RBS COMMERCIAL MORTGAGE TRUST [ ] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES [ ] UNDERWRITING AGREEMENT
EXHIBIT 1.1
RBS COMMERCIAL MORTGAGE TRUST [ ]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES [ ]
[ ]
RBS SECURITIES INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[ ]
Ladies and Gentlemen:
RBS Commercial Funding, Inc., a Delaware corporation (the “Depositor”), intends to issue its RBS Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series [ ] (the “Certificates”), in [ ] classes (each, a “Class”) as designated in the Prospectus Supplement (as defined below). Pursuant to this underwriting agreement (the “Agreement”), the Depositor further proposes to sell to RBS Securities Inc. (“RBS Securities”), and [ ] (“[ ]”, and each of RBS Securities, and [ ], individually, an “Underwriter” and, collectively, the “Underwriters”) the Certificates set forth in Schedule I hereto (the “Underwritten Certificates”) in the respective original principal amounts set forth in Schedule I. The Certificates represent in the aggregate the entire beneficial ownership interest in a trust fund (the “Trust Fund”) consisting of a segregated pool (the “Mortgage Pool”) of [ ] mortgage loans (the “Mortgage Loans”) having an approximate aggregate principal balance of $[ ] as of the Cut-off Date secured by first liens on certain fee or leasehold interests in commercial, multifamily and manufactured housing community properties (the “Mortgaged Properties”). The Certificates will be issued on [ ] (the “Closing Date”), pursuant to a pooling and servicing agreement (the “Pooling and Servicing Agreement”), dated as of [ ], among the Depositor, [ ], as master servicer (in such capacity, the “Master Servicer”), [ ], as special servicer (the “Special Servicer”), [ ], as trust advisor (the “Trust Advisor”), [ ], as certificate administrator, tax administrator, certificate registrar and custodian (in such capacity, the “Certificate Administrator”), and [ ], as trustee (the “Trustee”).
The Mortgage Loans will be purchased by the Depositor [(i) from The Royal Bank of Scotland plc (“RBS”) on the Closing Date pursuant to a Mortgage Loan Purchase Agreement (the “RBS Mortgage Loan Purchase Agreement”), dated as of [ ], between RBS and the Depositor,] [(ii) from RBS Financial Products Inc. (“RBSFP”) on the Closing Date pursuant to a Mortgage Loan Purchase Agreement (the “RBSFP Mortgage Loan Purchase Agreement”), dated as of [ ], between RBSFP and the Depositor and (ii) from [ ] (“[ ]” and, together with RBS, RBSFP, the “Mortgage Loan Sellers”) on the Closing Date pursuant to a Mortgage Loan Purchase Agreement (the “[ ] Mortgage Loan Purchase Agreement” and, together with the RBS Mortgage Loan Purchase Agreement and the RBSFP
Mortgage Loan Purchase Agreement, the “Mortgage Loan Purchase Agreements”), dated as of [ ], between [ ] and the Depositor.
[Two] real estate mortgage investment conduit (“REMIC”) elections will be made with respect to certain portions of the Trust Fund for federal income tax purposes. The Underwritten Certificates and the Mortgage Pool are described more fully in a registration statement furnished to you by the Depositor.
The Certificates not being sold pursuant to this Agreement (the “Non-Registered Certificates”) will be sold by the Depositor to RBS Securities Inc. [and [______]] (collectively in such capacity, the “Initial Purchasers”) pursuant to a certificate purchase agreement, dated the date hereof (the “Certificate Purchase Agreement”), by and among the Depositor and the Initial Purchasers. The Initial Purchasers will offer the Non-Registered Certificates for sale in transactions exempt from the registration requirements of the Securities Act of 1933, as amended (the “1933 Act”).
The Underwriters and the Initial Purchasers are collectively referred to herein as the “Dealers”.
In connection with the transaction contemplated by this Agreement, each of the Mortgage Loan Sellers will enter into an indemnification agreement, dated as of the date hereof (each, an “Indemnification Agreement”), among such Mortgage Loan Seller, the Depositor and the Dealers, providing for indemnification by such Mortgage Loan Seller of the Dealers in accordance with the terms thereof with respect to the Mortgage Loans sold to the Depositor by such Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement. In addition, in connection with the transaction contemplated by this Agreement, each of the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee and the Trust Advisor (each, a “Service Provider”) will enter into an indemnification agreement, dated as of the date hereof (each, a “Service Provider Indemnification Agreement”), among such Service Provider, the Depositor and the Dealers.
Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.
1. Representations and Warranties. (a) The Depositor represents and warrants to, and agrees with, each Underwriter that:
(i) The Depositor has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (No. 333-177891) on Form S-3 for the registration of Commercial Mortgage Pass-Through Certificates, issuable in series, including the Underwritten Certificates, under the 1933 Act, which registration statement has become effective and a copy of which, as amended to the date hereof, has heretofore been delivered to you. The Depositor meets the requirements for use of Form S-3 under the 1933 Act, and such registration statement, as amended at the date hereof, meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and complies in all other material respects with the 1933 Act and the rules and regulations thereunder. The Depositor proposes to file with the Commission, with your consent, pursuant to Rule
-2-
424 under the 1933 Act, a supplement dated [ ] (the “Prospectus Supplement”) to the prospectus dated [ ] (the “Base Prospectus”), relating to the Underwritten Certificates and the method of distribution thereof, and has previously advised you of all further information (financial and other) with respect to the Underwritten Certificates and the Mortgage Pool to be set forth therein. Such registration statement (No. 333-177891), including all exhibits thereto, is referred to herein as the “Registration Statement”; and the Base Prospectus and the Prospectus Supplement, together with any amendment thereof or supplement thereto authorized by the Depositor prior to the Closing Date for use in connection with the offering of the Underwritten Certificates, are hereinafter called the “Prospectus”. As used herein, “Pool Information” means the mortgage pool information reflected in the Master Tapes and the Prospectus Supplement. “Master Tapes” shall mean the respective compilations of information and data regarding the Mortgage Loans covered by the Independent Accountants’ Reports on Applying Agreed-Upon Procedures dated [ ] and [ ], respectively, rendered by [ ] described in Section 6(h)(ii) of this Agreement.
(ii) As of the date hereof, as of the Time of Sale, as of the date on which the Prospectus Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the date on which, prior to the Closing Date, any amendment to the Registration Statement becomes effective, as of the date on which any supplement to the Prospectus Supplement is filed with the Commission, and as of the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, complies and will comply in all material respects with the applicable requirements of the 1933 Act and the rules and regulations thereunder, (ii) the Registration Statement, as amended as of any such time, does not include and will not include any untrue statement of a material fact and does not omit and will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, and (iii) the Prospectus, as amended or supplemented as of any such time, does not include and will not include any untrue statement of a material fact and does not omit and will not omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Depositor makes no representations or warranties as to (x) statements contained in or omitted from the Registration Statement or the Prospectus or any amendment or supplement thereto made in reliance upon and in conformity with information furnished in writing to the Depositor by or on behalf of any Underwriter specifically for use in the Registration Statement or the Prospectus (such information being identified in Section 8(b) hereof), (y) the Mortgage Loan Seller Covered Information (as defined in Section 8 hereof), or (z) any information with respect to which any of the Master Servicer (the “Master Servicer Covered Information”), the Special Servicer (the “Special Servicer Covered Information”), the Certificate Administrator (the “Certificate Administrator Covered Information”), the Trust Advisor (the “Trust Advisor Covered Information”) or the Trustee (the “Trustee Covered Information”) provides indemnification pursuant to the related Service Provider Indemnification Agreement.
(iii) The Depositor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with
-3-
corporate power and authority to own, lease or operate its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement and the Pooling and Servicing Agreement; and the Depositor is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business.
(iv) As of the date hereof, as of the date on which the Prospectus Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the date on which, prior to the Closing Date, any amendment to the Registration Statement becomes effective, as of the date on which any supplement to the Prospectus Supplement is filed with the Commission, and as of the Closing Date, there has not and will not have been (i) any request by the Commission for any further amendment to the Registration Statement or the Prospectus or for any additional information, (ii) any issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threat of any proceeding for that purpose or (iii) any notification with respect to the suspension of the qualification of the Underwritten Certificates for sale in any jurisdiction or any initiation or threat of any proceeding for such purpose.
(v) Each of this Agreement, the Pooling and Servicing Agreement and each Mortgage Loan Purchase Agreement has been duly authorized, executed and delivered by the Depositor and each of this Agreement, the Pooling and Servicing Agreement, and each Mortgage Loan Purchase Agreement constitutes legal, valid and binding agreements of the Depositor, enforceable against the Depositor in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of the rights of creditors generally, (ii) general principles of equity, whether enforcement is sought in a proceeding in equity or at law, and (iii) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement, the Pooling and Servicing Agreement or any Mortgage Loan Purchase Agreement that purport to provide indemnification from securities law liabilities.
(vi) As of the Closing Date, the Underwritten Certificates, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements will conform in all material respects to the respective descriptions thereof contained in the Prospectus. As of the Closing Date, the Underwritten Certificates will be duly and validly authorized and, when delivered in accordance with the Pooling and Servicing Agreement to you against payment therefor as provided herein, will be duly and validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
(vii) The Depositor 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 be material to the Depositor or which violation or default would have a material adverse affect on the performance of its obligations under this Agreement, the Pooling and Servicing Agreement or any Mortgage Loan
-4-
Purchase Agreement. Neither the issuance and sale of the Underwritten Certificates, nor the execution and delivery by the Depositor of this Agreement, any Mortgage Loan Purchase Agreement or the Pooling and Servicing Agreement nor the consummation by the Depositor of any of the transactions herein or therein contemplated, nor compliance by the Depositor with the provisions hereof or thereof, did, does or will conflict with or result in a breach of any term or provision of the certificate of incorporation or by-laws of the Depositor or conflict with, result in a breach, violation or acceleration of, or constitute a default (or an event which, with the passing of time or notification, or both, would constitute a default) under, the terms of any indenture or other agreement or instrument to which the Depositor is a party or by which it or any material asset is bound, or any statute, order or regulation applicable to the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor.
(viii) There is no action, suit or proceeding against the Depositor pending, or, to the knowledge of the Depositor, threatened, before any court, arbitrator, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, any Mortgage Loan Purchase Agreement or the Underwritten Certificates, (ii) seeking to prevent the issuance of the Underwritten Certificates or the consummation of any of the transactions contemplated by this Agreement, (iii) that might materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, the Pooling and Servicing Agreement, any Mortgage Loan Purchase Agreement or the Underwritten Certificates or (iv) seeking to affect adversely the federal income tax attributes of the Underwritten Certificates as described in the Prospectus.
(ix) There are no contracts, indentures or other documents of a character required by the 1933 Act or by the rules and regulations thereunder to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described or referred to therein or so filed or incorporated by reference as exhibits thereto.
(x) No authorization, approval or consent of any court or governmental authority or agency is necessary in connection with the offering or sale of the Underwritten Certificates pursuant to this Agreement, except such as have been, or as of the Closing Date will have been, obtained or such as may otherwise be required under applicable state securities laws in connection with the purchase and offer and sale of the Underwritten Certificates by the Underwriters and any recordation of the respective assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing Agreement that have not been completed.
(xi) The Depositor possesses all material licenses, certificates, authorities or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, and the Depositor has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, authority or permit which, singly or in the aggregate, if the subject of any unfavorable decision, ruling or finding, would materially
-5-
and adversely affect the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Depositor.
(xii) Any taxes, fees and other governmental charges in connection with the execution and delivery of this Agreement and the delivery and sale of the Underwritten Certificates (other than such federal, state and local taxes as may be payable on the income or gain recognized therefrom) have been or will be paid at or prior to the Closing Date.
(xiii) Neither the Depositor nor the Trust Fund is, and neither the sale of the Underwritten Certificates in the manner contemplated by the Prospectus nor the activities of the Trust Fund pursuant to the Pooling and Servicing Agreement will cause the Depositor or the Trust Fund 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”).
(xiv) Under generally accepted accounting principles (“GAAP”) and for federal income tax purposes, the Depositor reported the transfer of the Mortgage Loans to the Trustee in exchange for the Certificates and will report the sale of the Underwritten Certificates to the Underwriters pursuant to this Agreement as a sale of the interests in the Mortgage Loans evidenced by the Underwritten Certificates. The consideration received by the Depositor upon the sale of the Underwritten Certificates to the Underwriters will constitute reasonably equivalent value and fair consideration for the Underwritten Certificates. The Depositor will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Underwritten Certificates to the Underwriters. In addition, the Depositor was solvent at all relevant times prior to, and was not rendered insolvent by, the transfer of the Mortgage Loans to the Trustee on behalf of the Trust Fund. The Depositor is not selling the Underwritten Certificates to the Underwriters and did not transfer the Mortgage Loans to the Trustee on behalf of the Trust Fund with any intent to hinder, delay or defraud any of the creditors of the Depositor.
(xv) At the Closing Date, the respective classes of Underwritten Certificates listed on Schedule I hereto shall have been assigned ratings no lower than those set forth in the Time of Sale Information by the nationally recognized statistical rating organizations retained to provide such ratings (the “Rating Agencies”), and such ratings shall not have been placed on negative credit watch or negative review by such Rating Agency.
(xvi) The Depositor is not, and on the date on which the initial bona fide offer of the Underwritten Certificates is made will not be, an “ineligible issuer,” as defined in Rule 405 under the 1933 Act.
(xvii) At or prior to the time when sales to investors of the Underwritten Certificates were first made as determined in accordance with Rule 159 of the 1933 Act (the “Time of Sale”), the Depositor had prepared the following information (collectively, the “Time of Sale Information”): (A) the Free Writing Prospectus
-6-
designated as the Structural and Collateral Term Sheet, dated [ ], relating to the Underwritten Certificates (the “Term Sheet”), (B) the Free Writing Prospectus, dated [ ], relating to the Underwritten Certificates (together with all exhibits and appendices thereto, the “Preliminary FWP”), (C) any and all other Free Writing Prospectuses relating to the Underwritten Certificates, and (D) any and all ABS Informational and Computational Materials. For the purposes of the foregoing, “Free Writing Prospectus” shall mean a “free writing prospectus” as defined pursuant to Rule 405 under the 1933 Act, “ABS Informational and Computational Material” shall mean “ABS informational and computational material,” as defined in Item 1101(a) of Regulation AB under the 1933 Act and “Regulation AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518 (Dec. 22, 2004), 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)), or by the staff of the Commission or as may be provided by the Commission or its staff from time to time. If, subsequent to the date of this Agreement, the Depositor and the Underwriters have determined that such information included an untrue statement of material fact or omitted 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 and have terminated their old purchase contracts and entered into new purchase contracts with purchasers of the Underwritten Certificates, then “Time of Sale Information” will refer to the information available to purchasers at the time of entry into the first such new purchase contract, including any information that corrects such material misstatements or omissions (“Corrective Information”).
(xviii) 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 the Depositor makes no representation and warranty with respect to (x) any statements or omissions relating to any Underwriter made in reliance upon and in conformity with information furnished to the Depositor in writing by or on behalf of such Underwriter specifically for use in the Time of Sale Information, (y) any Mortgage Loan Seller Covered Information in such Time of Sale Information or (z) any Master Servicer Covered Information, Special Servicer Covered Information, Certificate Administrator Covered Information, Trust Advisor Covered Information or Trustee Covered Information.
(xix) Other than the Prospectus, the Depositor (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 prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) that constitutes an offer to sell or solicitation of an offer to buy the Underwritten Certificates other than (i) the Term Sheet and the Preliminary FWP (the Term Sheet, the Preliminary FWP and each such communication by the Depositor or its agents and representatives that constitutes an “issuer free writing prospectus”, as defined in Rule 433(h) under the 1933 Act (other than a communication referred to in clause (ii) below), an “Issuer Free Writing Prospectus”), (ii) any document not constituting a
-7-
prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act or (iii) the documents listed on Annex B hereto and other written communication approved in writing in advance by an Underwriter. Each such Issuer Free Writing Prospectus complied in all material respects with the 1933 Act, has been filed in accordance with Section 4(b)(iv) (to the extent required thereby) and, did not at the Time of Sale, 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 the Depositor makes no representation and warranty with respect to (x) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Depositor in writing by any Underwriter expressly for use in any Issuer Free Writing Prospectus, (y) any Mortgage Loan Seller Covered Information in any Issuer Free Writing Prospectus or (z) any Master Servicer Covered Information, Special Servicer Covered Information, Certificate Administrator Covered Information, Trust Advisor Covered Information or Trustee Covered Information in any Issuer Free Writing Prospectus.
(xx) The Depositor has executed and delivered a written representation (the “17g-5 Representation”) to each Rating Agency that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (D) of Rule 17g-5 of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the Depositor has complied with each such representation, other than any breach of the 17g-5 Representation (a) that would not have a material adverse effect on the Certificates or (b) arising from a breach by any of the Underwriters of the representation, warranty and agreement set forth in Section 4(b)(xv).
(b) Each Underwriter represents and warrants to and covenants with the Depositor that:
(i) as of the date hereof and as of the Closing Date, such Underwriter has complied with all of its obligations under Section 4 hereof;
(ii) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Underwritten Certificates to the public in that Relevant Member State other than:
(A) to any legal entity which is a “qualified investor” as defined in the Prospectus Directive;
(B) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than “qualified investors” as defined in the Prospectus Directive) subject to obtaining the prior consent of the Depositor; or
-8-
(C) in any other circumstances falling within Article 3(2) of the Prospectus Directive,
provided, that no such offer of the Underwritten Certificates referred to in clauses (A) to (C) above shall require the Depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, (1) the expression “an offer of the Underwritten Certificates to the public” in relation to any Underwritten 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 Underwritten Certificates so as to enable an investor to decide to purchase or subscribe the Underwritten Certificates, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, (2) the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including by the 2010 PD Amending Directive to the extent implemented in each Relevant Member State) and includes any relevant implementing measure in each Relevant Member State, and (3) the expression “2010 PD Amending Directive” means Directive 2010/73/EU. “European Economic Area” means Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and United Kingdom; and
(iii) (A) it has, in the United Kingdom, only communicated or caused to be communicated and will, in the United Kingdom, only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (the “FSMA”)) received by it in connection with the issue or sale of any Underwritten Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Depositor or the Issuing Entity;
(B) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Certificates in, from or otherwise involving the United Kingdom.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein, the Depositor agrees to sell to the Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the Depositor, at the applicable purchase prices set forth in Schedule I hereto, the respective principal amounts of the Underwritten Certificates set forth opposite the name of each Underwriter set forth in Schedule I, and any additional portions of the Underwritten Certificates that any such Underwriter may be obligated to purchase pursuant to Section 10 hereof, in all cases plus accrued interest as set forth in Schedule I.
3. Delivery and Payment. Delivery of and payment for the Underwritten Certificates shall be made in the manner, at the location(s), on the Closing Date at the time specified in Schedule I hereto (or such later date not later than ten business days after such specified date as you shall designate), which date and time may be changed by agreement
-9-
between you and the Depositor or as provided in Section 10 hereof. Delivery of the Underwritten Certificates shall be made either directly to you or through the facilities of The Depository Trust Company (“DTC”), as specified in Schedule I hereto, for the respective accounts of the Underwriters against payment by the respective Underwriters of the purchase price therefor in immediately available funds wired to such bank as may be designated by the Depositor, or such other manner of payment as may be agreed upon by the Depositor and you. Any Class of Underwritten Certificates to be delivered through the facilities of DTC shall be represented by one or more global Certificates registered in the name of Cede & Co., as nominee of DTC, which global Certificate(s) shall be placed in the custody of DTC not later than [10:00 a.m.] (New York City time) on the Closing Date pursuant to a custodial arrangement to be entered into between the Trustee or its agent and DTC. Unless delivered through the facilities of DTC, the Underwritten Certificates shall be in fully registered certificated form, in such denominations and registered in such names as you may have requested in writing not less than one full business day in advance of the Closing Date.
The Depositor agrees to have the Underwritten Certificates, including the global Certificates representing the Underwritten Certificates to be delivered through the facilities of DTC, available for inspection, checking and, if applicable, packaging by you not later than [10:00 a.m.] New York City time on the last business day prior to the Closing Date.
References herein to actions taken or to be taken following the Closing Date with respect to any Underwritten Certificates that are to be delivered through the facilities of DTC shall include, if the context so permits, actions taken or to be taken with respect to the interests in such Certificates as reflected on the books and records of DTC.
4. Offering by Underwriters; Free Writing Prospectuses. (a) It is understood that the Underwriters propose to offer the Underwritten Certificates for sale to the public, as set forth in the Prospectus Supplement.
(b) In connection with the offering of the Underwritten Certificates, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses (as defined below), or portions thereof, which the Depositor is required to file with the Commission in electronic format and will use reasonable efforts to provide to the Depositor such Free Writing Prospectuses, or portions thereof, in either Microsoft Word® or Microsoft Excel® format and not in a PDF, except to the extent that the Depositor, in its sole discretion, waives such requirements, subject to the following conditions (to which such conditions each Underwriter agrees (provided that no Underwriter is responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the 1933 Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Underwritten Certificates, unless such written communication (1) is made in reliance on Rule 134 under the 1933 Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the 1933 Act or (3) constitutes a Free Writing Prospectus. The Underwriter shall not convey or deliver in connection with the initial offering of the
-10-
Underwritten Certificates any ABS Informational and Computational Material in reliance upon Rules 167 and 426 under the 1933 Act.
(ii) The Underwriter shall deliver to the Depositor, no later than two business days prior to the date of first use thereof, (a) any Underwriter Free Writing Prospectus that contains any “issuer information,” as defined in Rule 433(h) under the 1933 Act (“Issuer Information”) (which the parties hereto agree includes, without limitation, Mortgage Loan Seller Covered Information), and (b) any Free Writing Prospectus or portion thereof that contains only a description of the final terms of the Underwritten Certificates. Notwithstanding the foregoing, any Free Writing Prospectus that contains only ABS Informational and Computational Materials may be delivered by the Underwriter to the Depositor 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 1933 Act or (b) the date of first use of such Free Writing Prospectus.
(iii) The Underwriter represents and warrants to the Depositor that the Free Writing Prospectuses to be furnished to the Depositor by the Underwriter pursuant to Section 4(b)(ii) will constitute all Free Writing Prospectuses of the type described therein that were furnished to prospective investors by the Underwriter in connection with its offer and sale of the Underwritten Certificates.
(iv) The Underwriter represents and warrants to the Depositor that each Free Writing Prospectus required to be provided by it to the Depositor pursuant to Section 4(b)(ii), when viewed together with all other Time of Sale Information, did not, as of the Time of Sale, and will not as of the Closing Date, include any untrue statement of a material fact, when viewed in connection with all other prospectuses delivered to such investor on or prior to the Time of Sale, or omit any material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Underwriter makes no representation to the extent such misstatements or omissions were the result of any inaccurate Issuer Information supplied by the Depositor or any Mortgage Loan Seller to the Underwriter, which information was not corrected by Corrective Information subsequently supplied by the Depositor or any Mortgage Loan Seller to the Underwriter prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus to the extent required to be filed with the Commission by Rule 433 under the 1933 Act;
(B) Any Free Writing Prospectus or portion thereof delivered by the Underwriter to the Depositor pursuant to Section 4(b)(ii); and
(C) Any Free Writing Prospectus for which the Depositor or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with
-11-
the Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications.
(vi) Any Free Writing Prospectus required to be filed pursuant to Section 4(b)(v) by the Depositor shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof required to be filed that contains only the description of the final terms of the Underwritten Certificates shall be filed by the Depositor with the Commission within two days of the later of the date such final terms have been established for all classes of Underwritten Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material shall be filed by the Depositor with the Commission not later than the later of the due date for filing the final Prospectus relating to the Underwritten Certificates pursuant to Rule 424(b) under the 1933 Act or two business days after the first use of such Free Writing Prospectus;
(C) Any Free Writing Prospectus required to be filed pursuant to Section 4(b)(v)(C) shall, if no payment has been made or consideration has been given by or on behalf of the Depositor for the Free Writing Prospectus or its dissemination, be filed by the Depositor with the Commission not later than four business days after the Depositor becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus; and
(D) The Depositor shall not be required to file (1) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Depositor, 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 Underwritten Certificates, or (2) any Free Writing Prospectus or portion thereof that contains a description of the Underwritten Certificates or the offering of the Underwritten Certificates which does not reflect the final terms thereof.
(vii) The Underwriter shall file with the Commission any Free Writing Prospectus that is used or referred to by it and distributed by or on behalf of the 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.
(viii) Notwithstanding the provisions of Section 4(b)(vii), the Underwriter shall file with the Commission any Free Writing Prospectus for which the 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 the Depositor or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for
-12-
which no payment was made or consideration given by or on behalf of the Depositor or any other offering participant, not later than four business days after the Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v) and 4(b)(vii), neither the Depositor nor the Underwriter shall be required to file any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(x) The Depositor and the Underwriter each 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 Securities and Exchange Commission (“SEC”) (SEC File No. 333-177891) for the offering to which this communication relates. Before you invest, you should read the prospectus in the 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 ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the depositor, any underwriter, or any dealer participating in the offering will arrange to send you the prospectus after filing if you request it by calling toll free [ ] or by emailing [ ].
(xi) The Depositor and the Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Underwritten Certificates.
(xii) In the event that the Depositor becomes aware that, as of the Time of Sale, any Issuer Free Writing Prospectus contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (a “Defective Issuer Free Writing Prospectus”), the Depositor shall immediately notify the Underwriters thereof and the Depositor 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”).
(A) In the event that an Underwriter becomes aware that, with respect to any purchaser of an Underwritten Certificate, as of the Time of Sale, any Issuer Information contained in any Underwriter Free Writing Prospectus and delivered to such purchaser was not correctly reflected in such Underwriter Free Writing Prospectus such that it caused the Underwriter Free Writing Prospectus to contain any
-13-
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (such Free Writing Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall notify the Depositor and each other Underwriter thereof within one business day after discovery.
(B) Each Underwriter shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (such corrected Free Writing Prospectus, together with a Corrected Issuer Free Writing Prospectus, a “Corrected Free Writing Prospectus”);
(2) deliver the Corrected Free Writing Prospectus to each purchaser of an Underwritten Certificate which received the Defective Free Writing Prospectus prior to entering into an agreement to purchase any Underwritten Certificates;
(3) if after the Time of Sale, notify such purchaser in a prominent fashion that the prior agreement to purchase Certificates has been terminated, and of the purchaser’s rights as a result of termination of such agreement;
(4) if after the Time of Sale, provide such purchaser with an opportunity to affirmatively agree to purchase the Underwritten Certificates on the terms described in the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for reformation of the original contract of sale described in Section IV.A.2.c of the Commission’s Securities Offering Reform Release No. 33-8591.
(C) With respect to this clause (xii), each Underwriter agrees that if the Depositor requests that an Underwriter prepare a Corrected Free Writing Prospectus with respect to a Defective Free Writing Prospectus that another Underwriter prepared, such other Underwriter will prepare the Corrected Free Writing Prospectus and will deliver the Corrected Free Writing Prospectus to the Depositor and each Underwriter so that each Underwriter may contact its respective purchasers.
(D) To the extent any Defective Free Writing Prospectus was defective as a result of incorrect Issuer Information being delivered to an Underwriter, the Depositor shall provide such corrected Issuer Information upon request from such Underwriter. The Depositor shall also notify the other Underwriters of such incorrect Issuer Information, to the extent it is provided notice hereunder.
(xiii) Each Underwriter covenants with the Depositor that after the final Prospectus is available the Underwriter shall not distribute any written
-14-
information concerning the Underwritten Certificates that contains any Issuer Information to a prospective purchaser of an Underwritten Certificate unless such information is preceded or accompanied by the final Prospectus.
(xiv) Each Underwriter further represents and warrants that it has offered and sold Underwritten Certificates only to, or directed at, persons who:
(A) are outside the United Kingdom;
(B) have professional experience in participating in unregulated collective investment schemes; or
(C) are persons falling within Article 22(2)(a) through (d) of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (Promotion of Collective Investment Schemes)(Exemptions) Order 2001.
(xv) Each Underwriter further represents and warrants that (x) it has not provided, as of the date of this Agreement, and covenants with the Depositor that it will not provide, on or prior to the Closing Date, to any Rating Agency or other “nationally recognized statistical rating organization” (within the meaning of the 1934 Act), any information, written or oral, relating to the Trust Fund, the Certificates, the Mortgage Loans, the transactions contemplated by this Agreement or the Pooling and Servicing Agreement or any other information, that could be reasonably determined to be relevant to determining an initial credit rating for the Certificates (as contemplated by Rule 17g-5(a)(3)(iii)(C) under the 1934 Act), without the prior consent of the Depositor, and (y) covenants with the Depositor that it will not provide to any Rating Agency or other “nationally recognized statistical rating organization” (within the meaning of the 1934 Act), any information, written or oral, relating to the Trust Fund, the Certificates, the Mortgage Loans, the transactions contemplated by this Agreement or the Pooling and Servicing Agreement or any other information, that could be reasonably determined to be relevant to undertaking credit rating surveillance for the Certificates (as contemplated by Rule 17g-5(a)(iii)(3)(D) under the 1934 Act), without the prior consent of the Depositor.
5. Covenants of the Depositor. The Depositor covenants and agrees with the Underwriters that:
(a) The Depositor will not file any amendment to the Registration Statement (other than by reason of Rule 429 under the ▇▇▇▇ ▇▇▇) or any supplement to the Base Prospectus relating to or affecting the Underwritten Certificates, unless the Depositor has furnished a copy to you for your review a reasonable time prior to filing, and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Depositor will cause the Prospectus Supplement to be transmitted to the Commission for filing pursuant to Rule 424 under the 1933 Act or will cause the Prospectus Supplement to be filed with the Commission pursuant to said Rule 424. The Depositor promptly will advise you or counsel for the Underwriters (i) when the Prospectus Supplement shall have been filed or transmitted to the Commission for filing pursuant to Rule 424, (ii) when any amendment to the Registration Statement shall have become effective, (iii) of any request by the
-15-
Commission to amend the Registration Statement or supplement the Prospectus Supplement or for any additional information in respect of the offering contemplated hereby, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto which shall have become effective on or prior to the Closing Date or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Depositor of any notification with respect to the suspension of the qualification of the Underwritten Certificates for sale in any jurisdiction or the institution or threatening of any proceeding for that purpose. The Depositor will use its best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Underwritten Certificates is required to be delivered under the 1933 Act, 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 any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the 1933 Act or the rules and regulations thereunder, the Depositor promptly will prepare and file with the Commission, at the expense of the Depositor, subject to paragraph (a) of this Section 5, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance and, if such amendment or supplement is required to be contained in a post-effective amendment to the Registration Statement, the Depositor will use its best efforts to cause such amendment to the Registration Statement to be made effective as soon as possible.
(c) The Depositor will furnish to you and to counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date, and, upon request, to each other Underwriter, each Issuer Free Writing Prospectus, a copy of the Registration Statement (without exhibits thereto) and each such amendment and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the 1933 Act, as many copies of the Preliminary FWP, the Prospectus Supplement and the Base Prospectus and any amendments and supplements thereto as you may reasonably request.
(d) The Depositor will furnish such information, execute such instruments and take such action, if any, as may be required to qualify the Underwritten Certificates for sale under the laws of such jurisdictions as you may designate and will maintain such qualifications in effect so long as required for the distribution of the Underwritten Certificates; provided, however, that the Depositor shall not be required to qualify to do business in any jurisdiction where it is not now 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 subject to such service of process.
(e) The Depositor will pay, or cause to be paid, all costs and expenses in connection with the transactions herein contemplated, including, but not limited to, the fees and disbursements of its counsel; the costs and expenses of printing (or otherwise reproducing) and delivering the Pooling and Servicing Agreement and the Underwritten Certificates; the fees and disbursements of accountants for the Depositor; the reasonable out of pocket costs and expenses in connection with the qualification or exemption of the Underwritten Certificates
-16-
under state securities or “Blue Sky” laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith, in connection with the preparation of any “Blue Sky” survey and in connection with any determination of the eligibility of the Underwritten Certificates for investment by institutional investors and the preparation of any legal investment survey; the expenses of printing any such “Blue Sky” survey and legal investment survey; the cost and expenses in connection with the preparation, printing and filing of the Registration Statement (including exhibits thereto), the Base Prospectus, the Preliminary FWP and the Prospectus Supplement, the preparation and printing of this Agreement and the delivery to the Underwriters of such copies of the Base Prospectus, the Preliminary FWP and Prospectus Supplement as you may reasonably request; the fees of the Rating Agencies that we hire to rate the Underwritten Certificates; and the reasonable fees and disbursements of counsel to the Underwriters.
(f) To the extent that the Pooling and Servicing Agreement provides that the Underwriters are to receive any notices or reports, or have any other rights thereunder, the Depositor will enforce the rights of the Underwriters under the Pooling and Servicing Agreement and will not consent to any amendment of the Pooling and Servicing Agreement that would adversely affect such rights of the Underwriters.
(g) The Depositor shall, as to itself, and the Depositor, or pursuant to the Pooling and Servicing Agreement the Trustee, will be required to, as to the Trust Fund, satisfy and comply with all reporting requirements of the 1934 Act and the rules and regulations thereunder.
(h) The Depositor shall take all reasonable action necessary to enable the Rating Agencies to provide their respective credit ratings of the Underwritten Certificates as described in Section 1(a)(xv).
(i) The Depositor will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the ▇▇▇▇ ▇▇▇.
6. Conditions to the Obligations of the Underwriters. The obligation of each Underwriter hereunder to purchase its allocated share of the Underwritten Certificates shall be subject to: (i) the accuracy of the representations and warranties on the part of the Depositor contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date, as of the date the Prospectus Supplement or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of the Depositor made in any certificates delivered pursuant to the provisions hereof; (iii) the performance by the Depositor of its obligations hereunder; and (iv) the following additional conditions:
(a) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or, to the Depositor’s knowledge, threatened; and the Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or transmitted for filing with the
-17-
Commission in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the ▇▇▇▇ ▇▇▇.
(b) You shall have received from Cadwalader ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request.
(c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor in this Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on the Closing Date; and (ii) the Depositor has in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied at or prior to the Closing Date.
(d) You shall have received with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than 30 days prior to the Closing Date.
(e) You shall have received from the Secretary or an Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, signed this Agreement, or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, 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; and (y) no event (including, without limitation, any act or omission on the part of the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement.
(f) You shall have received from in-house counsel for the Depositor (in the case of the following clauses (i) through (v)) and from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Depositor (in the case of the following clauses (vi) through (xii)), one or more favorable opinions, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriters substantially to the effect that:
(i) The Depositor is a corporation, duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to execute, deliver and perform its obligations under each of the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements and this Agreement.
-18-
(ii) Neither the issuance or sale of the Underwritten Certificates nor the execution, delivery or performance of the terms of this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements conflicts with or result in a breach or violation of, or constitute a default under, (a) the articles of incorporation or by-laws of the Depositor, (b) to such counsel’s knowledge, any indenture or other agreement or instrument to which the Depositor is a party or by which it is bound, (c) any statute or regulation applicable to the Depositor, or (d) to such counsel’s knowledge, any order of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor.
(iii) To the best of such counsel’s knowledge, there are no legal or governmental actions, investigations or proceedings pending to which the Depositor is a party, or threatened against the Depositor, that (a) assert the invalidity of this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or the Certificates, (b) seeks to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or (c) would materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, any of this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or the Certificates or any material rights with regard to any Mortgaged Property, or if adversely determined, would have a material adverse effect on the financial condition of the Depositor; for purposes of the foregoing, such counsel will be permitted to state that he or she has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to such counsel a present intention to initiate such actions, investigations or proceedings.
(iv) Each of this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements has been duly authorized, executed and delivered by the Depositor.
(v) No consent, approval, authorization of, registration or filing with, or notice to, any State of Delaware or other governmental agency or body is required for the execution, delivery or performance of, or compliance by, the Depositor with this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements, except (i) such as may be required under the “Blue Sky” laws of any jurisdiction in connection with the purchase and the offer and sale of the Underwritten Certificates by the Underwriters, as to which such counsel may express no opinion and (ii) any recordation of the assignments of the Mortgage Loans required under the Pooling and Servicing Agreement that has not yet been completed.
(vi) The statements in the Prospectus under the headings “ERISA Considerations” and “Federal Income Tax Consequences”, to the extent that they describe certain matters of federal law or legal conclusions with respect thereto, provide a fair and accurate summary of such matters and conclusions;
-19-
(vii) As described in the Prospectus Supplement and assuming compliance with the Pooling and Servicing Agreement, each of [REMIC I and REMIC II] will qualify as a REMIC within the meaning of Sections 860A through 860G (the “REMIC Provisions”) of the Internal Revenue Code of 1986, as amended (the “Code”);
(viii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created under the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act;
(ix) Each of the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement constitutes the legal, valid and binding agreement of the Depositor, enforceable against the Depositor in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, liquidation, receivership, moratorium, reorganization and similar laws affecting creditors’ rights generally, and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and except that: (a) provisions purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off, (b) provisions relating to submission to jurisdiction, venue or service of process or (c) provisions purporting to prohibit, restrict or condition the assignment of, or grant of a security interest in, the rights under the Mortgage Loan Purchase Agreements or the Pooling and Servicing Agreement or property subject thereto, may be limited by applicable law or considerations of public policy;
(x) The Registration Statement, as of its effective date, and the Prospectus, as of the date thereof (in each case, with the exception of any information incorporated by reference therein, any numerical, financial, statistical and computational information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information, any Certificate Administrator Covered Information, any Trust Advisor Covered Information and any Trustee Covered Information), appeared on their respective faces to be appropriately responsive in all material respects to the requirements of the 1933 Act and the rules and regulations thereunder applicable to such documents as of the relevant date;
(xi) The statements contained in the Prospectus Supplement under the heading “Description of the Offered Certificates”, insofar as such statements purport to summarize material terms of the Certificates, are correct in all material respects; and
(xii) When the Certificates have been duly authorized, executed, authenticated and delivered in the manner contemplated in the Pooling and Servicing Agreement and the Offered Certificates have been paid for by, and sold to the Underwriters pursuant to this Agreement, the Offered Certificates will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement.
-20-
Such opinions may express their reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers and/or authorized representatives of, the parties to this Agreement and the Pooling and Servicing Agreement and on certificates furnished by public officials. Such opinion, to the extent covering items (iv), (ix) and (xii), may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto. Such opinion, to the extent covering item (iv) and items (vi) through (xii) may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States.
You shall have also been advised by Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Depositor, in one of the foregoing opinions, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriters, substantially to the effect that (i) the Registration Statement became effective on a date certain under the 1933 Act, (ii) to such counsel’s knowledge, the Registration Statement is effective on the Closing Date and (iii) to such counsel’s knowledge, no stop order with respect thereto has been issued by the Commission.
In a separate letter addressed only to the Underwriters, Cadwalader ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall additionally state that, based on conferences and telephone conversations with representatives of the Mortgage Loan Sellers, the Underwriters, the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor, and their respective counsel, and (with limited exception) without having reviewed any of the mortgage notes, mortgages or other documents relating to the Mortgage Loans or made any inquiry of any originator of any Mortgage Loan, nothing has come to such counsel’s attention that would lead it to believe that (i) the Prospectus (other than any financial, numerical, statistical or quantitative information included therein), 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 any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) the Time of Sale Information (other than any financial, numerical, statistical or quantitative information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information, any Certificate Administrator Covered Information, any Trust Advisor Covered Information and any Trustee Covered Information), at the Time of Sale, contained or contains any untrue statement of a material fact or omitted or omits to states any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Registration Statement (other than with respect to any exhibits filed therewith or any information incorporated by reference), at its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(g) You shall have received from [_______], certified public accountants, letters satisfactory in form and substance to you and counsel for the Underwriters, to the following effect:
(i) they have performed certain specified procedures as a result of which they have determined that the information of an accounting, financial or
-21-
statistical nature set forth in the Preliminary FWP and Prospectus Supplement under the captions “Summary of Prospectus Supplement”, “Description of the Mortgage Pool” and “Yield and Maturity Considerations” and on Annexes [A-1, A-2, A-3 and A-4] to each of the Prospectus Supplement and the Preliminary FWP and in the Term Sheet agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, unless non-material deviations are otherwise noted in such letter; and
(ii) they have compared the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in an agreed upon sampling of the Mortgage Loan files and in such other sources as shall be specified by them, and found such data and information to be in agreement in all material respects, unless non-material deviations are otherwise noted in such letter.
(h) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings.
(i) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus Supplement is true and correct in all material respects.
(j) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The Certificate Administrator, Tax Administrator, Certificate Registrar and Custodian” in the Prospectus Supplement is true and correct in all material respects.
(k) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus Supplement is true and correct in all material respects.
(l) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus Supplement, is true and correct in all material respects.
(m) You shall have received from the Secretary or an Assistant Secretary of the Trust Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Trust Advisor under the heading “Transaction Parties—The Trust Advisor” in the Prospectus Supplement, is true and correct in all material respects.
-22-
(n) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator and the Trust Advisor, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters.
(o) You shall have received copies of any opinions from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters.
(p) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, if the Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by you. Notice of such cancellation shall be given to the Depositor in writing, or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Underwritten Certificates provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied or because of any refusal, inability or failure on the part of the Depositor to perform any agreement herein or comply with any provision hereof, other than by reason of a default by any of the Underwriters, the Depositor, will reimburse the Underwriters severally, upon demand, for all out of pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Underwritten Certificates.
8. Indemnification. (a) The Depositor agrees to indemnify and hold harmless each Underwriter, its officers and directors and each person, if any, who controls such Underwriter within the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of (A) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Base Prospectus or the Prospectus Supplement (or any amendment or
-23-
supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (B) any untrue statement or alleged untrue statement of a material fact contained in any Time of Sale Information or any Issuer Information contained in any Free Writing Prospectus prepared by or on behalf of the Underwriter (an “Underwriter Free Writing Prospectus”) or contained in any Free Writing Prospectus which is required to be filed pursuant to Section 4(b)(vii), or the omission or alleged omission to state a material fact required to make the statements therein (when read in conjunction with the other Time of Sale Information), in the light of the circumstances under which they were made, not misleading, which was not corrected by Corrective Information subsequently supplied by the Depositor or any Mortgage Loan Seller to the Underwriter at any time prior to the Time of Sale, or (C) any breach of the representation and warranty in Section 1(a)(xvi); provided that, in the case of clauses (A) and (B) above, the indemnity provided by this Section 8(a) shall not apply to any loss, liability, claim, damage or expense to the extent any such untrue statement or alleged untrue statement or omission or alleged omission arises out of or is based upon an untrue statement or omission with respect to information with respect to which a Mortgage Loan Seller provides indemnification pursuant to the related Indemnification Agreement (the “Mortgage Loan Seller Covered Information”); provided further, that the indemnification provided by this Section 8 shall not apply to the extent that such untrue statement or omission of a material fact was made as a result of an error in the manipulation of, or in any calculations based upon, or in any aggregation of the information regarding the Mortgage Loans, the related Mortgagors and/or the related Mortgaged Properties set forth in the Master Tapes or Annex A to the Prospectus Supplement or the Preliminary FWP, to the extent (i) such information was materially incorrect in the applicable Master Tape or such Annex A, as applicable, including without limitation the aggregation of such information relating to the Mortgage Loans in the Trust Fund or the information provided by the Mortgage Loan Sellers, and (ii) such loss, liability, claim, damage or expense would be subject to the provisions of the related Indemnification Agreement; and provided further, that the indemnification provided by this Section 8 shall not apply to the Mortgage Loan Seller Covered Information, the Master Servicer Covered Information, the Special Servicer Covered Information, the Certificate Administrator Covered Information, the Trust Advisor Covered Information or the Trustee Covered Information;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Depositor or as otherwise contemplated by Section 8(c) hereof; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by such Underwriter), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission,
-24-
or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that the indemnity provided by this Section 8(a) shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information (as specified in Section 8(b) below) furnished to the Depositor by any Underwriter expressly for use in the Registration Statement (or any amendment thereto) or in the Base Prospectus, the Preliminary FWP or the Prospectus Supplement (or any amendment or supplement thereto).
(b) Each Underwriter, severally but not jointly, agrees to indemnify and hold harmless the Depositor, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 8(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions (when read in conjunction with the Time of Sale Information), made in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus, any Time of Sale Information, the Base Prospectus or the Prospectus Supplement (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Depositor by such Underwriter expressly for use in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus, any Time of Sale Information, the Base Prospectus or the Prospectus Supplement (or any amendment or supplement thereto) (collectively, “Underwriter Information”); provided that no such material misstatement or omission arises from an error or omission in information relating to the underlying data regarding the Mortgage Loans or the related Mortgagors or Mortgaged Properties provided by the Depositor or any Mortgage Loan Seller to such Underwriter. In addition, each Underwriter, severally but not jointly, shall indemnify and hold harmless the Depositor, its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Depositor within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all losses, liabilities, claims, damages and expenses as incurred arising out of any (i) untrue statements or alleged untrue statements of a material fact, or omissions or alleged omissions to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in the Underwriter Information, (ii) untrue statements or alleged untrue statements of a material fact, or omissions or alleged omissions to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in any Underwriter Free Writing Prospectus or arise out of or are based upon the omission or alleged omission to state in such Underwriter Free Writing Prospectus a material fact in the light of the circumstances under which they were made, not misleading, and (iii) untrue statements or alleged untrue statements of a material fact, or omissions or alleged omissions to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in any Time of Sale Information prepared by or on behalf of the Underwriters or arise out of or are based upon the omission or alleged omission to state in such Time of Sale Information a material fact in the light of the circumstances under which they were made, not misleading; provided, that no Underwriter shall be obligated to so indemnify and hold harmless (i) to the extent the Depositor is entitled to indemnification or contribution therefor under the indemnity of any Mortgage Loan Seller set
-25-
forth in the related Mortgage Loan Purchase Agreement, or (ii) with respect to information that is also contained in the Time of Sale Information, or (iii) to the extent such Liabilities are caused by a misstatement or omission resulting from an error or omission in the Issuer Information supplied by the Depositor or any Mortgage Loan Seller to the Underwriter which was not corrected by Corrective Information subsequently supplied by the Depositor or any Mortgage Loan Seller to the Underwriter at any time prior to the Time of Sale. Notwithstanding the foregoing, the indemnity in clause (ii) of the immediately preceding sentence will apply only if such misstatement or omission was not also a misstatement or omission in the Prospectus. Furthermore, no Underwriter shall be obligated to indemnify or hold harmless the Depositor or any other person or entity otherwise entitled to such indemnification or to be held harmless under this subsection (b) for any Liability that is based upon or arises from the information set forth in the [seventh] paragraph under the caption “Plan of Distribution” in the Prospectus Supplement (or any amendment or supplement thereto) to the extent that both (1) such information in based upon and is in conformity with the information set forth in the Prospectus Supplement (or such amendment or supplement thereto) that is not Underwriter Information and (2) such non-Underwriter Information either contains an untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or fails to comply with Regulation AB.
It is hereby acknowledged that (i) the statements set forth in the [first sentence of the final] paragraph on the cover of the Prospectus Supplement, and (ii) the statements in the second sentence of the first paragraph, the first and second sentences of the [fourth] paragraph and the [seventh] paragraph under the caption “Plan of Distribution” in the Prospectus Supplement, constitute the only written information furnished to the Depositor by the Underwriters expressly for use in the Registration Statement (or any amendment thereto) or in the Base Prospectus or the Prospectus Supplement (or any amendment or supplement thereto.
(c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability under Section 8(a) or Section 8(b) hereof (unless the indemnifying party is materially prejudiced by such failure) or any liability that it may have, otherwise than on account of the indemnity provided by this Section 8. Upon request of the indemnified party, the indemnifying 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 fees and disbursements of such counsel related to such proceeding as incurred. An indemnifying party may participate at its own expense in the defense of any such action and, to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the 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 agreed to the retention of such counsel, or (ii) the indemnifying party shall not have assumed the defense of such action, with counsel satisfactory to the indemnified party, within a reasonable period following the indemnifying party’s receiving notice of such action, or (iii) the named parties to
-26-
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. In no event shall the indemnifying party or parties be liable for fees and expenses of more than one counsel (or, in the event the Depositor is the indemnifying party, one counsel for each Underwriter) (in addition to any local counsel) separate from its or their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. Unless it shall assume the defense of any proceeding, an indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld) but, if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party shall indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel or any other expenses for which the indemnifying party is obligated under this subsection, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. If an 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 an unconditional release of the indemnified party in connection with all matters relating to the proceeding that have been asserted against the indemnified party in such proceeding by the other parties to such settlement, which release does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party without the consent of the indemnified party.
(d) The indemnity provided by this Section 8 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by the Depositor, the Underwriters, any of their respective directors or officers, or any person controlling the Depositor or the Underwriters, and (iii) acceptance of and payment for any of the Underwritten Certificates.
The indemnity provided by this Section 8 will be in addition to any liability that any Underwriter or the Depositor may otherwise have.
9. Contribution. (a) In order to provide for just and equitable contribution in circumstances in which the indemnity provided by Section 8 hereof is for any reason held to be unenforceable by the indemnified parties although applicable in accordance with its terms, or if such indemnification provided for in Section 8 hereof is insufficient in respect of any losses, liabilities, claims or damages referred to therein, the Depositor and the Underwriters, severally, shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by the indemnity provided by Section 8 hereof incurred by the Depositor and the Underwriters, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Depositor on the one hand and each Underwriter on the other from the offering of the Underwritten Certificates or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
-27-
benefits referred to in clause (i) above but also the relative fault of the Depositor on the one hand and of each Underwriter on the other in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations (taking into account the parties’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission or failure to comply, and any other equitable considerations appropriate under the circumstances). The relative benefits received by the Depositor on the one hand and the Underwriters on the other shall be deemed to be in the same respective portions as the net proceeds (before deducting expenses) received by the Depositor from the sale of the Underwritten Certificates and the total underwriting discounts and commissions and other fees received by the Underwriters in connection therewith bear to the aggregate offering price of the Underwritten Certificates. The relative fault of the Depositor on the one hand and of each Underwriter 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 Depositor or by the Underwriters, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the foregoing, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation; and no Underwriter shall be obligated to contribute more than its share of underwriting discounts and commissions and other fees pertaining to the Underwritten Certificates less any damages otherwise paid by such Underwriter with respect to such loss, liability, claim, damage or expense. It is hereby acknowledged that the respective Underwriters’ obligations under this Section 9 shall be several and not joint. For purposes of this Section 9, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter’s officers and directors, shall have the same rights to contribution as such Underwriter, and each director of the Depositor, each officer of the Depositor who signed the Registration Statement, and each person, if any, who controls the Depositor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Depositor.
(b) The parties hereto agree that it would not be just and equitable if contribution were determined by pro rata or per capita allocation or by any other method of allocation that does not take account of the considerations referred to in subsection (a) above. The amount paid or payable by an indemnified party as a result of the losses, liabilities, claims or damages referred to in Section 8 hereof or this Section 9 shall be deemed to include any legal fees and disbursements or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such claim except where the indemnified party is required to bear such expenses, 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. 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. The remedies provided for in Section 8 hereof and this Section 9 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any indemnified party at law or in equity.
-28-
(c) The contribution agreements contained in this Section 9 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by the Depositor, the Underwriters, any of their respective directors or officers, or any person controlling the Depositor or the Underwriters, and (iii) acceptance of and payment for any of the Underwritten Certificates.
10. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Underwritten Certificates agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally (in the respective proportions which the portion of the Underwritten Certificates set forth opposite their names in Schedule I hereto bears to the aggregate amount of Underwritten Certificates set forth opposite the names of all the remaining Underwriters) to purchase the Underwritten Certificates that the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, that no Underwriter shall be obligated under this Section 10 to purchase Certificates of a Class that it is not otherwise obligated to purchase under this Agreement, and provided, however, that in the event that the amount of Underwritten Certificates that the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of 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 non-defaulting Underwriters do not purchase all of the Underwritten Certificates, this Agreement will terminate without liability to any non-defaulting Underwriter or the Depositor, except as provided in Section 11 or Section 12 hereof. In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date for the Underwritten Certificates shall be postponed for such period, not exceeding ten business days, as you shall determine in order that the required changes in the Registration Statement and the Prospectus Supplement 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 Depositor and any non-defaulting Underwriter for damages occasioned by its default hereunder.
11. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, or contained in certificates of officers of the Depositor submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, or by or on behalf of the Depositor, or by or on behalf of any of the controlling persons and officers and directors referred to in Sections 8 and 9 hereof, and shall survive delivery of the Underwritten Certificates to the Underwriters.
12. Termination of Agreement; Survival. (a) The Underwriters may terminate this Agreement, by notice to the Depositor, at any time at or prior to the Closing Date (i) if there has been, since the date of this Agreement or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Depositor whether or not arising in the ordinary course of business, or (ii) if there has occurred any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which is such as to make it, in the reasonable judgment of any Underwriter,
-29-
impracticable or inadvisable to market the Underwritten Certificates or to enforce contracts for the sale of the Underwritten Certificates, or (iii) if trading in any securities of the Depositor has been suspended or limited by the Commission or the New York Stock Exchange, or if trading generally on the American Stock Exchange or the New York Stock Exchange or on the NASDAQ National Market has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or (iv) if a banking moratorium has been declared by either federal or New York authorities, or (v) a material disruption in securities, settlement, payments or clearance services in the United States or other relevant jurisdiction shall have occurred.
(b) If this Agreement is terminated pursuant to this Section 12, such termination shall be without liability of any party to any other party, except as provided in Section 11 or Section 12(c) hereof.
(c) The provisions of Section 5(e) hereof regarding the payment of costs and expenses and the provisions of Sections 8 and 9 hereof shall survive the termination of this Agreement, whether such termination is pursuant to this Section 12 or otherwise.
13. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notice to the Depositor, or to RBS Securities Inc. shall be directed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: [_______], facsimile number: [_______] (with a copy to the attention of: [_______], facsimile number [_______]; notice to [_______] shall be directed to it at [_______], Attention: [_______], facsimile number: [_______]; or, in any case, such other address as may hereafter be furnished by the Underwriters or the Depositor to the other such parties in writing.
14. Parties. This Agreement shall inure to the benefit of and be binding upon each of the Underwriters and the Depositor and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Depositor and their respective successors and the controlling persons and officers and directors referred to in Sections 8 and 9 hereof and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Depositor and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Underwritten Certificates from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
15. Governing Law. This Agreement and any claim, controversy or dispute arising under or related to or in connection with the Agreement, the relationship of the parties, and/or the interpretation and enforcement of the rights and duties of the parties will be governed by the laws of the State of New York without regard to any conflicts of law principles other than Section 5-1401 of the New York General Obligations Law.
-30-
16. Waiver of Jury Trial. EACH OF THE DEPOSITOR AND THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17. Submission to Jurisdiction. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF THE DEPOSITOR AND THE UNDERWRITERS HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO ANY ACTION OR PROCEEDING IN RESPECT OF SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES THE DEFENSE OF ANY INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute but one and the same instrument.
19. Obligations Solely Contractual in Nature; No Fiduciary Relationship. The Depositor acknowledges and agrees that the responsibility to the Depositor of the Underwriters pursuant to this Agreement is solely contractual in nature and that none of the Underwriters or their affiliates will be acting in a fiduciary or advisory capacity, or will otherwise owe any fiduciary or advisory duty, to the Depositor pursuant to this Agreement in connection with the offering of the Underwritten Certificates and the other transactions contemplated by this Agreement.
-31-
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 Depositor, RBS and the several Underwriters.
| Very truly yours, | |||
|
RBS COMMERCIAL FUNDING, INC.
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
|
RBS SECURITIES INC.
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
|
[_______]
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
SCHEDULE I
Underwriting Agreement, dated [_______].
|
Certificates:
|
RBS Commercial Mortgage Trust [_______],
Commercial Mortgage Pass-Through Certificates, Series [_______]
|
|
Class
|
Initial Aggregate Certificate Principal Balance of Class
|
Aggregate Certificate Principal Balance or Percentage Interest of Class to be Purchased by RBS Securities Inc.
|
Aggregate Certificate Principal Balance or Percentage Interest of Class to be Purchased by [ ]
|
Initial Pass-Through Rate
|
Purchase
Price (1)
|
|||||
|
Class [__]
|
$[_______]
|
$[_______]
|
[______]%
|
[______]%
|
||||||
|
Class [__]
|
$[_______]
|
$[_______]
|
[______]%
|
[______]%
|
||||||
|
Class [__]
|
$[_______]
|
$[_______]
|
[______]%
|
[______]%
|
||||||
|
Class [__]
|
$[_______]
|
$[_______]
|
[______]%
|
[______]%
|
___________________
|
(1)
|
Expressed as a percentage of the aggregate Certificate Principal Balance of the relevant class of Certificates to be purchased. There shall be added to the purchase price for each class of the Certificates accrued interest at the initial Pass-Through Rate therefor on the aggregate stated amount thereof to be purchased from [_______] to but not including the Closing Date.
|
Closing Date and Location: [_______] on [_______] at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP in New York, New York.
Sch. I-1