EXHIBIT 1.1
CWCAPITAL COMMERCIAL FUNDING CORP.
[ ]
Commercial Mortgage Pass-Through Certificates, Series 20[ ]-[ ]
Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D and Class E
UNDERWRITING AGREEMENT
[
], 20[ ]
[UNDERWRITERS]
Ladies and Gentlemen:
CWCapital Commercial Funding Corp., a Delaware corporation (the
"Company"), proposes to sell to the Underwriters named in Schedule
I hereto (the
"Underwriters"), the respective classes of Commercial Mortgage
Pass-Through
Certificates, Series 20[ ]-[ ], that are identified on Schedule I,
in each case,
having the initial aggregate stated principal amount (a "Class
Principal
Balance") and initial pass-through rate set forth on Schedule I
(such
Certificates, the "Underwritten Certificates"). The Class A-1,
Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D and Class E Certificates,
together
with the Class XC, Class XP, Class E, Class F, Class G, Class H,
Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class Q, Class R-I
and Class
R-II Certificates issued therewith (collectively, the
"Certificates"), will
evidence the entire interest in the Trust Fund (as defined in the
Pooling and
Servicing Agreement referred to below) consisting primarily of a
pool of
multifamily and commercial mortgage loans as described in the
Prospectus
Supplement (as hereinafter defined) to be sold by the Company.
The Certificates will be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
[ ], 20[ ]
among the Company, as depositor, [ ], as master servicer (in such
capacity, the
"Master Servicer"), [ ], as special servicer (in such capacity, the
"Special
Servicer"), and [ ], as trustee (the "Trustee"). The Certificates
are described
in the Basic Prospectus and the Prospectus Supplement (each as
hereinafter
defined) which the Company has furnished to the Underwriters.
Certain of the Mortgage Loans (the "CW Mortgage Loans") will be
acquired by the Company from CWCapital LLC ("CW") pursuant to a
mortgage loan
purchase agreement, dated as of [ ], 20[ ] (the "Mortgage Loan
Purchase
Agreement"), between the Company and CW. Certain of the Mortgage
Loans (the
"[SELLER] Mortgage Loans") will be acquired by the Company from
[SELLER]
("[SELLER]") pursuant to a mortgage loan purchase agreement, dated
as of [ ],
20[ ] (the "[SELLER] Mortgage Loan Purchase Agreement"), between
the Company and
[ ].
The CW Mortgage Loans and the [SELLER] Mortgage Loans together
are
referred to herein as the "Mortgage Loans." CW and [SELLER] are
collectively
referred to herein as the "Mortgage Loan Sellers." The CW and the
[SELLER]
Mortgage Loan Purchase Agreement are collectively referred to
herein as the
"Purchase Agreements." The "Cut-off Date" with respect to each
Mortgage Loan
shall be [ ].
SECTION 1. Representations, Warranties, and Covenants.
Section 1.1. The Company represents and warrants to, and agrees
with
the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. [ ]) on
Form S-3 for
the registration under the Securities Act of 1933, as amended (the
"Securities
Act"), of Mortgage Pass-Through Certificates (issuable in series),
including the
Certificates, which registration statement has become effective,
and a copy of
which, as amended to the date hereof, has heretofore been delivered
to the
Underwriters. The Company proposes to file with the Commission
pursuant to Rule
424(b) under the rules and regulations of the Commission under the
Securities
Act (the "Securities Act Regulations") a supplement dated [ ], 20[
] (the
"Prospectus Supplement"), to the prospectus dated [ ], 20[ ] (the
"Basic
Prospectus"), relating to the Certificates and the method of
distribution
thereof. Such registration statement (No. 333-[ ]) including
exhibits thereto
and any information incorporated therein by reference, as amended
at the date
hereof, is hereinafter called the "Registration Statement", the
Basic Prospectus
and the Prospectus Supplement and any information incorporated
therein by
reference, together with any amendment thereof or supplement
thereto authorized
by the Company on or prior to the Closing Date for use in
connection with the
offering of the Certificates, are hereinafter called the
"Prospectus" and any
diskette attached to the Prospectus is hereinafter called the
"Diskette." Any
preliminary form of the Prospectus Supplement which has heretofore
been filed
pursuant to Rule 424, or prior to the effective date of the
Registration
Statement pursuant to Rule 402(a) or 424(a) is hereinafter called a
"Preliminary
Prospectus Supplement", and any diskette attached to the
Preliminary Prospectus
Supplement is hereinafter referred to as the "Preliminary
Diskette."
(b) The Registration Statement has become effective, and the
Registration Statement as of its effective date (the "Effective
Date"), and the
Prospectus, as of the date of the Prospectus Supplement, complied
in all
material respects with the applicable requirements of the
Securities Act and the
Securities Act Regulations; and the Registration Statement, as of
the Effective
Date, did not contain any untrue statement of a material fact and
did not omit
to state any material fact required to be stated therein or
necessary to make
the statements therein not misleading and the Prospectus and any
Diskette, as of
the date of the Prospectus Supplement, did not, and as of the
Closing Date will
not, contain an untrue statement of a material fact and did not and
will not
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, however, that the Company makes no representations or
warranties as to
(i) the information contained in or omitted from the Registration
Statement or
the 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 Prospectus or
(ii) the
information as to which each Mortgage Loan Seller has agreed to
indemnify the
Underwriters pursuant to the related [indemnification agreement]
(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 [ ].
(c) The Company has been duly incorporated and is validly
existing
as a corporation in good standing under the laws of the State of
Delaware and
has the requisite corporate power to own its properties and to
conduct its
business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and
delivered
by the Company and, assuming due authorization, execution and
delivery by the
Underwriters, constitutes a valid, legal and binding obligation of
the Company,
enforceable against the Company in accordance with the terms
hereof, subject to
(i) applicable bankruptcy, insolvency, reorganization, moratorium
and other laws
affecting the enforcement of creditors' rights generally, (ii)
generally
principles of equity, regardless of whether such enforcement is
considered 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 for securities laws
liabilities.
(e) As of the Closing Date (as defined herein), the
Certificates
will conform in all material respects to the description thereof
contained in
the Prospectus and the representations and warranties of the
Company in the
Pooling and Servicing Agreement will be true and correct in all
material
respects.
(f) The Depositor is not, and on the date on which the first
bona
fide offer of the Certificates is made will not be, an "ineligible
issuer," as
defined in Rule 405 under the Securities Act.
Section 1.2. Each Underwriter represents and warrants to and
agrees
with the Company that:
(a) With respect to each class of Underwritten Certificates, if
any,
to be issued in authorized denominations of $25,000 or lesser
initial principal
balance or evidencing percentage interests in such class of less
than 20%, as
the case may be, the fair market value of all such Underwritten
Certificates
sold to any single Person on the date of initial sale thereof by
such
Underwriter will not be less than $100,000.
(b) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder,
including,
without limitation, Section 4.2.
Section 1.3. Each Underwriter agrees with the Company that it
will
cause the Person(s) acquiring the Residual Certificates on the
Closing Date, to
execute and deliver, the Transfer Affidavit and Agreement referred
to in Section
5.02 of the Pooling and Servicing Agreement, substantially in the
form of
Exhibit A to the Pooling and Servicing Agreement.
SECTION 2. Purchase and Sale. Subject to the terms and
conditions
and in reliance upon the representations and warranties herein set
forth, 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,
the actual
principal amounts or percentage interests set forth in Schedule I
hereto in the
respective classes of Underwritten Certificates at a price for each
such class
set forth in Schedule I hereto. There will be added to the purchase
prices of
the Underwritten Certificates an amount equal to interest accrued
thereon from [
], 20[ ] to but not including the Closing Date.
SECTION 3. Delivery and Payment. Delivery of and payment for
the
Underwritten Certificates shall be made at the offices of
Cadwalader, Wickersham
& Taft LLP, New York, New York 10281 at 10:00 a.m., New York
City time, on [ ],
20[ ] or such later date as the Underwriters shall designate, which
date and
time may be postponed by agreement between the Underwriters and the
Company
(such date and time of delivery and payment for the Underwritten
Certificates
being herein called the "Closing Date"). Delivery of the
Underwritten
Certificates (also referred to herein as the "DTC Registered
Certificates")
shall be made to the respective accounts of the Underwriters
through DTC, in
each case against payment by the Underwriters to or upon the order
of each
Mortgage Loan Seller by wire transfer in immediately available
funds of the
amount that has been agreed to by each such Mortgage Loan Seller
and the Company
(net of certain expenses, which will be paid by the Underwriters on
behalf of
the Company). As a further condition to the delivery of the DTC
Registered
Certificates, each Underwriter shall have furnished by telephonic
notice to the
applicable Mortgage Loan Seller the federal reference number for
the related
wire transfer to such Mortgage Loan Seller and shall have furnished
to the
Company each such federal reference number as soon as practicable
after such
federal reference number becomes available.
SECTION 4. Offering by Underwriters.
Section 4.1. It is understood that the Underwriters propose to
offer
the Underwritten Certificates for sale to the public as set forth
in the
Prospectus, and the Underwriters agree that all offers and sales by
the
Underwriters shall be made in compliance with all applicable laws
and
regulations. [It is further understood that the Company, in
reliance upon a
no-filing letter from the Attorney General of the State of New York
granted
pursuant to Policy Statement 105, has not and will not file an
offering
statement pursuant to Section 352-e of the General Business Law of
the State of
New York with respect to the Underwritten Certificates. As required
by Policy
Statement 105, each Underwriter therefore covenants and agrees with
the Company
that sales of the Underwritten Certificates made by such
Underwriter in and from
the State of New York will be made only to institutional investors
within the
meaning of Policy Statement 105.]
Section 4.2. (a) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Securities Act,
no
Underwriter shall convey or deliver any written communication to
any person in
connection with the initial offering of the Certificates, unless
such written
communication (i) is made in reliance on Rule 134 under the
Securities Act, (ii)
constitutes a prospectus satisfying the requirements of Rule 430B
under the
Securities Act or (iii) constitutes a "free writing prospectus," as
defined in
Rule 405 under the Securities Act (a "Free Writing Prospectus").
Without
limitation thereby, without the prior written consent of the
Depositor (which
consent may be withheld for any reason), no Underwriter shall
convey or deliver
in connection with the initial offering of the Certificates any
"ABS
informational and computational material," as defined in Item
1101(a) of
Regulation AB under the Securities Act ("ABS Informational and
Computational
Material"), in reliance upon Rules 167 and 426 under the Securities
Act.
(b) (i) Each Underwriter shall deliver to the Depositor, no
later
than [two (2)] business days prior to the date of first use
thereof, (A) any
Free Writing Prospectus prepared by or on behalf of such
Underwriter that
contains any "issuer information," as defined in Rule 433(h) under
the
Securities Act ("Issuer Information"), and (B) any Free Writing
Prospectus or
portion thereof that contains only a description of the final terms
of the
Certificates.
(ii) Notwithstanding the provisions of clause (i) of this
subsection
4.2(b),
any Free Writing Prospectus described therein that contains
only
ABS
Informational and Computational Materials, may be delivered by
such
Underwriter to the Depositor no later than the later of (a) [two
(2)]
business
days prior to the due date for filing of the Prospectus
pursuant
to Rule
424(b) under the Securities Act or (b) the date of first use of
such Free
Writing Prospectus.
(c) Each Underwriter represents and warrants to the Depositor
that
the Free Writing Prospectuses to be furnished to the Depositor by
such
Underwriter pursuant to Section 4.2(b) hereof will constitute all
Free Writing
Prospectuses of the type described therein that were furnished to
prospective
investors by such Underwriter in connection with its offer and sale
of the
Certificates.
(d) Each Underwriter represents and warrants to the Depositor
that
each Free Writing Prospectus required to be provided by it to the
Depositor
pursuant to Section 4.2(b) hereof did not, as of the date such Free
Writing
Prospectus was conveyed or delivered to any prospective investor,
include any
untrue statement of a material fact or omit any material fact
required to be
stated therein necessary to make the statements contained therein,
in light of
the circumstances under which they were made, not misleading;
provided however,
that no Underwriter makes any representation to the extent such
misstatements or
omissions were the result of any inaccurate Issuer Information
supplied by the
Depositor to such Underwriter, which information was not corrected
by
information subsequently supplied by the Depositor to such
Underwriter prior to
the sale to the investor of the Certificates which resulted in a
loss, claim,
damage or liability arising out of a based upon such misstatement
or omission.
(e) The Depositor agrees to file with the Commission the
following:
(i) Any Free Writing Prospectus that constitutes an "issuer
free
writing
prospectus," as defined in Rule 433(h) under the Securities Act
(each, an
"Issuer Free Writing Prospectus");
(ii) Any Free Writing Prospectus or portion thereof delivered by
the
Underwriter to the Depositor pursuant to Section 4.2(b) hereof;
and
(iii) Any Free
Writing Prospectus for which the Depositor or any
person
acting on its behalf provided, authorized or approved
information
that is
prepared and published or disseminated by a person unaffiliated
with the
Depositor or any other offering participant that is in the
business
of publishing, radio or television broadcasting or otherwise
disseminating communications.
(f) Any Free Writing Prospectus required to be filed pursuant
to
Section 4.2(e) hereof by the Depositor shall be filed with the
Commission not
later than the date of first use of the Free Writing Prospectus,
except that:
(i) any Free Writing Prospectus or portion thereof required to
be
filed that
contains only the description of the final terms of the
Certificates may be filed by the Depositor within [two (2)] 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 may
be filed
by the Depositor with the Commission not later than the later
of
the due
date for filing the final Prospectus relating to the
Certificates
pursuant
to Rule 424(b) under the Securities Act or [two (2)] business
days after
the first use of such Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be filed pursuant
to
Section
4.2(e)(iii) hereof may, if no payment has been made or
consideration has been given by or on behalf of the Depositor for
the Free
Writing
Prospectus or its dissemination, be filed by the Depositor with
the
Commission not later than [four (4)] business days after the
Depositor
becomes
aware of the publication, radio or television broadcast or
other
dissemination of the Free Writing Prospectus; and
(iv) the Issuer shall not be required to file (A) Issuer
Information
contained
in any Free Writing Prospectus of an offering participant other
than the
Issuer, 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
reflect
the final
terms thereof.
(g) Each Underwriter shall file with the Commission any Free
Writing
Prospectus that is used or referred to by it and distributed by or
on behalf of
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.
(h) Notwithstanding the provisions of Section 4.2(g) hereof,
each
Underwriter shall file with the Commission any Free Writing
Prospectus for which
such Underwriter or any person acting on its behalf provided,
authorized or
approved information that is prepared and published or disseminated
by a person
unaffiliated with the Depositor or any other offering participant
that is in the
business of publishing, radio or television broadcasting or
otherwise
disseminating written communications and for which no payment was
made or
consideration given by or on behalf of the Depositor or any other
offering
participant, not later than [four (4)] business days after the
Underwriter
becomes aware of the publication, radio or television broadcast or
other
dissemination of the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 4.2(e) and 8(g)
hereof, neither the Issuer nor any Underwriter shall be required to
file any
Free Writing Prospectus that does not contain substantive changes
from or
additions to a Free Writing Prospectus previously filed with the
Commission.
(j) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following
legend:
The issuer has filed a registration statement (including a
prospectus) with the Commission (File No. 333-132103) for the
offering to which
this communication relates. Before you invest, you should read the
prospectus in
that registration statement and other documents the issuer has
filed with the
Commission for more complete information about the issuer and this
offering. You
may get these documents for free by visiting EDGAR on the
Commission's website
at "http://www.sec.gov." Alternatively, the issuer, any underwriter
or any
dealer participating in the offering will arrange to send you the
prospectus if
you request it by calling toll-free 1-800-SEC-0330.
(k) The Depositor and 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 4.2 for a period of three (3) years
following the
initial bona fide offering of the Certificates
(l) (i) In the event that any Underwriter becomes aware that, as
of
the date on which an investor entered into an agreement to purchase
any
Certificates, any Free Writing Prospectus prepared by or on behalf
of such
Underwriter and delivered to such investor 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 light of the circumstances under
which they
were made, not misleading (such Free Writing Prospectus, a
"Defective Free
Writing Prospectus"), such Underwriter shall notify the Depositor
thereof within
[one (1)] business day after discovery.
(ii) Provided that the Defective Free Writing Prospectus was an
Issuer
Free Writing Prospectus or contained Issuer Information, the
Underwriter shall, if requested by the Depositor:
(A) Prepare a Free Writing Prospectus which 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
investor which received the Defective Free Writing Prospectus
prior
to entering into an agreement to purchase any Offered
Certificates;
(C) [Notify such investor in a prominent fashion that the
prior agreement to purchase Offered Certificates has been
terminated, and of the investor's rights as a result of
termination
of such agreement] [This assumes that the investor has
previously
agreed that a material change in terms of the offering
automatically
terminates the agreement with the investor]; and
(D) Provide such investor with an opportunity to affirmatively
agree to purchase such Certificates on the terms described in
the
Corrected Free Writing Prospectus.]
(iii) Notwithstanding any other provision herein, the
Underwriters,
on the one
hand, and the Depositor, on the other hand, agree to pay all
costs and
expenses of the other party or parties, as applicable,
including,
without limitation, legal fees and expenses, incurred in
connection
with any successful action by the Underwriters, on the one
hand, or
the Depositor, on the other hand, against the other party or
parties,
as applicable, to enforce any of its rights set forth in this
Section
4.2.
(iv) Each Underwriter covenants with the Depositor that it will
make
available
to the Depositor such personnel as are familiar with the
Underwriter's compliance procedures for the purpose of answering
questions
concerning
the Underwriter's practices and procedures for the preparation
and
dissemination of wri
