CITIGROUP COMMERCIAL MORTGAGE TRUST 2006-C5
$1,961,835,000
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C5
CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-SB, CLASS A-4, CLASS
A-1A, CLASS A-M,
CLASS A-J, CLASS B, CLASS C, CLASS D AND CLASS XP
UNDERWRITING AGREEMENT
as of November 8, 2006
Citigroup Global Markets Inc.
PNC Capital Markets LLC
388 Greenwich Street
One PNC Plaza
New York, New York
10013
249 Fifth Avenue
Attention: Paul Vanderslice
Pittsburgh, Pennsylvania 15222
Attention: Scott Holmes
LaSalle Financial Services, Inc.
Banc of America Securities LLC
55 East 52nd Street
214 North Tryon Street
New York, New York 10055
Charlotte, North Carolina 28255
Attention: Andy Chen
Attention: Stephen Hogue
Ladies and Gentlemen:
Citigroup Commercial Mortgage Securities Inc., a Delaware
corporation
("CCMS"), proposes to sell to Citigroup Global Markets Inc.
("CGMI"), LaSalle
Financial Services, Inc. ("LaSalle"), PNC Capital Markets LLC
("PNC") and Banc
of America Securities LLC ("BOA"; CGMI, LaSalle, PNC and BOA,
collectively, 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
commercial 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, commercial and manufactured housing community 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 $2,238,772,692 (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: (i) with respect to each
Mortgage Loan
that has a Due Date in November 2006, the related Due Date of such
Mortgage Loan
in November 2006; and (ii) with respect to each Mortgage Loan
having its first
Due Date in or after December 2006, the later of November 1, 2006
and the
related date of origination.
CCMS intends to sell the Private Certificates to CGMI pursuant to a
certificate purchase agreement dated as of the date hereof (the
"Certificate
Purchase Agreement"), between CCMS and CGMI.
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 Mortgage Loan Purchase Agreement"),
between CGMRC,
as seller, and CCMS, as purchaser. Certain other Mortgage Loans
will be acquired
by CCMS from LaSalle Bank National Association ("LaSalle Bank" and
such Mortgage
Loans, the "LaSalle Bank Mortgage Loans"), pursuant to a mortgage
loan purchase
agreement, dated as of the date hereof (the "LaSalle Bank Mortgage
Loan Purchase
Agreement"), between LaSalle Bank, as seller, and CCMS, as
purchaser. The
remaining Mortgage Loans will be acquired by CCMS from PNC Bank,
National
Association ("PNC Bank" and such Mortgage Loans, the "PNC Bank
Mortgage Loans"),
pursuant to a mortgage loan purchase agreement, dated as of the
date hereof (the
"PNC Bank Mortgage Loan Purchase Agreement"), between PNC Bank, as
seller, and
CCMS, as purchaser. CGMRC, LaSalle Bank and PNC Bank are,
collectively, the
"Mortgage Loan Sellers"; and, the CGMRC Mortgage Loan Purchase
Agreement, the
LaSalle Bank Mortgage Loan Purchase Agreement and the PNC Bank
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 the date hereof (the "CGMRC
Indemnification Agreement"). In connection with the sale by LaSalle
Bank to CCMS
of the LaSalle Bank Mortgage Loans, LaSalle Bank, CCMS, CGMI and
the other
Underwriters entered into an indemnification agreement dated as of
the date
hereof (the "LaSalle Bank Indemnification Agreement". In connection
with the
sale by PNC Bank to CCMS of the PNC Bank Mortgage Loans, PNC Bank,
CCMS, CGMI
and the other Underwriters entered into an indemnification
agreement dated as of
the date hereof (the "PNC Bank Indemnification Agreement"). The
CGMRC
Indemnification Agreement, the LaSalle Bank Indemnification
Agreement and the
PNC Bank Indemnification Agreement are, collectively, 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 November 1,
2006 (the
"Pooling and Servicing Agreement"), among CCMS as depositor,
Midland Loan
Services, Inc. ("Midland") and Wachovia Bank, National Association
("Wachovia")
as master servicers (each, in such capacity, a "Master Servicer"
and,
collectively, in such capacity, the "Master Servicers"), LNR
Partners ("LNR") as
special servicer (in such capacity, the "Special Servicer"), Wells
Fargo Bank,
N.A. ("Wells Fargo") as trustee (in such capacity, the "Trustee")
and LaSalle
Bank, as certificate administrator (in such capacity, the
"Certificate
Administrator").
In connection with the execution and delivery of the Pooling and
Servicing Agreement: (i) Wells Fargo, CCMS, CGMI and the other
Underwriters
entered into an indemnification agreement dated as of the date
hereof (the
"Trustee Indemnification Agreement"); (ii) LaSalle Bank, CCMS, CGMI
and the
other Underwriters entered into an indemnification agreement dated
as of the
date hereof (the "Certificate Administrator Indemnification
Agreement"); (iii)
Midland, CCMS, CGMI and the other Underwriters entered into an
indemnification
agreement dated as of the date hereof (the "Midland Master Servicer
Indemnification Agreement"); (iv) Wachovia, CCMS, CGMI and the
other
Underwriters entered into an indemnification agreement dated as of
the date
hereof (the "Wachovia Master Servicer Indemnification Agreement")
and (v) LNR,
CCMS, CGMI and the other Underwriters entered into an
indemnification agreement
dated
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as of the date hereof (the "Special Servicer Indemnification
Agreement"). In
addition, J.E. Robert Company, Inc. ("JER"), CCMS, CGMI and the
other
Underwriters entered into an indemnification agreement dated as of
the date
hereof (the "JER Indemnification Agreement"). The Trustee
Indemnification
Agreement, the Certificate Administrator Indemnification Agreement,
the Midland
Master Servicer Indemnification Agreement, the Wachovia Master
Servicer
Indemnification Agreement, the Special Servicer Indemnification
Agreement, the
JER Indemnification Agreement and the Mortgage Loan Seller
Indemnification
Agreements are, collectively, the "Indemnification Agreements".
CCMS has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-132746)
for the
registration of the Certificates under the Securities Act of 1933,
as amended
(the "Securities Act"), which registration statement has become
effective. The
rules and regulations of the Commission promulgated under the
Securities Act are
collectively referred to in this Agreement as the "Securities 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
Securities Act as of
the date hereof; (ii) "Base 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 Securities Act; (iii) "Prospectus
Supplement" means
the prospectus supplement to the Base Prospectus, specifically
relating to the
Certificates and any amendment thereof or supplement thereto, filed
or to be
filed with the Commission pursuant to paragraph (b) of Rule 424
under the
Securities 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 under
the Securities Act; and (iv) "Prospectus" means the Base
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
Securities
Act, which was approximately 2:00 p.m. (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
Base
Prospectus dated June 8, 2006; (ii) the Free Writing Prospectus (as
defined
below) dated October 30, 2006, relating to the Registered
Certificates and filed
by CCMS pursuant to Rule 433 under the Securities Act (the
"Offering
Prospectus"), which Free Writing Prospectus refers to itself
therein as "this
offering prospectus", consists of over 286 printed pages and was
accompanied by
the Base Prospectus dated June 8, 2006; (iii) the Free Writing
Prospectus dated
October 27, 2006, in the form of a term sheet, relating to the
Registered
Certificates and filed by CCMS pursuant to Rule 433 under the
Securities Act
(the "Term Sheet"), which Free Writing Prospectus consists of
approximately 82
pages; and (iv) the Free Writing Prospectuses attached hereto as
Exhibit A and
disseminated through bloomberg.net. 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
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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 Securities
Act; and "Issuer
Free Writing Prospectus" means an "issuer free writing prospectus"
within the
meaning of Rule 433 under the Securities Act.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
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
Securities 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 Registered
Certificates (including, without limitation, the Prospectus), as of
the deemed
effective date thereof pursuant to Rule 430B under the Securities
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
Securities Act
and the Securities 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 Registered 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 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.
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(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 Securities 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
Securities Act, including, without limitation, any document that
complies with
Rule 134 under the Securities Act, (iii) the Time of Sale
Information, and (iv)
any other Free Writing Prospectus that complied or, if used after
the date
hereof, will comply in all material respects with the Securities
Act and the
Securities Act Rules. 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) of the second preceding sentence, 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.
(f) Ernst & Young LLP ("Ernst & Young") and
PricewaterhouseCoopers LLP
("PricewaterhouseCoopers") are each an independent public
accountant for CCMS as
required by the Securities 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.
5
(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
Securities Act,
(B) the recordation of the assignments of the Mortgage Loans to the
Trustee,
which recordation is to be completed pursuant to the Pooling and
Servicing
Agreement on or following the Closing Date, and (C) such other
approvals as have
been obtained; provided that CCMS makes no representations or
warranties as to
any consent, approval, authorization, registration or qualification
that may be
required under state securities or "blue sky" laws.
(k) Neither the execution and delivery of this Agreement, the
Mortgage
Loan Purchase Agreements, 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,
6
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 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
7
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 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 Securities Act) will not be, an "ineligible issuer," as defined
in Rule 405
under the Securities 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
8
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.
(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
9
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) 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 Securities Act and, until the termination of the offering
of the
Registered Certificates, will also promptly advise each Underwriter
(i) when any
amendment to the Registration Statement relating to the Registered
Certificates
has become effective or any revision of or supplement to the
Prospectus has been
so filed or transmitted for filing, (ii) of any request by the
Commission for
any amendment of the Registration Statement or the Prospectus or
for any
additional information, (iii) of the issuance by the Commission of
any stop
order suspending the effectiveness of the Registration Statement or
the
institution or threatening of
10
any proceeding for that purpose and (iv) of the receipt by CCMS of
any
notification with respect to the suspension of the qualification of
the
Registered Certificates for sale in any jurisdiction or the
institution or
threatening of any proceeding for such purpose. CCMS will use its
best efforts
to prevent the issuance of any such stop order and, if issued, to
obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act,
(i) any event
occurs as a result of which the Prospectus, as then amended or
supplemented,
would include any untrue statement of a material fact or omit to
state a
material fact necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading, or (ii)
it shall be
necessary to revise, amend or supplement the Prospectus to comply
with the
Securities Act or the rules and regulations of the Commission
thereunder, CCMS
promptly will, to the extent it has knowledge thereof, prepare and
file with the
Commission, subject to paragraph (a) of this Section 5, a revision,
amendment or
supplement that will correct such statement or omission or effect
such
compliance and will deliver a copy thereof to the Underwriters.
(c) Upon request, so long as delivery of a prospectus relating to
the
Registered Certificates is required under the Securities Act, CCMS
will furnish
to any Underwriter and counsel for such Underwriter, without
charge, as many
copies of the Prospectus and each Issuer Free Writing Prospectus
prepared by or
on behalf of CCMS and any revisions or amendments thereof or
supplements thereto
as may be reasonably requested.
(d) CCMS will arrange for the qualification of the Registered
Certificates for sale under the laws of such jurisdictions as CGMI
may
designate, maintain such qualifications in effect so long as
required for the
distribution of the Registered Certificates and arrange for the
determination of
the legality of the Registered Certificates for purchase by
institutional
investors; provided, however, that CCMS shall not be required to
qualify to do
business in any jurisdiction where it is not now so qualified or t
