FORM OF UNDERWRITING AGREEMENT
CAPMARK MORTGAGE SECURITIES INC.
$[ ](1)
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200[ ]-C[ ]
CLASS A-1, CLASS A-1D, CLASS A-1A, CLASS A-2, CLASS A-3, CLASS A-4, CLASS XP,
CLASS A-M, CLASS A-J, CLASS B, CLASS C, CLASS D AND CLASS E
[DATE]
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Capmark Securities Inc.
000 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Capmark Mortgage Securities Inc., a Delaware corporation (the "Company"),
proposes to sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), the respective classes of Mortgage Pass-Through Certificates,
Series 200[ ]-C[ ], that are identified on Schedule I, in each case, having the
initial aggregate stated principal amount (a "Class Principal Balance"), or with
respect to the Class XP Certificates, the initial aggregate notional principal
amount (the "Class Notional Amount"), and initial pass-through rate set forth on
Schedule I (such Certificates, the "Underwritten Certificates"). The Class A-1,
Class A-1D, Class A-1A, Class A-2, Class A-3, Class A-4, Class XP, Class A-M,
Class A-J, Class B, Class C, Class D and Class E Certificates, together with the
Class XP, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class R-I, Class R-II and Class R-III
Certificates issued therewith (collectively, the "Certificates"), will evidence
the entire interest in the Trust Fund (as defined in the Pooling and Servicing
Agreement referred to below) consisting primarily of a pool of multifamily and
commercial mortgage loans as described in the Prospectus Supplement (as
hereinafter defined) to be sold by the Company.
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement") to be dated as of [ ], 200[ ] among
the Company, as depositor, Capmark Finance Inc. ("Capmark Finance"), as master
servicer (in such capacity, the "Master Servicer") and serviced whole loan
paying agent, Capmark Finance, as special servicer (in such capacity, the
"Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). The
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(1) Includes original principal amounts only. The Class XP Certificates will
have an approximate original notional amount of $[ ].
Certificates are described in the Base Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to the
Underwriters.
Certain of the Mortgage Loans (the "Capmark Finance Mortgage Loans") will
be acquired by the Company from Capmark Finance pursuant to a mortgage loan
purchase agreement, dated as of [ ], 200[ ] (the "Capmark Finance Mortgage Loan
Purchase Agreement"), between the Company and Capmark Finance. Certain of the
Mortgage Loans (the "MSMC Mortgage Loans") will be acquired by the Company from
Xxxxxx Xxxxxxx Mortgage Capital, Inc. ("MSMC") pursuant to a mortgage loan
purchase agreement, dated as of [ ], 200[ ] (the "MSMC Mortgage Loan Purchase
Agreement"), between the Company and MSMC. Certain of the Mortgage Loans (the
"GACC Mortgage Loans") will be acquired by the Company from German American
Capital Corporation ("GACC") pursuant to a mortgage loan purchase agreement,
dated as of [ ], 200[ ] (the "GACC Mortgage Loan Purchase Agreement"),
between the Company and GACC.
The Capmark Finance Mortgage Loans, the MSMC Mortgage Loans and the GACC
Mortgage Loans together are referred to herein as the "Mortgage Loans" Capmark
Finance, MSMC and GACC are collectively referred to herein as the "Mortgage Loan
Sellers." The Capmark Finance Mortgage Loan Purchase Agreement, the MSMC
Mortgage Loan Purchase Agreement and the GACC Mortgage Loan Purchase Agreement
are collectively referred to herein as the "Purchase Agreements." The "Cut-off
Date" with respect to each Mortgage Loan shall be the due date for such Mortgage
Loan in [ ], 200[ ].
SECTION 1. Representations, Warranties, and Covenants.
SECTION 1.1 The Company represents and warrants to, and agrees with
the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-[ ])
on Form S-3 for the registration under the Securities Act of 1933, as
amended (the "Securities Act"), of Mortgage Pass-Through Certificates
(issuable in series), including the Certificates, which registration
statement has become effective, and a copy of which, as amended to the
date hereof, has heretofore been delivered to the Underwriters. The
Company proposes to file with the Commission pursuant to Rule 424(b)
under the rules and regulations of the Commission under the Securities
Act (the "Securities Act Regulations") a prospectus supplement (the
"Prospectus Supplement"), to supplement the prospectus dated [ ],
200[ ] (the "Base Prospectus"), relating to the Certificates and the
method of distribution thereof. Such registration statement (No.
333-[ ]) including exhibits thereto and any information incorporated
therein by reference, as amended at the date hereof, is hereinafter
called the "Registration Statement", and the Base Prospectus and the
Prospectus Supplement and any information incorporated therein by
reference (including, without limitation, and only for purposes of
clarification, any information filed with the Commission pursuant to a
Current Report on Form 8-K), together with any amendment thereof or
supplement thereto authorized by the Company on or prior to the
Closing Date for use in connection with the offering of the
Certificates, are hereinafter called the "Prospectus".
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(b) The Registration Statement has become effective, and the
Registration Statement as of the Effective Date (as defined in this
paragraph) and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable
requirements of the Securities Act and the Securities Act Regulations;
and the Registration Statement, as of the Effective Date, did not
contain any untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Issuer Free
Writing Prospectus (as defined herein) as of its date did not and at
all times prior to the date of the Prospectus Supplement did not, and
the Prospectus, as of the date of the Prospectus Supplement did not
and as of the Closing Date will not, contain an untrue statement of a
material fact and did not and will not 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,
however, that neither the Company nor Capmark Finance makes any
representations or warranties as to (i) any Underwriter Prepared
Issuer FWP except to the extent of any information therein that
constitutes Pool Information (as defined herein) or is Issuer
Information that is contained in, and was accurately extracted from,
the Issuer Free Writing Prospectus (provided, however, that the
Company makes no representation as to any such Issuer Information that
was extracted from the Issuer Free Writing Prospectus if the
Underwriter Prepared Issuer FWP omitted other material Issuer
Information from the Issuer Free Writing Prospectus that would have
corrected such error or omission) or (ii) any information contained in
or omitted from the Registration Statement, the Issuer Free Writing
Prospectus or the Prospectus or any amendment thereof or supplement
thereto that is Excluded Information (as defined herein); provided,
further, that neither the Company nor Capmark Finance makes any
representations or warranties as to any information contained in or
omitted from the portions of the Issuer Free Writing Prospectus or the
Prospectus identified by underlining or other highlighting as shown in
Exhibit B (the "Underwriter Information"); provided, further, that,
solely with respect to the sale of the Certificates under this
Agreement, neither the Company nor, except as contemplated by Section
1.2(a), Capmark Finance, makes any representations or warranties as to
any information contained in or omitted from the Issuer Free Writing
Prospectus or the Prospectus Supplement, or Annex A or Annex B to the
Issuer Free Writing Prospectus or the Prospectus Supplement, or the
Diskette, insofar as such information relates to (w) the Mortgage Loan
Sellers, (x) the Mortgage Loans, the [ ] Whole Loan, the [ ]
Whole Loan, the [ ] Whole Loan or [ ] Whole Loan (as defined in the
Prospectus Supplement) or the Mortgaged Properties related thereto,
(y) any intercreditor agreement(s) relating to the Mortgage Loans, the
[ ] Portfolio Whole Loan, the [ ] Whole Loan, the [ ] Whole
Loan or [ ] Whole Loan or (z) the [ ] Pooling and Servicing
Agreement (as defined in the Prospectus Supplement) (such information
described in the foregoing clauses (w), (x), (y) and (z), the
"Mortgage Loan Seller Information"), other than that the Mortgage Loan
Seller Information (exclusive of the Loan Detail (as defined herein)
and the information on the Diskette (as defined herein)) that
represents a restatement or aggregation of the information on the Loan
Detail, accurately reflects the information contained in the Loan
Detail; provided, further, that neither the Company nor
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Capmark Finance makes any representations or warranties with respect
to the Diskette or Term Sheet Diskette to the extent that the
information set forth in the Diskette is different than the
information set forth in the Loan Detail or the information set forth
in the Term Sheet Diskette is different than the information set forth
in the Term Sheet Master Tape. Neither the Company nor, except as
contemplated by Section 1.2(a), Capmark Finance makes any
representations or warranties, however, as to the accuracy or
completeness of any information in the Loan Detail. The Company
acknowledges that, except for the Term Sheet FWP, the Underwriter
Information constitutes the only information furnished in writing by
or on behalf of any Underwriter for use in connection with the
preparation of the Registration Statement, the Issuer Free Writing
Prospectus or the Prospectus, and the Underwriters confirm that the
Underwriter Information is correct. The "Effective Date" shall mean
the earlier of the date on which the Prospectus Supplement is first
used and the time of the first Contract of Sale (as defined herein).
The initial effective date of the Registration Statement was within
three (3) years of the Closing Date. If the third anniversary of the
initial effective date of the Registration Statement occurs within six
months after the Closing Date, the Company will use its best efforts
to take such action as may be necesssary or appropriate to permit the
public offering and sale of the Certificates as contemplated
hereunder.
(i) "ABS Informational and Computational Materials" shall
have the meaning given such term in Item 1101 of Regulation AB.
(ii) "Contract of Sale" has the same meaning as in Rule 159
of the Securities Act Regulations and all Commission guidance
relating to Rule 159.
(iii) "Diskette" shall mean the diskette attached to the
Prospectus.
(iv) "Excluded Information" shall mean, with respect to (x)
each of the Registration Statement, the Issuer Free Writing
Prospectus and the Prospectus, the information identified by
underlining or other highlighting as shown on Exhibit A, and (y)
each Underwriter Prepared Issuer FWP and each Underwriter FWP, all
information contained therein which is restated in, or is corrected
and superseded by, the Issuer Free Writing Prospectus.
(v) "Free Writing Prospectus" shall have the meaning given
such term in Rules 405 and 433 of the Securities Act Regulations.
(vi) "Issuer Free Writing Prospectus" shall mean the Free
Writing Prospectus dated [ ], 200[ ] entitled "Free Writing
Prospectus to Accompany Prospectus dated [ ], 200[ ]", as filed
with the Commission on [ ], 200[ ], as supplemented and superseded
in part by the Free Writing Prospectus entitled "CMBS: Capmark
200[ ]-C[ ] Updated Annex A" as filed on [ ], 200[ ] with the
Commission.
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(vii) "Issuer Information" shall mean any information of the
type specified in clauses (1) - (5) of footnote 271 of Commission
Release No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. Consistent with such definition,
"Issuer Information" shall not be deemed to include any information
in a Free Writing Prospectus solely by reason of the Company's
review of the materials pursuant to Section 4.4(e) below and,
consistent with Securities Offering Reform Questions and Answers,
November 30, 2005 promulgated by the staff of the Commission,
"Issuer Information" shall not be deemed to include any information
in a Free Writing Prospectus solely by reason that the Underwriters
have agreed not to use such Free Writing Prospectus without consent
of the Company.
(viii) "Loan Detail" means the information set forth on the
pages between A-[ ] and A-[ ], inclusive of Annex A to the
Prospectus Supplement.
(ix) "Pool Information" means the compilation of information
and data regarding the Mortgage Loans covered by the final Agreed
Upon Procedures Letter dated [ ], 200[ ] and rendered by Deloitte &
Touche, L.L.P.
(x) "Term Sheet Diskette" shall mean the diskette, if any,
attached to the Term Sheet FWP.
(xi) "Term Sheet FWP" shall mean the Free Writing Prospectus
entitled "Structural and Collateral Term Sheet" which appears as
Annex C to the Issuer Free Writing Prospectus.
(xii) "Term Sheet Master Tape" shall mean the tape provided by
Capmark Finance that was used to create the Term Sheet Diskette.
(xiii) "Underwriter Derived Information" shall refer to
information of the type described in clause (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform) when
prepared by the Underwriters, including traditional computational
and analytical materials prepared by the Underwriters.
(xiv) "Underwriter FWP" shall mean all Free Writing
Prospectuses prepared by or on behalf of the Underwriters other than
any Underwriter Prepared Issuer FWP.
(xv) "Underwriter Prepared Issuer FWP" shall mean the Term
Sheet FWP and any other Free Writing Prospectus prepared by or on
behalf of the Underwriters that contains any Issuer Information,
including any Free Writing Prospectus or portion thereof prepared by
or on behalf of the Underwriters that contains only a description of
the final terms of the Certificates or of the offering of the
Certificates.
(xvi) "Written Communication" shall have the meaning given
such term in Rule 405 of the Securities Act Regulations.
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(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has the requisite corporate power to own its
properties and to conduct its business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Underwriters, constitutes a valid, legal and
binding obligation of the Company, enforceable against the Company in
accordance with the terms hereof, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, (ii)
generally principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification
for securities laws liabilities.
(e) As of the Closing Date (as defined herein), the Certificates
will conform in all material respects to the description thereof
contained in the Prospectus and the representations and warranties of
the Company in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(f) The Company was not, as of any date on or after which a bona
fide offer (as used in Rule 164(h)(2) of the Securities Act
Regulations) of the Certificate is made, an Ineligible Issuer, as such
term is defined in Rule 405 of the Securities Act Regulations. The
Company shall comply with all applicable laws and regulations in
connection with the use of Free Writing Prospectuses, including but
not limited to Rules 164 and 433 of the Securities Act Regulations and
all Commission guidance relating to Free Writing Prospectuses,
including but not limited to Commission Release No. 33-8591.
SECTION 1.2 Capmark Finance represents and warrants to and agrees
with you that:
(a) the Closing Date, the representations and warranties of
Capmark Finance in the Pooling and Servicing Agreement and in Section
4(b) of the Capmark Finance Mortgage Loan Purchase Agreement will be
true and correct in all material respects.
(b) This Agreement has been duly authorized, executed and
delivered by Capmark Finance and, assuming the due authorization,
execution and delivery by the Underwriters, constitutes a valid, legal
and binding obligation of Capmark Finance, enforceable against Capmark
Finance in accordance with the terms hereof, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, (ii) general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws
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to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to
provide indemnification for securities laws liabilities.
SECTION 1.3 Each Underwriter represents and warrants to and agrees
with the Company and Capmark Finance that:
(a) With respect to each class of Underwritten Certificates, if
any, to be issued in authorized denominations of $25,000 or lesser
initial principal balance or evidencing percentage interests in such
class of less than 20%, as the case may be, the fair market value of
all such Underwritten Certificates sold to any single Person on the
date of initial sale thereof by such Underwriter will not be less than
$100,000.
(b) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder and all
Underwriter Prepared Issuer FWP, Underwriter FWP and Underwriter
Information is accurate in all material respects (taking into account
the assumptions explicitly set forth in such Underwriter Prepared
Issuer FWP and Underwriter FWP, except to the extent of any errors
therein that are caused by errors or omissions in the Pool
Information) and include all assumptions material to the preparation
thereof. The Term Sheet FWP and the other Underwriter Prepared Issuer
FWP, if any, provided by such Underwriter to the Company constitute a
complete set of all Underwriter Prepared Issuer FWP delivered by such
Underwriter to any prospective investors that are required to be filed
with the Commission.
(c) No Contract of Sale was entered into prior to [ ] a.m. on
[ ], 200[ ].
SECTION 1.4 Each Underwriter agrees with the Company and Capmark
Finance that it will cause the Person(s) acquiring the Residual
Certificates on the Closing Date, to execute and deliver, the Transfer
Affidavit and Agreement referred to in Section 5.02 of the Pooling and
Servicing Agreement, substantially in the form of Exhibit C-1 to the
Pooling and Servicing Agreement.
SECTION 2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, the actual principal
amounts (or with respect to the Class XP Certificates, the actual notional
principal amount) or percentage interests set forth in Schedule I hereto in the
respective classes of Underwritten Certificates at a price for each such class
set forth in Schedule I hereto. There will be added to the purchase prices of
the Underwritten Certificates an amount equal to interest accrued thereon from
[ ], 200[ ] to but not including the Closing Date.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Underwritten Certificates shall be made at the offices of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx XXX, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on
[ ], 200[ ] or such later date as the Underwriters shall designate, which
date and time may be postponed by agreement between the Underwriters and the
Company (such date and time of delivery and payment for the
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Underwritten Certificates being herein called the "Closing Date"). Delivery of
the Underwritten Certificates (also referred to herein as the "DTC Registered
Certificates") shall be made to the respective accounts of the Underwriters
through DTC, in each case against payment by the Underwriters to or upon the
order of each Mortgage Loan Seller by wire transfer in immediately available
funds of the amount that has been agreed to by each such Mortgage Loan Seller
and the Company (net of certain expenses, which will be paid by the Underwriters
on behalf of the Company). As a further condition to the delivery of the DTC
Registered Certificates, each Underwriter shall have furnished by telephonic
notice to the applicable Mortgage Loan Seller the federal reference number for
the related wire transfer to such Mortgage Loan Seller and shall have furnished
to the Company each such federal reference number as soon as practicable after
such federal reference number becomes available.
SECTION 4. Offering by Underwriters.
SECTION 4.1 It is understood that the Underwriters propose to offer
the Underwritten Certificates for sale to the public as set forth in the
Prospectus, and the Underwriters agree that all offers and sales by the
Underwriters shall be made in compliance with all applicable laws and
regulations. Prior to the date of the first Contract of Sale made based on
the Issuer Free Writing Prospectus, the Underwriters have not pledged,
sold, disposed of or otherwise transferred any Certificate or any interest
in any Certificate. It is further understood that the Company, in reliance
upon a no-filing letter from the Attorney General of the State of New York
granted pursuant to Policy Statement 105, has not 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 Underwritten Certificates. As
required by Policy Statement 105, each Underwriter therefore covenants and
agrees with the Company that sales of the Underwritten 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.
SECTION 4.2 It is understood that the Underwriters will solicit
offers to purchase the Certificates as follows:
(a) Prior to the time the Underwriters have received the Issuer
Free Writing Prospectus, the Underwriters may, in compliance with the
provisions of this Agreement, solicit offers to purchase Certificates;
provided, that the Underwriters shall not accept any such offer to
purchase a Certificate or any interest in any Certificate or otherwise
enter into any Contract of Sale for any Certificate or any interest in
any Certificate prior to its conveyance of the Issuer Free Writing
Prospectus to the investor.
(b) Any Written Communication relating to the Certificates made
by an Underwriter in compliance with the terms of this Agreement prior
to the time such Underwriter has entered into a Contract of Sale for
Certificates with the recipient shall prominently set forth the
following statements (or substantially similar statements approved by
the Company):
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The information in this free writing prospectus, if conveyed
prior to the time of your contractual commitment to purchase
any of the Certificates, supersedes any information
contained in any prior similar materials relating to the
Certificates. The information in this free writing
prospectus is preliminary, and is subject to completion or
change. This free writing prospectus is being delivered to
you solely to provide you with information about the
offering of the Certificates referred to in this free
writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any
of the Certificates, until we have accepted your offer to
purchase Certificates.
The Certificates referred to in these materials are being
sold when, as and if issued. The issuer is not obligated to
issue such Certificates or any similar security and the
underwriter's obligation to deliver such Certificates is
subject to the terms and conditions of the underwriting
agreement with the issuer and the availability of such
Certificates when, as and if issued by the issuer. You are
advised that the terms of the Certificates, and the
characteristics of the mortgage loan pool backing them, may
change (due, among other things, to the possibility that
mortgage loans that comprise the pool may become delinquent
or defaulted or may be removed or replaced and that similar
or different mortgage loans may be added to the pool, and
that one or more classes of Certificates may be split,
combined or eliminated), at any time prior to issuance or
availability of a final prospectus. You are advised that
Certificates may not be issued that have the characteristics
described in these materials. The underwriter's obligation
to sell such Certificates to you is conditioned on the
mortgage loans and Certificates having the characteristics
described in these materials. If for any reason the issuer
does not deliver such Certificates, the underwriter will
notify you, and neither the issuer nor any underwriter will
have any obligation to you to deliver all or any portion of
the Certificates which you have committed to purchase, and
none of the issuer nor any underwriter will be liable for
any costs or damages whatsoever arising from or related to
such non-delivery.
SECTION 4.3 It is understood that no Underwriter has entered into or
will enter into a Contract of Sale with any investor until the Issuer Free
Writing Prospectus has been conveyed to the investor with respect to the
Certificates which are the subject of such Contract of Sale.
SECTION 4.4 It is understood that the Underwriters may prepare and
provide to prospective investors certain Free Writing Prospectuses,
subject to the following conditions:
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(a) Unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the Act, the Underwriters shall
not convey or deliver any Written Communication to any person in
connection with the initial offering of the Certificates, unless such
Written Communication (i) is made in reliance on Rule 134 under the
Act, (ii) constitutes a prospectus satisfying the requirements of Rule
430B under the Act or (iii) constitutes a Free Writing Prospectus (as
defined in Section 1.1(b) above) consisting solely of (x) information
of a type included within the definition of ABS Informational and
Computational Materials or (y) information accurately extracted from
the Issuer Free Writing Prospectus and included in any Underwriter
Prepared Issuer FWP or any Underwriter FWP.
(b) The Underwriters shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses,
including but not limited to Rules 164 and 433 of the Securities Act
Regulations and all Commission guidance relating to Free Writing
Prospectuses, including but not limited to Commission Release No.
33-8591.
(c) It is understood and agreed that all information provided by
the Underwriters to or through Bloomberg or Intex or similar entities
for use by prospective investors, or imbedded in any CDI file provided
to prospective investors, or in any email or other electronic message
provided to prospective investors, to the extent constituting a Free
Writing Prospectus, shall be deemed for purposes of this Agreement to
be an Underwriter FWP or Underwriter Prepared Issuer FWP, as
applicable. In connection therewith, each Underwriter agrees that it
shall not provide any information constituting Issuer Information
through the foregoing media unless (i) such information is contained
either in the Issuer Free Writing Prospectus or an Underwriter
Prepared Issuer FWP in compliance with Section 4.4(e) or (ii) to the
extent such information consists of the terms of the Certificates, the
final version of the terms of the Certificates is contained either in
the Issuer Free Writing Prospectus or in an Underwriter Prepared
Issuer FWP in compliance with Section 4.4(e).
(d) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear a
legend including the following statement (or a substantially similar
statement approved by the Company):
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING
A PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION
(THE SEC) FOR THE OFFERING TO WHICH THIS COMMUNICATION
RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS
IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS THE
DEPOSITOR HAS FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE DEPOSITOR AND THE OFFERING. YOU MAY
GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON THE
SEC WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE DEPOSITOR,
ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
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OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS AT NO
CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE 1-
8[XX-XXX-XXXX] OR VIA EMAIL AT ______________.
Each of the Company and the Underwriters shall have the right to
request additional specific legends or notations to appear on any Free
Writing Prospectus and shall have the right to require changes
regarding the use of terminology and the right to determine the types
of information appearing therein with the approval of the other (which
shall not be unreasonably withheld).
(e) The Underwriters shall deliver to the Company and its
counsel (in such format as reasonably required by the Company), prior
to the proposed date of first use thereof (unless such timing
requirement is waived by the Company), any Underwriter Prepared Issuer
FWP. To facilitate filing to the extent required by Section 5.10 or
5.11, as applicable, all Underwriter Derived Information shall be set
forth in a document separate from any Underwriter Prepared Issuer FWP
including Issuer Information. Notwithstanding the foregoing, the
Underwriters shall not be required to deliver an Underwriter Prepared
Issuer FWP to the extent that it does not contain substantive changes
from or additions to any Underwriter Prepared Issuer FWP previously
approved by the Company. In the event that the Underwriters use any
Underwriter Prepared Issuer FWP without complying with the foregoing
requirements, that Underwriter Prepared Issuer FWP shall be deemed to
be an Underwriter FWP for purposes of Section 7.1 and 7.2.
(f) The Underwriters shall provide the Company with a letter
from Deloitte & Touche LLP, certified public accountants, prior to the
Closing Date, satisfactory in form and substance to the Company,
Capmark Finance and their respective counsels and the Underwriters, to
the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Company and the
Underwriters, as a result of which they determined that certain
information of an accounting, financial or statistical nature that is
included in any Underwriter Prepared Issuer FWP, other than any Pool
Information therein, is accurate except as to such matters that are
not deemed by the Company and the Underwriters to be material. The
foregoing letter shall be at the expense of the Underwriters.
(g) None of the information in any Free Writing Prospectus may
conflict with the information then contained in the Registration
Statement or any prospectus or prospectus supplement that is a part
thereof.
(h) The Company shall not be obligated to file any Issuer Free
Writing Prospectus that has been determined to contain any material
error or omission unless such Issuer Free Writing Prospectus has been
provided to a prospective investor, in which case, the Underwriters
shall cooperate with the Company to prepare a corrective Issuer Free
Writing Prospectus that the Underwriters will provide to any such
prospective investor and the Company shall file to the extent required
herein. In
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the event that the Underwriters become aware that, as of the date on
which an investor entered into a Contract of Sale, any Free Writing
Prospectus prepared by or on behalf of the Underwriters and delivered
to such investor contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under
which they were made, not misleading (such Free Writing Prospectus, a
"Defective Free Writing Prospectus"), the Underwriters shall notify
the Company thereof as soon as practical but in any event within one
business day after discovery.
(i) If the Underwriters do not provide any Free Writing
Prospectuses to the Company pursuant to subsection (e) above, the
Underwriters shall be deemed to have represented, as of the Closing
Date, that they did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Certificates that would constitute an Underwriter
Prepared Issuer FWP.
(j) In the event of any delay in the delivery by the
Underwriters to the Company of any Underwriter Prepared Issuer FWP
required to be delivered in accordance with subsection (e) above, or
in the delivery of the accountant's comfort letter in respect thereof
pursuant to subsection (f) above, the Company shall have the right to
delay the release of the Prospectus to investors or to the
Underwriters, to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the Company to
comply with its agreement set forth in Section 5.10 to file such
Underwriter Prepared Issuer FWP by the time specified therein.
(k) Each Underwriter represents that it has in place, and
covenants that it shall maintain, internal controls and procedures
which it reasonably believes to be sufficient to ensure full
compliance with all applicable legal requirements of the Securities
Act Regulations with respect to the generation and use of Free Writing
Prospectuses in connection with the offering of the Certificates. In
addition, each Underwriter shall, for a period of at least three years
after the date hereof, maintain written and/or electronic records of
the following:
(i) any Free Writing Prospectus used by the Underwriter to
solicit offers to purchase Certificates to the extent not filed with
the Commission;
(ii) regarding each Free Writing Prospectus delivered by the
Underwriter to an investor, the date of such delivery and identity
of such investor; and
(iii) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of
such Contract of Sale, as set forth in the related confirmation of
trade.
(l) Each Underwriter covenants with the Company that after the
final Prospectus is available the Underwriter shall not distribute any
written information concerning the Certificates to a prospective
investor unless such information is
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preceded or accompanied by the final Prospectus. It is understood and
agreed that the use of written information in accordance with the
preceding sentence is not a Free Writing Prospectus and is not
otherwise restricted or governed in any way by this Agreement.
SECTION 4.5 Each Underwriter further agrees that, on or prior to the
sixth day after the Closing Date, it shall provide the Company with a
certificate, substantially in the form of Exhibit C attached hereto,
setting forth (i) in the case of each class of Underwritten Certificates,
(a) if less than 10% of the aggregate actual principal balance of such
class of Underwritten Certificates has been sold to the public as of such
date, the value calculated pursuant to clause (b)(iii) of Exhibit C
hereto, or (b) if 10% or more of such class of Underwritten Certificates
has been sold to the public as of such date but no single price is paid
for at least 10% of the aggregate actual principal balance of such class
of Underwritten Certificates, then the weighted average price at which the
Underwritten Certificates of such class were sold expressed as a
percentage of the aggregate actual principal balance of such class of
Underwritten Certificates sold, or (c) the first single price at which at
least 10% of the aggregate actual principal balance of such class of
Underwritten Certificates was sold to the public, (ii) the prepayment
assumption used in pricing each class of Underwritten Certificates, and
(iii) such other information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting requirements
with respect to each class of Underwritten Certificates to the extent such
information can in the good faith judgment of such Underwriter be
determined by it.
SECTION 4.6 Each Underwriter agrees that (i) if the Prospectus is
not delivered with the confirmation in reliance on Rule 172, it will
include in every confirmation sent out the notice required by Rule 173
informing the investor that the sale was made pursuant to the Registration
Statement and that the investor may request a copy of the Prospectus from
the Underwriter; (ii) if a paper copy of the Prospectus is requested by a
person who receives a confirmation, the Underwriter shall deliver a
printed or paper copy of such Prospectus; and (iii) if an electronic copy
of the Prospectus is delivered by the Underwriter for any purpose, such
copy shall be the same electronic file containing the Prospectus in the
identical form transmitted electronically to the Underwriter by or on
behalf of the Company specifically for use by the Underwriter pursuant to
this Section 4.6; for example, if the Prospectus is delivered to the
Underwriter by or on behalf of the Company in a single electronic file in
pdf format, then the Underwriter will deliver the electronic copy of the
Prospectus in the same single electronic file in pdf format. Each
Underwriter further agrees that (i) if it delivers to an investor the
Prospectus in pdf format, upon the Underwriter's receipt of a request from
the investor within the period for which delivery of the Prospectus is
required, the Underwriter will promptly deliver or cause to be delivered
to the investor, without charge, a paper copy of the Prospectus and (ii)
it will provide to the Company any Underwriter Prepared Issuer FWP, or
portions thereof, which the Company is required to file with the
Commission in electronic format and will use reasonable efforts to provide
to the Company such Underwriter Prepared Issuer FWP, or portions thereof,
in either Microsoft Word(R) or Microsoft Excel(R) format and not in a pdf,
except to the extent that the Company, in its sole discretion, waives such
requirements.
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SECTION 5. Agreements. The Company agrees with the several Underwriters
that:
SECTION 5.1 Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Underwritten Certificates,
the Company will furnish the Underwriters with a copy of each such
proposed amendment or supplement.
SECTION 5.2 The Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424(b) under the
Securities Act by means reasonably calculated to result in filing with the
Commission pursuant to said rule.
SECTION 5.3 If, during the period after the first date of the public
offering of the Underwritten Certificates in which a prospectus relating
to the Underwritten Certificates is required to be delivered under the
Securities Act, any event occurs as a result of which it is necessary to
amend or supplement the Prospectus, as then amended or supplemented, in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply with
the Securities Act or the Securities Act Regulations, the Company promptly
will prepare and furnish, at its own expense, to the Underwriters, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
SECTION 5.4 If the Company or the Underwriters determine or become
aware that any Written Communication (including without limitation the
Issuer Free Writing Prospectus) or oral statement (when considered in
conjunction with all information conveyed at the time of Contract of Sale)
contains an untrue statement of material fact or omits to state a material
fact necessary to make the statements, in light of the circumstances under
which they were made, not misleading at the time that a Contract of Sale
was entered into, either the Company or the Underwriters may prepare
corrective information with notice to the other parties, and the
Underwriters shall deliver such information in a manner reasonably
acceptable to both parties, to any person with whom a Contract of Sale was
entered into, and such information shall provide any such person with the
following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(c) Adequate disclosure of the new information that is necessary
to correct the misstatements or omissions in the information given at
the time of the original Contract of Sale; and
(d) A meaningful ability to elect to terminate or not terminate
the prior Contract of Sale and to elect to enter into or not enter
into a new Contract of Sale.
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Any costs incurred to the investor in connection with any such termination or
reformation shall be subject to Sections 7.1 and 7.2, as applicable.
SECTION 5.5 The Company will furnish to the Underwriters, without
charge, a copy of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus by an underwriter or dealer may
be required by the Securities Act, as many copies of the Prospectus, any
documents incorporated by reference therein, and any amendments and
supplements thereto as the Underwriters may reasonably request; provided,
however, that if the Prospectus is not delivered with the confirmation in
reliance on Rule 172, the Underwriters will provide the notice specified
in Section 4.6 in every confirmation and will deliver a paper copy of the
prospectus to those investors that request a paper copy thereof.
SECTION 5.6 The Company agrees, so long as the Underwritten
Certificates shall be outstanding, or until such time as the several
Underwriters shall cease to maintain a secondary market in the
Certificates, whichever first occurs, to deliver to the Underwriters the
annual statement as to compliance delivered to the Company and the Trustee
pursuant to Section 12.07 of the Pooling and Servicing Agreement and the
annual attestation of a firm of independent public accountants furnished
to the Company and the Trustee pursuant to Section 12.09 of the Pooling
and Servicing Agreement, as soon as such statements are furnished to the
Company.
SECTION 5.7 The Company will endeavor to arrange for the
qualification of the Underwritten Certificates for sale under the laws of
such jurisdictions as the Underwriters may reasonably designate and will
maintain such qualification in effect so long as required for the initial
distribution of the Underwritten Certificates; provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
SECTION 5.8 Except as herein provided, the several Underwriters
shall be responsible only for paying all costs and expenses incurred by
them, including the fees and disbursements of their counsel, in connection
with the purchase and sale of the Underwritten Certificates.
SECTION 5.9 If, during the period after the Closing Date in which a
prospectus relating to the Underwritten Certificates is required to be
delivered under the Securities Act, the Company receives notice that a
stop order suspending the effectiveness of the Registration Statement or
preventing the offer and sale of the Underwritten Certificates is in
effect, the Company will advise the Underwriters of the issuance of such
stop order.
SECTION 5.10 The Company shall file the Issuer Free Writing
Prospectus, and any Underwriter Prepared Issuer FWP provided to it by the
Underwriters under Section 4.4, not later than the date of first use
thereof, except that:
(a) the Issuer Free Writing Prospectus or Underwriter Prepared
Issuer FWP or portion thereof otherwise required to be filed that
contains only (1) a
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description of the final terms of the Certificates may be filed by the
Company within two days of the later of the date such final terms have
been established for all classes of Certificates and the date of first
use, and (2) a description of the terms of the Certificates that does
not reflect the final terms after they have been established for all
classes of all Certificates is not required to be filed; and
(b) if the Issuer Free Writing Prospectus or Underwriter
Prepared Issuer FWP includes only information of a type included in
the definition of ABS Informational and Computational Materials, the
Company shall file the same within the later of two business days
after the Underwriters first provide this information to investors and
the date upon which the Company is required to file the Prospectus
Supplement with the Commission pursuant to Rule 424(b)(3) of the Act.
provided further, that prior to the filing of any Underwriter Prepared
Issuer FWP by the Company, the Underwriters must comply with their
obligations pursuant to Section 4.4 and that the Company shall not be
required to file any Free Writing Prospectus to the extent such Free
Writing Prospectus includes information in a Free Writing Prospectus
or Prospectus previously filed with the Commission or that does not
contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
SECTION 5.11 The Underwriters shall file any Underwriter FWP that
has been distributed by the Underwriters in a manner reasonably designed
to lead to its broad, unrestricted dissemination within the later of two
business days after the Underwriters first provide this information to
investors and the date upon which the Company is required to file the
Prospectus Supplement with the Commission pursuant to Rule 424(b)(3) of
the Act or otherwise as required under Rule 433 of the Act; provided,
however, that the Underwriters shall not be required to file any
Underwriter FWP to the extent such Underwriter FWP includes information in
a Free Writing Prospectus or Prospectus previously filed with the
Commission or that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
SECTION 5.12 The Company acknowledges and agrees that each
Underwriter is acting solely in the capacity of an arm's length
contractual counterparty to the Company with respect to the offering of
securities contemplated hereby (including in connection with determining
the terms of the offering) and not as a financial advisor or a fiduciary
to, or an agent of, the Company or any other person. Additionally, none of
the Underwriters is advising the Company or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning
such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and
the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the
transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters
and shall not be on behalf of the Company.
-16-
SECTION 6. Conditions to the Obligations of the Underwriters. The
Underwriters' obligation to purchase the Underwritten Certificates shall be
subject to the following conditions:
SECTION 6.1 No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that
purpose shall be pending or, to the knowledge of the Company, threatened
by the Commission; and the Prospectus Supplement shall have been filed or
transmitted for filing, by means reasonably calculated to result in a
filing with the Commission pursuant to Rule 424(b) as applicable under the
Securities Act.
SECTION 6.2 Since [ ], 200[ ], there shall have been no material
adverse change (not in the ordinary course of business) in the condition
of the Company or Capmark Finance.
SECTION 6.3 The Company shall have delivered to the Underwriters a
certificate, dated the Closing Date, of the President, a Senior Vice
President or a Vice President of the Company to the effect that the signer
of such certificate has examined this Agreement, the Issuer Free Writing
Prospectus, the Prospectus, the Pooling and Servicing Agreement and
various other closing documents, and that, to the best of his or her
knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and
correct in all material respects; and
(b) the Company has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date.
SECTION 6.4 Capmark Finance shall have delivered to the Underwriters
a certificate, dated the Closing Date, of the President, a Senior Vice
President or a Vice President of Capmark Finance to the effect that the
signer of such certificate has examined the Pooling and Servicing
Agreement and this Agreement and that, to the best of his or her knowledge
after reasonable investigation, the representations and warranties of
Capmark Finance contained in the Pooling and Servicing Agreement and in
this Agreement are true and correct in all material respects.
SECTION 6.5 The Underwriters shall have received the opinions of
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Company and
Capmark Finance, dated the Closing Date as to such matters reasonably
requested by the Underwriters, the opinion of Xxxxxxxxx Xxx, Esq.,
associate counsel for the Company and Capmark Finance dated the Closing
Date, as to such matters reasonably requested by the Underwriters.
SECTION 6.6 The Underwriters shall have received from their counsel
an opinion dated the Closing Date in form and substance reasonably
satisfactory to the Underwriters.
-17-
SECTION 6.7 The Underwriters shall have received from Deloitte &
Touche, L.L.P., certified public accountants, (a) a letter dated the date
hereof and reasonably satisfactory in form and substance to the
Underwriters and their counsel, to the effect that they have performed
certain specified procedures, all of which have been agreed to by you, as
a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Issuer Free
Writing Prospectus and the Prospectus Supplement, in each case under the
captions "Description of the Mortgage Pool," "Description of the
Certificates" and "Yield and Maturity Considerations", agrees with the
records of the Company and the Mortgage Loan Sellers excluding any
questions of legal interpretation and (b) the letter prepared pursuant to
Section 4.4(e) hereof.
SECTION 6.8 The respective classes of Underwritten Certificates
shall have been rated as set forth on Schedule I.
SECTION 6.9 The Underwriters shall have received, with respect to
the Trustee, a favorable opinion of counsel, dated the Closing Date,
addressing the valid existence 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 and, subject
to standard limitations regarding laws affecting creditors' rights and
general principles of equity, the enforceability of the Pooling and
Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on representations and warranties made by,
and on certificates or other documents furnished by officers and/or
authorized representatives of, parties to this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials.
Such opinion may assume the due authorization, execution and delivery of
the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered.
Such opinion may be qualified as an opinion only on the laws of each state
in which the writer of the opinion is admitted to practice law and the
federal law of the United States.
SECTION 6.10 The Underwriters shall have received from Xxxxxx,
Xxxxxxxxxx & Sutcliffe LLP, special counsel to the Company, and from
Xxxxxxxxx Xxx, associate counsel, to the Company, reliance letters with
respect to any opinions delivered to the rating agencies identified on
Schedule I hereto.
SECTION 6.11 The Underwriters shall have received from counsel to
each Mortgage Loan Seller, the opinions substantially to the effect set
forth in Section 8(e) and (f) of each Mortgage Loan Seller's respective
Mortgage Loan Purchase Agreement.
SECTION 6.12 The Company will furnish the Underwriters with
conformed copies of the above opinions, certificates, letters and
documents as they reasonably request.
SECTION 7. Indemnification and Contribution.
SECTION 7.1 The Company and Capmark Finance, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if
any, who controls
-18-
such Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Securities Exchange Act of 1934 (the "Exchange
Act"), from and against any and all losses, claims, damages and
liabilities (i) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement for the
registration of the Underwritten Certificates as originally filed or in
any amendment thereof or other filing incorporated by reference therein,
or in the Prospectus or incorporated by reference therein (if used within
the period set forth in Section 5.3 hereof and as amended or supplemented
if the Company shall have furnished any amendments or supplements
thereto), or in the Diskette or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading or (ii) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Issuer Free Writing Prospectus, or any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or
(iii) caused by any untrue statement of a material fact or alleged untrue
statement of a material fact contained in any Underwriter Prepared Issuer
FWP or any Underwriter FWP or any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading that was
in either case caused by any error or omission in the Pool Information or
in Issuer Information that is contained in the Issuer Free Writing
Prospectus, except, in the case of clauses (ii) and (iii), insofar as such
losses, claims, damages, or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
any information with respect to which the Underwriters have agreed to
indemnify the Company pursuant to Section 7.2; provided that the Company
and Capmark Finance will be liable for any such loss, claim, damage or
liability that arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
relating to the Mortgage Loan Seller Information or Pool Information only
if and to the extent that (i) any such untrue statement is with respect to
information regarding the Capmark Finance Mortgage Loans contained in the
Loan Detail or, to the extent consistent with the Loan Detail, the
Diskette or (ii) any such untrue statement or alleged untrue statement or
omission or alleged omission is with respect to information regarding any
or all of the Mortgage Loan Sellers, any or all of the Mortgage Loans or
any or all of the Mortgaged Properties related thereto contained in any
Underwriter Prepared Issuer FWP, the Issuer Free Writing Prospectus or the
Prospectus Supplement (exclusive of the Loan Detail) (provided that with
respect to information set forth in Annex B specifically attributed to any
appraisal for the related Mortgaged Property, only if such information is
misstated in Annex B), and such information represents a restatement or
aggregation of information contained in the Loan Detail, or (iii) any such
untrue statement or alleged untrue statement or omission or alleged
omission is with respect to information regarding Capmark Finance, the
Capmark Finance Mortgage Loans, the Seven Springs Village Whole Loan or
any or all of the Mortgaged Properties related thereto contained in an
Underwriter Prepared Issuer FWP, the Issuer Free Writing Prospectus or the
Prospectus Supplement (exclusive of the Loan Detail) (provided that with
respect to information set forth in Annex B specifically attributed to any
appraisal for the related Mortgaged Property, only if such information is
-19-
misstated in Annex B), and such information does not represent a
restatement or aggregation of information contained in the Loan Detail;
and provided that none of the Company, Capmark Finance or any Underwriter
will be liable in any case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
relating to the Excluded Information.
SECTION 7.2 Each Underwriter agrees, severally and not jointly to
indemnify and hold harmless the Company, Capmark Finance, their respective
directors or officers and any person who controls the Company or Capmark
Finance within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (i) caused by any untrue statement or
alleged untrue statement of material fact contained in the Underwriter
Information, or any omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, (ii) caused by any untrue statement or alleged
untrue statement of material fact contained in any Underwriter FWP, or any
omission or alleged omission to state therein a material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, (iii) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Underwriter
Prepared Issuer FWP, or any omission or alleged omission to state therein
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (iv)
resulting from the Underwriter's failure to comply with Section 4.3 or
failure to file any Underwriter FWP required to be filed in accordance
with Section 5.11; provided, however, that the indemnification set forth
in clauses (ii) and (iii) of this Section 7.2 shall not apply to the
extent of any error or omission in any Underwriter FWP or Underwriter
Prepared Issuer FWP that was caused by any error or omission in (x) any
Pool Information, (y) the Term Sheet Master Tape or (z) Issuer Information
that is contained in, and was accurately extracted from, the Issuer Free
Writing Prospectus, unless such error or omission was corrected in the
Issuer Free Writing Prospectus (it also being expressly understood and
agreed that the indemnification set forth in clauses (ii) and (iii) of
this Section 7.2 shall apply if the Underwriter FWP or Underwriter
Prepared Issuer FWP omitted other material Issuer Information from the
Issuer Free Writing Prospectus that would have corrected such error or
omission); provided, further, that none of the Company, Capmark Finance or
the Underwriters will be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein relating to the Excluded Information. In addition,
the Underwriters agree to indemnify and hold harmless the Company, Capmark
Finance, their respective directors or officers and any person controlling
the Company or Capmark Finance against any and all losses, claims,
damages, liabilities and expenses (including, without limitation,
reasonable attorneys' fees) caused by, resulting from, relating to, or
based upon any legend regarding original issue discount on any Certificate
resulting from incorrect information provided by the Underwriters in the
certificates described in Section 4.5 hereof.
-20-
SECTION 7.3 In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 7.1 or 7.2, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm for all such indemnified parties. Such firm shall be
designated in writing by the Underwriters, in the case of parties
indemnified pursuant to Section 7.1, and by the Company or Capmark
Finance, in the case of parties indemnified pursuant to Section 7.2. The
indemnifying party may, at its option, at any time upon written notice to
the indemnified party, assume the defense of any proceeding and may
designate counsel reasonably satisfactory to the indemnified party in
connection therewith; provided, the counsel so designated would have no
actual or potential conflict of interest in connection with such
representation. Unless it shall assume the defense of any proceeding the
indemnifying party shall not be liable for any settlement of any
proceeding, effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. If
the indemnifying party assumes the defense of any proceeding, it shall be
entitled to settle such proceeding with the consent of the indemnified
party or, if such settlement provides for release of the indemnified party
in connection with all matters relating to the proceeding which have been
asserted against the indemnified party in such proceeding by the other
parties to such settlement, without the consent of the indemnified party.
SECTION 7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect not only the
relative benefits received by the Company and Capmark Finance on the one
hand and any of the Underwriters, on the other from the offering of the
Underwritten Certificates but also the relative fault of the Company and
Capmark Finance on the one hand and any of the Underwriters, on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages, or liabilities, as well as any other relevant
equitable
-21-
considerations. The relative fault of the Company and Capmark Finance, on
the one hand and of any of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or Capmark Finance or by an Underwriter, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
SECTION 7.5 The Company, Capmark Finance and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of
allocation which does not take account of the considerations referred to
in Section 7.4 above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages and liabilities referred to in
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 Section 7.4, which expenses the indemnifying
party shall pay as and when incurred, at the request of the indemnified
party, to the extent that the indemnifying party believes that it will be
ultimately obligated to pay such expenses. In the event that any expenses
so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
received such payment shall promptly refund the amount so paid to the
party which made such payment. 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.
SECTION 7.6 The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Company and
Capmark Finance in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of an Underwriter or any person
controlling an Underwriter or by or on behalf of the Company or Capmark
Finance and their respective directors or officers or any person
controlling the Company or Capmark Finance and (iii) acceptance of and
payment for any of the Underwritten Certificates.
SECTION 8. Termination. This Agreement shall be subject to termination by
notice given to the Company and Capmark Finance, if the sale of the Underwritten
Certificates provided for herein is not consummated because of any failure or
refusal on the part of the Company or Capmark Finance to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the
Company or Capmark Finance shall be unable to perform their respective
obligations under this Agreement. If the Underwriters terminate this Agreement
in accordance with this Section 8, the Company or Capmark Finance will reimburse
the Underwriters for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
the Underwriters in connection with the proposed purchase and sale of the
Underwritten Certificates.
-22-
SECTION 9. Default by an Underwriter. If any Underwriter shall fail to
purchase and pay for any of the Underwritten 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 to take up and pay for the
Underwritten Certificates that the defaulting Underwriter agreed but failed to
purchase; provided, however, that in the event that the initial principal amount
(or with respect to the Class XP Certificates, the initial aggregate notional
principal amount) of Underwritten Certificates that the defaulting Underwriter
agreed but failed to purchase shall exceed 10% of the aggregate principal
balance of all of the Underwritten Certificates set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Underwritten Certificates, and
if such nondefaulting Underwriters do not purchase all of the Underwritten
Certificates, this Agreement will terminate without liability to the
nondefaulting Underwriters, the Company or Capmark Finance. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date for
the Underwritten Certificates shall be postponed for such period, not exceeding
seven days, as the nondefaulting Underwriters shall determine in order that the
required changes in the Registration Statement, the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and to any nondefaulting Underwriter for damages occasioned by its
default hereunder.
SECTION 10. Certain Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities, and other
statements of the Company, Capmark Finance, the Underwriters, or the officers of
any of the Company, Capmark Finance and the Underwriters set forth in or made
pursuant to this Agreement, will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter or made by or on behalf of the Company or Capmark Finance or
any of their respective officers, directors or controlling persons, and will
survive delivery of and payment for the Underwritten Certificates.
SECTION 11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of the Underwriters, will be
mailed, delivered or telegraphed and confirmed to each Representative at the
following address: Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxx; Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: XX Xxxxxx, telecopy number (212)
761-0748, with a copy to Xxxxxxxx Xxxxx, Esq., at 0000 Xxxxxx xx xxx Xxxxxxxx,
0xx Xxxxx, Xxx Xxxx, XX 00000, telecopy number (000) 000-0000; Capmark
Securities Inc., c/x Xxxxxx Financial Services, 000 Xxxxxxxxx Xxxxx Xxxxxxxxx,
Xxxxx X, Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000, Attn: Structured Finance Group; or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention:
Structured Finance Manager with a copy to the General Counsel, Capmark Finance
Inc.; or, if sent to Capmark Finance, will be mailed, delivered or telegraphed
and confirmed to it at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000,
Attention: Structured Finance Manager with a copy to the General Counsel,
Capmark Finance Inc..
SECTION 11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and
-23-
controlling persons referred to in Section 7 hereof, and their successors and
assigns, and no other person will have any right or obligation hereunder.
SECTION 12. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK.
SECTION 13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
[SIGNATURES FOLLOW]
-24-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, Capmark Finance and the Underwriters.
Very truly yours,
CAPMARK MORTGAGE SECURITIES INC.
By: _________________________
Name: Xxxxx Xxxxxxx
Title: Vice President
CAPMARK FINANCE INC.
By: _________________________
Name: Xxxxx Xxxxxxx:
Title: Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
XXXXXX XXXXXXX & CO.
INCORPORATED
By: _________________________
Name:
Title:
CAPMARK SECURITIES INC.
By: _________________________
Name:
Title:
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to,
collectively, the registration statement No. 333-[ ] filed by Capmark
Mortgage Securities Inc. on Form S-3 and declared effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES
Mortgage Pass-Through Certificates, Series 200[ ]-C[ ], Class A-1, Class A-1D,
Class A-1A, Class A-2, Class A-3, Class A-4, Class XP, Class A-M, Class A-J,
Class B, Class C, Class D and Class E
Underwriters: Deutsche Bank Securities Inc. ("Deutsche"), Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx") and Capmark Securities Inc. ("Capmark Securities").
Underwriting Agreement, dated [ ], 200[ ]
Cut-off Date: The due date of any Mortgage Loan in [ ], 200[ ]
Allocations: Subject to the terms and conditions of the Underwriting Agreement,
each Underwriter has agreed to purchase the percentage of each class of
Certificates as set forth below:
ALLOCATION TABLE
---------------------------------------------------------------------------------------------------------------------
CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS CLASS
UNDERWRITER A-1 X-0X X-0X X-0 X-0 X-0 XX A-M A-J B C D E
---------------------------------------------------------------------------------------------------------------------
Deutsche % % % % % % % % % % % % %
---------------------------------------------------------------------------------------------------------------------
Xxxxxx % % % % % % % % % % % % %
---------------------------------------------------------------------------------------------------------------------
Capmark
Securities % % % % % % % % % % % % %
---------------------------------------------------------------------------------------------------------------------
Total 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
---------------------------------------------------------------------------------------------------------------------
I-1
--------------------------------------------------------------------------------
INITIAL CLASS
CLASS PRINCIPAL INITIAL PASS- PURCHASE RATINGS
DESIGNATION BALANCE(1) THROUGH RATE PRICE(2) FITCH/S&P
--------------------------------------------------------------------------------
A-1 $[ ] [ ]%(3) [ ] AAA/AAA
--------------------------------------------------------------------------------
A-1D $[ ] [ ]%(3) [ ] AAA/AAA
--------------------------------------------------------------------------------
A-1A $[ ] [ ]%(5) [ ] AAA/AAA
--------------------------------------------------------------------------------
A-2 $[ ] [ ]%(3) [ ] AAA/AAA
--------------------------------------------------------------------------------
A-3 $[ ] [ ]%(3) [ ] AAA/AAA
--------------------------------------------------------------------------------
A-4 $[ ] [ ]%(5) [ ] AAA/AAA
--------------------------------------------------------------------------------
XP $[ ] [ ]%(4) [ ] AAA/AAA
--------------------------------------------------------------------------------
A-M $[ ] [ ]%(5) [ ] AAA/AAA
--------------------------------------------------------------------------------
A-J $[ ] [ ]%(5) [ ] AAA/AAA
--------------------------------------------------------------------------------
B $[ ] [ ]%(5) [ ] AA/AA
--------------------------------------------------------------------------------
C $[ ] [ ]%(6) [ ] AA-/AA
--------------------------------------------------------------------------------
D $[ ] [ ]%(6) [ ] A+/A+
--------------------------------------------------------------------------------
E $[ ] [ ]%(6) [ ] A/A
--------------------------------------------------------------------------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance of the
relevant class of Certificates to be purchased hereunder. In addition, as to
each such class of Certificates, the Underwriters will pay Capmark Mortgage
Securities Inc. accrued interest at the initial Pass-Through Rate therefor from
[ ], 200[ ] to, but not including, the Closing Date.
(3) The Pass Through Rate is the specified fixed rate.
(4) The Class XP Certificates will not have a Certificate Balance and
will accrue interest on the Notional Amount (as defined herein) thereof at a
variable rate based on the Weighted Average Net Mortgage Rate.
(5) Initial Pass Through Rate. The Pass Through Rate is the lesser of
the specified fixed rate and the Weighted Average Net Mortgage Rate.
(6) Initial Pass Through Rate. The Pass Through Rate is equal to the
Weighted Average Net Mortgage Rate minus a specified fixed rate.
Closing Time, Date and Location: 10:00 a.m. New York City time on [ ],
200[ ] at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP. 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 (a) in the
case of the $25,000 and in any whole dollar denomination in excess thereof.
I-2
EXHIBIT A
EXCLUDED INFORMATION OF PROSPECTUS SUPPLEMENT
(All circled text and tables are excluded)
A-1
EXHIBIT B
UNDERWRITER INFORMATION
(All circled text and tables are excluded)
B-1
EXHIBIT C
[ ], 200[ ]
Capmark Mortgage Securities Inc.
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Re: Capmark Mortgage Securities Inc.,
Mortgage Pass-Through Certificates, Series 200[ ]-C[ ]
Pursuant to Section 4.3 of the Underwriting Agreement, dated [ ], 200[ ]
(the "Underwriting Agreement"), among Capmark Mortgage Securities Inc., Capmark
Finance Inc., Deutsche Bank Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated
and Capmark Securities Inc., each an underwriter set forth therein (collectively
the "Underwriters") relating to the Certificates referenced above, each of the
undersigned does hereby certify that:
The prepayment assumption used in pricing the Certificates was 0% CPR
except for the Class XP which were priced at 100% CPR assuming the clean up call
is exercised.
With respect to each class of Certificates, set forth below is (i), the
first price at which 10% of the aggregate actual principal balance of each such
class of Certificates and the notional balance of the Class XP Certificates was
sold to the public at a single price, if applicable, or (ii) if more than 10% of
a class of Certificates have been sold to the public but no single price is paid
for at least 10% of the aggregate actual principal balance of such class of
Certificates, then the weighted average price at which the Certificates of such
class were sold expressed as a percentage of the actual principal balance of
such class of Certificates, or (iii) if less than 10% of the aggregate actual
principal balance of a class of Certificates has been sold to the public, the
purchase price for each such class of Certificates paid by the Underwriters
expressed as a percentage of the actual principal balance of such class of
Certificates calculated by: (1) estimating the fair market value of each such
class of Certificates as of [ ], 200[ ]; (2) adding such estimated fair market
value to the aggregate purchase price of each class of Certificates described in
clause (i) or (ii) above; (3) dividing each of the fair market values determined
in clause (1) by the sum obtained in clause (2); (4) multiplying the quotient
obtained for each class of Certificates in clause (3) by the purchase price paid
by the Underwriters for all the Certificates; and (5) for each class of
Certificates, dividing the product obtained from such class of Certificates in
clause (4) by the original actual principal balance of such class of
Certificates:
Class A-1: [ ]
Class A-1D: [ ]
Class A-1A: [ ]
Class A-2: [ ]
Class A-3: [ ]
Class A-4: [ ]
Class XP: [ ]
Class A-M: [ ]
C-1
Class A-J [ ]
Class B: [ ]
Class C: [ ]
Class D: [ ]
Class E: [ ]
C-2
The prices set forth above do not include accrued interest with respect to
periods before closing.
DEUTSCHE BANK SECURITIES INC.
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By: _________________________
Name:
Title:
CAPMARK SECURITIES INC.
By: _________________________
Name:
Title:
