Exhibit 1.1
GE COMMERCIAL MORTGAGE CORPORATION
$1,484,121,000 (Approximate)
Commercial Mortgage Pass-Through Certificates
Series 2006-C1
UNDERWRITING AGREEMENT
New York, New York
March 13, 2006
Banc of America Securities LLC
Deutsche Bank Securities Inc.
Credit Suisse Securities (USA) LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
c/o Banc of America Securities LLC
NC1-027-22-03
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
GE Commercial Mortgage Corporation, a Delaware corporation (the
"Company"), proposes to cause to be issued its Commercial Mortgage Pass-Through
Certificates, Series 2006-C1 (the "Certificates"), consisting of 26 classes
designated as the Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-1A, Class A-J, Class A-M, Class B, Class C, Class X-W, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class S, Class R and Class LR Certificates under a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 2006
among the Company, Wachovia Bank, National Association, as master servicer with
respect to the Mortgage Loans other than the ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ loan, the
KinderCare Portfolio mortgage loan and the ▇▇▇▇▇ Center mortgage loan (the
"Servicer"), LNR Partners, Inc., as special servicer with respect to the
Mortgage Loans other than the ▇▇▇▇▇ Center mortgage loan (the "Special
Servicer") and LaSalle Bank National Association, as trustee (the "Trustee").
The Company proposes to sell the Class A-1, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-1A, Class A-J, Class A-M, Class B and Class C Certificates
(collectively, the "Offered Certificates") to Banc of America Securities LLC
("Banc of America"), Deutsche Bank Securities Inc. ("Deutsche"), Credit Suisse
Securities (USA) LLC ("CS"), ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇.▇. ▇▇▇▇▇▇") and
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇" and, collectively
with Banc of America, Deutsche, CS and ▇.▇. ▇▇▇▇▇▇, the "Underwriters"). The
Certificates will represent in the aggregate the entire beneficial ownership
interest in a trust fund (the "Trust Fund") primarily consisting of a segregated
pool (the "Mortgage Pool") of commercial, multifamily and manufactured housing
community mortgage loans (the "Mortgage Loans"). The Mortgage Loans will be
purchased by the Company from (i) General Electric Capital Corporation ("GECC")
pursuant to a Mortgage Loan Purchase and Sale Agreement (the "GECC Purchase
Agreement"), dated as of March 1, 2006, between the Company and GECC, (ii) Bank
of America, N.A. ("Bank of America") pursuant to a Mortgage Loan Purchase and
Sale Agreement (the "Bank of America Purchase Agreement"), dated as of March 1,
2006, between the Company and Bank of America and (iii) German American Capital
Corporation ("GACC" and, together with GECC and Bank of America, the "Mortgage
Loan Sellers") pursuant to a Mortgage Loan Purchase and Sale Agreement (the
"GACC Purchase Agreement" and, together with the GECC Purchase Agreement and the
Bank of America Purchase Agreement, the "Purchase Agreements"), dated as of
March 1, 2006, among the Company, GACC and Deutsche Bank AG, New York Branch, in
exchange for immediately available funds. The Offered Certificates are described
more fully in Schedule I hereto and the Registration Statement (as hereinafter
defined). This is to confirm the arrangements with respect to your purchase of
the Offered Certificates.
At or prior to the time when sales to investors of the Offered
Certificates were first made (the "Time of Sale"), the Company had prepared
and/or filed the following information (collectively, the "Time of Sale
Information": (i) a Term Sheet dated as of March 3, 2006 (the "Term Sheet"),
(ii) any written materials prepared by the Underwriters and provided to the
Company for filing with the Commission prior to the Time of Sale ("Company Filed
Information") and (iii) a Free Writing Prospectus dated March 3, 2006 to the
Basic Prospectus (defined below) and the Basic Prospectus (collectively with the
Free Writing Prospectus, the "Transaction FWP")). The Company Filed Information
is listed on Schedule III attached hereto. If, subsequent to the date of this
Agreement, the Company and the Underwriters have determined that such
information included an untrue statement of material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and have terminated
their old purchase contracts and entered into new purchase contracts with
purchasers of the Offered Certificates, then "Time of Sale Information" will
refer to the information provided by the Company or the Underwriters to
purchasers at the time of entry into the first such new purchase contract,
including any information that corrects such material misstatements or omissions
("Corrective Information"), and "Time of Sale" will refer to the time of entry
into the first such new purchase contract.
Capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Final Prospectus (as hereinafter defined).
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (the file numbers of which
are set forth in Schedule I hereto) for the registration of the Offered
Certificates, among other mortgage pass-through certificates, under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement has become effective and copies of which have heretofore been
delivered to you. Such registration statement, as amended at the date hereof,
meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with the 1933 Act and the rules and
regulations thereunder. The Company proposes to file with the Commission
pursuant to Rule 424 under the 1933 Act a supplement to the form of prospectus
included in such registration statement relating to the Offered Certificates and
the plan of distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Offered Certificates and
the Mortgage Pool to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date hereof, is hereinafter
called the "Registration Statement"; the prospectus included in the Registration
Statement, after the Registration Statement, as amended, became effective, or as
subsequently filed with the Commission pursuant to Rule 424 under the 1933 Act,
is hereinafter called the "Basic Prospectus"; such form of prospectus
supplemented by the supplement to the form of prospectus relating to the Offered
Certificates, in the form in which it shall be first filed with the Commission
pursuant to Rule 424 (including the Basic Prospectus as so supplemented) is
hereinafter called the "Final Prospectus."
(b) (i) The Registration Statement, as of its effective date or the
effective date of any post-effective amendment thereto filed prior to the
Closing Date, and the Final Prospectus, as of the date that it is first filed
pursuant to Rule 424 under the 1933 Act or, as amended or supplemented, as of
the date such amendment or supplement is filed pursuant to Rule 424 under the
1933 Act, complied or will comply, as applicable, in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement as of its effective date and as of
the date of this Agreement, and, as amended by any such post-effective
amendment, as of the effective date of such amendment, did not and will not
contain any untrue statement of a material fact and did not omit and will not
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) the Final Prospectus as of
its issue date and as of the Closing Date, or as amended or supplemented, as of
the issue date of such amendment or supplement and as of the Closing Date, will
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (i) the
information contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with the information furnished in writing to the Company by or on
behalf of any Underwriter specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus or (ii) the
"Mortgage Loan Seller Information" (as defined in Section 1(a) of each of (i)
the Mortgage Loan Seller Indemnification Agreement, dated as of March 13, 2006,
by and among GECC, the Company and the Underwriters, (ii) the Mortgage Loan
Seller Indemnification Agreement, dated as of March 13, 2006, by and among Bank
of America, the Company and the Underwriters and (iii) the Mortgage Loan Seller
Indemnification Agreement, dated as of March 13, 2006, by and among GACC,
Deutshe Bank AG, New York Branch, the Company and the Underwriters,
(collectively, the Mortgage Loan Seller Indemnification Agreements"))or (iii)
the manipulation of, or any calculation based upon, or any aggregation of the
information regarding the Mortgage Loans, the related Mortgagors and the
Mortgaged Properties. As used herein, the "Master Tape" shall mean the
compilation of information and data regarding the Mortgage Loans covered by the
Report on Applying Agreed-Upon Procedures dated March 3, 2006 and rendered by
Deloitte & Touche, LLP.
(c) The Time of Sale Information, at the Time of Sale did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to
(i) the information contained in or omitted from the Time of Sale Information or
any amendment thereof or supplement thereto in reliance upon and in conformity
with the information furnished in writing to the Company by or on behalf of any
Underwriter specifically for use in connection with the preparation of the Time
of Sale Information, (ii) any Mortgage Loan Seller Information in such Time of
Sale Information or (iii) the manipulation of, or any calculation based upon, or
any aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and the Mortgaged Properties.
(d) Other than the Term Sheet, Company Filed Information, the Transaction
FWP and the Final Prospectus, the Company (including its agents and
representatives other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the 1933 Act) that constitutes an offer to sell or
solicitation of an offer to buy the Offered Certificates other than (i) any
communication by the Company or its agents and representatives that constitutes
an "issuer free writing prospectus", as defined in Rule 433(h) under the 1933
Act (other than a communication referred to in clause (ii) below, an "Issuer
Free Writing Prospectus"), (ii) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of or Rule 134 under the 1933 Act or (iii) other
written communication approved in writing in advance by the Underwriters. Any
such Issuer Free Writing Prospectus complied in all material respects with the
1933 Act and does not conflict with the Registration Statement or the Final
Prospectus as required by Rule 433 under the 1933 Act, has been filed in
accordance with Section 10 (to the extent required thereby) and, when taken
together with the Time of Sale Information, such Issuer Free Writing Prospectus,
did not at the Time of Sale, and at the Closing Date will not, contain any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) the information contained in or
omitted from any Issuer Free Writing Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with the information
furnished in writing to the Company by or on behalf of any Underwriter
specifically for use in connection with the preparation of the Issuer Free
Writing Prospectus, (ii) any Mortgage Loan Seller Information in such Issuer
Free Writing Prospectus or (iii) the manipulation of, or any calculation based
upon, or any aggregation of the information regarding the Mortgage Loans, the
related Mortgagors and the Mortgaged Properties.
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with full
power and authority (corporate and other) to own its properties and conduct its
business, as now conducted by it, and to enter into and perform its obligations
under this Agreement, the Purchase Agreements and the Pooling and Servicing
Agreement; and the Company has received no notice of proceedings relating to the
revocation or modification of any license, certificate, authority or permit
applicable to its owning such properties or conducting such business which
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of the business,
operations, financial condition or income of the Company.
(f) When the Final Prospectus is first filed pursuant to Rule 424 under
the 1933 Act, when, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective, when any supplement
to the Final Prospectus is filed with the Commission, and at the Closing Date,
there has not and will not have been (i) any request by the Commission for any
further amendment of the Registration Statement or the Final Prospectus or for
any additional information, (ii) any issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose or (iii) any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(g) This Agreement and the Purchase Agreements have been, and the Pooling
and Servicing Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the Company,
and each constitutes, or will constitute when so executed and delivered, a
legal, valid and binding agreement of the Company, enforceable against the
Company (assuming the due authorization, execution and delivery of this
Agreement, the Purchase Agreements and the Pooling and Servicing Agreement by
each other party thereto) in accordance with its terms, except as enforceability
may be limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement of
the rights of creditors, (ii) general principles of equity, whether enforcement
is sought in a proceeding in equity or at law and (iii) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from securities law
liabilities.
(h) The Offered Certificates and the Pooling and Servicing Agreement will
each conform in all material respects to the descriptions thereof contained in
the Final Prospectus, and the Offered Certificates, when duly and validly
authorized, executed, authenticated and delivered in accordance with the Pooling
and Servicing Agreement and paid for by the Underwriters as provided herein,
will be entitled to the benefits of the Pooling and Servicing Agreement.
(i) Neither the issuance and sale of the Certificates, nor the execution
and delivery by the Company of this Agreement, the Purchase Agreements or the
Pooling and Servicing Agreement, nor the consummation by the Company of any of
the transactions herein or therein contemplated, nor compliance by the Company
with the provisions hereof or thereof, will conflict with or result in a breach
of any term or provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a breach, violation or acceleration of or
constitute a default under, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound, or any
statute, order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company, which, in any such case, would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement, the
Purchase Agreements or the Pooling and Servicing Agreement. The Company is not a
party to, bound by or in breach or violation of any indenture or other agreement
or instrument, or subject to or in violation of any statute, order or regulation
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects, or is reasonably
likely in the future to materially and adversely affect, the ability of the
Company to perform its obligations under this Agreement, the Purchase Agreements
or the Pooling and Servicing Agreement.
(j) There are no actions or proceedings against, or investigations of, the
Company pending, or, to the knowledge of the Company, threatened, before any
court, administrative agency or other tribunal (i) asserting the invalidity of
this Agreement, the Purchase Agreements, the Pooling and Servicing Agreement or
the Certificates, (ii) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement, the
Purchase Agreements or the Pooling and Servicing Agreement, (iii) that might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement, the
Purchase Agreements, the Pooling and Servicing Agreement or the Certificates or
(iv) seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Time of Sale Information and the Final
Prospectus.
(k) The Trust Fund created by the Pooling and Servicing Agreement will not
be required to be registered as an investment company under 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").
(l) The sale of the Mortgage Loans to the Trust Fund on the Closing Date
and the sale by the Company of the Offered Certificates will be treated by the
Company for financial accounting and reporting purposes as a sale of assets and
not as a pledge of assets to secure debt.
(m) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance or
sale of the Offered Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Offered Certificates by the Underwriters and the recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement.
(n) Immediately prior to the assignment of the Mortgage Loans to the
Trustee as contemplated by the Pooling and Servicing Agreement, the Company (i)
had good title to, and was the sole owner of, each Mortgage Loan and the other
property purported to be transferred by it to the Trustee pursuant to the
Pooling and Servicing Agreement (but only to the extent sole ownership was
transferred to the Company by the applicable Mortgage Loan Seller) free and
clear of any pledge, mortgage, lien, security interest or other encumbrance
created by the Company (collectively, "Liens"), (ii) had not assigned to any
person any of its right, title or interest in such Mortgage Loans or property or
in the Purchase Agreements and (iii) will have the power and authority to sell
such Mortgage Loans and property to the Trustee (but only to the extent such
Mortgage Loans and property were transferred to the Company by the applicable
Mortgage Loan Seller) and upon the execution and delivery of the Pooling and
Servicing Agreement by all of the parties thereto, the Trust will have acquired
all of the Company's right, title and interest in and to such Mortgage Loans and
property free and clear of any Lien created by the Company (except for any Lien
created pursuant to this transaction).
(o) The Company is not, and on the date on which the first bona fide offer
of the Offered Certificates is made will not be, an "ineligible issuer", as
defined in Rule 405 under the 1933 Act.
2. Representations of the Several Underwriters.
(a) Each Underwriter hereby represents and agrees, severally and not
jointly, that in relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") it has not made and will not make an offer of the Offered
Certificates to the public in that Relevant Member State, except that it may,
with effect from and including the Relevant Implementation Date, make an offer
of the Offered Certificates to the public in that Relevant Member State:
(i) in (or in Germany, where the offer starts within) the period
beginning on the date the publication of a prospectus in relation to the
Offered Certificates which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive and
ending on the date which is 12 months after the date of publication;
(ii) at any time to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(iii) at any time to any legal entity which has two or more of (1)
an average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iv) in any other circumstances which do not require the publication
by the Company of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this representation, the expression an "offer of the
certificates to the public" in relation to any Offered Certificates in any
Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Offered Certificates to
be offered so as to enable an investor to decide to purchase or subscribe the
Offered Certificates, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State, and the
expression "Prospectus Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
(b) Each Underwriter, severally and not jointly, hereby further represents
and agrees, with respect to the United Kingdom, that:
(i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act) received by it in connection with the
issue or sale of the Notes in circumstances in which Section 21(1) of the
Financial Services and Markets Act does not apply to the Company; and
(ii) it has complied and will comply with all applicable provisions
of the Financial Services and Markets Act with respect to anything done by
it in relation to the certificates in, from or otherwise involving the
United Kingdom.
3. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the applicable purchase price
set forth in Schedule I hereto, the respective portions of the Offered
Certificates set forth opposite such Underwriter's name in Schedule II hereto,
plus accrued interest at the related Pass-Through Rate from March 1, 2006 to but
not including the Closing Date.
4. Delivery and Payment. Delivery of and payment for the Offered
Certificates shall be made in the manner, on the date and at the time specified
in Schedule I hereto (or such later date not later than seven business days
after such specified date as the Underwriters shall designate), which date and
time may be postponed by agreement between the Underwriters and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Offered Certificates being herein called the "Closing Date"). Delivery of
the Offered Certificates, as set forth on Schedule I hereto, shall be made to
the Underwriters for their respective accounts against payment by wire transfer
of immediately available funds by the Underwriters of the applicable purchase
price. Unless delivery is made through the facilities of The Depository Trust
Company, the Offered Certificates shall be registered in such names and in such
authorized denominations as the Underwriters may request not less than three
full business days in advance of the Closing Date.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
5. Offering by Underwriters. (a) It is understood that the several
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Final Prospectus. (b) Each Underwriter agrees that any Offered
Certificates sold by it in the State of New York will be sold solely to
institutional "accredited investors" within the meaning of Rule 501 (a)(l), (2)
and (3) of Regulation D under the 1933 Act in order to ensure compliance with
the exemption from Section 352-e of the Real Estate Syndicate Act of New York.
6. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will not prepare, use, authorize, approve, refer to or
file any Issuer Free Writing Prospectus, or file, on or prior to the Closing
Date, any amendment to the Registration Statement or file any supplement to
(including the supplement relating to the Offered Certificates included in the
Final Prospectus) the Basic Prospectus unless the Company has furnished to you a
copy for your review prior to filing and will not prepare, use, authorize,
approve, refer to or file any Issuer Free Writing Prospectus, or file any such
proposed amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be
transmitted to the Commission for filing pursuant to Rule 424 under the 1933
Act, and subject to Section 10, will file any Issuer Free Writing Prospectus to
the extent required by Rule 433 under the 1933 Act. The Company will promptly
advise the Underwriters (i) when the Final Prospectus shall have been filed or
transmitted to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration Statement or
the Final Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Certificates
is required to be delivered under the 1933 Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply with the
1933 Act or the rules and regulations thereunder, the Company will promptly
prepare and file with the Commission, subject to paragraph (a) of this Section
6, an amendment or supplement that will correct such statement or omission or an
amendment that will effect such compliance and, if such amendment or supplement
is required to be contained in a post-effective amendment of the Registration
Statement, will use its reasonable best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible.
(c) The Company will (i) furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto that shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer in connection with the Offered
Certificates may be required by the 1933 Act, as many copies of any Transaction
FWP and each Issuer Free Writing Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Underwriters may reasonably
request, and (ii) file promptly all reports and any information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), subsequent to the date of the Final Prospectus and for so long
as the delivery of a prospectus by an Underwriter or dealer in connection with
the Offered Certificates may be required under the 1933 Act. The Company will
file with the Commission within 15 days of the issuance of the Offered
Certificates a report on Form 8-K (the "8-K") setting forth specific information
concerning the Offered Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Final Prospectus.
(d) The Company agrees that, so long as the Offered Certificates shall be
outstanding, it will make available to the Underwriters the annual statement as
to compliance delivered to the Trustee pursuant to Section 3.13 of the Pooling
and Servicing Agreement and the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section 3.14 of the Pooling and
Servicing Agreement, as soon as such statements are furnished to the Company.
The Pooling and Servicing Agreement will provide that the Servicer and the
Special Servicer furnish to the Underwriters all reports compiled by any of them
pursuant to the Pooling and Servicing Agreement, if and when requested in
writing by the Underwriters, under the same terms and conditions applicable to
holders of the Offered Certificates.
(e) The Company will furnish such information, execute such instruments
and take such action, if any, as may be required to qualify the Offered
Certificates for sale under the laws of such jurisdictions as the Underwriters
may designate and will maintain such qualifications in effect so long as
required for the distribution of the Offered Certificates; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(f) The Company will pay or cause to be paid all costs and expenses in
connection with the transactions herein contemplated, including, but not limited
to: (i) the fees and disbursements of its counsel; (ii) the costs and expenses
of printing (or otherwise reproducing), preparing and delivering the Pooling and
Servicing Agreement and the Offered Certificates; (iii) accounting fees and
disbursements; (iv) the costs and expenses in connection with the qualification
or exemption of the Offered Certificates under state securities or blue sky laws
not to exceed $10,000, including filing fees and reasonable fees and
disbursements of counsel in connection with the preparation of any blue sky
survey and in connection with any determination of the eligibility of the
Offered Certificates for investment by institutional investors and the
preparation of any legal investment survey; (v) the expenses of printing any
such blue sky survey and legal investment survey; (vi) the costs and expenses in
connection with the preparation, printing and filing of the Registration
Statement (including exhibits thereto), the Transaction FWP and the Final
Prospectus, the preparation and printing of this Agreement and the furnishing to
the Underwriters of such copies of each Transaction FWP, Registration Statement
and Final Prospectus as the Underwriters may reasonably request, and (vii) the
fees of each Rating Agency (as defined herein). The Underwriters shall be
responsible for paying all costs and expenses incurred by them in connection
with the offering of the Offered Certificates.
(g) The Company acknowledges and agrees that: (i) the purchase and sale of
the Underwritten Certificates pursuant to this Agreement, including the
determination of the public offering price of the Underwritten Certificates and
any related discounts and commissions, is an arm's-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the other
hand, and the Company is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated by
this Agreement; (ii) in connection with each transaction contemplated hereby and
the process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company, or its
affiliates, stockholders, creditors or employees or any other party; (iii) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company with respect to any of the transactions contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this
Agreement; (iv) the several Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Company and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any fiduciary or advisory
relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
(h) The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus or any materials
used in a Road Show (as defined in Rule 433 of the 1933 Act) that are required
to be retained by the Company pursuant to the 1933 Act, to the extent not filed
with the Commission in accordance with Rule 433 under the 1933 Act.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the several Underwriters, or any of
them, with respect to the subject matter hereof. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the several Underwriters with respect to any breach or alleged
breach of fiduciary duty.
7. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Offered Certificates shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed after the date hereof and
prior to the Closing Date and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus and each Issuer Free Writing Prospectus
shall have been filed or transmitted for filing with the Commission in
accordance with Rule 424 under the 1933 Act (in the case of an Issuer Free
Writing Prospectus, to the extent required by Rule 433 of the 1933 Act).
(b) The Company shall have delivered to you a certificate of the Company,
signed by an authorized signatory pursuant to a power of attorney from the
Chairman, the President, a vice president or an assistant vice president of the
Company and dated the Closing Date, to the effect that representatives of the
Company have carefully examined the Registration Statement, the Time of Sale
Information, the Final Prospectus and this Agreement and that: (i) the
representations and warranties of the Company in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date; (ii) the Company has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date; (iii) no
stop order suspending the effectiveness of the Registration Statement has been
issued and not withdrawn and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened, and (iv) nothing has come
to the attention of the Company that would lead the Company to believe that the
Time of Sale Information or the Final Prospectus contains any untrue statement
of a material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Company, one or more favorable opinions, dated
the Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Company is a corporation in good standing under the laws of
the State of Delaware with corporate power to enter into and perform its
obligations under this Agreement, the Purchase Agreements and the Pooling
and Servicing Agreement;
(ii) The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued, and not withdrawn, no proceedings for that
purpose have been instituted or threatened, and not terminated, and the
Registration Statement, the Time of Sale Information, the Final Prospectus
and each amendment thereof or supplement thereto as of their respective
effective or issue dates complied as to form in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder; and no facts have come to such counsel's attention that have
led such counsel to believe that the Registration Statement (which, for
purposes of this clause, shall not be deemed to include any exhibits
thereto or any documents or other information incorporated therein by
reference), or any amendment thereof, at the time it became effective and
at the date of this Agreement, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Time of Sale Information and the Final Prospectus as of their
respective issue date and as of the Closing Date, or as amended or
supplemented, as of the issue date of such amendment or supplement and as
of the Closing Date, contains any untrue statement of a material fact 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;
(iii) This Agreement, the Pooling and Servicing Agreement and the
Purchase Agreements have been duly authorized, executed and delivered by
the Company and each such agreement constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other laws
relating to creditors' rights generally, and to general principles of
equity including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding
at law or in equity), and except that the enforcement of rights with
respect to indemnification and contribution obligations may be limited by
applicable law;
(iv) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for by the Underwriters as provided herein, will be
entitled to the benefits of the Pooling and Servicing Agreement;
(v) The statements in the Basic Prospectus and the Final Prospectus,
as the case may be, under the headings "Certain Federal Income Tax
Consequences", "Legal Investment", "Certain ERISA Considerations" and
"ERISA Considerations," to the extent that they constitute matters of
federal law or legal conclusions with respect thereto, are correct in all
material respects;
(vi) The statements made in the Final Prospectus under the caption
"Description of the Certificates" insofar as they purport to constitute
summaries of terms of the Certificates constitute accurate summaries of
such terms in all material aspects;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and the Trust Fund created by the
Pooling and Servicing Agreement is not required to be registered under the
Investment Company Act;
(viii) No consent, approval, authorization or order of any New York,
Delaware or federal court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated herein,
except such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Offered
Certificates by the Underwriters, and any recordation of the assignment of
the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement that have not yet been completed and such other approvals as
have been obtained;
(ix) Neither the issuance and sale or transfer of the Certificates,
nor the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or of the Purchase Agreements or
the Pooling and Servicing Agreement will conflict with or result in a
breach or violation of any term or provision of, or constitute a default
(or an event which with the passing of time or notification, or both,
would constitute a default) under, the certificate of incorporation or
by-laws of the Company, or, to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Company is a party
or by which it is bound, or any New York, Delaware or federal statute or
regulation applicable to the Company or, to the knowledge of such counsel,
any order of any New York, Delaware or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company; and
(x) The Trust Fund will qualify as one or more "real estate mortgage
investment conduits," as defined in Section 860D of the Code.
Such opinion may (x) express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement, the Purchase Agreements
and the Pooling and Servicing Agreement, (y) assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the Company and (z) be qualified as an opinion
only on the federal laws of the United States of America, the laws of the State
of New York and the laws of the State of Delaware. Additionally, if so rendered,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP may rely on the opinion of in-house counsel
for the Company as to matters relating to the Company.
(d) The Underwriters shall have received from Deloitte & Touche, LLP (the
"Accountants"), certified public accountants, one or more letters, dated the
date hereof and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(e) The Certificates have been given the rating, if any, set forth in
Schedule I hereto by Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and Fitch, Inc. ("Fitch" and together with
S&P, the "Rating Agencies").
(f) The Underwriters shall have received from counsel for the
Underwriters, dated the Closing Date, one or more favorable opinions in form and
substance satisfactory to the Underwriters.
(g) The Underwriters shall have received from counsel for the Trustee, a
favorable opinion, dated the Closing Date, in form and substance satisfactory to
the Underwriters and counsel for the Underwriters.
(h) The Underwriters shall have received from counsel for each Mortgage
Loan Seller, a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
(i) The Underwriters shall have received from counsel for each of the
Servicer and the Special Servicer, a favorable opinion, dated the Closing Date,
in form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(j) The Underwriters shall have received copies of any opinions of counsel
to the Company, each Mortgage Loan Seller, the Special Servicer or the Servicer
supplied to the Rating Agencies or the Trustee relating to certain matters with
respect to the Offered Certificates, the Mortgage Loan Sellers, the Mortgage
Loans, the Special Servicer or the Servicer. Any such opinions shall be dated
the Closing Date and addressed to the Underwriters or accompanied by the
reliance letters to the Underwriters or shall state that the Underwriters may
rely upon them.
(k) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
information, certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
the Company is in breach of any covenants or agreements contained herein or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
8. Indemnification and Contribution. The Company and the several
Underwriters agree that:
(a) The Company will indemnify and hold harmless each Underwriter, and
each person who controls any Underwriter within the meaning of either the 1933
Act or the 1934 Act against any and all losses, claims, damages, expenses or
liabilities, joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act, or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
expenses or liabilities (or actions in respect thereof) arise out of or are
based upon (1) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto), or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Final Prospectus, or in any amendment thereof or
supplement thereto, or 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, except to the extent that such untrue statement, alleged untrue
statement, omission or alleged omission arises out of or is based upon any
Mortgage Loan Seller Information (as defined in Section 1(a) of the Mortgage
Loan Seller Indemnification Agreements), (2) any untrue statement or alleged
untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, any Time of Sale Information or any "issuer information" (as defined
in Section 433(h) of the 1933 Act, the "Issuer Information")) contained in any
free-writing prospectus (as defined pursuant to Rule 405 under the 1933 Act, a
"Free Writing Prospectus") prepared by or on behalf of any Underwriter or in any
Free Writing Prospectus which is required to be filed pursuant to Section 10, or
the omission or alleged omission to state a material fact required to make the
statements therein, in light of the circumstances under which they were made,
not misleading, which was not corrected by Corrective Information subsequently
supplied by the Company to the Underwriter at any time prior to the Time of Sale
or (3) any error in the information supplied to the Underwriters by or on behalf
of the Company or any of its affiliates relating to the Mortgage Loans (other
than the information contained in the Transaction FWP or the Final Prospectus)
except for information supplied to the Company by Bank of America or GACC with
respect to each of their Mortgage Loans (the "Collateral Information") provided
that such Collateral Information is used in a manner not inconsistent with the
1933 Act; provided further, that no indemnity shall be provided if the
Collateral Information was corrected and such corrected materials were supplied
to the Underwriters at least 24 hours prior to the dissemination of the
materials from which such loss, liability, claim, damage or expense arose; and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating,
preparing or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnification provided by this subsection (a)
shall not apply to the extent that any such loss, claim, damage or liability (A)
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company as herein stated by
or on behalf of any Underwriter specifically for use in connection with the
preparation thereof, (B) arises out of or is based upon the failure of any
Underwriter to comply with any provision of Section 10 hereof or (C) is
indemnifiable by any Mortgage Loan Seller pursuant to Section 1(a) of any
Mortgage Loan Seller Indemnification Agreement; provided further, that the
indemnification provided by this subsection (a) shall not apply to the extent
that (1) such untrue statement or omission of a material fact was made as a
result of an error in the manipulation of, or in any calculations based upon, or
in any aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties or (2) the information
provided by any Mortgage Loan Seller was not represented accurately in the
Master Tape, and consequently, information based thereon was not represented
accurately in the Time of Sale Information or the Final Prospectus or any other
document or information described in clauses (1) through (3) above. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have; provided, however, that the Company shall not be liable to any
Underwriter for losses of anticipated profits from the transactions covered by
this Agreement.
(b) Each Underwriter severally, but not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company within
the meaning of either the 1933 Act or the 1934 Act, against any and all losses,
claims, damages, expenses or liabilities, joint or several, to which the Company
or any of them may become subject under the 1933 Act, the 1934 Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon (1) any untrue statement or
alleged untrue statement of a material fact contained in (A) the Registration
Statement (or any amendment thereto), or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (B) the Transaction FWP or the Final
Prospectus, or in any amendment thereof or supplement thereto, or 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 or (C) any Free Writing
Prospectus prepared by or on behalf of such Underwriter; or the omission or
alleged omission to state therein a material fact which, when read together with
the Transaction FWP and the Final Prospectus, was 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; or (2) the failure of the
Underwriters to comply with any provisions of Section 10 hereof and each
Underwriter agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating, preparing or defending any such loss, claim, damage, liability or
action, but, in the case of clause (l)(A) and (B) above, only with reference to
written information furnished to the Company by or on behalf of such Underwriter
or any member of its selling group, specifically for use in the Registration
Statement, or in any revision or amendment thereof, or supplement thereto, or in
the Transaction FWP or the Final Prospectus; provided further, that no
Underwriter shall have any liability under this section to the extent that (1)
except as provided in Section 8(f) below, such untrue statement or omission of a
material fact was made as a result of an error in the manipulation of or in any
calculation based upon or any aggregation of the information regarding the
Mortgage Loans, the related Mortgagors and/or the related Mortgaged Properties,
(2) the information provided by any Mortgage Loan Seller was not represented
accurately in the Master Tape and consequently information based thereon was not
represented accurately in any Free Writing Prospectus prepared by an Underwriter
or (3) such losses, claims, damages or liabilities are caused by a misstatement
or omission resulting from an error or omission in the Issuer Information or
Mortgage Loan Seller Information supplied by the Company or any Mortgage Loan
Seller, respectively, to the Underwriter which was not corrected by Corrective
Information subsequently supplied by the Company or any Mortgage Loan Seller to
the Underwriter at any time prior to the Time of Sale. This indemnity agreement
will be in addition to any liability that any Underwriter may otherwise have.
The Company and each Underwriter acknowledge and agree that for all
purposes of this Agreement the statements set forth in the first, second and
third sentences of the last paragraph of the cover page of the Final Prospectus,
the first paragraph, the first sentence of the second paragraph, the third
paragraph and the first, second and fourth sentences of the fourth paragraph,
under the heading "Method of Distribution" in the Final Prospectus, together
with the Underwriter Information (as defined in Section 10 hereof) constitute
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnities, and each Underwriter confirms that such statements are or will be,
at the time made, correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, 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 which it may have to any indemnified party
(x) under Section 8 unless such failure to notify prejudices the position of the
indemnifying party or results in the loss of one or more defenses to the related
cause of action or (y) otherwise than under this Section 8. 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 to the extent that it 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, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel (and one local counsel, if it deems so necessary) 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 any indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party for
expenses incurred by the 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 next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel and one local counsel, approved by the Underwriters in the case
of subsection (a), representing the indemnified parties under subsection (a) 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 after notice of commencement of the
action or (iii) the indemnifying party has authorized in writing 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). The
indemnifying party shall not be liable for any settlement of any action effected
without its prior written consent, which consent shall not be unreasonably
withheld, but if settled with such consent, the indemnifying party shall
indemnify the indemnified party from and against any indemnifiable losses,
claims, damages and liabilities by reason of such settlement. No indemnifying
party who has elected to assume the defense of such action shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable in accordance with its terms to an indemnified party under
this Section 8 or if such indemnification is provided for in Section 8 hereof is
insufficient in respect of any losses, claims, damages, expenses and liabilities
referred to herein, then the Company and each Underwriter, to the extent of
underwriting discounts and commissions received by it, shall individually
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages, expenses or liabilities referred to in
subsection (a) or (b) above, in such proportion as is appropriate to reflect (i)
the relative benefits received by the Company on the one hand and each
Underwriter on the other from the offering of the Offered Certificates (taking
into account the portion of the proceeds of the offering realized by each party)
and (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also to reflect the
relative fault of the Company on the one hand and each Underwriter on the other
in connection with the statement or omission or failure to comply that resulted
in such losses, claims, damages, expenses or liabilities, as well as any other
relevant equitable considerations (taking into account the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission or failure to comply, and any other equitable consideration appropriate
under the circumstances). The relative benefits received by the Company on the
one hand and each Underwriter, including any member of its selling group, on the
other shall be in such proportion as the total net proceeds from the offering of
the Offered Certificates (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by each
Underwriter, including any member of its selling group, with respect to such
offering. 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 Company or the respective Underwriter, or any member of its
selling group, and the parties relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission or
failure to comply. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were to be
determined by per capita allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages,
expenses or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating, preparing or defending
against any action or claim which is the subject of this subsection (d) subject
to the limitations therein provided under subsection (c). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter for the Offered
Certificates underwritten and distributed by it exceeds the amount of any
damages that such Underwriter has otherwise paid or become liable to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) or willful failure to comply with Section 10
hereof shall be entitled to contribution from any person who was not also guilty
of such fraudulent misrepresentation or willful failure to comply. The
Underwriters obligation in this subsection (d) to contribute shall be several in
proportion to their respective underwriting obligations and not joint.
(e) Each Underwriter will indemnify and hold harmless any other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either the 1933 Act or the 1934 Act (collectively, the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages, expenses or liabilities, joint or several, to which any
Non-Indemnifying Underwriter becomes subject under the 1933 Act, the 1934 Act or
other federal or state statutory law or regulation, common law or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement of
material fact necessary to make the statements contained in any Free Writing
Prospectus prepared by, on behalf of, or used or referred to by, such
indemnifying Underwriter not misleading at the Time of Sale or (ii) the failure
of such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Section 10 hereof, and agrees to reimburse each such
Non-Indemnifying Underwriter, as incurred for any legal or other expenses
reasonably incurred by them in connection with investigating, preparing or
defending any such loss, claim, damage, liability or action; provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent any such untrue statement of material fact
arises out of or is based upon an untrue statement or omission with respect to
any Mortgage Loan Seller Information (as defined in Section 7(a) of the Purchase
Agreements); provided that the indemnification provided by this Section 8(e)
shall apply (solely with respect to Banc of America in the case of clause (1)
below) notwithstanding the preceding proviso, to the extent that (1) such untrue
statement of a material fact was made as a result of an error in the
manipulation of, or in any calculations based upon, or in any aggregation of the
information regarding the Mortgage Loans, the related Mortgagors and/or the
related Mortgaged Properties set forth in the Master Tape and Annex A to the
Final Prospectus, including without limitation the aggregation of such
information relating to the Mortgage Loans in the Trust Fund by such
indemnifying Underwriter or (2) the information provided by the related Mortgage
Loan Seller was not represented accurately in the Master Tape, and consequently
information based thereon was not represented accurately in the Transaction FWP
or the Final Prospectus. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have.
(f) Banc of America hereby agrees to indemnify and hold harmless (i) each
of the Company, GECC and GACC, their officers and directors, and each person, if
any, who controls the Company, GECC and GACC within the meaning of Section 15 of
the 1933 Act and Section 20 of the 1934 Act and (ii) each Underwriter, and each
person who controls any Underwriter within the meaning of Section 15 of the 1933
Act and Section 20 of the 1934 Act, in each case against any and all losses,
claims, damages, expenses or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages, expenses 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 Time of Sale Information, a Free Writing
Prospectus or the Final Prospectus or in any amendment thereof or supplement
thereto, or arising 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 not misleading in the light of the circumstances under
which they were made, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission of a material fact was
made as a result of an error in the manipulation of, or in any calculations
based upon, or in any aggregation of, the information regarding the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties provided
by the Mortgage Loan Sellers.
9. Default by an Underwriter. (a) If, on the Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
non-defaulting Underwriters may make arrangements for the purchase of the
Offered Certificates which such defaulting Underwriter agreed but failed to
purchase by other persons satisfactory to the Company, but if no such
arrangements are made within 36 hours after such default, this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters or
the Company, except that the Company will continue to be liable for the payment
of expenses to the extent set forth in Section 6(f) and except that the
provisions of Sections 8 and 10 shall not terminate and shall remain in effect.
As used in this Agreement, the term "Underwriters" includes, for all purposes of
this Agreement unless the context otherwise requires, any party not listed on
Schedule I hereto that, pursuant to this Section 9, purchases Offered
Certificates which the defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the non-defaulting Underwriters for
damages caused by its default. If other persons are obligated or agree to
purchase the Offered Certificates of the defaulting Underwriter, any of the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of counsel for the Company or counsel for the Underwriters may be necessary in
the Registration Statement and/or the Final Prospectus or in any other document
or arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and/or the Final Prospectus that
effects any such changes.
10. Offering Communications; Free Writing Prospectuses.
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the 1933 Act, no Underwriter shall convey or
deliver any written communication to any person in connection with the initial
offering of the Offered Certificates, unless such written communication (1) is
made in reliance on Rule 134 under the 1933 Act, (2) constitutes a prospectus
satisfying the requirements of Rule 430B under the 1933 Act, or (3) constitutes
Time of Sale Information or a Free Writing Prospectus that does not constitute
Time of Sale Information. The Underwriter shall not convey or deliver in
connection with the initial offering of the Certificates any "ABS informational
and computational material," as defined in Item 1101(a) of Regulation AB under
the 1933 Act ("ABS Informational and Computational Material"), in reliance upon
Rules 167 and 426 under the 1933 Act.
(b) Each Underwriter shall deliver to the Company, no later than one
business day prior to the date of first use thereof, (a) any Free Writing
Prospectus prepared by or on behalf of the Underwriter that contains any Issuer
Information or Mortgage Loan Seller Information, and (b) any Free Writing
Prospectus or portion thereof that contains only a description of the final
terms of the Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that contains only ABS Informational and Computational Materials may
be delivered by the Underwriter to the Company not later than the later of (a)
one business day prior to the due date for filing of the Prospectus pursuant to
Rule 424(b) under the 1933 Act or (b) the date of first use of such Free Writing
Prospectus.
(c) Each Underwriter represents and warrants to the Company that the Free
Writing Prospectuses to be furnished to the Company by the Underwriter pursuant
to Section 10(b) hereof will constitute all Free Writing Prospectuses of the
type described therein that were furnished to prospective purchasers of Offered
Certificates by the Underwriter in connection with its offer and sale of the
Offered Certificates.
(d) Each Underwriter represents and warrants to the Company that each Free
Writing Prospectus required to be provided by it to the Company pursuant to
Section 10(b) hereof, when viewed together with all other Time of Sale
Information, does not, as of the Time of Sale, and will not as of the Closing
Date, include any untrue statement of material fact or omit any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided however, that
the Underwriter makes no representation with respect to any such Free Writing
Prospectus that is misleading or inaccurate as a result of any misleading or
inaccurate Issuer Information or Mortgage Loan Seller Information supplied by
the Company or any Seller to the Underwriter, which information was not
corrected by Corrective Information subsequently supplied by the Company or any
Seller to the Underwriter prior to the Time of Sale.
(e) The Company agrees to file with the Commission the following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof delivered by the
Underwriter to the Company pursuant to Section 10(b) hereof; and
(iii) Any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved information
that is prepared and published or disseminated by a person unaffiliated
with the Company or any other offering participant that is in the business
of publishing, radio or television broadcasting or otherwise disseminating
communications.
(f) Any Free Writing Prospectus required to be filed pursuant to Section
10(b) hereof by the Company shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus, except that:
(i) Any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
Certificates shall be filed by the Company with the Commission within two
days of the later of the date such final terms have been established for
all classes of Certificates and the date of first use;
(ii) Any Free Writing Prospectus or portion thereof required to be
filed that contains only ABS Informational and Computational Material
shall be filed by the Company with the Commission not later than the later
of the due date for filing the final Prospectus relating to the Offered
Certificates pursuant to Rule 424(b) under the 1933 Act or two business
days after the first use of such Free Writing Prospectus;
(iii) Any Free Writing Prospectus required to be filed pursuant to
Section 10(e)(iii) shall, if no payment has been made or consideration has
been given by or on behalf of the Company for the Free Writing Prospectus
or its dissemination, be filed by the Company with the Commission not
later than four business days after the Company becomes aware of the
publication, radio or television broadcast or other dissemination of the
Free Writing Prospectus; and
(iv) The Company shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an Underwriter or
any other offering participant other than the Company, if such information
is included or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Certificates, or (B) any Free Writing Prospectus or
portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms
thereof.
(g) Each Underwriter shall file with the Commission any Free Writing
Prospectus that is used or referred to by such Underwriter and distributed by or
on behalf of such Underwriter in a manner reasonably designed to lead to its
broad, unrestricted dissemination not later than the date of the first use of
such Free Writing Prospectus. Each Underwriter shall deliver such Free Writing
Prospectus to the Company, not later than one business day prior to filing of
such Free Writing Prospectus with the Commission.
(h) Notwithstanding the provisions of Section 10(g), each Underwriter
shall file with the Commission any Free Writing Prospectus for which the
Underwriter or any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that is in the
business of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made or
consideration given by or on behalf of the Company or any other offering
participant, not later than four business days after the Underwriter becomes
aware of the publication, radio or television broadcast or other dissemination
of the Free Writing Prospectus. Each Underwriter shall deliver such Free Writing
Prospectus to the Company, not later than one business day prior to filing of
such Free Writing Prospectus with the Commission.
(i) Notwithstanding the provisions of Sections 10(e) and 10(g), neither
the Issuer nor the Underwriter shall be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
(j) The Company and the Underwriters each agree that any Free Writing
Prospectuses prepared by it shall contain substantially the following legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information about
the depositor, the issuing trust and this offering. You may get
these documents for free by visiting ▇▇▇▇▇ on the SEC Web site at
▇▇▇.▇▇▇.▇▇▇. Alternatively, the depositor, any underwriter or any
dealer participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free ▇-▇▇▇-▇▇▇-▇▇▇▇ or
emailing a request to ▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
(k) The Underwriters each agree to retain all Free Writing Prospectuses
that they have used and that are not required to be filed pursuant to this
Section 10 for a period of three years following the initial bona fide offering
of the Offered Certificates.
(l) (i) In the event that any Underwriter becomes aware that, as of the
Time of Sale, any Free Writing Prospectus prepared by or on behalf of the
Underwriter and delivered to a purchaser of an Offered Certificate contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (such Free Writing
Prospectus, a "Defective Free Writing Prospectus"), the Underwriter shall notify
the Company thereof within one business day after discovery.
(ii) Provided that if the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus or contained Issuer Information, the
Underwriter shall, if requested by the Company:
(A) Prepare a Free Writing Prospectus with Corrective Information
that corrects the material misstatement in or omission from the Defective
Free Writing Prospectus (such corrected Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(B) Deliver the Corrected Free Writing Prospectus to each purchaser
of an Offered Certificate which received the Defective Free Writing
Prospectus prior to entering into an agreement to purchase any Offered
Certificates;
(C) Notify such purchaser in a prominent fashion that the prior
agreement to purchase Offered Certificates has been terminated, and of
such purchaser's rights as a result of termination of such agreement; and
(D) Provide such purchaser with an opportunity to affirmatively
agree to purchase such Offered Certificates on the terms described in the
Corrected Free Writing Prospectus.
(m) Each Underwriter covenants with the Company that after the Final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Offered Certificates to a prospective purchaser of
Offered Certificates unless such information is preceded or accompanied by the
Final Prospectus.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for all Certificates if prior to such time (i) trading
in securities generally on the New York Stock Exchange or the American 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 outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war 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, impracticable to market the
Offered Certificates on the terms specified herein.
12. Reimbursement of Underwriters' Expenses. If the sale of the Offered
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of (i) a default by any of the Underwriters or (ii) a termination of this
Agreement pursuant to Section 11 hereof, the Company will reimburse the
Underwriters severally, upon demand, for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Offered
Certificates, except as otherwise obligated to be paid pursuant to the
Memorandum of Understanding among GE Capital Real Estate, Banc of America
Securities LLC and Deutsche Bank Securities Inc.
13. Representations and Indemnities and Agreements to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters 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 any Underwriter or the Company or
any of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Offered Certificates.
The provisions of Section 6(f) regarding the payment of costs and expenses and
the provisions of Section 8 hereof shall survive the termination or cancellation
of this Agreement.
14. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, hand
delivered or sent by facsimile transmission and confirmed to them at, in the
case of Banc of America, to Banc of America Securities LLC, NC1-27-22-03, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇,
fax number ▇▇▇-▇▇▇-▇▇▇▇, in the case of Deutsche, to Deutsche Bank Securities
Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, fax
number (▇▇▇) ▇▇▇-▇▇▇▇, in the case of CS, to Credit Suisse Securities (USA) LLC,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, fax
number (▇▇▇) ▇▇▇-▇▇▇▇; in the case of ▇.▇. ▇▇▇▇▇▇, to ▇.▇. ▇▇▇▇▇▇ Securities
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Managing Director, fax number (▇▇▇) ▇▇▇-▇▇▇▇ and in the case of ▇▇▇▇▇▇▇, to
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, 4 World Financial Center,
16th floor, New York, New York 10080, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or Director,
CMBS Securitization, fax number (▇▇▇) ▇▇▇-▇▇▇▇; or, if sent to the Company, will
be mailed, hand delivered or sent by facsimile transmission and confirmed to it
at GE Commercial Mortgage Corporation, c/o General Electric Capital Corporation,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Capital
Markets/▇▇▇▇▇▇ ▇▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, Ref. GE 2006-C1; with a
copy to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Electric Capital Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, telecopy number (▇▇▇)▇▇▇-▇▇▇▇.
15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
16. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Underwriters.
Very truly yours,
GE COMMERCIAL MORTGAGE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized signatory
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
CREDIT SUISSE SECURITIES (USA) LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT]
SCHEDULE I
Underwriting Agreement, dated March 3, 2006
As used in this Agreement, the term "Registration Statement" refers collectively
to the Company's registration statements on Form S-3 (File No. 333-125248).
Title and Description of Certificates: GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1.
Initial aggregate Certificate Balance of the Offered Certificates:
$1,484,121,000 (Approximate).
Initial
Certificate Initial
Balance Pass- Purchase
or Notional Through S&P Fitch Price
Certificates Amount(1) Rate (2) Rating Rating Percentage
------------ --------- -------- ------ ------ ----------
Class A-1 $ 49,250,000 5.4586% (5) "AAA" "AAA" 100.249888%
Class A-2 $ 54,350,000 5.5186% (6) "AAA" "AAA" 100.157872%
Class A-3 $ 47,225,000 5.5186% (6) "AAA" "AAA" 99.243528%
Class A-AB $ 53,244,000 5.5186% (6) "AAA" "AAA" 99.431201%
Class A-4 $ 620,130,000 5.5186% (6) "AAA" "AAA" 99.266958%
Class A-1A $ 301,963,000 5.5186% (6) "AAA" "AAA" 99.408564%
Class A-M $ 160,880,000 5.5186% (6) "AAA" "AAA" 98.898331%
Class A-J $ 146,804,000 5.5186% (6) "AAA" "AAA" 98.456706%
Class B $ 36,198,000 5.5186% (6) "AA" "AA" 98.091414%
Class C (8) $ 14,077,000 5.5186% (6) "AA-" "AA-" 97.944525%
Class X-W (8) (3) 0.0087% (4) "AAA" "AAA" (8)
Class D (8) (9) 5.5186% (6) "A" "A" (8)
Class E (8) (9) 5.5186% (6) "A-" "A-" (8)
Class F (8) (9) 5.5186% (6) "BBB+" "BBB+" (8)
Class G (8) (9) 5.5186% (6) "BBB" "BBB" (8)
Class H (8) (9) 5.5186% (6) "BBB-" "BBB-" (8)
Class J (8) (9) 5.2690% (7) "BB+" "BB+" (8)
Class K (8) (9) 5.2690% (7) "BB" "BB" (8)
Class L (8) (9) 5.2690% (7) "BB-" "BB-" (8)
Class M (8) (9) 5.2690% (7) "B+" "B+" (8)
Class N (8) (9) 5.2690% (7) "B" "B" (8)
Class O (8) (9) 5.2690% (7) "B-" "B-" (8)
Class P (8) (9) 5.2690% (7) (10) (10) (8)
Class S (8) N/A N/A (10) (10) N/A
Class R (8) N/A N/A (10) (10) N/A
Class LR (8) N/A N/A (10) (10) N/A
--------------------------------------------------------------------------------
(1) Approximate (subject to a permitted variance of plus or minus 5%).
(2) Approximate.
(3) The initial Notional Amount of the Class X-W Certificates is approximately
$1,608,803,743.
(4) The Pass-Through Rate on the Class X-W Certificates will be based on the
weighted average of the interest strip rates of the components of the Class X-W
Certificates, which will be based on the net mortgage rates applicable to the
mortgage loans as of the preceding distribution date minus the pass-through
rates of such components.
(5) The Pass-Through Rate applicable to the Class A-1 Certificates will be the
weighted average of the net mortgage interest rates of the mortgage loans, minus
0.06%.
(6) The Pass-Through Rate applicable to the Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates will be the weighted average of the
net mortgage interest rates of the mortgage loans.
(7) The Pass-Through Rate applicable to the Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates will be will be a fixed rate subject
to a cap at the weighted average of the net mortgage interest rates of the
mortgage loans.
(8) These Classes are not Offered Certificates.
(9) The aggregate initial Certificate Balance of these Classes is approximately
$1,733,486,486.
(10) Not rated by the applicable rating agency.
Closing Time, Date and Location: 10:00 A.M. on March 23, 2006 at the offices of
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, One World Financial Center, New York, New
York.
Issuance and Delivery of Certificates: The Offered Certificates will be
delivered in book-entry form through the Same-Day Funds Settlement System of The
Depository Trust Company.
SCHEDULE II
Credit Suisse ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Banc of America Deutsche Bank Securities (USA) ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Class Securities LLC Securities Inc. LLC Securities Inc. ▇▇▇▇▇ Incorporated
----- -------------- --------------- --- --------------- ------------------
Class A-1 $ 32,833,333 $ 16,416,667 $ 0 $ 0 $ 0
Class A-2 $ 36,233,333 $ 18,116,667 $ 0 $ 0 $ 0
Class A-3 $ 31,483,333 $ 15,741,667 $ 0 $ 0 $ 0
Class A-AB $ 35,496,000 $ 17,748,000 $ 0 $ 0 $ 0
Class A-4 $411,420,000 $205,710,000 $ 1,000,000 $ 1,000,000 $ 1,000,000
Class A-1A $201,308,667 $100,654,333 $ 0 $ 0 $ 0
Class A-M $107,253,333 $ 53,626,667 $ 0 $ 0 $ 0
Class A-J $ 97,869,333 $ 48,934,667 $ 0 $ 0 $ 0
Class B $ 2,413,2000 $ 12,066,000 $ 0 $ 0 $ 0
Class C $ 9,384,667 $ 4,692,333 $ 0 $ 0 $ 0
SCHEDULE III
The information in this free writing prospectus is not complete and may be
amended prior to the time of sale. This free writing prospectus is not an offer
to sell these securities and it is not a solicitation of an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
THIS FREE WRITING PROSPECTUS, DATED MARCH 3, 2006, MAY BE AMENDED OR COMPLETED
PRIOR TO TIME OF SALE
STATEMENT REGARDING THIS FREE WRITING PROSPECTUS
The depositor has filed a registration statement (including a prospectus) with
the Securities and Exchange Commission ("SEC") (SEC File No. 333-125248) for the
offering to which this communication relates. Before you invest, you should read
the prospectus in that registration statement and other documents the depositor
has filed with the SEC for more complete information about the depositor, the
issuing entity and this offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the depositor
or any underwriter or any dealer participating in the offering will arrange to
send you the prospectus if you request it by calling ▇-▇▇▇-▇▇▇-▇▇▇▇ or by
emailing dg.prospectusdistribution~▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
This free writing prospectus does not contain all information that is required
to be included in a prospectus required to be filed as part of a registration
statement.
$1,516,408,000 (Approximate)
GE COMMERCIAL MORTGAGE CORPORATION
Depositor
GE Commercial Mortgage Corporation, Series 2006-Cl Trust
Issuing Entity
General Electric Capital Corporation,
Bank of America, National Association and
German American Capital Corporation
Sponsors and Mortgage Loan Sellers
Commercial Mortgage Pass-Through Certificates, Series 2006-Cl
GE Commercial Mortgage Corporation is offering certain classes of the
Series 2006-Cl Commercial Mortgage Pass-Through Certificates, which represent
the beneficial ownership interests in a trust. The trust's assets will be 146
mortgage loans secured primarily by first liens on 868 commercial, multifamily
and manufactured housing properties and are generally the sole source of
payments on the certificates. The Series 2006-Cl certificates are not
obligations of GE Commercial Mortgage Corporation, the trust, the mortgage loan
sellers, the underwriters or any of their respective affiliates, and neither the
certificates nor the underlying mortgage loans are insured or guaranteed by any
governmental agency or any other person or entity.
Certain characteristics of the offered certificates include:
------------------------------------------------------------------------------------------------------------------------------------
Initial Initial Pass- Expected Rated Final
Class Certificate Through Rate Pass-Through Assumed Final Ratings Distribution
Balance(1) (Approx.) Description Distribution Date(5) S&P/Fitch Date(5)
------------------------------------------------------------------------------------------------------------------------------------
Class A-l(7) $49,250,000 [ ]% Fixed(3) October 10, 2010 AAA/AAA March 10, 2044
Class A-2(7) $55,200,000 [ ]% Fixed(3) March 10, 2011 AAA/AAA March 10, 2044
Class A-3(7) $47,879,000 [ ]% Fixed(3) March 10, 2014 AAA/AAA March 10, 2044
Class A-AB(7) $54,760,000 [ ]% Fixed(3) August 10, 2015 AAA/AAA March 10, 2044
Class A-4(7) $641,610,000 [ ]% Fixed(3) January 10, 2016 AAA/AAA March 10, 2044
Class A-lA(7) $301,963,000 [ ]% Fixed(3) January 10, 2016 AAA/AAA March 10, 2044
Class A-M $164,380,000 [ ]% Fixed(3) February 10, 2016 AAA/AAA March 10, 2044
Class A-J $149,998,000 [ ]% Fixed(3) March 10, 2016 AAA/AAA March 10, 2044
Class B $36,985,000 [ ]% Fixed(3) March 10, 2016 AA/AA March 10, 2044
Class C $14,383,000 [ ]% Fixed(3) March 10, 2016 AA-/AA- March 10, 2044
------------------------------------------------------------------------------------------------------------------------------------
(Footnotes to table on page S-10)
Neither the Securities and Exchange Commission nor state securities
regulators has approved or disapproved of the offered certificates or determined
if this prospectus supplement or the accompanying prospectus are truthful or
complete. Any representation to the contrary is a criminal offense.
Filed Pursuant to Rule 433
File No.: ▇▇▇-▇▇▇▇▇▇-▇▇
March 9, 2006
UPDATE to
Structural and Collateral Information Free Writing Prospectus dated March 2006
(the "Term Sheet FWP") and Free Writing Prospectus Dated March 3, 2006 (the
"MARCH 3 FWP")
GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1
1. Loan No. 10 (Meadowood Napa Valley) on Annex A-1 to the MARCH 3 FWP, with
a balance as of the cut-off date of $35,000,000 (representing 2.13% of the
initial pool balance and 2.61% of the initial loan group 1 balance as of
the MARCH 3 FWP) has been removed from the mortgage pool.
2. Due to such removal, the mortgage loan known as Embassy Suites (the
"Embassy Suites Loan") identified as Loan No. 13 on Annex A-1 to the MARCH
3 FWP, with a balance as of the cut-off date of $28,000,000 (representing
1.70% of the initial pool balance and 2.09% of the initial loan group 1
balance as of the MARCH 3 FWP, a cut-off date LTV of 36.6% and a DSCR of
3.85x is now one of the ten largest mortgage loans. Attachment A contains
the large loan description of the Embassy Suites Loan.
3. The table set forth on Attachment B sets forth the current uses of the
mortgaged properties, revised to reflect such removal.
4. Attachment C sets forth certain information in connection with the offered
certificates.
5. Attachment D contains the anticipated planned principal balances of the
Class A-AB Certificates.
GE Commercial Mortgage Corporation (the "Depositor") has filed a registration
statement (including a prospectus) (SEC File no. 333-125248) with the SEC for
the new offering to which this free writing prospectus relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the Depositor has filed with the SEC for more complete information
about the Depositor, the issuing entity, and this offering. You may get these
documents for free by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇.
Alternatively, the Depositor, any underwriter, or any dealer participating in
the offering will arrange to send you the prospectus if you request it by
calling ▇-▇▇▇-▇▇▇-▇▇▇▇ or by email to the following address:
▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
This free writing prospectus does not contain all information that is required
to be included in a prospectus required to be filed as part of a registration
statement. This free writing prospectus is not an offer to sell or a
solicitation of an offer to buy these securities in any state where such offer,
solicitation or sale is not permitted.
The information in this free writing prospectus, if conveyed prior to the time
of your contractual commitment to purchase any of the Certificates, supersedes
any conflicting information contained in any prior similar materials relating to
the Certificates. The information in this free writing prospectus may be amended
or supplemented. This free writing prospectus is being delivered to you solely
to provide you with information about the offering of the Certificates referred
to in this free writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to purchase made by you
will not constitute a contractual commitment by you to purchase or give rise to
an obligation by the underwriters to sell any of the Certificates, until the
underwriters have accepted your offer to purchase Certificates; any "indications
of interest" expressed by you, and any "soft circles" generated by us, will not
create binding contractual obligations for you or us.
You are advised that the terms of the Certificates, and the characteristics of
the mortgage loan pool backing them, may change (due, among other things, to the
possibility that mortgage loans that comprise the pool may become delinquent or
defaulted or may be removed or replaced and that similar or different mortgage
loans may be added to the pool, and that one or more classes of Certificates may
be split, combined or eliminated), at any time prior to the time sales to
purchasers of the Certificates will first be made. You are advised that
Certificates may not be issued that have the characteristics described in these
materials. The underwriter's obligation to sell such Certificates to you is
conditioned on the mortgage loans and Certificates having the characteristics
described in these materials. If a material change does occur with respect to
such Certificates, our contract will terminate, by its terms, without any
further obligation or liability between us (an "Automatic Termination"). If an
Automatic Termination does occur, the underwriter will notify you, and neither
the issuer nor any underwriter will have any obligation to you to deliver all or
any portion of the Certificates which you have committed to purchase, and none
of the issuer nor any underwriter will be liable for any costs or damages
whatsoever arising from or related to such non-delivery.
This free writing prospectus was prepared on the basis of certain assumptions
(including, in certain cases, assumptions specified by the recipient hereof)
regarding the pool assets and structure, including payments, interest rates,
weighted average lives and weighted average loan age, loss, spreads, market
availability and other matters. The actual amount, rate or timing of payments on
any of the underlying assets may be different, and sometimes materially
different than anticipated, and therefore the pricing, payment or yield
information regarding the Certificates may be different from the information
provided herein. There can be no assurance that actual pricing will be completed
at the indicated value(s). In addition, pricing of the Certificates may vary
significantly from the information contained in this free writing prospectus as
a result of various factors, including, without limitation, prevailing credit
spreads, market positioning, financing costs, hedging costs and risk and use of
capital and profit. The pricing estimates contained herein may vary during the
course of any particular day and from day to day. You should consult with your
own accounting or other advisors as to the adequacy of the information in this
free writing prospectus for your purposes.
------------------------------------
IRS CIRCULAR 230 NOTICE
THIS FREE WRITING PROSPECTUS IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT
BE USED, FOR THE PURPOSE OF AVOIDING U.S. FEDERAL, STATE OR LOCAL TAX PENALTIES.
THIS FREE WRITING PROSPECTUS IS WRITTEN AND PROVIDED BY THE UNDERWRITERS IN
CONNECTION WITH THE PROMOTION OR MARKETING OF THE TRANSACTIONS OR MATTERS
ADDRESSED HEREIN. INVESTORS SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR
CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
------------------------------------
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO
THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES
WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA
BLOOMBERG OR ANOTHER EMAIL SYSTEM.
------------------------------------
Filed Pursuant to Rule 433
File No.: ▇▇▇-▇▇▇▇▇▇-▇▇
March 13, 2006
UPDATE to Structural and Collateral Information Free Writing Prospectus dated
March 2006, Free Writing Prospectus Dated March 3, 2006 (the "March 3 FWP") and
Structural and Collateral Information Free Writing Prospectus Dated March 9,
2006
GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1
GMH Communities Trust ("GMH"), one of the co-sponsors of two of the mortgage
loans (the "Loans") included in the GE Commercial Mortgage Corporation, Series
2006-C1 Trust, issued a press release on Monday, March 13, 2006 (the "Press
Release"), announcing that it has postponed the release of the results of its
2005 fourth quarter and year-end earnings. According to the Press Release, the
delay results from an investigation by GMH's internal audit committee revealing
several material weaknesses in GMH's control over financial reporting. However,
GMH noted in the Press Release that none of the weaknesses identified by the
audit committee materially affects the operating characteristics of GMH's
student housing properties or military housing projects. Both Loans are secured
by student housing multifamily properties and are included in Loan Group 2. One
of the Loans, identified as Loan No. 9 on Annex A-1 to the March 3 FWP and known
as "Grand Marc at Riverside," represents approximately 2.62% of the Initial Pool
Balance (or approximately 13.94% of the Initial Loan Group 2 Balance), has an
original principal balance of $42,090,680, an LTV Ratio of 69.46% and a DSCR of
1.65x. The other Loan, identified as Loan No. 11 on Annex A-1 to the March 3 FWP
and known as "Pegasus -- GMH," represents approximately 1.86% of the Initial
Pool Balance (or approximately 9.91% of the Initial Loan Group 2 Balance), has
an original principal balance of $29,914,000, an LTV Ratio of 60.49% and a DSCR
of 1.95x.
GE Commercial Mortgage Corporation (the "Depositor") has filed a registration
statement (including a prospectus) (SEC File no. 333-125248) with the SEC for
the new offering to which this free writing prospectus relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the Depositor has filed with the SEC for more complete information
about the Depositor, the issuing entity, and this offering. You may get these
documents for free by visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇.
Alternatively, the Depositor, any underwriter, or any dealer participating in
the offering will arrange to send you the prospectus if you request it by
calling ▇-▇▇▇-▇▇▇-▇▇▇▇ or by email to the following address:
▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
This free writing prospectus does not contain all information that is required
to be included in a prospectus required to be filed as part of a registration
statement. This free writing prospectus is not an offer to sell or a
solicitation of an offer to buy these securities in any state where such offer,
solicitation or sale is not permitted.
The information in this free writing prospectus, if conveyed prior to the time
of your contractual commitment to purchase any of the Certificates, supersedes
any conflicting information contained in any prior similar materials relating to
the Certificates. The information in this free writing prospectus may be amended
or supplemented. This free writing prospectus is being delivered to you solely
to provide you with information about the offering of the Certificates referred
to in this free writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to purchase made by you
will not constitute a contractual commitment by you to purchase or give rise to
an obligation by the underwriters to sell any of the Certificates, until the
underwriters have accepted your offer to purchase Certificates; any "indications
of interest" expressed by you, and any "soft circles" generated by us, will not
create binding contractual obligations for you or us.
You are advised that the terms of the Certificates, and the characteristics of
the mortgage loan pool backing them, may change (due, among other things, to the
possibility that mortgage loans that comprise the pool may become delinquent or
defaulted or may be removed or replaced and that similar or different mortgage
loans may be added to the pool, and that one or more classes of Certificates may
be split, combined or eliminated), at any time prior to the time sales to
purchasers of the Certificates will first be made. You are advised that
Certificates may not be issued that have the characteristics described in these
materials. The underwriter's obligation to sell such Certificates to you is
conditioned on the mortgage loans and Certificates having the characteristics
described in these materials. If a material change does occur with respect to
such Certificates, our contract will terminate, by its terms, without any
further obligation or liability between us (an "Automatic Termination"). If an
Automatic Termination does occur, the underwriter will notify you, and neither
the issuer nor any underwriter will have any obligation to you to deliver all or
any portion of the Certificates which you have committed to purchase, and none
of the issuer nor any underwriter will be liable for any costs or damages
whatsoever arising from or related to such non-delivery.
This free writing prospectus was prepared on the basis of certain assumptions
(including, in certain cases, assumptions specified by the recipient hereof)
regarding the pool assets and structure, including payments, interest rates,
weighted average lives and weighted average loan age, loss, spreads, market
availability and other matters. The actual amount, rate or timing of payments on
any of the underlying assets may be different, and sometimes materially
different than anticipated, and therefore the pricing, payment or yield
information regarding the Certificates may be different from the information
provided herein. There can be no assurance that actual pricing will be completed
at the indicated value(s). In addition, pricing of the Certificates may vary
significantly from the information contained in this free writing prospectus as
a result of various factors, including, without limitation, prevailing credit
spreads, market positioning, financing costs, hedging costs and risk and use of
capital and profit. The pricing estimates contained herein may vary during the
course of any particular day and from day to day. You should consult with your
own accounting or other advisors as to the adequacy of the information in this
free writing prospectus for your purposes.
------------------------------------
IRS CIRCULAR 230 NOTICE
THIS FREE WRITING PROSPECTUS IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT
BE USED, FOR THE PURPOSE OF AVOIDING U.S. FEDERAL, STATE OR LOCAL TAX PENALTIES.
THIS FREE WRITING PROSPECTUS IS WRITTEN AND PROVIDED BY THE UNDERWRITERS IN
CONNECTION WITH THE PROMOTION OR MARKETING OF THE TRANSACTIONS OR MATTERS
ADDRESSED HEREIN. INVESTORS SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR
CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
------------------------------------
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO
THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES
WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA
BLOOMBERG OR ANOTHER EMAIL SYSTEM.
------------------------------------