EXHIBIT 1
$1,978,742,000
(approximate)
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP6
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP6
Classes A-1, A-2, A-3FL, A-3B, A-4, A-SB, A-1A, A-M, A-J, X-2, B, C & D
Underwriting Agreement
----------------------
March 28, 2006
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representative of the
several Underwriters listed
in Schedule I hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Commercial Mortgage Securities Corp., a Delaware
corporation (the "Depositor"), proposes to sell to the several Underwriters
listed in Schedule I (the "Underwriters"), for whom ▇.▇. ▇▇▇▇▇▇ Securities Inc.
is acting as representative (the "Representative"), $1,978,742,000 principal
amount of Commercial Mortgage Pass-Through Certificates, Series 2006-LDP6,
Classes A-1, A-2, A-3FL, A-3B, A-4, A-SB, A-1A, A-M, A-J, X-2, B, C and D (the
"Offered Certificates") as set forth in Schedule I. The Offered Certificates,
together with the Commercial Mortgage Pass-Through Certificates, Series
2006-LDP6, Classes X-1, E, F, G, H, J, K, L, M, N, P, NR, R, S and LR (the
"Private Certificates") are collectively referred to herein as the
"Certificates". The Certificates will represent beneficial interests in a trust
fund primarily consisting of a segregated pool of mortgage loans secured by
commercial, multifamily and manufactured housing community properties, as
described in the Prospectus referred to below (the "Mortgage Loans"), and
certain moneys received under each Mortgage Loan after the related due date for
such Mortgage Loan, which shall be: (i) in March 2006 or, (ii) with respect to
those Mortgage Loans that were originated in February 2006 and have their first
due date in April 2006, March 1, 2006, or (iii) with respect to those mortgage
loans that were originated in March 2006 and have their first due date after
March 2006, the origination date of the Mortgage Loan. The Certificates will be
issued pursuant to the provisions of a pooling and servicing agreement to be
dated as of March 1, 2006 (the "Pooling and Servicing Agreement"), among the
Depositor, Midland Loan Services, Inc., as a master servicer (a "Master
Servicer"), GMAC Commercial Mortgage Corporation, as a master servicer (a
"Master Servicer" and, together with Midland Loan Services, Inc., the "Master
Servicers"), LNR Partners, Inc. as special servicer (the "Special Servicer") and
▇▇▇▇▇ Fargo Bank, N.A. as trustee and as paying agent (respectively, the
"Trustee" and the "Paying Agent").
The Depositor hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Offered Certificates, as follows:
1. Registration Statement. The Depositor has prepared and filed with the
Securities and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-3 (No. 333-126661), as amended, including a
prospectus, relating to the Offered Certificates. The registration statement as
amended at the time when it became effective, or, if a post-effective amendment
is filed with respect thereto, as amended by such post-effective amendment at
the time of its effectiveness, is referred to in this Agreement as the
"Registration Statement". The Depositor also has filed with, or proposes to file
with, the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Offered Certificates (the "Prospectus
Supplement"). The related prospectus covering the Offered Certificates in the
form first required to be filed to satisfy the condition set forth in Rule
172(c) under the Securities Act is hereinafter referred to as the "Basic
Prospectus", and the Basic Prospectus as supplemented by the Prospectus
Supplement in the form first required to be filed to satisfy the condition set
forth in Rule 172(c) under the Securities Act is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement, any
preliminary prospectus (a "Preliminary Prospectus") used in connection with the
offering of the Offered Certificates or the Prospectus shall be deemed to refer
to and include any exhibits thereto and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed as of the Closing Date (as defined below) under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") that are deemed to
be incorporated by reference therein.
At or prior to the time when sales to investors of the Offered
Certificates were first made (the "Time of Sale"), the Depositor had prepared
the following information (collectively, the "Time of Sale Information"): (i) a
Free Writing Prospectus dated March 15, 2006 (the "Preliminary Free Writing
Prospectus"), (ii) a Term Sheet dated as of March 15, 2006 (the "Term Sheet"),
and (iii) each "free-writing prospectus" (as defined pursuant to Rule 405 under
the Securities Act) (a "Free Writing Prospectus") listed on Exhibit 1 hereto.
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 Offered Certificates,
then "Time of Sale" will refer to the time when such new purchase contracts are
entered into and "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").
When used in this Agreement, "Basic Documents" shall mean (i) the Pooling
and Servicing Agreement, (ii) the Certificates, (iii) the mortgage loan purchase
agreement, dated as of March 30, 2006, between JPMorgan Chase Bank, N.A.
("JPMCB") and the Depositor (the "JPMCB Mortgage Loan Purchase Agreement"), (iv)
the mortgage loan purchase agreement, dated as of March 30, 2006, between Nomura
Credit & Capital, Inc. ("NCIC") and the Depositor (the "NCIC Mortgage Loan
Purchase Agreement"), (v) the mortgage loan purchase agreement, dated as of
March 30, 2006, between Eurohypo AG, New York Branch ("EAGNY") and the Depositor
(the "EAGNY Mortgage Loan Purchase Agreement"), (vi) the mortgage loan purchase
agreement, dated as of March 30, 2006, between PNC Bank, National Association
("PNC") and the Depositor (the "PNC Mortgage Loan Purchase Agreement"), (vii)
the mortgage loan purchase agreement, dated as of March 30, 2006, between IXIS
Real Estate Capital Inc. ("IXIS") and the Depositor (the "IXIS Mortgage Loan
Purchase Agreement" and, together with the JPMCB Mortgage Loan Purchase
Agreement, the NCIC Mortgage Loan Purchase Agreement, the EAGNY Mortgage Loan
Purchase Agreement and the PNC Mortgage Loan Purchase Agreement, collectively,
the "Mortgage Loan Purchase Agreements") and (viii) any other contract,
agreement or instrument which is or is to be entered into by the Depositor on
the Closing Date or otherwise in connection with any of the foregoing or this
Agreement. JPMCB, NCIC, EAGNY, PNC and IXIS are collectively referred to herein
as the "Sellers". To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Pooling and Servicing
Agreement.
2. Purchase of the Offered Certificates by the Underwriters.
(a) The Depositor agrees to sell the Offered Certificates to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Depositor, the respective principal amount of each class of
the Offered Certificates set forth opposite such Underwriter's name in Schedule
I hereto at the Purchase Price set forth in Schedule I hereto, plus accrued
interest on the actual principal amount thereof (other than the Class A-3FL
Certificates) at the applicable Pass-Through Rate from March 1, 2006 to the
Closing Date (as defined below). The Depositor will not be obligated to deliver
any of the Offered Certificates except upon payment for all the Offered
Certificates to be purchased as provided herein.
(b) The Depositor understands that the Underwriters intend to make a
public offering of their respective portions of the Offered Certificates as soon
after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Offered Certificates on
the terms set forth in the Time of Sale Information and the Prospectus. The
Depositor acknowledges and agrees that the Underwriters may offer and sell the
Offered Certificates to or through any affiliate of an Underwriter and that any
such affiliate may offer and sell any Offered Certificates purchased by it to or
through any Underwriter.
(c) Payment for and delivery of the Offered Certificates will be made at
the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center,
New York New York 10281 at 10:00 A.M., New York City time, on March 30, 2006, or
at such other time on the same or such other date, not later than the fifth
business day thereafter, as the Representative and the Depositor may agree upon
in writing. The time and date of such payment and delivery is referred to herein
as the "Closing Date".
(d) Payment for the Offered Certificates shall be made by wire transfer in
immediately available funds to the account(s) specified by the Depositor to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Underwriters, of one or more global notes representing
the Offered Certificates (collectively, the "Global Note"), with any transfer
taxes payable in connection with the sale of the Offered Certificates duly paid
by the Depositor. The Global Note will be made available for inspection by the
Representative not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date.
3. Representations and Warranties of the Depositor. The Depositor
represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement has
been declared effective by the Commission under the Securities Act; no order
suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose has been initiated or, to the
best knowledge of the Depositor, threatened by the Commission; and, the
Registration Statement and the Prospectus and any amendment thereto, at the time
the Registration Statement became effective complied, and as of the date of the
Prospectus Supplement will comply, in all material respects with the Securities
Act, and the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and on the Closing Date, the Prospectus will not contain any untrue
statement of a material fact or omit to state a 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
that the Depositor makes no representation and warranty with respect to (i) any
statements or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Depositor in writing by such
Underwriter through the Representative (such information, described in Section
15 hereto, referred to herein as "Underwriters' Information") expressly for use
in the Registration Statement and the Prospectus and any amendment or supplement
thereto or (ii) the Seller's Information (as defined in Section 7(a)); the
conditions to the use by the Depositor of a registration statement on Form S-3
under the Securities Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Registration Statement and the
Prospectus.
(b) Time of Sale Information. 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 (i) any Underwriters' Information in such Time of Sale
Information or (ii) any Seller's Information in such Time of Sale Information.
(c) Issuer Free Writing Prospectus. Other than any Preliminary Prospectus
and 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 make, use, prepare,
authorize, approve or refer to any "written communication" (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Offered Certificates other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act, (ii) the Time of Sale Information and
(iii) each other written communication approved in writing in advance by the
Representative (each such communication referred to in clause (ii) and this
clause (iii) constituting an "issuer free writing prospectus", as defined in
Rule 433(h) under the Securities Act, being referred to as an "Issuer Free
Writing Prospectus"). Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been filed in accordance with
Section 8 (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 (i) any
Underwriters' Information in any Issuer Free Writing Prospectus or (ii) any
Seller's Information in any Issuer Free Writing Prospectus.
(d) No Material Adverse Change. Other than as set forth or contemplated in
the Prospectus and the Time of Sale Information, since the date as of which
information is given in the Registration Statement, the Time of Sale Information
or the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change, in or affecting the
business, properties, prospects, management, financial position, stockholders'
equity or results of operations of the Depositor.
(e) Organization and Good Standing. The Depositor has been duly organized
and is a validly existing organization in good standing under the laws of its
jurisdiction of organization, is duly qualified to do business and is in good
standing as a foreign entity in each jurisdiction in which the conduct of its
business requires such qualification, and has all power and authority necessary
to enter into and perform its obligations under this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements and to own or hold
its properties and to conduct the business in which it is engaged, except where
the failure to be so qualified or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on the
transactions contemplated herein or in the Basic Documents (a "Material Adverse
Effect").
(f) Due Authorization. The Depositor has full right, power and authority
to execute and deliver this Agreement and the Basic Documents and to perform its
obligations hereunder and thereunder; and all action (corporate or other)
required to be taken for the due and proper authorization, execution and
delivery of this Agreement and each of the Basic Documents and the consummation
of the transactions contemplated thereby has been duly and validly taken.
(g) The Pooling and Servicing Agreement. The Pooling and Servicing
Agreement has been duly authorized by the Depositor and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Depositor enforceable
against the Depositor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability (collectively, the "Enforceability Exceptions").
(h) The Certificates. The Certificates have been duly authorized and, when
duly executed, authenticated, issued and delivered as provided in the Pooling
and Servicing Agreement and paid for as provided herein, will be duly and
validly issued and outstanding and will be entitled to the benefits and security
afforded by the Pooling and Servicing Agreement.
(i) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Depositor.
(j) Basic Documents. Each of the Basic Documents to which the Depositor is
a party has been duly authorized by the Depositor and when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Depositor enforceable
against the Depositor in accordance with its terms, subject to the
Enforceability Exceptions.
(k) Descriptions of Basic Documents. Each Basic Document conforms in all
material respects to the description thereof contained in the Registration
Statement, the Time of Sale Information and the Prospectus.
(l) No Violation or Default. The Depositor is not (i) in violation of its
charter, by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Depositor is a party or by which the
Depositor is bound or to which any of the property or assets of the Depositor is
subject; or (iii) in violation of any law or statute or any judgment, order or
regulation of any court or governmental agency or body having jurisdiction over
the Depositor, or any of its properties ("Governmental Authority"), except, in
the case of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(m) No Conflicts with Existing Instruments. The execution, delivery and
performance by the Depositor of this Agreement and each of the Basic Documents,
the issuance and sale of the Certificates and compliance by the Depositor with
the terms thereof and the consummation of the transactions contemplated by this
Agreement and the Basic Documents will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Depositor pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor is subject; (ii)
result in any violation of the provisions of the charter, by-laws or similar
organizational documents of the Depositor; or (iii) result in the violation of
any law or statute or any judgment, order or regulation of any Governmental
Authority, except, in the case of clauses (i) and (iii) above, for any such
conflict, breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(n) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any Governmental Authority is required
for the execution, delivery and performance by the Depositor of this Agreement
and each of the Basic Documents, the issuance and sale of the Certificates and
compliance by the Depositor with the terms thereof and the consummation of the
transactions contemplated by this Agreement and the Basic Documents, except for
the registration of the Certificates under the Securities Act and such consents,
approvals, authorizations, orders and registrations or qualifications as have
already been obtained or as of the Closing Date will have been obtained or such
as may be required under applicable state securities laws in connection with the
purchase and distribution of the Offered Certificates by the Underwriters.
(o) Legal Proceedings. Except as described in the Prospectus and the Time
of Sale Information, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Depositor is
or may be a party or to which any property of the Depositor is or may be the
subject that, individually or in the aggregate, if determined adversely to the
Depositor, could reasonably be expected to have a Material Adverse Effect; to
the best knowledge of the Depositor, no such investigations, actions, suits or
proceedings are threatened or contemplated by any Governmental Authority or
threatened by others; and there are no statutes, regulations or contracts or
other documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement or described in the Registration
Statement or the Prospectus and that are not so filed or described.
(p) [Reserved].
(q) Title to Mortgage Loans. The Depositor has good and marketable title
in fee simple to the Mortgage Loans free and clear of all liens, encumbrances,
claims and defects and imperfections of title except those that could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(r) Investment Company Act. Neither the Depositor nor the trust fund
created under the Pooling and Servicing Agreement (the "Trust Fund") is, and,
after giving effect to the offering and sale of the Certificates and the
application of the proceeds thereof as described in the Prospectus, neither the
Depositor nor the Trust Fund will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, "Investment Company Act").
(s) Representations in Basic Documents. The representations and warranties
of the Depositor contained in the Basic Documents are true and correct in all
material respects.
(t) Taxes. Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement, the Pooling and Servicing
Agreement and the delivery and sale of the 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.
(u) Business Relationship with the Underwriters. The Depositor
acknowledges and agrees that the Underwriters are acting solely in the capacity
of an arm's length contractual counterparty to the Depositor with respect to the
offering of Certificates contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Depositor or any other person. Additionally,
neither the Representative nor any other Underwriter is advising the Depositor
or any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Depositor shall consult with its own advisors
concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby,
and the Underwriters shall have no responsibility or liability to the Depositor
with respect thereto. Any review by the Underwriters of the Depositor, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Depositor.
(v) Ineligible Issuer. The Depositor is not, and on the date on which the
first bona fide offer of the Certificates is made will not be, an "ineligible
issuer", as defined in Rule 405 under the Securities Act.
(w) Regulation AB Compliance. The Depositor will comply with the
applicable provisions of Regulation AB, as promulgated by the Commission under
the Exchange Act (17 C.F.R. ss.ss.229.1100 - 229.1123), in all respects.
4. Further Agreements of the Depositor. The Depositor covenants and agrees
with each Underwriter that:
(a) Filing of Prospectus and Issuer Free Writing Prospectuses. The
Depositor will file the final Prospectus with the Commission within the time
periods specified by Rule 424(b) under the Securities Act; subject to Section 8,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433
under the Securities Act; and the Depositor will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus to the Underwriters in New
York City prior to 10:00 A.M., New York City time, on the business day next
succeeding the date of this Agreement, or at such other time and date as may be
acceptable to the Representative, in such quantities as the Representative may
reasonably request.
(b) Delivery of Copies. The Depositor will deliver, without charge, (i) to
the Representative, one signed copy of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and
consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of
the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith and (B) during the
Prospectus Delivery Period, as many copies of the Prospectus (including all
amendments and supplements thereto) and each Issuer Free Writing Prospectus as
the Representative may reasonably request. As used herein, the term "Prospectus
Delivery Period" means such period of time after the first date of the public
offering of the Offered Certificates as in the opinion of counsel for the
Underwriters a prospectus relating to the Offered Certificates is required by
law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Offered Certificates by any
Underwriter or dealer.
(c) Amendments or Supplements. Before preparing, using, authorizing,
approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the
Prospectus, the Depositor will furnish to the Representative and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not prepare, use, authorize, approve, refer to or
file any such Issuer Free Writing Prospectus or file any such proposed amendment
or supplement to which the Representative reasonably objects.
(d) Notice to the Representative. The Depositor will advise the
Representative promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information;
(iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading; and (vi) of the receipt by the Depositor of any
notice with respect to any suspension of the qualification of the Offered
Certificates for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Depositor will use its
reasonable best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Offered Certificates and, if issued, will obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If, during the Prospectus
Delivery Period: (i) any event shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading; or (ii) it is necessary to amend or supplement the
Prospectus to comply with law, the Depositor will immediately notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above,
file with the Commission and furnish to the Underwriters and to such dealers as
the Representative may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in light of the circumstances existing when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(f) Blue Sky Compliance. The Depositor will qualify the Offered
Certificates for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and will continue
such qualifications in effect so long as may be required for distribution of the
Offered Certificates; provided that the Depositor shall not be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify;
(ii) file any general consent to service of process in such jurisdiction; or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject.
(g) Earning Statement. The Depositor will make generally available to its
security holders and the Representative as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Depositor
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) Copies of Reports. So long as the Offered Certificates are
outstanding, the Depositor shall furnish, or cause to be furnished, to each
Underwriter (i) copies of each certificate, the annual statements of compliance
and the annual independent certified public accountant's servicing reports
furnished to the Trustee pursuant to the Pooling and Servicing Agreement by
first class mail as soon as practicable after such statements and reports are
furnished to the Trustee; (ii) copies of each amendment to any of the Basic
Documents; and (iii) copies of all reports or other communications (financial or
other) furnished to holders of the Offered Certificates, and copies of any
reports and financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities exchange.
(i) Use of Proceeds. The Depositor will apply the net proceeds from the
sale of the Offered Certificates as described in the Registration Statement, the
Time of Sale Information and the Prospectus.
(j) Rating Agencies. To the extent, if any, that the ratings provided with
respect to the Offered Certificates by the Rating Agencies (as defined in
Section 6(p)) are conditional upon the furnishing of documents or the taking of
any other action by the Depositor, the Depositor shall use its best efforts to
furnish such documents and take any other such action.
(k) Exchange Act Filings. The Depositor will file or cause to be filed all
documents and certifications required to be filed by the Commission pursuant to
the Exchange Act within the time periods required by the Exchange Act and the
rules and regulations thereunder.
(l) Record Retention. 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 Securities Act.
5. Representations of the Several Underwriters. Each Underwriter hereby
represents and agrees, severally and not jointly, that in relation to each
Member State of the European Economic Area which has implemented the Prospectus
Directive (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 Offered Certificates to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Offered Certificates
which has been approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State and notified to
the competent authority in that Relevant Member State, all in accordance with
the Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of the Offered Certificates to the
public in that Relevant Member State at any time:
(a) to legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate
purpose is solely to invest in securities;
(b) to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total balance
sheet of more than (euro)43,000,000 and (3) an annual net turnover of more
than (euro)50,000,000, as shown in its last annual or consolidated
accounts; or
(c) in any other circumstances which do not require the publication by the
Depositor of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this representation, the expression an "offer of the
Certificates to the public" in relation to any Offered 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 Offered Certificates to
be offered so as to enable an investor to decide to purchase or subscribe the
Offered Certificates, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State, and the
expression "Prospectus Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Each Underwriter, severally and not jointly, hereby further represents and
agrees, with respect to the United Kingdom, that:
(i) it has only communicated or caused to be communicated and will 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 Act) received by it in connection with the
issue or sale of the Offered Certificates in circumstances in which
Section 21(1) of the Financial Services and Markets Act does not apply to
the Depositor; and
(ii) it has complied and will comply with all applicable provisions of the
Financial Services and Markets Act with respect to anything done by it in
relation to the Offered Certificates in, from or otherwise involving the
United Kingdom.
6. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Offered Certificates on the Closing Date as provided
herein is subject to the performance by the Depositor of its covenants and other
obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective amendment
to the Registration Statement is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, and the
Representative shall have received notice thereof, not later than 5:00 P.M., New
York City time, on the date hereof; no order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose
shall be pending before or threatened by the Commission; the Prospectus and each
Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to
the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof; and all requests by the Commission for additional
information shall have been complied with to the reasonable satisfaction of the
Representative.
(b) Representations and Warranties. The representations and warranties of
the Depositor contained herein shall be true and correct on the date hereof and
on and as of the Closing Date and the statements of the Depositor and its
officers made in any certificates delivered pursuant to this Agreement shall be
true and correct on and as of the Closing Date.
(c) No Material Adverse Change. Subsequent to the execution and delivery
of this Agreement, no event or condition of a type described in Section 3(d)
hereof shall have occurred or shall exist, which event or condition is not
described in the Time of Sale Information (excluding any Corrective Information)
and the Prospectus (excluding any amendment or supplement thereto) and the
effect of which, in the judgment of the Representative, makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Offered
Certificates on the terms and in the manner contemplated by this Agreement and
the Prospectus.
(d) Officer's Certificate. The Representative shall have received on and
as of the Closing Date a certificate of an executive officer of the Depositor
satisfactory to the Representative (i) confirming that such officer has
carefully reviewed the Registration Statement, the Time of Sale Information and
the Prospectus and, to the best knowledge of such officer, the representations
set forth in Sections 3(a), 3(b) and 3(c) hereof are true and correct, (ii)
confirming that the other representations and warranties of the Depositor in
this Agreement are true and correct and that the Depositor has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date and (iii) to the effect set forth in
Section 3(d) hereof and in subsection (a) above.
(e) Mortgage Loan Purchase Agreements; Indemnification Agreements. Each of
the Mortgage Loan Purchase Agreements shall have been executed and delivered.
Each of (i) the Indemnification Agreement dated March 24, 2006, by and among
JPMCB and the Depositor (the "JPMCB Indemnification Agreement"), (ii) the
Indemnification Agreement dated March 24, 2006, by and among NCIC and the
Depositor (the "NCIC Indemnification Agreement"), (iii) the Indemnification
Agreement dated March 24, 2006, by and among EAGNY and the Depositor (the "EAGNY
Indemnification Agreement"), (iv) the Indemnification Agreement dated March 24,
2006 by and among PNC and the Depositor (the "PNC Indemnification Agreement"),
(v) the Indemnification Agreement dated March 24, 2006, by and among IXIS and
the Depositor (the "IXIS Indemnification Agreement" and, together with the JPMCB
Indemnification Agreement, the NCIC Indemnification Agreement, the EAGNY
Indemnification Agreement and the PNC Indemnification Agreement, collectively
the "Indemnification Agreements") shall have been executed and delivered.
(f) Comfort Letters. On the date of this Agreement and on the Closing
Date, ▇▇▇▇▇ & ▇▇▇▇▇ shall have furnished to the Representative, at the request
of the Depositor, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representative.
(g) Opinion of Counsel for the Depositor. (i) ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, counsel for the Depositor, shall have furnished to the Representative,
at the request of the Depositor, their written opinion, dated the Closing Date
and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representative and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in-house counsel to the
Depositor, shall have furnished to the Representative, at the request of the
Depositor, a written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative.
(h) Opinion of Counsel for the Underwriters. The Representative shall have
received on and as of the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Underwriters, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to pass
upon such matters.
(i) Opinion of Counsel for GMAC Commercial Mortgage Corporation, as a
Master Servicer. Counsel to GMAC Commercial Mortgage Corporation ("GMACCMC")
shall have furnished to the Underwriters its opinion, dated the Closing Date, in
form and substance satisfactory to each Underwriter, substantially to the effect
that:
(i) GMACCMC is validly existing and in good standing as a
corporation under the laws of the State of California with full power and
authority to enter into and perform its obligations under the Pooling and
Servicing Agreement, and is qualified to do business in all other
jurisdictions in which it owns or leases property or where the conduct of
its business requires such qualification;
(ii) there are no legal or governmental proceedings pending to which
GMACCMC is a party or of which any property of GMACCMC is the subject
which, if determined adversely to GMACCMC, might interfere with or
adversely affect the consummation of the transactions contemplated in the
Pooling and Servicing Agreement; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
GMACCMC enforceable in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by GMACCMC with all applicable provisions of the
Certificates and the Pooling and Servicing Agreement and the consummation
of the transactions therein contemplated will not (A) conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any liens
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which GMACCMC is a party or by which
GMACCMC is bound or to which any of the property or assets of GMACCMC is
subject or (B) result in any violation of the provisions of the charter,
by-laws or similar organizational documents of GMACCMC or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over GMACCMC or any of its properties; and
(v) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by GMACCMC of the transactions contemplated
by the Pooling and Servicing Agreement.
(j) Opinion of Counsel for Midland Loan Services, Inc., as a Master
Servicer. Counsel to Midland Loan Services, Inc. ("Midland") shall have
furnished to the Underwriters its opinion, dated the Closing Date, in form and
substance satisfactory to each Underwriter, substantially to the effect that:
(i) Midland is validly existing and in good standing as a
corporation under the laws of the State of Delaware with full power and
authority to enter into and perform its obligations under the Pooling and
Servicing Agreement, and is qualified to do business in all other
jurisdictions in which it owns or leases property or where the conduct of
its business requires such qualification;
(ii) there are no legal or governmental proceedings pending to which
Midland is a party or of which any property of Midland is the subject
which, if determined adversely to Midland, might interfere with or
adversely affect the consummation of the transactions contemplated in the
Pooling and Servicing Agreement; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
Midland enforceable in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by Midland with all applicable provisions of the
Certificates and the Pooling and Servicing Agreement and the consummation
of the transactions therein contemplated will not (A) conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any liens
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Midland is a party or by which
Midland is bound or to which any of the property or assets of Midland is
subject or (B) result in any violation of the provisions of the charter,
by-laws or similar organizational documents of Midland or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over Midland or any of its properties; and
(v) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by Midland of the transactions contemplated
by the Pooling and Servicing Agreement.
(k) Opinion of Counsel for the Special Servicer. Counsel to the Special
Servicer shall have furnished to the Underwriters its opinion, dated the Closing
Date, in form and substance satisfactory to each Underwriter, substantially to
the effect that:
(i) the Special Servicer is validly existing and in good standing as
a corporation under the laws of the State of Florida with full power and
authority to enter into and perform its obligations under the Pooling and
Servicing Agreement, and is qualified to do business in all other
jurisdictions in which it owns or leases property or where the conduct of
its business requires such qualification;
(ii) there are no legal or governmental proceedings pending to which
the Special Servicer is a party or of which any property of the Special
Servicer is the subject which, if determined adversely to the Special
Servicer, might interfere with or adversely affect the consummation of the
transactions contemplated in the Pooling and Servicing Agreement; to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
the Special Servicer enforceable in accordance with its terms, except that
the enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by the Special Servicer with all applicable
provisions of the Certificates and the Pooling and Servicing Agreement and
the consummation of the transactions therein contemplated will not (A)
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any liens pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Special Servicer
is a party or by which the Special Servicer is bound or to which any of
the property or assets of the Special Servicer is subject or (B) result in
any violation of the provisions of the Certificate of Incorporation or the
By-laws of the Special Servicer or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Special Servicer or any of its properties; and
(v) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Special Servicer of the transactions
contemplated by the Pooling and Servicing Agreement.
(l) Opinion of Counsel for the Trustee and the Paying Agent. Counsel to
the Trustee and the Paying Agent shall have furnished to the Underwriters its
opinion, dated the Closing Date, in form and substance satisfactory to each
Underwriter, substantially to the effect that:
(i) the Trustee is a national banking association validly existing
and in good standing under the laws of the United States with full power
and authority to enter into and perform its obligations under the Pooling
and Servicing Agreement;
(ii) there are no legal or governmental proceedings pending to which
the Trustee is a party or of which any property of the Trustee is the
subject which, if determined adversely to the Trustee, might interfere
with or adversely affect the consummation of the transactions contemplated
in the Pooling and Servicing Agreement; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
the Trustee enforceable in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or thereafter in
effect relating to creditors' rights generally and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the Trustee has duly executed, authenticated and delivered the
Certificates as provided in the Pooling and Servicing Agreement;
(v) the compliance by the Trustee with all applicable provisions of
the Pooling and Servicing Agreement will not (A) conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any liens pursuant to
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Trustee is a party or by which the Trustee is
bound or to which any of the property or assets of the Trustee is subject
or (B) result in any violation of the provisions of the charter, by-laws
or similar organizational documents of the Trustee or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Trustee or any of its properties;
(vi) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Trustee of the transactions
contemplated by the Pooling and Servicing Agreement; and
(vii) in the event that a Master Servicer defaults in its obligation
to make Advances pursuant to the Pooling and Servicing Agreement, the
Trustee is not, as of the date hereof, prohibited by any provision of its
organizational documents or by any provision of the banking and trust laws
of the jurisdiction of its organization from assuming, pursuant to the
Pooling and Servicing Agreement, the obligation to make such Advances.
(m) [Reserved.]
(n) Opinions of Counsel to Sellers. Counsel for each Seller shall have
furnished to the Underwriters its opinion, dated the Closing Date, in form and
substance satisfactory to each Underwriter.
(o) Rating Agency Opinions. Each Underwriter shall be addressed in any
opinion from any counsel delivering any written opinion to the Rating Agencies
in connection with the transaction described herein which is not otherwise
described in this Agreement.
(p) Rating Agency Letters. Each Underwriter shall have received copies of
letters from ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poors Ratings
Services, a division of The McGraw Hill Companies, Inc. (together, the "Rating
Agencies") stating that the Offered Certificates are rated as set forth on
Schedule II hereto by the Rating Agencies.
(q) No Legal Impediment to Issuance. No action shall have been taken and
no statute, rule, regulation or order shall have been enacted, adopted or issued
by any Governmental Authority that would, as of the Closing Date, prevent the
issuance or sale of the Certificates; and no injunction or order of any federal,
state or foreign court shall have been issued that would, as of the Closing
Date, prevent the issuance or sale of the Certificates.
(r) Good Standing. The Representative shall have received on and as of the
Closing Date satisfactory evidence of the good standing of the Depositor in its
jurisdiction of organization and its good standing as a foreign entity in such
other jurisdictions as the Representative may reasonably request, in each case
in writing or any standard form of telecommunication from the appropriate
Governmental Authorities of such jurisdictions.
(s) Additional Documents. On or prior to the Closing Date, the Depositor
shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Depositor agrees to indemnify
and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action,
investigations or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that arise out of, or are based upon (1) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) or any Preliminary Prospectus, or the attached diskette to any
Preliminary Prospectus or the Prospectus, or any omission or alleged omission to
state therein a 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, or (2) any untrue statement or alleged
untrue statement of a material fact contained in the Time of Sale Information or
any Issuer Information (as defined in Section 8(b)) contained in any Free
Writing Prospectus prepared by or on behalf of an Underwriter (an "Underwriter
Free Writing Prospectus") or contained in any Free Writing Prospectus which is
required to be filed pursuant to Section 8(e)(iii) or Section 8(h), 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 light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities arise
out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with (i)
information with respect to which each Underwriter has agreed to indemnify the
Depositor pursuant to Section 7(b) or (ii) information with respect to which
each Seller has agreed to indemnify the Underwriters pursuant to the
Indemnification Agreements (such information referred to herein as the "Seller's
Information"); provided, that with respect to any such untrue statement in or
omission from the Time of Sale Information, the indemnity agreement contained in
this paragraph (a) shall not inure to the benefit of any Underwriter to the
extent that the sale to the person asserting any such loss, claim, damage or
liability was an initial resale by such Underwriter and any such loss, claim,
damage or liability of or with respect to such Underwriter results from the fact
that (i) prior to the Time of Sale, the Depositor shall have notified such
Underwriter that the Preliminary Free Writing Prospectus contains an untrue
statement of material fact or omits to state therein a material fact required to
be stated therein in order to make the statements therein not misleading, (ii)
such untrue statement or omission of a material fact was corrected by Corrective
Information and such Corrective Information was provided to such Underwriter far
enough in advance of the Time of Sale so that such Corrective Information could
have been provided to such person prior to the Time of Sale for such person,
(iii) the Underwriter did not send or give such Corrective Information to such
person at or prior to the Time of Sale of the Offered Certificates to such
person and (iv) such loss, claim, damage or liability would not have occurred
had the Underwriter delivered the Corrective Information to such person as
provided for in clause (iii) above.
(b) Indemnification of the Depositor. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Depositor, its directors,
its officers who signed the Registration Statement and each person, if any, who
controls the Depositor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission contained in (i) any
Underwriters' Information in the Registration Statement, any Issuer Free Writing
Prospectus, any Time of Sale Information and the Prospectus (or any amendment or
supplement thereto) or any Preliminary Prospectus or (ii) any Underwriter Free
Writing Prospectus prepared by or on behalf of such Underwriter (in the case of
an omission or an alleged omission, when read in conjunction with the Time of
Sale Information); provided, that no Underwriter shall be obligated to so
indemnify and hold harmless (x) to the extent that the Depositor is entitled to
indemnification or contribution therefor under the indemnity of the Sellers set
forth in the Indemnification Agreements, (y) with respect to information that is
also contained in the Time of Sale Information or the Prospectus or (z) to the
extent such losses, claims, damages or liabilities are caused by a misstatement
or omission resulting from an error or omission in the Issuer Information which
was not corrected by Corrective Information subsequently supplied by the
Depositor or any Seller to the Underwriter far enough in advance of the Time of
Sale so that such Corrective Information could have been provided to a
prospective purchaser prior to the Time of Sale for such prospective purchaser.
(c) Underwriter Indemnification. Each Underwriter agrees, severally and
not jointly, to indemnify and hold harmless each other Underwriter, its
affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (the "Non-Indemnifying Underwriter") from and against any
and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted as such fees and expenses are incurred), joint
or several, that arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact or the omission or alleged omission
to state therein a material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not misleading
contained in any Free Writing Prospectus prepared by, or on behalf of, or used
or referred to by, such Indemnifying Underwriter or any member of its selling
group, in connection with the Certificates or in any revision or amendment
thereof or supplement thereto (with respect to any omission or alleged omission,
when read in conjunction with the Time of Sale Information) or (ii) the failure
of such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Section 8, and agrees to reimburse such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, except to the extent (1) the Non-Indemnifying Underwriters
are entitled to indemnification or contribution therefor from any Seller set
forth in any Indemnification Agreement or (2) such losses, claims, damages or
liabilities are caused by a misstatement or omission resulting from an error or
omission in the Issuer Information which was not corrected by Corrective
Information subsequently supplied by the Depositor or any Seller to such
Non-Indemnifying Underwriter at any time prior to the Time of Sale. This
agreement will be in addition to any liability that any Underwriter may
otherwise have.
(d) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to paragraph (a), (b) or (c) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under (a), (b) or (c) above, except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under this Section 7. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 7 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person 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 Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Underwriter, its affiliates, directors, officers and any
control persons of such Underwriter shall be designated in writing by ▇.▇.
▇▇▇▇▇▇ Securities Inc. and any such separate firm for the Depositor, its
directors, its officers who signed the Registration Statement and any control
persons of the Depositor shall be designated in writing by the Depositor. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(e) Contribution. If the indemnification provided for in subsections (a),
(b) and (c) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (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 Offered Certificates or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Depositor on the one hand and such
Underwriter on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Depositor on the one hand and each Underwriter on the other shall be deemed to
be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Depositor from the sale of the Offered Certificates
and the total underwriting discounts, commissions and other fees received by
such Underwriter in connection therewith bear to the aggregate offering price of
the Offered Certificates. The relative fault of the Depositor on the one hand
and 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 such Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) Limitation on Liability. The Depositor and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (e) above.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (e) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Offered Certificates
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to their respective purchase obligations
hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 7
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any Indemnified Person at law or in equity.
8. Offering Communications; Free Writing Prospectuses.
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Securities Act, no Underwriter shall convey
or deliver any written communication to any person in connection with the
initial offering of the Offered Certificates, unless such written communication
(1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a
prospectus satisfying the requirements of Rule 430B under the Securities Act or
(3) constitutes a Free Writing Prospectus. The Underwriter shall not convey or
deliver in connection with the initial offering of the Certificates any "ABS
informational and computational material," as defined in Item 1101(a) of
Regulation AB under the Securities Act ("ABS Informational and Computational
Material"), in reliance upon Rules 167 and 426 under the Securities Act.
(b) Each 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 prepared by or on behalf of such Underwriter that contains
any "issuer information", as defined in Rule 433(h) under the Securities Act(1)
("Issuer Information") (which the parties hereto agree includes, without
limitation, Seller's Information) and (b) any Free Writing Prospectus or portion
thereof that contains only a description of the final terms of the 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 Securities Act or (b) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Depositor that the
Free Writing Prospectuses to be furnished to the Depositor by the Underwriter
pursuant to Section 8(b) will constitute all Free Writing Prospectuses of the
type described therein that were furnished to prospective purchasers of Offered
Certificates by the Underwriter in connection with its offer and sale of the
Offered Certificates.
(d) Each Underwriter represents and warrants to the Depositor that each
Free Writing Prospectus required to be provided by it to the Depositor pursuant
to Section 8(b), when read together with all 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 or omit any material fact necessary to make the
statements contained therein, in 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, which information was not corrected by
Corrective Information subsequently supplied by the Depositor or any Seller to
the Underwriter far enough in advance of the Time of Sale so that the
Underwriter could have provided the Corrective Information to any prospective
purchaser prior to the Time of Sale for such prospective purchaser.
(e) The Depositor agrees to file with the Commission the following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof delivered by the
Underwriter to the Depositor pursuant to Section 8(b); and
(iii) 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 the Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or otherwise
disseminating communications.
(f) Any Free Writing Prospectus required to be filed pursuant to Section
8(e) by the Depositor shall be filed with the Commission not later than the date
of first use of the Free Writing Prospectus, except that:
(i) Any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
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 Certificates and the date of first use;
(ii) Any Free Writing Prospectus or portion thereof required to be
filed that contains only ABS Informational and Computational Material
shall be filed by the Depositor with the Commission not later than the
later of the due date for filing the final Prospectus relating to the
Offered Certificates pursuant to Rule 424(b) under the Securities Act or
two business days after the first use of such Free Writing Prospectus;
(iii) Any Free Writing Prospectus required to be filed pursuant to
Section 8(e)(iii) 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
(iv) The Depositor shall not be required to file (A) 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 Certificates, or (B) any Free Writing Prospectus or
portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms
thereof.
(g) Each Underwriter shall provide to the Depositor any Free Writing
Prospectus that is used or referred to by it and distributed by or on behalf of
such Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use of such Free
Writing Prospectus and the Depositor shall file such Free Writing Prospectus
with the Commission.
(h) Notwithstanding the provisions of Section 8(g), each Underwriter shall
provide to the Depositor, who shall then 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 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.
(i) Notwithstanding the provisions of Sections 8(e) and 8(g), 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.
(j) The Depositor and the Underwriters each agree that any Free Writing
Prospectuses prepared by it shall contain a legend substantially in the
following form:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information about
the depositor, the issuing trust 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 if you request it by calling ▇-▇▇▇-▇▇▇-▇▇▇▇ or emailing
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇.
(k) (1) In the event that the Depositor becomes aware that, as of the Time
of Sale, any Issuer Free Writing Prospectus contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading, when read in conjunction with the Time of Sale
Information (such Issuer Free Writing Prospectus a "Defective Issuer Free
Writing Prospectus"), the Depositor shall notify the Underwriters thereof within
one business day after discovery 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") and (2) in the event that any Underwriter
becomes aware that, as of the Time of Sale, any Underwriter Free Writing
Prospectus contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading, when
read in conjunction with the Time of Sale Information, (such Underwriter Free
Writing Prospectus, a "Defective Underwriter Free Writing Prospectus" and,
together with a Defective Issuer Free Writing Prospectus, a "Defective Free
Writing Prospectus"), such Underwriter shall notify the Depositor thereof within
one business day after discovery and shall, if requested by the Depositor:
(A) If the Defective Free Writing Prospectus was an Underwriter Free
Writing Prospectus, prepare a Free Writing Prospectus with Corrective
Information that corrects the material misstatement in or omission from
the Defective Underwriter Free Writing Prospectus (such corrected
Underwriter Free Writing Prospectus, a "Corrected Underwriter Free Writing
Prospectus" and, together with the Corrected Issuer Free Writing
Prospectus, a "Corrected Free Writing Prospectus");
(B) Deliver the Corrected Free Writing Prospectus to each purchaser
of an Offered Certificate which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such purchaser;
(C) Notify such purchaser in a prompt fashion that any prior
contract of sale with such purchaser has been terminated, and of such
purchaser's rights as a result of termination of such agreement;
(D) Provide such purchaser with an opportunity to enter into a new
contract of sale on the terms described in the Corrected Free Writing
Prospectus; and
(E) Comply with any other requirements for reformation of the
original contract of sale, as described in Section IV.2.c of the
Commission's Securities Offering Reform Release No. 33-8591.
(l) Each Underwriter covenants with the Depositor that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Offered Certificates that contains Issuer Information
to a prospective purchaser of Offered Certificates unless such information is
preceded or accompanied by the final Prospectus.
9. Effectiveness of Agreement. This Agreement shall become effective upon
the execution and delivery hereof by the parties hereto.
10. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Depositor, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by any
of the New York Stock Exchange or the over-the-counter market; (ii) a general
moratorium on commercial banking activities shall have been declared by federal
or New York State authorities; or (iii) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity
or crisis, either within or outside the United States, that in the judgment of
the Representative is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Offered
Certificates on the terms and in the manner contemplated by this Agreement, the
Time of Sale Information and the Prospectus.
11. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to
purchase the Offered Certificates that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of
such Offered Certificates by other persons satisfactory to the Depositor on the
terms contained in this Agreement. If, within 36 hours after any such default by
any Underwriter, the non-defaulting Underwriters do not arrange for the purchase
of such Offered Certificates, then the Depositor shall be entitled to a further
period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Underwriters to purchase such Offered Certificates on such terms.
If other persons become obligated or agree to purchase the Offered Certificates
of a defaulting Underwriter, either the non-defaulting Underwriters or the
Depositor may postpone the Closing Date for up to five full business days in
order to effect any changes that in the opinion of counsel for the Depositor or
counsel for the Underwriters may be necessary in the Registration Statement and
the Prospectus or in any other document or arrangement, and the Depositor agrees
to promptly prepare any amendment or supplement to the Registration Statement
and the Prospectus that effects any such changes. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule I hereto that,
pursuant to this Section 11, purchases Offered Certificates that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Offered Certificates, then the Depositor shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Offered
Certificates that such Underwriter agreed to purchase hereunder plus such
Underwriter's pro rata share (based on the principal amount of Offered
Certificates that such Underwriter agreed to purchase hereunder) of the Offered
Certificates of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Offered Certificates, or if the Depositor shall not exercise the right described
in paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Underwriters or the Depositor, except that the
Depositor will continue to be liable for the payment of expenses as set forth in
Section 12 hereof and except that the provisions of Section 7 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Depositor or any non-defaulting Underwriter for
damages caused by its default.
12. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Depositor will pay or cause to
be paid all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, (i) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Certificates and
any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Time of Sale Information, any Issuer Free Writing Prospectus and
the Prospectus (including all exhibits, amendments and supplements thereto) and
the distribution thereof; (iii) the costs of reproducing and distributing this
Agreement and each of the Basic Documents; (iv) the fees and expenses of counsel
for the Underwriters; (v) the fees and expenses of the Depositor's counsel and
independent accountants; (vi) the fees and expenses incurred in connection with
the registration or qualification and determination of eligibility for
investment of the Offered Certificates under the laws of such jurisdictions as
the Representative may designate and the preparation, printing and distribution
of a Blue Sky Memorandum (including the related fees and expenses of counsel for
the Underwriters); (vii) any fees charged by rating agencies for rating the
Certificates; (viii) the fees and expenses of the Trustee, the Master Servicers,
the Special Servicer and the Paying Agent (including related fees and expenses
of any counsel to such parties); (ix) all expenses and application fees incurred
in connection with any filing with the National Association of Securities
Dealers, Inc.; (x) all expenses incurred in connection with any "road show"
presentation to potential purchasers of Offered Certificates; and (xi) the costs
and expenses of the Depositor in connection with the purchase of the Mortgage
Loans.
(b) If (i) this Agreement is terminated pursuant to Section 10; (ii) the
Depositor for any reason fails to tender the Offered Certificates for delivery
to the Underwriters; or (iii) the Underwriters decline to purchase the Offered
Certificates for any reason permitted under this Agreement, the Depositor agrees
to reimburse the Underwriters for all out-of-pocket costs and expenses
(including the fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement and the offering contemplated
hereby.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
any other person, other than the affiliates, officers, directors and controlling
persons referred to in Section 7 and their respective heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of
Offered Certificates from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
14. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Depositor and the Underwriters
contained in this Agreement or made by or on behalf of the Depositor or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Offered Certificates
and shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Depositor or the
Underwriters.
15. Underwriters' Information. The Depositor and the Underwriters
acknowledge and agree that the only information relating to any Underwriter that
has been furnished to the Depositor in writing by any Underwriter through the
Representative expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) and the Time of Sale
Information consists of the following: the second to last paragraph of the cover
page and the first sentence in the last paragraph of the cover page of the
Preliminary Free Writing Prospectus and the Prospectus Supplement; and the first
and third sentence of the third paragraph and the second sentence of the fourth
paragraph under the heading "Method of Distribution" in the Prospectus
Supplement.
16. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
17. Miscellaneous.
(a) Authority of the Representative. Any action by the Underwriters
hereunder may be taken by ▇.▇. ▇▇▇▇▇▇ Securities Inc. on behalf of the
Underwriters, and any such action taken by ▇.▇. ▇▇▇▇▇▇ Securities Inc. shall be
binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
shall be given to the Representative c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇); Attention:
CMBS Trading Desk. Notices to the Depositor shall be given to it at ▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇ Commercial Mortgage Securities Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇); Attention: Commercial Mortgage Backed
Securities, in each case, with a copy to: ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Legal Department,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇),
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director & Associate General Counsel.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication), each
of which shall be an original and all of which together shall constitute one and
the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement. References herein to "Sections", Exhibits",
and "Schedules" without reference to a document or other source are designated
Sections, Exhibits, and Schedules of this Agreement.
[SIGNATURE PAGE FOLLOWS]
---------------
(1) Such definition of "issuer information" is further clarified by footnote 271
to SEC Release No. 33,8591. See 70 Fed. Reg. 44,722, at 44,751 (August 3, 2005).
If the foregoing is in accordance with your understanding, please indicate
your acceptance of this Agreement by signing in the space provided below.
Very truly yours,
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
Accepted: March 24, 2006
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the
several Underwriters listed
in Schedule I.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------
Authorized Signatory
SCHEDULE I
AGGREGATE INITIAL PRINCIPAL AMOUNT OR NOTIONAL AMOUNT
OF CERTIFICATES TO BE PURCHASED
@@@@@@
Principal Amount Purchase Price Principal Amount Purchase Price
of Class A-1 of Class A-1 of Class A-2 of Class A-2
Underwriter Certificates Certificates Certificates Certificates
--------------------------- ------------------- ------------------ -------------------- ------------------
▇.▇. ▇▇▇▇▇▇ Securities $59,907,000 99.9989% $155,873,000 100.4964%
Inc.
Nomura Securities
International Inc. $0 N/A $0 N/A
EHY Securities (USA), LLC $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A
PNC Capital Markets LLC $0 N/A $0 N/A
Banc of America
Securities LLC $0 N/A $0 N/A
Citigroup Global Markets,
Inc. $0 N/A $0 N/A
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $0 N/A $0 N/A
--------------------------- ------------------- ------------------ -------------------- ------------------
Principal Amount Purchase Price Principal Amount Purchase Price
of Class A-3FL of Class A-3FL of Class A-3B of Class A-3B
Underwriter Certificates Certificates Certificates Certificates
--------------------------- ------------------- ------------------ -------------------- ------------------
▇.▇. ▇▇▇▇▇▇ Securities $100,000,000 100% $55,733,000 100.4969%
Inc.
Nomura Securities
International Inc. $0 N/A $0 N/A
EHY Securities (USA), LLC $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A
PNC Capital Markets LLC $0 N/A $0 N/A
Banc of America
Securities LLC $0 N/A $0 N/A
Citigroup Global Markets,
Inc. $0 N/A $0 N/A
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $0 N/A $0 N/A
--------------------------- ------------------- ------------------ -------------------- ------------------
Principal Amount Purchase Price Principal Amount Purchase Price
of Class A-4 of Class A-4 of Class A-SB of Class A-SB
Underwriter Certificates Certificates Certificates Certificates
--------------------------- ------------------- ------------------ -------------------- ------------------
▇.▇. ▇▇▇▇▇▇ Securities $514,527,000 100.4960% $103,671,000 100.4944
Inc.
Nomura Securities
International Inc. $304,783,000 100.4960% $0 N/A
EHY Securities (USA), LLC $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A
PNC Capital Markets LLC $0 N/A $0 N/A
Banc of America
Securities LLC $0 N/A $0 N/A
Citigroup Global Markets,
Inc. $0 N/A $0 N/A
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $0 N/A $0 N/A
--------------------------- ------------------- ------------------ -------------------- ------------------
Principal Amount Purchase Price Notional Amount of Purchase Price
of Class A-1A of Class A-1A Class X-2 of Class X-2
Underwriter Certificates Certificates Certificates Certificates
--------------------------- ------------------- ------------------ -------------------- ------------------
▇.▇. ▇▇▇▇▇▇ Securities $204,959,000 100.4991 $2,096,616,00 0.6713%
Inc.
Nomura Securities
International Inc. $0 N/A $0 N/A
EHY Securities (USA), LLC $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A
PNC Capital Markets LLC $0 N/A $0 N/A
Banc of America
Securities LLC $0 N/A $0 N/A
Citigroup Global Markets,
Inc. $0 N/A $0 N/A
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $0 N/A $0 N/A
--------------------------- ------------------- ------------------ -------------------- ------------------
Principal Amount Purchase Price Principal Amount Purchase Price
of Class A-M of Class A-M of Class A-J of Class A-J
Underwriter Certificates Certificates Certificates Certificates
--------------------------- ------------------- ------------------ -------------------- ------------------
▇.▇. ▇▇▇▇▇▇ Securities $214,208,000 100.4949 $163,333,000 100.4989
Inc.
Nomura Securities
International Inc. $0 N/A $0 N/A
EHY Securities (USA), LLC $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A
PNC Capital Markets LLC $0 N/A $0 N/A
Banc of America
Securities LLC $0 N/A $0 N/A
Citigroup Global Markets,
Inc. $0 N/A $0 N/A
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $0 N/A $0 N/A
--------------------------- ------------------- ------------------ -------------------- ------------------
Principal Amount Purchase Price Principal Amount Purchase Price
of Class B of Class B of Class C of Class C
Underwriter Certificates Certificates Certificates Certificates
--------------------------- ------------------- ------------------ -------------------- ------------------
▇.▇. ▇▇▇▇▇▇ Securities $48,197,000 100.4982 $18,743,000 100.4950
Inc.
Nomura Securities
International Inc. $0 N/A $0 N/A
EHY Securities (USA), LLC $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A
PNC Capital Markets LLC $0 N/A $0 N/A
Banc of America
Securities LLC $0 N/A $0 N/A
Citigroup Global Markets,
Inc. $0 N/A $0 N/A
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $0 N/A $0 N/A
--------------------------- ------------------- ------------------ -------------------- ------------------
Principal Amount Purchase Price
of Class D of Class D
Underwriter Certificates Certificates
--------------------------- ------------------- ------------------
▇.▇. ▇▇▇▇▇▇ Securities $34,808,000 100.3050%
Inc.
Nomura Securities
International Inc. $0 N/A
EHY Securities (USA), LLC $0 N/A
IXIS Securities North
America Inc. $0 N/A
PNC Capital Markets LLC $0 N/A
Banc of America
Securities LLC $0 N/A
Citigroup Global Markets,
Inc. $0 N/A
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $0 N/A
--------------------------- ------------------- ------------------
SCHEDULE II
CERTIFICATE RATING
Moody's Investors
Designation Service, Inc. Standard & Poors
----------- ------------- ----------------
Class A-1 Aaa AAA
Class A-2 Aaa AAA
Class A-3FL Aaa AAA
Class A-3B Aaa AAA
Class A-4 Aaa AAA
Class A-SB Aaa AAA
Class A-1A Aaa AAA
Class X-2 Aaa AAA
Class A-M Aaa AAA
Class A-J Aaa AAA
Class B Aa2 AA
Class C Aa3 AA-
Class D A2 A
(1) The ratings assigned to the Class A-3FL Certificates only reflect the
receipt of a fixed rate of interest at a rate equal to 5.3920% per annum.
EXHIBIT 1
None.