with Section 9(a)(ii) or Section 9(e),
as applicable, hereof), except that:
(i) any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final terms of the
Registered Certificates shall be filed by CCMS with the Commission within
two days of the later of the date such final terms have been established
for all classes of Registered Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and Computational
Material shall be filed by CCMS with the Commission not later than the
later of the due date for filing the final Prospectus relating to the
Registered Certificates pursuant to Rule 424(b) under the Securities Act
or two business days after the first use of such Free Writing Prospectus;
and
(iii) any Free Writing Prospectus required to be filed
pursuant to Section 9(c)(iii) shall, if no payment has been made or
consideration has been given by or on behalf of CCMS for the Free Writing
Prospectus or its dissemination, be filed by CCMS with the Commission not
later than four business days after CCMS becomes aware of the publication,
radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(e) Each Underwriter shall provide to CCMS for filing with the
Commission the following:
(i) any Free Writing Prospectus that is used or referred to
by it and distributed by or on behalf of such Underwriter in a manner
reasonably designed to lead to its broad, unrestricted dissemination, not
later than the date of the first use of such Free Writing Prospectus; and
(ii) any Free Writing Prospectus for which such Underwriter
or any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with CCMS or any other offering participant that is in the
business of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made or
consideration given by or on behalf of CCMS or any other offering
participant, not later than four business days after such Underwriter
becomes aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus;
provided, however, that no Underwriter shall be required to provide to CCMS (1)
any Free Writing Prospectus to the extent that the information contained therein
is included in a prospectus or Free
23
Writing Prospectus previously filed that relates to the offering of the
Registered Certificates, or (2) any Free Writing Prospectus that does not
contain substantive changes from or additions to a Free Writing Prospectus
previously filed with the Commission.
(f) CCMS and each Underwriter agree that any Free Writing
Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement
(including a prospectus) with the SEC (SEC File
No. 333-132746) for the offering to which this
communication relates. Before you invest, you
should read the prospectus in that registration
statement and other documents the depositor has
filed with the SEC for more complete information
about the depositor, the issuing entity and this
offering. You may get these documents for free by
visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the depositor, any underwriter or
any dealer participating in the offering will
arrange to send you the prospectus if you request
it by calling 0-000-000-0000 or by emailing
Xxxxxxxxx-XXX-Xxxxxxxxxx@Xxxxxxxxx.xxx.
(g) CCMS and the respective Underwriters each agrees to retain all
Free Writing Prospectuses that it has used and that are not required to be filed
with the Commission for a period of three years following the initial bona fide
offering of the Registered Certificates.
(h) If CCMS becomes aware that, as of the Time of Sale, any
information in an Issuer Free Writing Prospectus or any Issuer Information
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the circumstances
under which they were made, not misleading (a "Defective Issuer Free Writing
Prospectus"), then CCMS shall notify the Underwriters of such untrue statement
or omission within one business day after discovery and CCMS shall, if requested
by the Underwriters, prepare and deliver to the Underwriters a Free Writing
Prospectus that corrects the material misstatement or omission in the Defective
Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a
"Corrected Issuer Free Writing Prospectus"). If any Underwriter becomes aware
that, as of the Time of Sale, any Underwriter Free Writing Prospectus delivered
to an investor in any Registered Certificates contained any untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were made, not
misleading (a "Defective Underwriter Free Writing Prospectus" and, together with
a Defective Issuer Free Writing Prospectus, a "Defective Free Writing
Prospectus"), then such Underwriter shall notify CCMS of such untrue statement
or omission within one business day after discovery.
The Underwriters shall, if requested by CCMS:
(i) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, the underwriter that prepared such
Defective Free Writing Prospectus
24
shall prepare a Free Writing Prospectus that corrects the material
misstatement in or omission from the Defective Free Writing Prospectus
(together with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(ii) either (A) deliver the Corrected Free Writing
Prospectus to each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such investor,
clearly identifying or highlighting the Corrective Information, or (B)
deliver the Corrected Free Writing Prospectus to each investor which
received the Defective Free Writing Prospectus, clearly identifying or
highlighting the Corrective Information together with information
regarding (1) reformation of the contract of sale and (2) an ability to
elect to terminate or not terminate the prior contract of sale, each as
consistent with the Underwriter's good faith interpretation of the
requirements of Commission Release No. 33-8591, provide such investor with
an opportunity to affirmatively agree in writing to purchase the subject
Registered Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(iii) comply with any other requirements for reformation of
the original contract of sale with such investor, as described in Section
IV.A.2.c of Commission's Securities Offering Reform Release No. 33-8591.
In connection with clause (i) of the prior paragraph, if the
Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus,
then the Corrected Free Writing Prospectus will be prepared by the Underwriter
that prepared such Defective Free Writing Prospectus.
If the Defective Free Writing Prospectus was an Issuer Free Writing
Prospectus and the defective information was not provided by any party that
would be obligated to indemnify the Underwriters under the Indemnification
Agreements, and the Underwriters shall in good faith incur any costs to an
investor in connection with the reformation of the contract of sale with the
investor, then CCMS agrees to reimburse the Underwriters for such costs;
provided that, before incurring such costs, the Underwriters first permit CCMS
access to the applicable investor and an opportunity to attempt to mitigate such
costs through direct negotiation with such investor.
(i) Each Underwriter covenants with CCMS that after the Prospectus
is available such Underwriter shall not distribute any written information
concerning the Registered Certificates to a prospective investor unless such
information is preceded or accompanied by the Prospectus.
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
25
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.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York, applicable to
agreements negotiated, made and to be performed entirely in said State.
15. NO FIDUCIARY DUTY. CCMS hereby acknowledges that (a) the
Underwriters are acting as principal and not as an agent or fiduciary of CCMS
and (b) its engagement of the Underwriters in connection with the offering of
the Registered Certificates is as independent contractors and not in any other
capacity. Furthermore, CCMS agrees that it is solely responsible for making its
own judgments in connection with the offering of the Registered Certificates
(irrespective
26
of whether the Underwriters have advised or are currently advising CCMS on
related or other matters).
16. 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.
17. 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), 9(a)(ii) and 9(e) hereof, Xxxxxxx Xxxxxxxx & Xxxx
LLP, 2 World Financial Center, New York, New York 10281, 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 instrument, along with all counterparts, 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
DEUTSCHE BANK SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
LASALLE FINANCIAL SERVICES, INC.
By: /s/ X. Xxxx Xxxxxx
----------------------------------
Name X. Xxxx Xxxxxx
Title: Director
RBC CAPITAL MARKETS CORPORATION
By: /s/ Xxx XxXxxx
----------------------------------
Name: Xxx XxXxxx
Title: Authorized Signatory
PNC CAPITAL MARKETS LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-132746 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 CD 2007-CD4, Class A-1,
Class A-2A, Class A-2B, Class A-3, Class A-SB, Class A-4, Class A-1A, Class
A-MFX, Class A-J, Class B, Class C, Class D, Class E, Class F and Class XP
Certificates.
Underwriting Agreement, dated as of March 14, 2007
INITIAL CLASS PRINCIPAL
BALANCE OR CLASS NOTIONAL INITIAL RATING
CLASS DESIGNATION PURCHASE PRICE(1) AMOUNT(2) PASS-THROUGH RATE BY FITCH/MOODY'S/S&P(4)
----------------- ----------------- ------------------------- ----------------- ------------------------
A-1 99.999692% $ 91,109,000 4.9770% AAA/Aaa/AAA
A-2A 100.498626% $ 100,000,000 5.2370% AAA/Aaa/AAA
A-2B 100.499188% $ 1,066,703,000 5.2050% AAA/Aaa/AAA
A-3 100.495490% $ 464,222,000 5.2930% AAA/Aaa/AAA
A-SB 100.498215% $ 161,959,000 5.2780% AAA/Aaa/AAA
A-4 100.493171% $ 1,737,121,000 5.3220% AAA/Aaa/AAA
A-1A 100.495701% $ 998,756,000 5.2890% AAA/Aaa/AAA
A-MFX 100.493714% $ 594,982,000 5.3660% AAA/Aaa/AAA
A-J 100.498944% $ 585,733,000 5.3980% AAA/Aaa/AAA
B 100.496888% $ 41,249,000 5.4470% AA+/Aa1/AA+
C 100.492647% $ 90,748,000 5.4760% AA/Aa2/AA
D 100.496043% $ 57,748,000 5.5060% AA-/Aa3/AA-
E 100.498316% $ 41,249,000 5.5260% A+/A1/A+
F 100.494153% $ 49,498,000 5.5550% A/A2/A
XP 1.91859% $ 4,082,548,050(3) 0.5266%(5) AAA/Aaa/AAA
___________________________
(1) Exclusive of interest.
(2) Subject to a variance of plus or minus 5.0%.
(3) Notional Amount.
(4) By each of Fitch, Inc. ("Fitch"), Xxxxx'x Investors Service, Inc.
("Xxxxx'x") and Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. ("S&P").
(5) Approximate.
PURCHASE PRICE: The purchase prices set forth in the above schedule for each
Class of Registered Certificates is expressed as a percentage of the initial
Class Principal Balance of such Class, and is to be accompanied by interest on
the initial Class Principal Balance of such Class of Registered Certificates at
the initial Pass-Through Rate for such Class, from March 1, 2006 to but not
including the Closing Date.
CLOSING TIME, DATE AND LOCATION: 10:00 a.m. New York City time on March 29, 2007
at the offices Xxxxxxx Xxxxxxxx & Xxxx LLP, 2 World Financial Center, New York,
New York 10281.
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-I-1
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 $ 45,897,555
000 Xxxxxxxxx Xxxxxx X-0X $ 50,376,533
New York, New York 10013 A-2B $ 537,367,986
A-3 $ 233,858,948
A-SB $ 81,589,329
A-4 $ 829,762,450
A-1A $ 503,138,643
A-MFX $ 299,731,302
A-J $ 295,071,976
B $ 20,779,816
C $ 45,715,696
D $ 29,091,440
E $ 20,779,816
F $ 24,935,376
XP $ 2,056,646,154(1)
Deutsche Bank Securities Inc. A-1 $ 45,211,445
00 Xxxx Xxxxxx, 00xx Xxxxx A-2A $ 49,623,467
New York, NY 10006 A-2B $ 529,335,014
A-3 $ 230,363,052
A-SB $ 80,369,671
A-4 $ 817,358,550
A-1A $ 495,617,357
A-MFX $ 295,250,698
A-J $ 290,661,024
B $ 20,469,184
C $ 45,032,304
D $ 28,656,560
E $ 20,469,184
F $ 24,562,624
XP $ 2,025,901,896(1)
LaSalle Financial Services, Inc. A-1 $ 0
00 Xxxx 00xx Xxxxxx A-2A $ 0
New York, New York 10055 A-2B $ 0
A-3 $ 0
A-SB $ 0
A-4 $ 0
A-1A $ 0
A-MFX $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
XP $ 0
Sch I-2
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
PNC Capital Markets LLC A-1 $ 0
One PNC Plaza A-2A $ 0
000 Xxxxx Xxxxxx A-2B $ 0
Pittsburgh, Pennsylvania 15222 A-3 $ 0
A-SB $ 0
A-4 $ 0
A-1A $ 0
A-MFX $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
XP $ 0
RBC Capital Markets Corporation A-1 $ 0
One Liberty Plaza A-2A $ 0
New York, NY 10006 A-2B $ 0
A-3 $ 0
A-SB $ 0
A-4 $ 90,000,000
A-1A $ 0
A-MFX $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
XP $ 0
_________________________
(1) Notional Amount.
Sch I-3
SCHEDULE II
The Underwriter Information in each of the Offering Prospectus and
the Prospectus Supplement consists of: (a) the first, fourth and fifth sentences
of the penultimate paragraph, and the entire last paragraph, above the
names/logos of the Underwriters on the cover page; and (b) the second sentence
of the first paragraph, the entire second paragraph, the first sentence of the
third paragraph, the first sentence of the fifth paragraph, the entire sixth
paragraph and the entire seventh paragraph under the heading "Method of
Distribution".
EXHIBIT A
FREE WRITING PROSPECTUSES
