___ COMMERCIAL MORTGAGE TRUST 200_-C_
$__________________
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 200_-C_
[CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-SB, CLASS A-4, CLASS
A-1A,
CLASS A-MFL, CLASS A-MFX,
CLASS A-J, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS
XP]
UNDERWRITING AGREEMENT
as of __________, 200_
Citigroup Global Markets Inc.
___________________________
388 Greenwich Street
___________________________
New York, New York 10013
___________________________
Attention:
Paul Vanderslice
Attention:_________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
Attention:_________________
Attention:_________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
Attention:_________________
Attention:_________________
___________________________
___________________________
___________________________
Attention:_________________
Ladies and Gentlemen:
Citigroup Commercial Mortgage Securities Inc., a Delaware
corporation ("CCMS"), proposes to sell to Citigroup Global Markets
Inc.
("CGMI"), ______________ ("____"),______________
("____"),______________
("____"),______________, Inc. ("____"),______________ (" ____") and
______________ ("____" and, collectively with ____, ____, ____,
____, ____ and
____, the "Underwriters"), pursuant to this Underwriting Agreement
(this
"Agreement"), the classes of commercial mortgage pass-through
certificates, that
are identified on Schedule I hereto (collectively, the "Registered
Certificates"), each having the initial aggregate stated principal
amount (the
initial "Class Principal Balance") or notional amount (the initial
"Class
Notional Amount") set forth on Schedule I. The Registered
Certificates, together
with the other classes of commerical mortgage pass-through
certificates of the
same series (collectively, the "Private Certificates" and,
collectively with the
Registered Certificates, the "Certificates"), evidence the entire
beneficial
ownership interest in the assets of a
trust to be created by CCMS (such trust, the "Trust" and such
assets
collectively, the "Trust Fund"). The Trust Fund consists primarily
of
multifamily and commercial mortgage loans (the "Mortgage Loans")
that will have,
as of the Cut-off Date (as defined below), after taking into
account all
payments of principal due on the Mortgage Loans on or before the
Cut-off Date,
whether or not received, an aggregate principal balance of
approximately $
______________ (subject to a variance of plus or minus 5.0%). As
used in this
Agreement, "Cut-off Date" shall mean, individually and
collectively, as the
context may require: with respect to each Mortgage Loan that has a
Due Date in
____ 200__, the related Due Date of such Mortgage Loan in _________
200_; and
with respect to each Mortgage Loan having its first Due Date in
_________ 200_,
_________, 200_.
CCMS intends to sell the Private Certificates to CGMI and ____
pursuant to a certificate purchase agreement dated as of the date
hereof (the
"Certificate Purchase Agreement"), between CCMS, CGMI and ____.
Certain of the Mortgage Loans will be acquired by CCMS from
Citigroup Global Markets Realty Corp. ("CGMRC" and such Mortgage
Loans, the
"CGMRC Mortgage Loans"), pursuant to a mortgage loan purchase
agreement, dated
as of the date hereof (the "CGMRC/CCMS Mortgage Loan Purchase
Agreement"),
between CGMRC, as seller, and CCMS, as purchaser. Certain other
Mortgage Loans
will be acquired by CCMS from ______________ ("____" and such
Mortgage Loans,
the "____ Mortgage Loans"), pursuant to a mortgage loan purchase
agreement,
dated as of the date hereof (the "____/CCMS Mortgage Loan Purchase
Agreement"),
between ____, as seller, and CCMS, as purchaser. Certain other
Mortgage Loans
will be acquired by CCMS from ______________ ("____" and such
Mortgage Loans,
the "____ Mortgage Loans"), pursuant to a mortgage loan purchase
agreement,
dated as of the date hereof (the "____/CCMS Mortgage Loan Purchase
Agreement"),
between ____, as seller, and CCMS, as purchaser. The remaining
Mortgage Loans
will be acquired by CCMS from ______________, ("____" and such
Mortgage Loans,
the "____ Mortgage Loans"), pursuant to a mortgage loan purchase
agreement,
dated as of the date hereof (the "____/CCMS Mortgage Loan Purchase
Agreement"),
between ____, as seller, and CCMS, as purchaser. CGMRC, ____, ____
and ____ are,
collectively, the "Mortgage Loan Sellers" and the CGMRC/CCMS
Mortgage Loan
Purchase Agreement, the ____/CCMS Mortgage Loan Purchase Agreement,
the
____/CCMS Mortgage Loan Purchase Agreement and the ____/CCMS
Mortgage Loan
Purchase Agreement are, collectively, the "Mortgage Loan Purchase
Agreements".
In connection with the sale by CGMRC to CCMS of the CGMRC Mortgage
Loans, CGMRC, CCMS, CGMI, ___and the other Underwriters entered
into an
indemnification agreement dated as of _________, 200_ (the "CGMRC
Indemnification Agreement"). In connection with the sale by ____ to
CCMS of the
____ Mortgage Loans, ____, CCMS, CGMI, ___and the other
Underwriters entered
into an indemnification agreement dated as of _________, 200_ (the
"____
Indemnification Agreement"). In connection with the sale by ____ to
CCMS of the
____ Mortgage Loans, ____, CCMS, CGMI, ___and the other
Underwriters entered
into an indemnification agreement dated as of _________, 200_ (the
"____
Indemnification Agreement"). In connection with the sale by ____ to
CCMS of the
____ Mortgage Loans, ____, CCMS, CGMI, ___and the other
Underwriters entered
into an indemnification agreement dated as of _________, 200_ (the
"____
Indemnification Agreement"; and, collectively with the
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CGMRC Indemnification Agreement, the ____ Indemnification Agreement
and the ____
Indemnification Agreement, the "Mortgage Loan Seller
Indemnification
Agreements").
The Trust is to be created and the Certificates are to be issued
under a pooling and servicing agreement to be dated as of
_________, 200_ (the
"Pooling and Servicing Agreement"), among CCMS as depositor,
_________
("______") as master servicer (in such capacity, the "Master
Servicer"),
_________ ("______") as special servicer (in such capacity, the
"Special
Servicer"), _________ ("______") as trustee (in such capacity, the
"Trustee"),
and _________ ("______")as fiscal agent (in such capacity, the
"Fiscal Agent").
In connection with the execution and delivery of the Pooling and
Servicing Agreement: (i) _______, CCMS, CGMI, ___and the other
Underwriters
entered into an indemnification agreement dated as of __________,
200_ (the
"Trustee Indemnification Agreement"); (ii) _________, CCMS, CGMI,
___and the
other Underwriters entered into an indemnification agreement dated
as of
__________, 200_ (the "Master Servicer Indemnification Agreement");
and (iii)
________, CCMS, CGMI, ___and the other Underwriters entered into an
indemnification agreeement dated as of ______, 200__ (the "Special
Servicer
IndemnificationAgreement") ; and, collectively with the Trustee
Indemnification
Agreement, the Master Servicer Indemnification Agreement and the
Mortgage Loan
Seller Indemnification Agreements, the "Indemnification
Agreements").
CCMS has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No.
333-_________) for the
registration of the Certificates under the Securities Act of 1933,
as amended
(the "1933 Act"), which registration statement has become
effective. The rules
and regulations of the Commission promulgated under the 1933 Act
are
collectively referred to in this Agreement as the "1933 Act Rules."
As used in
this Underwriting Agreement (this "Agreement" or this "Underwriting
Agreement"):
(i) "Registration Statement" means the foregoing registration
statement and all
exhibits thereto, as amended or supplemented to the date of this
Agreement,
together with any information that is contained in the Prospectus
(as defined
below) that is deemed to be a part of and included in that
registration
statement pursuant to Rule 430B under the 1933 Act as of the date
hereof; (ii)
"Basic Prospectus" means the base prospectus included in the
Registration
Statement at the time it became effective, as amended or
supplemented up to the
date of filing of the Prospectus Supplement (as defined below) by
any base
prospectus filed with the Commission pursuant to paragraph (b) of
Rule 424 under
the 1933 Act; (iii) "Prospectus Supplement" means the prospectus
supplement to
the Basic Prospectus, specifically relating to the Certificates,
filed or to be
filed with the Commission pursuant to paragraph (b) of Rule 424
under the 1933
Act, that is deemed to be part of and included in the Registration
Statement on
the date hereof in accordance with paragraph (f) of Rule 430B the
1933 Act; and
(iv) "Prospectus" means the Basic Prospectus, together with the
Prospectus
Supplement.
At or prior to the time when sales to purchasers of the Registered
Certificates were first made in accordance with Rule 159 under the
1933 Act,
which was approximately _______ (New York City time) on the date
hereof (the
"Time of Sale"), CCMS had prepared the following information, which
is
collectively referred to as the "Time of Sale Information": (i) the
Basic
Prospectus dated __________, 200_; (ii) the Free Writing Prospectus
(as defined
below) dated __________, 200_, relating to the Registered
Certificates and filed
by CCMS on __________, 200_ pursuant to Rule 433 under the 1933
3
Act (the "Offering Prospectus"), which Free Writing Prospectus
refers to itself
therein as "this offering prospectus", consists of over ____
printed pages and
was accompanied by the Basic Prospectus dated ______, 200__; and
(iii)
[ADDITIONAL ITEMS TO BE SPECIFIED]. If, subsequent to the date of
this
Agreement, CCMS and the Underwriters determine that, as to the
investors in one
or more Classes of the Publicly Offered Certificates, such initial
Time of Sale
Information includes an untrue statement of material fact or omits
to state a
material fact necessary in order to make the statements therein, in
light of the
circumstances under which they were made, not misleading, and the
Underwriters
terminate their old purchase contracts and enter into new purchase
contracts
with investors in the Publicly Offered Certificates, then "Time of
Sale
Information" shall refer to the information conveyed to investors
at the time of
entry into the last such new purchase contract, including any
information that
corrects such material misstatements or omissions ("Corrective
Information").
For the purposes of this Underwriting Agreement, "Free Writing
Prospectus" means
a "free writing prospectus" within the meaning of Rule 405 under
the 1933 Act;
and "Issuer Free Writing Prospectus"means an "issuer free writing
prospectus"
within the meaning of Rule 433 under the 1933 Act.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Prospectus.
1.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CCMS. CCMS
represents and warrants to, and covenants with, each of the
Underwriters that:
(a)
The Registration Statement has become effective under the 1933
Act. The aggregate principal amount of the Registered Certificates
does not
exceed the remaining amount of mortgage-backed securities that may
be offered
and sold under the Registration Statement as of the date hereof.
The
Registration Statement, as of the date it was declared effective
(its"Effective
Date"), and the portion of the Registration Statement relating to
the
Certificates (including, without limitation, the Prospectus), as of
the deemed
effective date thereof pursuant to Rule 430B under the 1933 Act
(its "Deemed
Effective Date") complied, complies and/or will comply, as
applicable, as to
form in all material respects with the requirements of the 1933 Act
and the 1933
Act Rules; and the information in the Registration Statement, as of
its
Effective Date, and the information in the portion of the
Registration Statement
relating to the Certificates (including, without limitation, the
Prospectus), as
of its Deemed Effective Date, did not, does not and/or will not, as
applicable,
contain an untrue statement of a material fact or omit to state any
material
fact required to be stated therein or necessary to make the
statements therein
not misleading, and the information in the Prospectus as of the
date hereof,
does not, and as of the Closing Date (as hereinafter defined), will
not, contain
an 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; provided, however, that
CCMS makes no
representation or warranty as to the Excluded Information (as
defined below).
The "Excluded Information" shall mean, collectively, the
information
contained in or omitted from the Registration Statement or the
Prospectus or the
Time of Sale Information or any Issuer Free Writing Prospectus or
any Issuer
Information (as defined below), or any revision, amendment or
supplement to any
of the foregoing, (i) in reliance upon and in conformity with
written or
electronic information furnished to CCMS by any Underwriter
specifically for use
in connection with the preparation of the Prospectus, or
4
any revision, amendment or supplement thereto, the Time of Sale
Information or
any such Issuer Free Writing Prospectus (collectively, the
"Underwriter
Information"), or (ii) to which the indemnities provided for in
Section 2 of any
of the Indemnification Agreements are applicable in accordance with
the
respective terms thereof (collectively, the "Third-Party
Information"). It is
hereby acknowledged that the information set forth on Schedule II
hereto
constitutes the only Underwriter Information in the Offering
Prospectus and the
Prospectus.
(b)
If and to the extent that it has not done so already, the
Company will make a good faith and reasonable effort to file the
Prospectus with
the Commission within the time period required under Rule 424 and,
in the event
that it fails to do so, the Company shall file the Prospectus with
the
Commission as soon as practicable thereafter.
(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 CCMS makes no representation and warranty
with respect
to any Excluded Information.
(d)
CCMS (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 Registered Certificates other than (i) the Prospectus, (ii)
any document
not constituting a prospectus under Section 2(a)(10)(a) of the 1933
Act,
including, without limitation, any document that complies with Rule
134 under
the 1933 Act, (iii) the Time of Sale Information, and (iv) any
other Free
Writing Prospectus approved in advance by the Underwriters either
in writing or
in any other manner mutually agreed to by the Underwriters and
CCMS. Each Issuer
Free Writing Prospectus included under clause (iii) above that was
prepared by
or on behalf of CCMS or its affiliates complied or, if used after
the date
hereof, will comply, in all material respects with the 1933 Act and
the 1933 Act
Rules and each Issuer Free Writing Prospectus prepared by or on
behalf of CCMS
or its affiliates or delivered to CCMS for filing in accordance
with Section 9
has been filed or will be filed in accordance with Section 9 (to
the extent
required thereby). Each Issuer Free Writing Prospectus included
under clause
(iv) above, at the Time of Sale, did not, and at the Closing Date
will not,
contain any untrue statements of a material fact or (when read in
conjunction
with the other Time of Sale Information) omit to state a material
fact necessary
in order to make the statements therein, in the light of the
circumstances under
which they were made, not misleading; provided that CCMS makes no
representation
or warranty with respect to any Excluded Information.
(e)
As of the Closing Date, the Certificates will be duly
authorized by CCMS, and, when the Registered Certificates have been
duly
executed and authenticated in the manner contemplated in the
Pooling and
Servicing Agreement and have been delivered to and paid for by the
Underwriters
pursuant to this Agreement, the Registered Certificates will be
validly issued
and outstanding and entitled to the benefits provided by the
Pooling and
Servicing Agreement.
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(f)
[_________ ("_________") and _____________ ("______________")
are each an independent public accountant for CCMS as required by
the 1933 Act
and the rules and regulations thereunder.]
(g)
As of the Closing Date, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements will each have been duly
authorized,
executed and delivered by CCMS and, assuming the valid
authorization, execution
and delivery thereof by the other parties thereto, will each
constitute a valid
and binding agreement of CCMS enforceable in accordance with its
terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization
or other laws relating to or affecting the enforcement of
creditors' rights and
by general principles of equity.
(h)
This Agreement has been duly authorized, executed and
delivered by CCMS and, assuming the valid authorization, execution
and delivery
thereof by the other parties hereto, will constitute a valid and
binding
agreement of CCMS enforceable against CCMS in accordance with its
terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization
or other laws relating to or affecting the enforcement of
creditors' rights and
by general principles of equity, and except as enforcement thereof
may be
limited by public policy considerations underlying the securities
laws, to the
extent that such public policy considerations limit the
enforceability of the
provisions of this Agreement which purport or are construed to
provide
indemnification from liabilities under applicable securities laws.
(i)
CCMS has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with
corporate power and authority to own its properties and conduct its
business as
described in the Prospectus and now conducted by it, is duly
qualified as a
foreign corporation in good standing in all jurisdictions in which
the ownership
or lease of its property or the conduct of its business requires
such
qualification, and is conducting its business so as to comply in
all material
respects with the applicable statutes, ordinances, rules and
regulations of the
jurisdictions in which it is conducting its business, except where
the failure
to be so qualified or to so comply, as the case may be, would not
have a
material adverse effect on the performance by CCMS of its
obligations under this
Agreement, the Pooling and Servicing Agreement or the Mortgage Loan
Purchase
Agreements. CCMS is not in violation of its certificate of
incorporation or
by-laws or in default under any agreement, indenture or instrument
the effect of
which violation or default would have a material adverse effect on
the
performance by CCMS of its obligations under this Agreement, the
Pooling and
Servicing Agreement or the Mortgage Loan Purchase Agreements.
(j)
The issuance and sale of the Registered Certificates to the
Underwriters, the compliance by CCMS with the provisions of this
Agreement, the
Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement and the
Certificates and the consummation by CCMS of the other transactions
herein or
therein contemplated do not, under any statute, regulation or rule
of general
applicability in the United States or any decision, order, decree
or judgment of
any judicial or other governmental body applicable to CCMS, require
any consent,
approval, authorization, order, registration or qualification of or
with any
court or governmental authority, except (A) such as have been
obtained or
effected with respect to the Registered Certificates under the 1933
Act, (B) the
recordation of the assignments of the Mortgage Loans to the
Trustee, which
recordation is to be completed pursuant to the Pooling and
Servicing Agreement
on or following the Closing Date, and (C) such other approvals as
have
6
been obtained; provided that CCMS makes no representations or
warranties as to
any consent, approval, authorization, registration or qualification
that may be
required under state securities or "blue sky" laws.
(k)
Neither the execution and delivery of this Agreement, the
Mortgage Loan Purchase Agreements and the Pooling and Servicing
Agreement, nor
the issuance and delivery of the Certificates, nor the consummation
by CCMS of
any other of the transactions contemplated herein or therein, nor
the
fulfillment by CCMS of the terms of this Agreement, the Mortgage
Loan Purchase
Agreements, the Pooling and Servicing Agreement and the
Certificates, will (A)
conflict with, violate, result in a breach of or constitute a
default under the
certificate of incorporation or by-laws of CCMS, any statute or
regulation
currently applicable to CCMS or its properties, or any order or
judgment
currently applicable to CCMS or its properties of any arbiter,
court, regulatory
body, administrative agency or governmental body having
jurisdiction over CCMS
or its properties, or the terms of any indenture or other agreement
or
instrument to which CCMS is a party or by which it or any of its
properties are
bound, or (B) result in the creation or imposition of any lien upon
any of its
properties pursuant to the terms of any indenture or other
agreement to which
CCMS is a party or by which it or any of its properties are bound.
(l)
There are no actions or proceedings against, or investigations
of, CCMS pending, or, to the knowledge of CCMS, threatened, before
any court,
administrative agency or other tribunal (A) asserting the
invalidity of this
Agreement, the Mortgage Loan Purchase Agreements, the Pooling and
Servicing
Agreement or the Registered Certificates, (B) seeking to prevent
the issuance of
the Registered Certificates or the consummation by CCMS of any of
the
transactions contemplated by this Agreement, the Mortgage Loan
Purchase
Agreements or the Pooling and Servicing Agreement, (C) that might
materially and
adversely affect the performance by CCMS of its obligations under,
or the
validity or enforceability against CCMS of, this Agreement, the
Mortgage Loan
Purchase Agreements, the Pooling and Servicing Agreement or the
Registered
Certificates or (D) seeking to affect adversely the federal income
tax
attributes of the Registered Certificates described in the
Prospectus.
(m)
CCMS has not received any request by the Commission for any
further amendment of the Registration Statement or the Prospectus
or for any
additional information. CCMS has not received any notice of the
issuance by the
Commission of any stop order suspending the effectiveness of the
Registration
Statement and has no knowledge of the institution or threatening of
any
proceeding for that purpose. CCMS has not received any notification
with respect
to the suspension of the qualification of the Registered
Certificates for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such
purpose.
(n)
Any taxes, fees and other governmental charges (other than
income taxes, franchise taxes and recording and filing fees) that
are or will be
due and payable by CCMS as of the Closing Date in connection with
the execution,
delivery and performance of this Agreement, the Mortgage Loan
Purchase
Agreements, the Pooling and Servicing Agreement and the Registered
Certificates,
will have been paid at or prior to the Closing Date.
(o)
Neither CCMS nor the Trust is, and the sale of the Registered
Certificates in the manner contemplated by the Prospectus will not
cause CCMS or
the Trust to be, an "investment company" or under the control of an
"investment
company" as such terms are defined in the Investment Company Act
7
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").
(p)
At the time of the execution and delivery of the Pooling and
Servicing Agreement, CCMS (i) except as disclosed in the
Prospectus, will convey
to the Trustee, or cause to be conveyed to the Trustee, all of
CCMS's right,
title and interest in and to the Mortgage Loans, free and clear of
any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other
security interest
(collectively, "Liens") granted by or imposed upon CCMS, (ii) will
not have
assigned to any other person any of its right, title or interest in
the Mortgage
Loans or in the Pooling and Servicing Agreement or the Registered
Certificates,
and (iii) will have the power and authority to transfer or cause
the transfer of
all of its right, title and interest in and to the Mortgage Loans
to the Trustee
and to sell the Registered Certificates to the Underwriters.
(q)
Upon delivery to the Underwriters of the Registered
Certificates pursuant to this Agreement, each Underwriter will have
good title
to the Registered Certificates purchased by such Underwriter, in
each case free
and clear of Liens granted or imposed upon CCMS.
(r)
The consideration received by CCMS upon the sale of the
Registered Certificates to the Underwriters will constitute at
least reasonably
equivalent value and fair consideration for the Registered
Certificates.
(s)
CCMS (i) will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Registered
Certificates to
the Underwriters and (ii) is not selling the Registered
Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the
creditors of
CCMS or on account of an antecedent debt.
(t)
The transfer of the Mortgage Loans to the Trust and the sale
of the Certificates to each of the Underwriters, at the Closing
Date, will be
treated by CCMS for financial accounting and reporting purposes as
a sale of
assets and not as a pledge of assets to secure debt.
(u)
The statements set forth in the Prospectus under the caption
"Description of the Offered Certificates," insofar as they purport
to constitute
a summary of the terms of the Registered Certificates and insofar
as they
purport to describe the provisions of the documents referred to
therein, are
correct in all material respects.
(v)
There has not been, and as of the Closing Date, there will not
be, any material adverse change in the business operations,
financial condition,
properties or assets of CCMS since the date as of which information
is given in
the Prospectus that would have a material adverse effect on the
ability of CCMS
to perform its obligations under this Agreement, the Pooling and
Servicing
Agreement or any Mortgage Loan Purchase Agreement.
(w)
CCMS possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal
or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by
it, and CCMS has not received any notice of proceedings relating to
the
revocation or modification of any such license, certificate,
authorization or
permit which, singly or in the aggregate, if the
8
subject of an unfavorable decision, ruling or finding, would
materially and
adversely affect the condition, financial or otherwise, or the
earnings,
business affairs or business prospects of CCMS.
(x)
CCMS is not, and on the date on which the first bona fide
offer of the Registered Certificates is made (within the meaning of
Rule
164(h)(2) under the 1933 Act) will not be, an "ineligible issuer,"
as defined in
Rule 405 under the 1933 Act.
2.
PURCHASE AND SALE. Subject to the terms and conditions and in
reliance on the representations and warranties herein set forth,
CCMS agrees to
sell to each of the Underwriters, and each of the Underwriters,
severally and
not jointly, agrees to purchase from CCMS, their respective
allotments of each
class of Registered Certificates specified on Schedule I hereto, at
the purchase
price for each such class as set forth on such Schedule I (the
"Purchase
Price").
3.
DELIVERY AND PAYMENT. Delivery of and payment for the
Registered Certificates shall be made in the manner, on the date
and at the time
specified in Schedule I hereto, which date and time may be changed
by agreement
among the Underwriters and CCMS (such date and time of delivery of
and payment
for the Registered Certificates being hereinafter referred to as
the "Closing
Date"). Delivery of each Underwriter's allotment of the Registered
Certificates
shall be made to the related Underwriter against payment by such
Underwriter of
the purchase price therefor to or upon the order of CCMS in
same-day funds by
federal funds wire (or by such other method as such Underwriter and
CCMS may
agree). Unless delivery is made through the facilities of The
Depository Trust
Company, the Registered Certificates of each class thereof shall be
registered
in such names and in such authorized denominations as the related
Underwriter
may have requested not less than three (3) full business days prior
to the
Closing Date.
CCMS agrees to have the Registered Certificates available for
inspection, checking and packaging in New York, New York, at any
time before
3:00 p.m. New York City time on the business day prior to the
Closing Date.
4.
OFFERING BY THE UNDERWRITERS. (a) It is understood that the
Underwriters propose to offer the Registered Certificates for sale
as set forth
in the Prospectus. It is further understood that CCMS, in reliance
upon Policy
Statement 105, has not filed and will not file an offering
statement pursuant to
Section 352-e of the General Business Law of the State of New York
with respect
to the Registered Certificates. As required by Policy Statement
105, each
Underwriter therefore covenants and agrees with CCMS that sales of
the
Registered Certificates made by such Underwriter in and from the
State of New
York will be made only to institutional investors within the
meaning of Policy
Statement 105.
(b)
Each Underwriter represents and warrants to, and agrees with,
CCMS that: (i) it has only communicated or caused to be
communicated and will
only communicate or cause to be communicated any invitation or
inducement to
engage in investment activity (within the meaning of section 21 of
the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in
connection with
the issue or sale of any Registered Certificates in circumstances
in which
section 21(1) of the FSMA does not apply to CCMS; and (ii) it has
complied and
will comply with all applicable provisions of the FSMA with respect
to anything
done by it in relation to the Registered Certificates in, from or
otherwise
involving the United Kingdom.
9
(c)
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant
Member
State"), each Underwriter hereby represents and warrants to, and
agrees with,
CCMS that with effect from and including the date on which the
Prospectus
Directive is implemented in that Relevant Member State (the
"Relevant
Implementation Date") such Underwriter has not made and will not
make an offer
of the Registered Certificates to the public in that Relevant
Member State prior
to the publication of a prospectus in relation to the Registered
Certificates
which has been approved by the competent authority in that Relevant
Member State
or, where appropriate, approved in another Relevant Member State
and notified to
the competent authority in that Relevant Member State, all in
accordance with
the Prospectus Directive, except that such Underwriter may, with
effect from and
including the Relevant Implementation Date, make an offer of the
Registered
Certificates to the public in that Relevant Member State at any
time:
(i) 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;
(ii) 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
(iii) in any other circumstances which do not require the
publication by CCMS of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of the
Registered Certificates to the public" in relation to any
Registered
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
Registered Certificates so as to enable an investor to decide to
purchase or
subscribe the Registered 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.
(d)
Each of the Underwriters hereby confirms that it is aware that
no German sales prospectus (Verkaufsprospekt) has been or will be
published in
respect of the offering of the Registered Certificates, and each of
the
Underwriters hereby represents, warrants and agrees that it will
comply with the
German Securities Sales Prospectus Act
(Wertpapier-Verkaufsprospektgesetz) or
any other laws applicable in Germany governing the issue, offering
and sale of
the Certificates. In particular, each of the Underwriters agrees
not to engage
in a public offering (Offentliches Angebot) in Germany with respect
to any of
the Certificates otherwise than in accordance with the German
Securities Sales
Prospectus Act and any other act replacing or supplementing it and
all other
applicable laws and regulations.
(e)
Each Underwriter agrees with CCMS it will not offer or sell
any Registered Certificates in Hong Kong by means of any document
other than to
persons whose ordinary business is to buy or sell shares or
debentures, whether
as principal or agent, or in circumstances which do not constitute
an offer to
the public within the meaning of the Companies Ordinance (Cap. 32)
of Hong Kong,
and no
10
advertisement, invitation or document relating to the Registered
Certificates
may be issued, whether in Hong Kong or elsewhere, which is directed
at, or the
contents of which are likely to be accessed or read by, the public
in Hong Kong
(except if permitted to do so under the securities laws of Hong
Kong) other than
with respect to Registered Certificates which are or are intended
to be disposed
of only to persons outside Hong Kong or only to "professional
investors" within
the meaning of the Securities and Futures Ordinance (Cap. 571) of
Hong Kong and
any rules made thereunder.
(f)
Each of the Underwriters hereby agrees that it will not offer
or sell any of the Certificates directly or indirectly, in Japan or
to, or for
the benefit of, any resident of Japan (which term as used herein
means any
person resident in Japan, including any corporation or other entity
organized
under the laws of Japan), or to others for re-offering or resale,
directly or
indirectly, in Japan or to a resident of Japan, except pursuant to
an exemption
from the registration requirements of, and otherwise in compliance
with, the
Securities and Exchange Law and any other applicable laws,
regulations and
ministerial guidelines of Japan.
(g)
No Underwriter shall take any action relating to the offer or
sale of any of the Registered Certificates in any jurisdiction that
would result
in CCMS being obligated to register or file any further prospectus
or
corresponding document relating to the Registered Certificates in
such
jurisdiction, other than as expressly contemplated hereby.
5.
ADDITIONAL AGREEMENTS. CCMS and the Underwriters mutually
agree that:
(a)
CCMS will not file any further supplement to the Prospectus
relating to or affecting the Registered Certificates at any time,
except as
contemplated by Section 5(e) or unless CCMS has furnished a copy to
the
Underwriters for their review prior to filing, and will not file
any such
proposed supplement to which the Underwriters reasonably object.
CCMS will not
file any amendment to the Registration Statement relating to or
affecting the
Registered Certificates at any time subsequent to the date hereof
and prior to
the Closing Date, except as contemplated by Section 5(e) or unless
CCMS has
furnished a copy to the Underwriters for their review prior to
filing, and will
not file any such proposed amendment to which the Underwriters
reasonably
object. Subject to the foregoing sentences, CCMS will cause the
Prospectus to be
filed, or transmitted for filing, with the Commission pursuant to
Rule 424(b)
under the 1933 Act and, until the termination of the offering of
the Registered
Certificates, will also promptly advise each Underwriter (i) when
any amendment
to the Registration Statement relating to the Registered
Certificates has become
effective or any revision of or supplement to the Prospectus has
been so filed
or transmitted for filing, (ii) of any request by the Commission
for any
amendment of the Registrati
