Exhibit 1.1
GE COMMERCIAL MORTGAGE CORPORATION
$_____________ (Approximate)
Commercial Mortgage Pass-Through Certificates
Series 20__-
UNDERWRITING AGREEMENT
New York, New York
______, 20__
[Names and Addresses of Underwriters]
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 20__-__ (the "Certificates"), consisting of
__classes
designated as the Class [A-1], Class [A-1A], Class [A-2], [Class
A-3FL], Class
[B], Class [C], Class [D], Class [E], Class [F], Class [G], Class
[H], [Class
X], Class [R] and Class [LR] Certificates under a Pooling and
Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
____, 20__ among
the Company, [Name of master servicer], as master servicer (the
"Servicer"),
[Name of special servicer], as special servicer (the "Special
Servicer") and
[Name of trustee], as trustee (the "Trustee"). The Company proposes
to sell the
Class [A-1], Class [A-1A], Class [A-2], [Class A-3FL], Class [B],
Class [D] and
Class [E] [and Class X] Certificates (collectively, the "Offered
Certificates")
to [Names of underwriters] (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 and multifamily 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 ____, 20__, between
the Company and
GECC] and (ii) [insert names of other mortgage loan sellers] (,
together with
[GECC] Bank of America, the "Mortgage Loan Sellers") pursuant to a
Mortgage Loan
Purchase and Sale Agreement ([together with the GECC Purchase
Agreement,] the
"Purchase Agreements"), dated as of ____, 20__, among the Company
and [insert
names of other mortgage loan sellers], 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 the
following information (collectively, the "Time of Sale
Information": (i) a Term
Sheet dated as of ____ , 20__ (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"),
(iii) the
information attached hereto on Schedule III and (iv) a Free Writing
Prospectus
dated ____ , 20__ 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 the
Mortgage
Loan Seller Indemnification Agreements, the "Mortgage Loan Seller
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. 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 ____ , 20__ and
rendered by
[Name of accountants].
(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
____, 20__
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 [__]of
the Pooling and Servicing Agreement and the annual statement of a
firm of
independent public accountants furnished to the Trustee pursuant to
Section
[___]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 su
