CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
$1,086,347,000
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-C1
CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-4, CLASS B,
CLASS C, CLASS D AND CLASS E
UNDERWRITING AGREEMENT
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as of June 8, 2004
Citigroup Global Markets Inc. Wachovia Capital Markets, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ One Wachovia Center
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Charlotte, North Carolina 28288
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Des Depots Securities Inc. Deutsche Bank Securities Inc.
Doing business as CDC Securities ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Ladies and Gentlemen:
Citigroup Commercial Mortgage Securities Inc., a Delaware corporation
("CCMS"), proposes to sell to Citigroup Global Markets Inc. ("CGMI"), Wachovia
Capital Markets LLC ("WCM"), CDC Securities Inc. ("CDC Securities") and Deutsche
Bank Securities Inc. ("DBSI" and, collectively with CGMI, WCM, CDC Securities
and DBSI, the "Underwriters"), pursuant to this Underwriting Agreement (this
"Agreement"), the classes of Commercial Mortgage Pass-Through Certificates,
Series 2004-C1 that are identified on Schedule I hereto (collectively, the
"Registered Certificates"), each having the initial aggregate stated principal
amount (the initial "Class Principal Balance") set forth on Schedule I. The
Registered Certificates, together with the Class X, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class PM, Class
R, Class Y-I, Class Y-II and Class Y-III Certificates (collectively, the
"Private Certificates" and, collectively with the Registered Certificates, the
"Certificates"), evidence the entire beneficial ownership interest in the assets
of a trust to be created by CCMS (such trust, the "Trust" and such assets
collectively, the "Trust Fund"). The Trust Fund consists primarily of a pool
(the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans") that will have, as of their respective due dates in June 2004
(individually, on a loan-by-loan basis, and collectively, the "Cut-off Date"),
after taking into account all payments of principal due on the Mortgage Loans on
or before the Cut-off Date, whether or not received, an aggregate principal
balance of approximately $1,185,741,011 (subject to a variance of plus or minus
5.0%).
Certain of the Mortgage Loans will be acquired by CCMS from Citigroup
Global Markets Realty Corp. ("CGMRC" and such Mortgage Loans, the "CGMRC
Mortgage Loans"), pursuant to a mortgage loan purchase agreement, dated as of
the date hereof (the "CGMRC/CCMS
Mortgage Loan Purchase Agreement"), between CGMRC, as seller, and CCMS, as
purchaser. Certain other Mortgage Loans will be acquired by CCMS from Wachovia
Bank, National Association ("Wachovia" and such Mortgage Loans, the "Wachovia
Mortgage Loans"), pursuant to a mortgage loan purchase agreement, dated as of
the date hereof (the "Wachovia/CCMS Mortgage Loan Purchase Agreement"), between
Wachovia, as seller, and CCMS, as purchaser. The remaining Mortgage Loans will
be acquired by CCMS from CDC Mortgage Capital Inc. ("CDCMC" and such Mortgage
Loans, the "CDCMC Mortgage Loans"), pursuant to a mortgage loan purchase
agreement, dated as of the date hereof (the "CDCMC/CCMS Mortgage Loan Purchase
Agreement"), between CDCMC, as seller, and CCMS, as purchaser. CGMRC, Wachovia
and CDCMC are, collectively, the "Mortgage Loan Sellers" and the CGMRC/CCMS
Mortgage Loan Purchase Agreement, the Wachovia/CCMS Mortgage Loan Purchase
Agreement and the CDCMC/CCMS Mortgage Loan Purchase Agreement are, collectively,
the "Mortgage Loan Purchase Agreements".
The Trust is to be created and the Certificates are to be issued under a
pooling and servicing agreement, dated as of June 1, 2004 (the "Pooling and
Servicing Agreement"), among CCMS as depositor, Wachovia as master servicer (the
"Master Servicer"), Lennar Partners, Inc. as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee") and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not defined herein have the respective meanings assigned thereto in the
Pooling and Servicing Agreement.
CCMS intends to sell the Private Certificates to CGMI, WCM and CDC
Securities, pursuant to a certificate purchase agreement dated as of June 8,
2004 (the "Certificate Purchase Agreement"), between CCMS, CGMI, WCM and CDC
Securities.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. CCMS represents and warrants
to, and covenants with, each of the Underwriters that:
(a) A registration statement (File No. 333-108125) on Form S-3 has been
filed with the Securities and Exchange Commission (the "Commission"), and has
become effective under the Securities Act of 1933, as amended (the "Securities
Act"); such registration statement includes a prospectus which, as supplemented,
shall be, and may include a preliminary prospectus supplement which, as
completed, is proposed to be, used in connection with the sale of the Registered
Certificates. Such registration statement, as amended to the date of this
Agreement, is hereinafter referred to as the "Registration Statement" such
prospectus (which shall be in the form in which it has most recently been filed,
as the same is proposed to be added to or changed), as first supplemented by a
prospectus supplement relating to the Registered Certificates, filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and, used in connection with the sale of the Registered
Certificates, is hereinafter referred to as the "Base Prospectus" such
prospectus supplement is hereinafter referred to as the "Prospectus Supplement"
and the Base Prospectus and the Prospectus Supplement are collectively referred
to as the "Prospectus". The conditions to the use of a registration statement on
Form S-3 under the Securities Act, as set forth in the general instructions to
Form S-3, and the conditions of Rule 415 under the Securities Act have been
satisfied in all material respects with respect to the Registration Statement.
Any preliminary form of Prospectus that has heretofore been filed pursuant to
Rule 424 hereinafter is called the "Preliminary Prospectus". Any reference
herein to the terms "amend", "amendment" or
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"supplement" with respect to the Registration Statement or the Prospectus shall
be deemed to refer to and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), deemed to be
incorporated by reference therein after the date hereof. CCMS will file with the
Commission (i) within fifteen (15) days of the issuance of the Certificates a
current report on Form 8-K (a "Current Report") for purposes of filing the
Pooling and Servicing Agreement and other material contracts and (ii) in the
time period specified in Section 5(e) hereof, a Current Report for purposes of
filing certain Computational Materials and ABS Term Sheets as described in
Section 5(e) hereof.
(b) The Registration Statement, as of the date it became effective and the
date of the most recently filed Prospectus Supplement, and the Prospectus, as of
the date of the most recently filed Prospectus Supplement, and any revisions or
amendments thereof or supplements thereto filed prior to the termination of the
offering of the Registered Certificates, as of their respective effective or
issue dates, conformed or will conform, as applicable, in all material respects
to the requirements of the Securities Act and the rules and regulations of the
Commission thereunder applicable to the use of such documents as of such
respective dates, and the Registration Statement and the Prospectus, as revised,
amended or supplemented as of the Closing Date (as defined in Section 3), will
conform in all material respects to the requirements of the Securities Act and
the rules and regulations of the Commission thereunder applicable to the use of
such documents as of the Closing Date; and neither the Registration Statement
nor the Prospectus, as of such respective dates and, in the case of the
Prospectus and any revisions or amendments thereof or supplements thereto filed
prior to the Closing Date, as of the Closing Date, included or will include any
untrue statement of a material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that CCMS does not make any representations, warranties or
agreements as to (A) the information contained in or omitted from the Prospectus
or any revision or amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished electronically or in writing by or on
behalf of the Underwriters specifically for use in connection with the
preparation of the Prospectus or any revision or amendment thereof or supplement
thereto, (B) any information in any Computational Materials and ABS Term Sheets
(each as defined in Section 9) provided by the Underwriters to prospective
investors in connection with the sale of the Registered Certificates, or (C) the
statements in or the omissions from the Registration Statement, the Prospectus
or any revisions or amendments thereof or supplements thereto that are excluded
from the indemnification provisions of Section 7(a) pursuant to Section
7(a)(ii). There are no contracts or other documents relating to CCMS of a
character required to be described in or to be filed as exhibits to the
Registration Statement, as of the date of the Prospectus Supplement, which were
not described or filed as required.
(c) As of the Closing Date, the Registered Certificates and the Private
Certificates will be duly authorized by CCMS, and, when the Registered
Certificates have been duly executed and authenticated in the manner
contemplated in the Pooling and Servicing Agreement and have been delivered to
and paid for by the Underwriters pursuant to this Agreement, the Registered
Certificates will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement.
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(d) Ernst & Young LLP ("Ernst & Young") is an independent public accountant
for CCMS as required by the Securities Act and the rules and regulations
thereunder.
(e) As of the Closing Date, the Pooling and Servicing Agreement and each
Mortgage Loan Purchase Agreement will have been duly authorized, executed and
delivered by CCMS and, assuming the valid authorization, execution and delivery
thereof by the other parties thereto, will constitute a valid and binding
agreement of CCMS enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting the enforcement of creditors' rights and by
general principles of equity.
(f) This Agreement has been duly authorized, executed and delivered by CCMS
and, assuming the valid authorization, execution and delivery thereof by the
other parties hereto, will constitute a valid and binding agreement of CCMS
enforceable in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights and by general principles of
equity, and except as enforcement thereof may be limited by public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement which purport or are construed to provide indemnification from
liabilities under applicable securities laws.
(g) CCMS has been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with corporate power
and authority to own its properties and conduct its business as described in the
Prospectus and now conducted by it, is duly qualified as a foreign corporation
in good standing in all jurisdictions in which the ownership or lease of its
property or the conduct of its business requires such qualification, and is
conducting its business so as to comply in all material respects with the
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting its business, except where the failure to be so qualified
or to so comply, as the case may be, would not have a material adverse effect on
the performance by CCMS of its obligations under this Agreement, the Pooling and
Servicing Agreement or the Mortgage Loan Purchase Agreements. CCMS is not in
violation of its certificate of incorporation or by-laws or in default under any
agreement, indenture or instrument the effect of which violation or default
would have a material adverse effect on the performance by CCMS of its
obligations under this Agreement, the Pooling and Servicing Agreement or the
Mortgage Loan Purchase Agreements.
(h) The issuance and sale of the Registered Certificates to the
Underwriters, the compliance by CCMS with the provisions of this Agreement, the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement and the
Certificates and the consummation by CCMS of the other transactions herein or
therein contemplated do not, under any statute, regulation or rule of general
applicability in the United States or any decision, order, decree or judgment of
any judicial or other governmental body applicable to CCMS, require any consent,
approval, authorization, order, registration or qualification of or with any
court or governmental authority, except (A) such as have been obtained or
effected with respect to the Registered Certificates under the Securities Act,
(B) the recordation of the assignments of the Mortgage Loans to the Trustee,
which recordation is to be completed pursuant to the Pooling and Servicing
Agreement on or
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following the Closing Date, and (C) such other approvals as have been obtained;
provided that CCMS makes no representations or warranties as to any consent,
approval, authorization, registration or qualification that may be required
under state securities or "blue sky" laws.
(i) Neither the execution and delivery of this Agreement, the Mortgage Loan
Purchase Agreements and the Pooling and Servicing Agreement, nor the issuance
and delivery of the Certificates, nor the consummation by CCMS of any other of
the transactions contemplated herein or therein, nor the fulfillment by CCMS of
the terms of this Agreement, the Mortgage Loan Purchase Agreements, the Pooling
and Servicing Agreement and the Certificates, will (A) conflict with, violate,
result in a breach of or constitute a default under the certificate of
incorporation or by-laws of CCMS, any statute or regulation currently applicable
to CCMS or its properties, or any order or judgment currently applicable to CCMS
or its properties of any arbiter, court, regulatory body, administrative agency
or governmental body having jurisdiction over CCMS or its properties, or the
terms of any indenture or other agreement or instrument to which CCMS is a party
or by which it or any of its properties are bound, or (B) result in the creation
or imposition of any lien upon any of its properties pursuant to the terms of
any indenture or other agreement to which CCMS is a party or by which it or any
of its properties are bound.
(j) There are no actions or proceedings against, or investigations of, CCMS
pending, or, to the knowledge of CCMS, threatened, before any court,
administrative agency or other tribunal (A) asserting the invalidity of this
Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement or the Registered Certificates, (B) seeking to prevent the issuance of
the Registered Certificates or the consummation by CCMS of any of the
transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement, (C) that might materially and
adversely affect the performance by CCMS of its obligations under, or the
validity or enforceability against CCMS of, this Agreement, the Mortgage Loan
Purchase Agreements, the Pooling and Servicing Agreement or the Registered
Certificates or (D) seeking to affect adversely the federal income tax
attributes of the Registered Certificates described in the Prospectus.
(k) CCMS has not received any request by the Commission for any further
amendment of the Registration Statement or the Prospectus or for any additional
information. CCMS has not received any notice of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement and
has no knowledge of the institution or threatening of any proceeding for that
purpose. CCMS has not received any notification with respect to the suspension
of the qualification of the Registered Certificates for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose.
(l) Any taxes, fees and other governmental charges (other than income
taxes, franchise taxes and recording and filing fees) that are due and payable
by CCMS as of the Closing Date in connection with the execution, delivery and
performance of this Agreement, the Mortgage Loan Purchase Agreements, the
Pooling and Servicing Agreement and the Registered Certificates, will have been
paid at or prior to the Closing Date.
(m) Neither CCMS nor the Trust is, and the sale of the Registered
Certificates in the manner contemplated by the Prospectus will not cause CCMS or
the Trust to be, an "investment
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company" or under the control of an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(n) At the time of the execution and delivery of the Pooling and Servicing
Agreement, CCMS (i) except as disclosed in the Prospectus, will convey to the
Trustee, or cause to be conveyed to the Trustee, all of CCMS's right, title and
interest in and to the Mortgage Loans, free and clear of any lien, mortgage,
pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") granted by or imposed upon CCMS, (ii) will not have
assigned to any other person any of its right, title or interest in the Mortgage
Loans or in the Pooling and Servicing Agreement or the Registered Certificates,
and (iii) will have the power and authority to transfer or cause the transfer of
all of its right, title and interest in and to the Mortgage Loans to the Trustee
and to sell the Registered Certificates to the Underwriters.
(o) Upon delivery to the Underwriters of the Registered Certificates
pursuant to this Agreement, each Underwriter will have good title to the
Registered Certificates purchased by such Underwriter, in each case free and
clear of Liens granted or imposed upon CCMS.
(p) The consideration received by CCMS upon the sale of the Registered
Certificates to the Underwriters will constitute at least reasonably equivalent
value and fair consideration for the Registered Certificates.
(q) CCMS (i) will be solvent at all relevant times prior to, and will not
be rendered insolvent by, the sale of the Registered Certificates to the
Underwriters and (ii) is not selling the Registered Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the creditors of
CCMS.
(r) The transfer of the Mortgage Loans to the Trust and the sale of the
Certificates to each of the Underwriters, at the Closing Date, will be treated
by CCMS for financial accounting and reporting purposes as a sale of assets and
not as a pledge of assets to secure debt.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
on the representations and warranties herein set forth, CCMS agrees to sell to
each of the Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase from CCMS, their respective allotments of each class
of Registered Certificates specified on Schedule I hereto, at the purchase price
for each such class as set forth on such Schedule I (the "Purchase Price").
3. DELIVERY AND PAYMENT. Delivery of and payment for the Registered
Certificates shall be made in the manner, on the date and at the time specified
in Schedule I hereto, which date and time may be changed by agreement among the
Underwriters and CCMS (such date and time of delivery of and payment for the
Registered Certificates being hereinafter referred to as the "Closing Date").
Delivery of each Underwriter's allotment of the Registered Certificates shall be
made to the related Underwriter against payment by such Underwriter of the
purchase price therefor to or upon the order of CCMS in same-day funds by
federal funds wire (or by such other method as such Underwriter and CCMS may
agree). Unless delivery is made through the facilities of The Depository Trust
Company, the Registered Certificates of each class thereof shall be registered
in
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such names and in such authorized denominations as the related Underwriter may
have requested not less than three (3) full business days prior to the Closing
Date.
CCMS agrees to have the Registered Certificates available for inspection,
checking and packaging in New York, New York, at any time before 3:00 p.m. New
York City time on the business day prior to the Closing Date.
4. OFFERING BY THE UNDERWRITERS. It is understood that the Underwriters
propose to offer the Registered Certificates for sale as set forth in the
Prospectus. It is further understood that CCMS, in reliance upon Policy
Statement 105, has not filed and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Registered Certificates. As required by Policy Statement 105, each
Underwriter therefore covenants and agrees with CCMS that sales of the
Registered Certificates made by such Underwriter in and from the State of New
York will be made only to institutional investors within the meaning of Policy
Statement 105.
Each Underwriter represents and agrees that: (i) it has not sold or offered
the Certificates in the United Kingdom, and it has not delivered or communicated
the Prospectus or any other invitation or inducement to buy or participate in
the Certificates in the United Kingdom, except to persons who (A) have
professional experience of participating in unregulated collective investment
schemes and of matters relating to investments falling within both Article 14(5)
of the Financial Services Markets Act 2000 (Promotion of Collective Investment
Schemes) (Exemptions) Order 2001 (the "CIS Order") and Article 19(5) of the
Financial Services and Markets Act (Financial Promotion) Order 2001 (the "FP
order") or (B) fall within Article 22(2)(a) through (d) ("high net worth
companies, unincorporated associations, etc.") of the CIS Order and Article
49(2)(a) though (d) of the FP Order; and (ii) it has complied and will comply
with all applicable provisions of the Financial Services and Markets Act 2000
with respect to anything done by it in relation to the Certificates in, from or
otherwise involving the United Kingdom.
5. AGREEMENTS. CCMS and the Underwriters mutually agree that:
(a) CCMS will not file any further supplement to the Prospectus relating to
or affecting the Registered Certificates at any time, except as contemplated by
Section 5(e) or unless CCMS has furnished a copy to the Underwriters for their
review prior to filing, and will not file any such proposed supplement to which
the Underwriters reasonably object. CCMS will not file any amendment to the
Registration Statement relating to or affecting the Registered Certificates at
any time subsequent to the date hereof and prior to the Closing Date, except as
contemplated by Section 5(e) or unless CCMS has furnished a copy to the
Underwriters for their review prior to filing, and will not file any such
proposed amendment to which the Underwriters reasonably object. Subject to the
foregoing sentences, CCMS will cause the Prospectus to be filed, or transmitted
for filing, with the Commission pursuant to Rule 424(b) under the Securities Act
and, until the termination of the offering of the Registered Certificates, will
also promptly advise each Underwriter (i) when any amendment to the Registration
Statement relating to the Registered Certificates has become effective or any
revision of or supplement to the Prospectus has been so filed or transmitted for
filing, (ii) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order
7
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt by CCMS
of any notification with respect to the suspension of the qualification of the
Registered Certificates for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. CCMS will use its best efforts
to prevent the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act, (i) any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) it shall be
necessary to revise, amend or supplement the Prospectus to comply with the
Securities Act or the rules and regulations of the Commission thereunder, CCMS
promptly will, to the extent it has knowledge thereof, prepare and file with the
Commission, subject to paragraph (a) of this Section 5, a revision, amendment or
supplement that will correct such statement or omission or effect such
compliance and will deliver a copy thereof to the Underwriters.
(c) Upon request, so long as delivery of a prospectus relating to the
Registered Certificates is required under the Securities Act, CCMS will furnish
to any Underwriter and counsel for such Underwriter, without charge, as many
copies of the Prospectus and any revisions or amendments thereof or supplements
thereto as may be reasonably requested.
(d) CCMS will arrange for the qualification of the Registered Certificates
for sale under the laws of such jurisdictions as CGMI may designate, maintain
such qualifications in effect so long as required for the distribution of the
Registered Certificates and arrange for the determination of the legality of the
Registered Certificates for purchase by institutional investors; provided,
however, that CCMS shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(e) CCMS will cause or, if appropriate, has caused any Computational
Materials and ABS Term Sheets (each as defined in Section 9) with respect to the
Registered Certificates, which are or have been delivered by the Underwriters to
CCMS pursuant to or as contemplated by Section 9, to be filed with the
Commission on a Current Report pursuant to Rule 13a-11 under the Exchange Act
not later than, in each such case, the business day immediately following the
later of (i) the day on which such Computational Materials or ABS Term Sheets
are delivered to counsel for CCMS by the Underwriters (it being understood that
any such
8
material that is delivered after 10:30 a.m., New York City time, on a business
day shall be deemed to have been delivered on the next business day) and (ii)
the date hereof; and, if such filing is subsequent to the date hereof, CCMS will
promptly advise the Underwriters when each such Current Report has been so
filed. If any Collateral Term Sheet (as defined in Section 9) is provided by any
Underwriter to potential investors in the Registered Certificates, CCMS will
cause each such Collateral Term Sheet that is delivered by such Underwriter to
CCMS to be filed with the Commission on a Current Report pursuant to Rule 13a-11
under the Exchange Act on the business day immediately following the day on
which such Collateral Term Sheet is delivered to counsel for CCMS by such
Underwriter (it being understood that any such material that is delivered after
10:30 a.m., New York City time, on a business day shall be deemed to have been
delivered on the next business day). Each such Current Report shall be
incorporated by reference in the Prospectus and the Registration Statement.
Notwithstanding the foregoing, CCMS shall have no obligation to file materials
provided by the Underwriters pursuant to or as contemplated by Section 9 which,
in the reasonable determination of CCMS after making reasonable efforts to
consult with the Underwriters, are not required to be filed pursuant to the
No-Action Letters (as defined in Section 9), or which contain erroneous
information or contain any untrue statement of a material fact, or which, when
read in conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
it being understood, however, that CCMS shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any Computational
Materials or ABS Term Sheets provided by the Underwriters to CCMS pursuant to or
as contemplated by Section 9 hereof.
(f) The purchase of the Certificates by each of the Underwriters, at the
Closing Date, will be treated by each Underwriter for financial accounting and
reporting purposes as a sale of the Certificates by CCMS and not as a pledge of
the Certificates to secure a debt. The Underwriters agree to sell the Registered
Certificates only to purchasers other than CCMS, the Mortgage Loan Sellers and
their respective affiliates.
(g) CCMS will make generally available to holders of the Registered
Certificates as soon as practicable, but in any event not later than eighteen
months after the filing of the Prospectus pursuant to Rule 424(b) under the
Securities Act, an earnings statement (which need not be audited) with respect
to the Mortgage Pool as contemplated by Section 11(a) of the Securities Act),
which pursuant to Rule 158 under the Securities Act may be the annual report
filed with the Commission with respect to the Trust.
6. CONDITIONS TO THE OBLIGATIONS OF EACH UNDERWRITER AND CCMS. The
obligation of each Underwriter to purchase from CCMS, and the obligation of CCMS
to sell to such Underwriter, its allotment of the Registered Certificates shall
be subject to the accuracy of the representations and warranties on the part of
CCMS and such Underwriter contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of CCMS and such Underwriter
made in any officer's certificate delivered pursuant to the provisions hereof,
to the performance by CCMS and such Underwriter of their respective obligations
hereunder and to the following additional conditions:
(a) All actions required to be taken and all filings required to be made by
CCMS under the Securities Act prior to the Closing Date shall have been taken or
made, and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or shall have been threatened.
(b) CCMS shall have furnished to the Underwriters:
(i) an executed copy of the Pooling and Servicing Agreement;
(ii) an opinion of in-house counsel for CCMS, dated the Closing Date
and addressed to the Underwriters, substantially in the form attached
hereto as Exhibit A-1;
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(iii) an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as
special counsel for CCMS, dated the Closing Date and addressed to the
Underwriters, substantially in the form attached hereto as Exhibit A-2;
(iv) a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as
special counsel to CCMS, dated the Closing Date and addressed to the
Underwriters, substantially to the effect that, based on conferences and
telephone conversations with representatives of the Mortgage Loan Sellers,
the Underwriters, CCMS, the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer and their respective counsel (but, except as otherwise
expressly set forth in that letter, without having reviewed any of the
mortgage notes, mortgages or other documents relating to the Mortgage Loans
or made any inquiry of any originator of any Mortgage Loan not referenced
above), nothing has come to such counsel's attention that would lead it to
believe that the Registration Statement or the Prospectus (other than any
accounting, financial or statistical information contained in or omitted
from the Registration Statement or the Prospectus, any information
incorporated by reference into the Registration Statement or the
Prospectus, any information contained in or omitted from the Registration
Statement or the Prospectus relating to the Wachovia Mortgage Loans and the
related obligors and mortgaged properties and any information contained in
or omitted from the Registration Statement or the Prospectus relating to
the CDCMC Mortgage Loans and the related obligors and mortgaged
properties), at the date of effectiveness of the Registration Statement (in
the case of the Registration Statement) or at the date of the Prospectus
Supplement or at the Closing Date (in the case of the Prospectus
Supplement), included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(v) copies of all legal opinion letters delivered to the Rating
Agencies by ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, in its capacity as special
counsel to CCMS, in connection with the issuance of the Registered
Certificates, with each such opinion letter to be either addressed to the
Underwriters or accompanied by a letter signed by ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ &
Wood LLP stating that the Underwriters may rely on such opinion letter as
if it were addressed to them as of the date thereof;
(vi) a good standing certificate regarding CCMS from the Secretary of
State of the State of Delaware, dated not earlier than 30 days prior to the
Closing Date;
(vii) a certificate of CCMS, dated the Closing Date and signed by an
executive officer or authorized signatory of CCMS, to the effect that (A)
the representations and warranties of CCMS herein and in the Pooling and
Servicing Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date,
and (B) CCMS has in all material respects complied with all agreements and
satisfied all the conditions on its part set forth herein to be performed
or satisfied at or prior to the Closing Date; and
(viii) an officer's certificate, dated the Closing Date and signed by
the secretary or an assistant secretary of CCMS, to the effect that each
individual who, as an
10
officer or representative of CCMS, signed this Agreement, the Certificate
Purchase Agreement, the Mortgage Loan Purchase Agreements, the Pooling and
Servicing Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated
herein or in the Certificate Purchase Agreement, the Mortgage Loan Purchase
Agreements or in the Pooling and Servicing Agreement, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures. Such officer's
certificate shall be accompanied by true and complete copies (certified as
such by the secretary or an assistant secretary of CCMS) of the
organizational documents of CCMS, as in effect on the Closing Date, and of
the resolutions of CCMS and any required shareholder consent relating to
the transactions contemplated in this Agreement, the Certificate Purchase
Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and
Servicing Agreement.
(c) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence and good standing of such party under the laws of the jurisdiction of
its organization, the due authorization, execution and delivery of the Pooling
and Servicing Agreement by such party, the enforceability of the Pooling and
Servicing Agreement against such party (subject to such limitations as are
reasonably acceptable to the Underwriters) and such other matters as the
Underwriters may reasonably request. Such opinion may express its reliance as to
factual matters on representations and warranties made by, and on certificates
or other documents furnished by officers and/or authorized representatives of
parties to the Pooling and Servicing Agreement and on certificates furnished by
public officials. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the party on behalf of which such opinion is being rendered.
Such opinion need cover only the laws of the jurisdiction in which the party on
whose behalf such opinion is being rendered is organized, the laws of the State
of New York and the federal law of the United States.
(d) The Underwriters shall have received such other documents, certificates
and opinions regarding the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent as the Underwriters may reasonably request.
(e) CCMS and the Underwriters shall have received from Ernst & Young,
certified public accountants, various comfort letters, dated, as applicable, the
date of the Preliminary Prospectus, the date of the Prospectus Supplement or
such other date acceptable to CCMS and the Underwriters, in form and substance
reasonably satisfactory to CCMS and the Underwriters, stating in effect that:
(i) They have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial
or statistical nature set forth in the Prospectus Supplement under the
caption "Description of the Mortgage Pool" and on Annex A-1, Annex A-2,
Annex A-3 and Annex B thereto agrees with the data sheet or computer tape
prepared by the Mortgage Loan Sellers, unless otherwise noted in such
letter(s); and
11
(ii) They have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan files
and in such other sources as shall be specified by them, and found such
data and information to be in agreement, unless otherwise noted in such
letter.
(f) CCMS and the Underwriters shall have received from Ernst & Young,
certified public accountants, a letter dated on or about the Closing Date, in
form and substance reasonably satisfactory to CCMS and the Underwriters, to the
effect that they have performed certain specified procedures, all of which have
been agreed to by CCMS and the Underwriters, as a result of which they confirmed
the information of an accounting, financial or statistical nature included in
the Prospectus Supplement under the caption "Yield and Maturity Considerations"
and Annex C thereto.
(g) ▇▇▇▇▇ & ▇▇▇▇▇ shall have furnished to CCMS and each Underwriter a
letter or letters, each in form and substance satisfactory to CCMS, relating to
the Computational Materials and ABS Terms Sheets of such Underwriter filed in
accordance with Section 5(e), dated the date of the related Current Report and
stating in effect that:
(i) Using the assumptions and methodology used by such Underwriter,
all of which shall be described by reference in the letter, they have
recalculated the numerical data and dates set forth in such Computational
Materials and ABS Term Sheets of such Underwriter (or portions thereof)
attached to such letter, compared the results of their calculations to the
corresponding items in such Computational Materials and ABS Term Sheets (or
portions thereof) and found such items to be in agreement with the
respective results of such calculation;
(ii) If such Computational Materials and ABS Term Sheets include data
reflecting the distribution of interest at other than a fixed rate, or
reflecting other characteristics that give rise to the use of tables in
such Computational Materials and ABS Term Sheets, such letter shall also
set forth such other statements as are customarily set forth by ▇▇▇▇▇ &
▇▇▇▇▇ in such letter with respect to such data; and
(iii) They have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial
or statistical nature set forth in such Computational Materials and ABS
Term Sheets agrees with the data sheet or computer tape prepared by each
Mortgage Loan Seller, unless otherwise indicated in such letter.
(h) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by each Mortgage Loan Seller
in connection with its sale of Mortgage Loans to CCMS, pursuant to the related
Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on
each such certificate executed and delivered by a Mortgage Loan Seller or any of
its officers and representatives, to the same extent that CCMS may so rely, and
each such opinion addressed to CCMS shall also be addressed to the Underwriters
or shall be accompanied by a letter signed by the counsel that rendered such
opinion stating that the Underwriters may rely on such opinion as if it were
addressed to them.
12
(i) The Mortgage Loan Sellers shall have sold the Mortgage Loans to CCMS,
pursuant to the respective Mortgage Loan Purchase Agreements.
(j) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of CCMS that CGMI concludes, in its opinion after
consultation with CCMS and the other Underwriters, materially impairs the
investment quality of the Registered Certificates so as to make it impractical
or inadvisable to proceed with the public offering or the delivery of the
Registered Certificates as contemplated by the Prospectus.
(k) The Registered Certificates shall have been assigned ratings no less
than those set forth on Schedule I and such ratings shall not have been
rescinded or qualified.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Subject to Section 7(c), CCMS
agrees to indemnify and hold harmless each Underwriter and each person who
controls such Underwriter within the meaning of either the Securities Act or the
Exchange Act against any and all expenses, losses, claims, damages or
liabilities, joint or several, to which it or any such officer, director or
controlling person may become subject under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any revision or
amendment thereof or supplement thereto, or in any other filing incorporated by
reference therein, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it or
him in connection with investigating or defending any such expense, loss, claim,
damage, liability or action; provided that CCMS shall not be liable under the
indemnity agreement in this Section 7(a) to the extent that any such expense,
loss, claim, damage or liability (or action in respect thereof) arises out of or
is based upon: (i) any such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in the
Registration Statement or in any Preliminary Prospectus, the Prospectus or any
revision or amendment thereof or supplement thereto that was made in reliance
upon and in conformity with written or electronic information furnished to CCMS
by or on behalf of any Underwriter specifically for use in connection with the
preparation thereof, as set forth in Section 7(b); (ii) any such untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any revision or amendment thereof or supplement
thereto that (A) arose out of or was based upon an untrue statement, omission or
other inaccuracy with respect to the Mortgage Loan Seller Matters (as defined
below) contained in the Master Tape (also as defined below) (it being
acknowledged that the Master Tape has been used to prepare, without limitation,
any Preliminary Prospectus Supplement, the Prospectus Supplement and any
Computational Materials and ABS Term Sheets (each as defined in Section 9) with
respect to the Registered Certificates), (B) was made in reliance upon and
conformity with (1) any of the representations and warranties made by a Mortgage
Loan Seller contained in the related Mortgage Loan Purchase Agreement, or (2)
any other information regarding the Mortgage Loan Seller Matters furnished by a
Mortgage Loan Seller, electronically or in writing,
13
to CCMS or any Underwriter in connection with the preparation of any Preliminary
Prospectus, the Prospectus, any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates, or any revision or amendment thereof or
supplement thereto, or (C) is contained in the information regarding the
Mortgage Loan Seller Matters set forth (1) in any Preliminary Prospectus or the
Prospectus Supplement under the headings "Summary of Prospectus Supplement -
Relevant Parties - Mortgage Loan Sellers," "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and/or
"Description of the Mortgage Pool", (2) on Annex A-1, Annex A-2, Annex A-3
and/or Annex B to any Preliminary Prospectus or the Prospectus Supplement or (3)
on the diskette accompanying any Preliminary Prospectus or the Prospectus
Supplement (provided that CCMS shall be liable to the extent that any such
expense, loss, claim, damage, liability or action arises out of or is based upon
an error in the manipulation of, or any calculations based upon, or any
aggregation (other than an aggregation made in the Master Tape by a Mortgage
Loan Seller) of information concerning the Mortgage Loan Seller Matters); (iii)
any such untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact that was made in any
Computational Materials or ABS Term Sheets provided by any Underwriter to
prospective investors in connection with the sale of the Registered Certificates
and incorporated by reference into the Registration Statement, any Preliminary
Prospectus or the Prospectus as a result of any filing pursuant to Section 5(e);
or (iv) any breach, inaccuracy or untruth of any of the statements,
representations, warranties and/or covenants made by any Underwriter pursuant to
Section 9(b); and provided, further, that CCMS shall not be liable to any
particular Underwriter or any person controlling such Underwriter under the
indemnity agreement in this Section 7(a) for any such expense, loss, claim,
damage or liability (or action in respect thereof) that arises out of or is
based upon any such untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in any Preliminary
Prospectus to the extent that such expense, loss, claim, damage or liability (or
action in respect thereof) results from the fact that such Underwriter sold
Registered Certificates to a person as to whom there was not sent or given, at
or prior to the confirmation of such sale, a copy of the Prospectus (excluding
documents incorporated therein by reference) and such untrue statement or
alleged untrue statement or omission or alleged omission had been corrected in
the Prospectus, unless the Underwriter did not receive the Prospectus or such
corrected and amended Prospectus prior to the written confirmation of the sale
of such Certificates to such person (despite the Underwriter's timely request
for copies of the Prospectus or such corrected and amended Prospectus). This
indemnity agreement will be in addition to any liability that CCMS may otherwise
have.
The "Mortgage Loan Seller Matters" consist of the following matters: the
Mortgage Loans and the underlying real properties securing the Mortgage Loans;
the related loan documents and the obligors thereunder; and the Mortgage Loan
Sellers.
The "Master Tape" is the compilation of underlying information and data
regarding the Mortgage Loans covered by the independent accountants' reports on
applying agreed upon procedures dated May 24, 2004 and June 8, 2004, as
supplemented to the date of initial issuance of the Certificates, and rendered
by ▇▇▇▇▇ & ▇▇▇▇▇.
(b) Subject to Section 7(c), each Underwriter, severally and not jointly,
agrees to indemnify and hold harmless CCMS and each of its directors, each of
its officers who signed the
14
Registration Statement or any amendments thereof, and each person who controls
CCMS within the meaning of either the Securities Act or the Exchange Act against
any and all expenses, losses, claims, damages or liabilities, joint or several,
to which it or any of them may become subject under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Prospectus or any revision or amendment thereof
or supplement thereto, or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, which untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written or electronic information furnished to CCMS
by or on behalf of such Underwriter, specifically for use in connection with the
preparation of any Preliminary Prospectus, the Prospectus or any revision or
amendment thereof or supplement thereto, (ii) any untrue statement or alleged
untrue statement of a material fact made in Computational Materials or ABS Term
Sheets prepared or developed by such Underwriter and provided by such
Underwriter or any other Underwriter to prospective investors in connection with
the sale of the Registered Certificates and incorporated by reference into the
Registration Statement or Prospectus as a result of any filing pursuant to
Section 5(e), (iii) any omission or alleged omission to state in any
Computational Materials or ABS Term Sheets prepared or developed by such
Underwriter and provided by such Underwriter or any other Underwriter to
prospective investors in connection with the sale of the Registered Certificates
and incorporated by reference into the Registration Statement or Prospectus as a
result of any filing pursuant to Section 5(e), a material fact that, when read
in conjunction with any Preliminary Prospectus (or, if delivered on or after the
date hereof or if there is no Preliminary Prospectus, when read in conjunction
with the Prospectus), is required to be stated therein or necessary to make the
statements therein not misleading and (iv) any material breach, inaccuracy or
untruth on the part of such Underwriter of any of the statements,
representations, warranties and/or covenants made pursuant to Section 9(b);
provided that such Underwriter shall not be liable under the indemnity agreement
in this Section 7(b) for any such expense, loss, claim, damage or liability (or
action in respect thereof) that arises out of or is based upon any untrue
statement or omission in any such Computational Materials or ABS Term Sheets to
the extent that such expense, loss, claim, damage or liability (or action in
respect thereof) is covered by the indemnity agreement included in Section 7(a)
of any Mortgage Loan Purchase Agreement, in accordance with the terms thereof.
Notwithstanding the foregoing, the indemnity in clause (ii) and clause (iii)
above will apply only if such untrue statement or alleged untrue statement or
omission or alleged omission was not also an untrue statement or alleged untrue
statement or omission in the Prospectus, to which untrue statement, alleged
untrue statement or omission in the indemnity agreement in Section 7(a) applies.
This indemnity agreement will be in addition to any liability that the
Underwriters may otherwise have. CCMS acknowledges that the statements set forth
in the first and fourth sentences of the paragraph beginning "Citigroup Global
Markets Inc., Wachovia Capital Markets, LLC, CDC Securities Inc. and Deutsche
Bank Securities Inc.", and the entire following paragraph, on the cover page of
the Prospectus Supplement, the subsection entitled "Summary of Prospectus
Supplement--Relevant Parties--Underwriters" in the Prospectus Supplement, the
last paragraph under the heading "Risk Factors--Risks Related to the Offered
Certificates--Potential Conflicts of Interest May Affect the Underwriting and
Servicing of the Underlying Mortgage Loans" in the Prospectus Supplement and the
second paragraph, the third paragraph, the fourth paragraph
15
and the fifth paragraph under the heading "Method of Distribution" in the
Prospectus Supplement, constitute the only information furnished in writing by
or on behalf of the Underwriters for inclusion in the Prospectus and Preliminary
Prospectus or any revision or amendment thereof or supplement thereto, and each
Underwriter confirms that such statements attributable thereto are correct.
(c) Promptly after receipt by an indemnified party under Section 7(a) or
Section 7(b) above of notice of the commencement of any suit, action, proceeding
(including, without limitation, any governmental or regulatory investigation),
claim or demand, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under Section 7(a) or Section 7(b)
above, notify the indemnifying party in writing of the commencement thereof, but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability that it may have to any indemnified party
otherwise than under Section 7(a) or Section 7(b); provided, however, that any
increase in such liability under Section 7(a) or Section 7(b), as applicable, as
a result of such failure to promptly notify shall not be an expense of the
indemnifying party. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided that,
if the defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party shall have reasonably concluded
that there may be additional or different legal defenses available to it that
conflict with those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for legal expenses of other counsel
or other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel),
representing the indemnified party or parties who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time period after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
Notwithstanding anything herein to the contrary, an indemnifying party
shall not be liable under Section 7(a) or Section 7(b) for any settlement of any
litigation, proceeding, action or claim effected without its consent unless (i)
at any time an indemnified party shall have requested such indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under Section 7(a) or Section 7(b), as
applicable, (ii) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request and more than 15 days after
receipt by such indemnifying party of written notice of the
16
proposed settlement and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) If the indemnification provided for in Section 7(a) or Section 7(b)
above is due in accordance with its terms but is for any reason held by a court
to be unavailable to any indemnified party on grounds of public policy or
otherwise, then the indemnifying party shall contribute to the aggregate
expenses, losses, claims, damages and liabilities (including legal and other
expenses reasonably incurred in connection with investigating or defending same)
to which such indemnified party may be subject and which were intended to be
covered under such Section 7(a) or Section 7(b), as the case may be, as follows:
(i) in the case of any such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) referred to in and intended to
be covered under Section 7(a) above, in such proportion so that the
Underwriters are responsible for that portion represented by the percentage
that the total underwriting discounts and/or fees received by the
Underwriters bear to the sum of such discounts and/or fees received by the
Underwriters and the total purchase price of the Registered Certificates
specified in Schedule I hereto and CCMS is responsible for the balance (or,
if such allocation is not permitted by applicable law or if the indemnified
party failed to give the notice required in Section 7(c) or in the last
paragraph of this Section 7(d), in such proportion as is appropriate to
reflect not only such financial considerations but also the factors
referred to in the immediately following clause (ii)); provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Registered
Certificates) be responsible under this clause (i) for more than the
amount, if any, by which the underwriting discounts and fees applicable to
the Registered Certificates purchased by such Underwriter hereunder exceeds
any damages otherwise paid by such Underwriter with respect to the subject
expense, loss, claim, damage or liability (or action in respect thereof);
and
(ii) in the case of any expenses, losses, claims, damages or
liabilities (or actions in respect thereof) referred to in and intended to
be covered under Section 7(b) above, in such proportion as is appropriate
to reflect the relative fault of CCMS on the one hand and the Underwriters
on the other in connection with the untrue statement or alleged untrue
statement or omission or alleged omission which resulted in such expenses,
losses, claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact that is the basis for such expense, loss,
claim, damage or
17
liability results from information prepared by CCMS on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
CCMS and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by per capita
allocation which does not take account of the equitable considerations referred
to above in this subsection (d).
Notwithstanding the foregoing, however, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person who
controls an Underwriter within the meaning of either the Securities Act or the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person who controls CCMS within the meaning of either the Securities Act or
the Exchange Act, each officer of CCMS who shall have signed the Registration
Statement or any amendments thereof and each director of CCMS shall have the
same rights to contribution as CCMS. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this subsection (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this subsection (d).
(e) The Underwriters further agree as follows:
(i) Each Underwriter will indemnify and hold harmless each of the
other Underwriters against any expenses, losses, claims, damages or
liabilities to which any of those other Underwriters may become subject,
under the Securities Act or otherwise, insofar as such expenses, losses,
claims, damages or liabilities arise out of or are based upon (1) any
untrue statements or misstatements of a material fact made in Computational
Materials or ABS Term Sheets prepared by the indemnifying Underwriter or
(2) the indemnifying Underwriter's failure to comply with Section 9, and
will reimburse each of the other Underwriters for any legal or other
expenses reasonably incurred by any of those other Underwriters in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided that such Underwriter shall not be liable
under the indemnity agreement in Section 7(e)(i)(1) for any expense, loss,
claim, damage or liability (or action in respect thereof) that arises out
of or is based upon any untrue statement or omission in any Computational
Materials or ABS Term Sheets to the extent that such expense, loss, claim,
damage or liability (or action in respect thereof) is covered by the
indemnity agreement included in Section 7(a) of any Mortgage Loan Purchase
Agreement, in accordance with the terms thereof).
(ii) Promptly after receipt by an indemnified party under clause (i)
above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such clause, notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the
18
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such clause; provided,
however, that any increase in such liability as a result of such failure to
promptly notify shall not be an expense of the indemnifying party. In case
any such action shall be brought against any indemnified party, and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and may elect
by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party to assume the
defense thereof with counsel reasonably satisfactory to such indemnified
party; and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under clause (i) above
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof unless (A) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the next sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) representing the
indemnified party or parties who are parties to such action), (B) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time period after notice of commencement of the action or (C)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except
that, if clause (A) or (C) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (A) or (C). If the
defendants in any such action include both the indemnified party and the
indemnifying party, and the indemnified party shall have reasonably
concluded that there may be additional or different legal defenses
available to it that conflict with those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate
in the defense of such action on behalf of such indemnified party or
parties.
An indemnifying party shall not be liable for any settlement of any
proceeding effected without its consent. However, if any proceeding is
settled with such consent or if there is a final judgment for the
plaintiff, the indemnifying party shall indemnify the indemnified party
from and against any expense, loss, claim, damage or liability by reason of
such settlement or judgment. Notwithstanding the foregoing, an indemnifying
party shall be liable to the same extent it otherwise would be under clause
(i) above, for any settlement of any proceeding effected without its
written consent if (X) at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel for which the indemnifying party is obligated under
clause (i) above, (Y) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request and more
than 15 days after receipt by such indemnifying party of written notice of
the proposed settlement and (Z) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to
the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with
19
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (B) does not include a statement as to or
an admission of fault, culpability or a failure to act, by or on behalf of
the indemnified party.
(iii) If the indemnification provided in clause (i) is due in
accordance with its terms in respect of any expenses, losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein,
but is for any reason held by a court to be unavailable on grounds of
public policy or otherwise, then the indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
expenses, losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect both the relative
benefits received by the indemnifying party on the one hand and the
indemnified party on the other, from the offering of the Registered
Certificates, and the relative fault of the indemnifying party on the one
hand and the indemnified party on the other in connection with the
statements which resulted in such expenses, losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
indemnifying party on the one hand and indemnified party on the other shall
be deemed to be in the same proportion to the amount of Registered
Certificates underwritten by each such party. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party on the one hand or the indemnified party on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contribution
pursuant to this clause (iii) were determined by per capita allocation or
by any other method of allocation which does not take into account the
equitable considerations referred to above in this clause (iii). The amount
paid or payable by an indemnified party as a result of the expenses,
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this clause (iii) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this clause (iii), no Underwriter shall
be required to contribute any amount pursuant to this clause (iii) in
excess of the amount by which the total price at which the Registered
Certificates underwritten by it and distributed to the public, were sold
(or, in the case of Deutsche Bank Securities Inc., provided that it is not
the indemnifying party, the amount of the underwriting discounts and fees
received by it), exceeds the amount of any damages which such party has
otherwise been required to pay by reason of such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact. 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.
(iv) The respective obligations of each of the Underwriters under
clauses (i) through (iii) above shall be in addition to any liability which
each may otherwise have and
20
shall extend, upon the same terms and conditions, to each person, if any,
who controls such Underwriter within the meaning of the Securities Act or
the Exchange Act.
(f) The amount paid or payable by an indemnified party as a result of the
expenses, losses, claims, damages and liabilities referred to in any subsection
of this Section 7 shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim
(except where the indemnified party is required to bear such expenses pursuant
to this Agreement), which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that it is
reasonable to believe that the indemnifying party will be ultimately obligated
to pay such expenses. If any expenses so paid by an indemnifying party are
subsequently determined not to be required to be borne by such indemnifying
party hereunder, the indemnified party that received such payment shall promptly
refund the amount so paid to such indemnifying party.
8. FEES AND EXPENSES. Except as provided in any other particular Section
hereof, each Underwriter shall be responsible only for the costs and expenses
(including, but not limited to, the costs of any counsel retained thereby)
actually incurred by such Underwriter in connection with the transactions
contemplated by this Agreement, and otherwise, the costs and expenses incurred
in connection with the transactions herein contemplated shall be payable by the
Mortgage Loan Sellers, as and to the extent provided in the respective Mortgage
Loan Purchase Agreements, or by CCMS.
9. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS. (a) Not later than 10:30
a.m., New York City time, on the date hereof, each Underwriter shall deliver to
CCMS two (2) complete copies of all materials provided by such Underwriter to
prospective investors in the Registered Certificates that constitute either (i)
"Computational Materials" within the meaning of the no-action letter dated May
20, 1994 issued by the Division of Corporation Finance of the Commission to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated,
and ▇▇▇▇▇▇ Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "▇▇▇▇▇▇/PSA Letters") or (ii) "ABS
Term Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (such letter, together with the ▇▇▇▇▇▇/PSA Letters, the
"No-Action Letters"), if the filing of such materials with the Commission is a
condition of the relief granted in such letters and, in the case of any such
materials that constitute "Collateral Term Sheets" within the meaning of the PSA
Letter, such Collateral Term Sheets have not previously been delivered to CCMS
as contemplated by Section 9(b)(i) below. Each delivery of Computational
Materials pursuant to this paragraph (a) shall be effected by delivering one (1)
copy of such materials to counsel for CCMS and one (1) copy of such materials to
CCMS. Each delivery of ABS Term Sheets pursuant to this paragraph (a) shall be
effected by delivering such materials to counsel for CCMS on behalf of CCMS at
the address specified in Section 16 hereof in a format that will permit such
materials to be promptly filed electronically with the Commission.
21
(b) Each Underwriter represents and warrants to and agrees with CCMS, as of
the date hereof and as of the Closing Date, as applicable, that:
(i) If such Underwriter has provided any Collateral Term Sheets to
potential investors in the Registered Certificates prior to the date hereof
and if the filing of such materials with the Commission is a condition of
the relief granted in the No-Action Letters, then in each such case such
Underwriter delivered such materials in the format contemplated by Section
9(a) to counsel for CCMS on behalf of CCMS at the address specified in
Section 16 hereof no later than 10:30 a.m., New York City time, on the
first business day following the date on which such materials were
initially provided to a potential investor;
(ii) The Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to CCMS pursuant to
Section 9(a) or as contemplated in Section 9(b)(i) constitute all of the
materials relating to the Registered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to prospective
investors in the Registered Certificates prior to the date hereof, except
for any Preliminary Prospectus and any Computational Materials and ABS Term
Sheets that are not required to be filed with the Commission in accordance
with the No-Action Letters, and all Computational Materials and ABS Term
Sheets provided by such Underwriter to potential investors in the
Registered Certificates comply with the requirements of the No-Action
Letters;
(iii) On the respective dates any such Computational Materials and/or
ABS Term Sheets prepared by such Underwriter with respect to the Registered
Certificates referred to in Section 9(b)(ii) were last furnished by such
Underwriter to each prospective investor, on the date of delivery thereof
to CCMS pursuant to or as contemplated by this Section 9 and on the Closing
Date, such Computational Materials and/or ABS Term Sheets did not and will
not include any untrue statement of a material fact or, when read in
conjunction with the Prospectus, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(iv) At the time any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates were furnished to a prospective
investor and on the date hereof, such Underwriter possessed, and on the
date of delivery of such materials to CCMS pursuant to or as contemplated
by this Section 9 and on the Closing Date, such Underwriter will possess,
the capability, knowledge, expertise, resources and systems of internal
control necessary to ensure that such Computational Materials and/or ABS
Term Sheets prepared by it conform to the representations and warranties of
such Underwriter contained in clauses (ii) and, if applicable, (iii) above
of this subsection (b);
(v) Unless CCMS consents otherwise, all Computational Materials and
ABS Term Sheets with respect to the Registered Certificates furnished by
such Underwriter to potential investors contained and will contain a
legend, prominently displayed on the first page thereof, to the effect that
CCMS has not prepared, reviewed or participated in the preparation of such
Computational Materials or ABS Term Sheets, is not responsible for the
accuracy thereof and has not authorized the dissemination thereof;
22
(vi) All Collateral Term Sheets with respect to the Registered
Certificates furnished by such Underwriter to potential investors contained
and will contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus and, except
in the case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets; and
(vii) After the date hereof, such Underwriter shall not deliver or
authorize the delivery of any Computational Materials, ABS Term Sheets or
other materials relating to the Registered Certificates (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time
as the delivery of such Computational Materials, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, no Underwriter makes any representation or
warranty as to whether any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates included or will include any untrue
statement resulting from any Collateral Error (except any Corrected Collateral
Error, with respect to materials prepared after the receipt by the Underwriters
from CCMS or any Mortgage Loan Seller of notice of such Collateral Error or
materials superseding or correcting such Collateral Error).
As used in this Agreement, "Collateral Error" shall mean any error in the
Master Tape or any other information concerning the Mortgage Loans furnished by
a Mortgage Loan Seller to any Underwriter in writing or by electronic
transmission that was used in the preparation of any Computational Materials or
ABS Term Sheets; provided that Collateral Error shall not include an error by an
Underwriter in the manipulation of, or any calculation based upon, or any
aggregation of information concerning the Mortgage Loans. As used in this
Agreement, "Corrected Collateral Error" shall mean any Collateral Error as to
which the Underwriters, within a reasonable time period prior to the
dissemination of the materials from which any expense, loss, claim, damage or
liability or action in respect thereof arose, were notified in writing or
provided in written or electronic form information superseding or correcting
such Collateral Error, including, without limitation, as part of the Prospectus.
(c) The Underwriters acknowledge and agree that CCMS has not authorized and
will not authorize the distribution of any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates to any prospective investor,
and agree that any such Computational Materials and/or ABS Term Sheets furnished
to prospective investors shall include a disclaimer to the effect set forth in
clause (v) of subsection (b) above. The Underwriters agree that they will not
represent to potential investors that any Computational Materials and/or ABS
Term Sheets with respect to the Registered Certificates were prepared or
disseminated on behalf of CCMS.
(d) If, at any time when a Prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to 90
days from the date hereof, it shall be necessary in the opinion of one or more
of the Underwriters or their counsel to amend or supplement the Prospectus as a
result of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state a material fact
required, when considered in conjunction with the
23
Prospectus, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Prospectus, not misleading, or if it shall be
necessary in the opinion of one or more of the Underwriters or their counsel to
amend or supplement any Current Report to comply with the Securities Act or the
rules thereunder, such Underwriter or Underwriters, at its or their expense (or,
if such amendment or supplement is necessary due to a Collateral Error relating
to the CGMRC Mortgage Loans (except any such Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriters from CCMS or
CGMRC of notice of such Collateral Error or materials superseding or correcting
such Collateral Error), at the expense of CCMS), shall promptly prepare and
furnish to CCMS for filing with the Commission an amendment or supplement that
will correct such statement or omission or an amendment that will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Registered Certificates that received such information being
amended or supplemented. Such Underwriter or Underwriters will represent and
warrant to CCMS, as of the date of delivery of such amendment or supplement to
CCMS, that such amendment or supplement does not include any untrue statement of
a material fact or, when read in conjunction with the Prospectus, omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. CCMS shall have no obligation to file such
amendment or supplement if CCMS reasonably determines that (i) such amendment or
supplement contains any untrue statement of a material fact or, when read in
conjunction with the Prospectus, omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading (it
being understood, however, that CCMS shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by such Underwriter or Underwriters to CCMS pursuant to this
Section 9(d)) or (ii) such filing is not required under the Securities Act.
Notwithstanding the foregoing, such Underwriter or Underwriters will make no
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriters from CCMS or CGMRC
of notice of such Collateral Error or materials superseding or correcting such
Collateral Error).
(e) If, at any time when a Prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to 90
days from the date hereof, it shall be necessary in the opinion of CCMS or its
counsel to amend or supplement the Prospectus as a result of an untrue statement
of a material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this Section 9 or
the omission to state therein a material fact required, when considered in
conjunction with the Prospectus, to be stated therein or necessary to make the
statements therein, when read in conjunction with the Prospectus, not
misleading, or if it shall be necessary in the opinion of CCMS or its counsel to
amend or supplement any Current Report to comply with the Securities Act or the
rules thereunder, CCMS promptly will notify the Underwriter(s) that had prepared
the subject Computational Materials and/or ABS Term Sheets of the necessity of
such amendment or supplement, and such Underwriter(s), at its or their expense
(or, if such amendment or supplement is necessary due to a Collateral Error
relating to the CGMRC Mortgage Loans (except any such Corrected Collateral
Error, with respect to materials prepared after the receipt by the Underwriters
from CCMS or CGMRC of notice of such Collateral Error or materials superseding
or correcting such Collateral Error), at the expense of CCMS), shall promptly
prepare and furnish to CCMS for filing with the
24
Commission an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and shall distribute
such amendment or supplement to each prospective investor in the Registered
Certificates that received such information being amended or supplemented. Such
Underwriter(s) will represent and warrant to CCMS, as of the date of delivery of
such amendment or supplement to CCMS, that such amendment or supplement does not
include any untrue statement of a material fact or, when read in conjunction
with the Prospectus, omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. CCMS shall have no
obligation to file such amendment or supplement if CCMS reasonably determines
that such amendment or supplement contains any untrue statement of a material
fact or, when read in conjunction with the Prospectus, omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (it being understood, however, that CCMS shall have no obligation
to review or pass upon the accuracy or adequacy of, or to correct, any such
amendment or supplement provided by such Underwriter(s) to CCMS pursuant to this
Section 9(e)). Notwithstanding the foregoing, such Underwriter(s) will make no
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriters from CCMS or any
Mortgage Loan Seller of notice of such Collateral Error or materials superseding
or correcting such Collateral Error).
(f) Computational Materials and ABS Term Sheets may be distributed by the
Underwriters through electronic means in accordance with SEC Release 33-7233 or
other applicable laws or regulations.
10. TERMINATION. This Agreement may be terminated by notice given to CCMS,
if the sale of the Registered Certificates provided for herein is not
consummated because of any failure or refusal on the part of CCMS to comply in
all material respects with the terms or to fulfill in all material respects any
of the conditions of this Agreement, or if for any reason CCMS shall be unable
to perform in all material respects its obligations under this Agreement. This
Agreement also may be terminated by the Underwriters, by notice given to CCMS
prior to delivery of and payment for the Certificates, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Underwriters after consultation with CCMS, impracticable to
market the Registered Certificates.
11. DEFAULT BY AN UNDERWRITER. If any Underwriter shall fail to purchase
and pay for any of the Registered Certificates agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its obligations under this Agreement, the remaining
Underwriters shall be obligated (in proportion to their respective allocations
set forth in Schedule I) to take up and pay for the Registered Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the purchase price of the Registered
Certificates that the defaulting Underwriter or
25
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
purchase price of the Registered Certificates, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Registered Certificates, and if such nondefaulting
Underwriters do not purchase all of the Registered Certificates, this Agreement
will terminate without liability to the nondefaulting Underwriters or CCMS. In
the event of a default by an Underwriter as set forth in this Section 11, the
Closing Date for the Registered Certificates shall be postponed for such period,
not exceeding ten (10) days, as the nondefaulting Underwriters shall determine
in order that the required changes in the Registration Statement, the Prospectus
or any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to CCMS and to any nondefaulting Underwriter for damages occasioned by its
default hereunder.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of CCMS, the
Underwriters and their respective officers, directors, employees and agents set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the
Underwriters, CCMS or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Registered Certificates. The provisions of Sections 7 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. BENEFICIARIES. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, applicable to
agreements negotiated, made and to be performed entirely in said state.
15. MISCELLANEOUS. This Agreement supersedes all prior or contemporaneous
agreements and understandings between CCMS and any of the Underwriters relating
to the subject matter hereof. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, and that taken together shall constitute one
and the same instrument.
16. NOTICES. All communications hereunder will be in writing and effective
only upon receipt and, if sent to any Underwriter, will be delivered to such
Underwriter at the address, and to the attention of the person or group, set
forth on page 1 of this Agreement; and, if sent to CCMS, will be delivered to
Citigroup Commercial Mortgage Securities Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, and, solely for purposes of
Sections 5(e) and 9(a), ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; or, in each such case, to
such other address, or to the attention of such other person or group, as may be
forwarded by any such party to the other parties hereto in writing.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
CCMS.
Very truly yours,
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By:
-------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
By:
----------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By:
----------------------------------
Name:
Title:
WACHOVIA CAPITAL MARKETS, LLC
By:
----------------------------------
Name:
Title:
CAISSE DES DEPOTS SECURITIES INC.
Doing Business as CDC Securities
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-108125 filed by CCMS on Form S-3 and declared
effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
Commercial Mortgage Pass-Through Certificates, Series 2004-C1, Class A-1, Class
A-2, Class A-3, Class A-4, Class B, Class C, Class D and Class E Certificates.
Underwriting Agreement, dated as of June 8, 2004
INITIAL CLASS PRINCIPAL INITIAL RATING
CLASS DESIGNATION PURCHASE PRICE(1) BALANCE (2)(3) PASS-THROUGH RATE BY S&P/MOODY'S (4)
----------------- ----------------- -------------- ----------------- ------------------
A-1 99.0000% $ 69,957,000 3.2954% AAA/Aaa
A-2 100.4997% $ 161,062,000 4.6849% AAA/Aaa
A-3 100.4996% $ 217,418,000 5.2514% AAA/Aaa
A-4* 99.2170% $ 553,662,000 5.2926%(5) AAA/Aaa
B 98.4365% $ 31,039,000 5.2926%(5) AA/Aa2
C 98.2161% $ 13,302,000 5.2926%(5) AA-/Aa3
D 97.9232% $ 26,605,000 5.2926%(5) A/A2
E 97.3022% $ 13,302,000 5.2926%(5) A-/A3
* Price to Deutsche Bank Securities Inc. 99.092%
(1) The Purchase Price includes any Underwriter's discount.
(2) Subject to a variance of plus or minus 5.0%.
(3) Subject to rounding to the nearest whole dollar, Citigroup Global Markets
Inc. will acquire 71.8% and Wachovia Capital Markets, LLC will acquire
28.2%, respectively, of the Class Principal Balance of the Class A-1
Certificates; Citigroup Global Markets Inc. will acquire 71.8% and Wachovia
Capital Markets, LLC will acquire 28.2%, respectively, of the Class
Principal Balance of the Class A-2 Certificates; Citigroup Global Markets
Inc. will acquire 71.8% and Wachovia Capital Markets, LLC will acquire
28.2%, respectively, of the Class Principal Balance of the Class A-3
Certificates; Citigroup Global Markets Inc. will acquire 68.6% , Wachovia
Capital Markets, LLC will acquire 26.9% and Deutsche Bank Securities Inc.
will acquire 4.5%, respectively of the Class Principal Balance of the Class
A-4 Certificates, and Citigroup Global Markets Inc. will acquire and 71.84%
and Wachovia Capital Markets, LLC will acquire 28.16% of the respective
Class Principal Balances of each of the remaining classes of Registered
Certificates.
(4) By each of Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's").
(5) Approximate.
PURCHASE PRICE: The purchase prices set forth in the above schedule for each
Class of Registered Certificates is expressed as a percentage of the Class
Principal Balance of such Class, and is to be accompanied by interest on the
Class Principal Balance of such Class of Registered Certificates at the initial
Pass-Through Rate for such Class, from June 1, 2004 to but not including the
Closing Date.
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CLOSING TIME, DATE AND LOCATION: 10:00 a.m. New York City time on June 24 2004
at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
ISSUANCE AND DELIVERY OF REGISTERED CERTIFICATES: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance of $10,000 and integral multiples of $1 in excess thereof.
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