Exhibit 1.1
EXECUTION VERSION
CCRE COMMERCIAL MORTGAGE SECURITIES, L.P.
CFCRE COMMERCIAL MORTGAGE TRUST, SERIES 2011-C2
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2011-C2
UNDERWRITING AGREEMENT
December 6, 2011
|
|
|
Cantor Fitzgerald & Co.
|
|
Barclays Capital Inc. |
499 Park Avenue
|
|
745 Seventh Avenue |
New York, New York 10022
|
|
New York, New York 10019 |
|
|
|
Deutsche Bank Securities Inc.
|
|
CastleOak Securities, L.P. |
60 Wall Street
|
|
110 East 59th Street, 2nd Floor |
New York, NY 10005
|
|
New York, New York 10022 |
|
|
|
Nomura Securities International, Inc. |
|
|
Two World Financial Center |
|
|
New York, NY 10281 |
|
|
Ladies and Gentlemen:
CCRE Commercial Mortgage Securities, L.P., a Delaware limited partnership (the
Depositor), proposes to cause to be issued its CFCRE Commercial Mortgage Trust, Series
2011-C2, Commercial Mortgage Pass-Through Certificates, Series 2011-C2 (the
Certificates), consisting of 16 classes designated as the Class A-1, Class A-2, Class
A-3, Class A-4, Class X-A, Class X-B, Class A-J, Class B, Class C, Class D, Class E, Class F, Class
G, Class NR, Class S and Class R Certificates pursuant to a Pooling and Servicing Agreement (the
Pooling Agreement), dated as of December 11, 2011, between the Depositor, Bank of
America, National Association, as master servicer (the Master Servicer), LNR Partners,
LLC, as special servicer (the Special Servicer), Trimont Real Estate Advisors, Inc., as
operating advisor (the Operating Advisor), Citibank N.A., as certificate administrator
(the Certificate Administrator), and Citibank, N.A., as trustee (the Trustee),
and proposes to sell the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates (collectively,
the Publicly Offered Certificates) to Cantor Fitzgerald & Co. (CF&Co.),
Deutsche Bank Securities Inc. (DBSI), Barclays Capital Inc. (Barclays), Nomura
Securities International, Inc. (Nomura) and CastleOak Securities, L.P.
(CastleOak and, together with CF&Co., DBSI, Barclays and Nomura, the
Underwriters). The Certificates will represent in the aggregate the entire beneficial
ownership interest in the assets of a trust fund (the Trust) primarily consisting of a
segregated pool of mortgage loans secured by first liens on commercial and multifamily properties
(collectively, the Mortgage Loans).
The Mortgage Loans will be purchased by the Depositor from Cantor Commercial Real Estate
Lending, L.P. (the Mortgage Loan Seller or CCRE) pursuant to a Mortgage Loan
Purchase Agreement, dated as of December 11, between the Depositor and the Mortgage Loan Seller
(the Purchase Agreement), in exchange for immediately available funds. This Underwriting
Agreement (the Agreement) is to confirm the arrangements with respect to your purchase of
the Publicly Offered Certificates. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling Agreement, as in effect on the Closing Date.
At or prior to the time when sales to purchasers of the Offered Certificates were first made,
which was approximately 4:20 p.m. (Eastern Time) on December 6, 2011 (the Time of Sale),
the Depositor had prepared or made available the following information (collectively, the Time
of Sale Information): (i) a free writing prospectus dated November 23, 2011 (the cover page of
which is attached hereto as Annex A (the Preliminary Free Writing Prospectus), (ii) a
supplemental structural and collateral information free writing prospectus dated November 23, 2011,
referred to as the Term Sheet, (iii) the draft of the Pooling Agreement furnished or made
available to prospective investors in the Publicly Offered Certificates dated December 1, 2011,
(iv) the Depositors base prospectus, dated November 23, 2011 (the Base Prospectus) and
(v) each free writing prospectus (as defined pursuant to Rule 405 under the Securities Act)
listed on Annex A (each, a Free Writing Prospectus). If, subsequent to the date of this
Agreement, the Depositor and the Underwriters (x) determine that the Time of Sale Information
included an untrue statement of material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading and (y) terminate their old purchase contracts and enter into new purchase contracts
with investors in the Publicly Offered Certificates, then Time of Sale Information will refer to
the information conveyed to purchasers at the time of entry into the first such new purchase
contract, including any information that corrects such material misstatements or omissions
(Corrective Information) and Time of Sale will refer to the time and date on which such
new purchase contracts were entered into.
Section 1. The Depositor represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form S-3 (Commission File No. 333-172863), including a form of
prospectus and such amendments thereto as may have been required to the date hereof, relating to
the Publicly Offered Certificates and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the Securities Act), has been
filed with the Securities and Exchange Commission (the Commission) and such registration
statement, as amended, has become effective. No stop order suspending the effectiveness of such
registration statement is in effect, and no proceedings for such purpose are pending or, to the
Depositors knowledge, threatened by the Commission. Such registration statement, including the
exhibits thereto and any information that is contained in the Prospectus (as defined below) and is
deemed to be a part of and included in such registration statement, as such registration statement
may have been amended or supplemented at the date of the Prospectus, is hereinafter referred to as
the Registration Statement; the prospectus first required to be filed to satisfy the
condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the Securities Act is
hereinafter referred to as the Base Prospectus; the supplement to the Base Prospectus
relating to the Publicly Offered Certificates in the form first required to be filed
-2-
to satisfy the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the
Securities Act is hereinafter referred to as the Prospectus Supplement; and the Base
Prospectus and the Prospectus Supplement, including any CDs or DVDs delivered therewith, together,
are hereinafter referred to as the Prospectus. The conditions to the use of a
registration statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, and the conditions of Rule 415 under the Securities Act have been
satisfied with respect to the Registration Statement. There is no request by the Commission for
any further amendment of the Registration Statement or the Prospectus or for any additional
information. There has been no notification with respect to the suspension of the qualification
for sale of the Certificates for sale in any jurisdiction or any proceeding for such purpose having
been instituted or threatened;
(b) As of its effective date or deemed effective date pursuant to Rule 430B under the
Securities Act (the Effective Date), the Registration Statement did conform in all
material respects to the requirements of the Securities Act, the Securities Exchange Act of 1934,
as amended (the Exchange Act), where applicable, and the rules and regulations of the
Commission under the Securities Act or the Exchange Act, as applicable, and did not, as of the
Effective Date, contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
Underwriter Information (as defined below);
(c) As of the date of the Prospectus Supplement and as of the Closing Date, the Prospectus
will conform, in all material respects to the requirements of the Securities Act, the Exchange Act
and the rules and regulations of the Commission thereunder (the Rules and Regulations),
and such document does not include, and will not include, any untrue statement of a material fact
and does not omit, and will not omit, to state any material fact necessary to make the statements
therein not misleading; provided, however, that this representation and warranty
shall not apply to the absence of pricing or price dependent information as of the date of the
Prospectus Supplement or to (A) the information contained in the Prospectus or any revision or
amendment thereof or supplement thereto in reliance upon and in conformity with information
furnished in writing to the Depositor by the Underwriters specifically for use in connection with
the preparation of the Time of Sale Information or Prospectus or any revision or amendment thereof
or supplement thereto (the Underwriter Information), (B) any information contained in or
omitted from the portions of the Prospectus for which the Mortgage Loan Seller is obligated to
indemnify the Underwriters and the Depositor pursuant to the Indemnification Agreement, dated as of
December 6, 2011 between the Mortgage Loan Seller, the Underwriters and the Depositor (the
Mortgage Loan Seller Information), (C) any information contained in or omitted from the
portions of the Prospectus for which the Master Servicer is obligated to indemnify the Underwriters
and the Depositor pursuant to the Indemnification Agreement, dated as of December 6, 2011, between
the Master Servicer, the Underwriters and the Depositor (the Master Servicer
Information), (D) any information contained in or omitted from the portions of the Prospectus
for which the Special Servicer is obligated to indemnify the Underwriters and the Depositor
pursuant to the Indemnification Agreement, dated as of December 6, 2011, between the Special
Servicer, the Underwriters and the Depositor (the Special Servicer Information), (E) any
information contained in or omitted from the portions of the Prospectus for which the Trustee and
Certificate Administrator is obligated to indemnify the Underwriters and the Depositor pursuant to
the Indemnification Agreement, dated as of December 6, 2011, between
-3-
the Trustee, the Underwriters and the Depositor (the Trustee Information), (F) any
information contained in or omitted from the portions of the Prospectus for which the Operating
Advisor is obligated to indemnify the Underwriters and the Depositor pursuant to the
Indemnification Agreement, dated as of December 6, 2011, among the Operating Advisor, the
Underwriters and the Company (the Operating Advisor Information) or (G) any information
contained in or omitted from the portions of the Prospectus for which the Certificate Administrator
is obligated to indemnify the Underwriters pursuant to the Indemnification Agreement, dated as of
December 6, 2011, among the Certificate Administrator, the Underwriters and the Company (the
Certificate Administrator Information). The Underwriter Information shall consist of the
first sentence of the fourth paragraph and the ninth paragraph of the section of the Prospectus
Supplement entitled Plan of Distribution and the first and second sentences of the last
paragraph on the cover page of the Prospectus Supplement;
(d) The documents incorporated by reference in the Registration Statement and the Prospectus,
when they were filed with the Commission conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations thereunder; and any further documents so filed and
incorporated by reference in the Registration Statement and the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations thereunder;
(e) Since the date as of which information is given in the Prospectus, there has not been any
change in the financial condition of the Depositor or any of its subsidiaries or any material
adverse change, or any development involving a change, that would have a material adverse effect on
the ability of the Depositor to perform its obligations under this Agreement, the Pooling Agreement
or the Purchase Agreement;
(f) The Time of Sale Information, at the Time of Sale, did not, and at the Closing Date will
not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Depositor makes no representation and warranty with
respect to (A) any statements or omissions made in reliance upon and in conformity with the
Underwriter Information, (B) any Mortgage Loan Seller Information, (C) any Master Servicer
Information, (D) any Special Servicer Information, (E) any Trustee Information, (F) any
Certificate Administrator Information or (G) any Operating Advisor Information;
(g) Other than the Prospectus, the Depositor (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 Offered Certificates other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under
the Securities Act, (ii) the Time of Sale Information, and (iii) each other written communication
of the Depositor or its agents and representatives approved by the Underwriters either in writing
in advance or in any other manner mutually agreed by the Underwriters and the Depositor (each such
communication referred to in clause (ii) and this clause (iii) constituting an issuer free writing
prospectus, as defined in Rule 433(h) under the Securities Act, being
-4-
referred to herein as an Issuer Free Writing Prospectus). Each such Issuer Free
Writing Prospectus complied or, if used after the date hereof, will comply, in all material
respects with the Securities Act and the rules and regulations promulgated thereunder, has been
filed or will be filed in accordance with Section 12 (to the extent required thereby) and did not
at the Time of Sale, 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 the Depositor makes no representation
and warranty with respect to (i) any statements or omissions made in reliance upon and in
conformity with the Underwriter Information or (ii) any Mortgage Loan Seller Information contained
in or omitted from any Issuer Free Writing Prospectus. The parties acknowledge that none of the
Underwriters has furnished any Underwriter Information to the Depositor expressly for use in any
Issuer Free Writing Prospectus;
(h) The Depositor has been duly formed and is validly existing as a limited partnership in
good standing under the laws of the State of Delaware and has all requisite limited partnership
power and authority (including, without limitation, all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies
or bodies) to own its properties and to conduct its business as described in the Prospectus, and 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,
except where the failure to be so qualified would not have a material adverse effect on the
Depositor or its execution and performance of the terms of this Agreement, the Pooling Agreement
and the Purchase Agreement;
(i) This Agreement has been duly authorized, executed and delivered by the Depositor and will
constitute valid and legally binding obligations of the Depositor, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors rights and to general principles of
equity, and except that the enforcement of rights with respect to indemnification and contribution
obligations may be limited by applicable law or considerations of public policy;
(j) At the Time of Delivery (as defined in Section 4 hereof) the Pooling Agreement and the
Purchase Agreement will have been duly authorized, executed and delivered. At the Time of
Delivery, the Pooling Agreement and the Purchase Agreement will constitute valid and legally
binding obligations of the Depositor, enforceable in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors rights and to general principles of equity;
(k) When the Certificates are issued, executed, authenticated and delivered pursuant to this
Agreement and the Pooling Agreement, the Certificates will have been duly authorized, executed,
authenticated, issued and delivered, fully paid and nonassessable and will be entitled to the
benefits of the Pooling Agreement; and the Certificates and the Pooling Agreement will conform to
the descriptions thereof in the Prospectus;
-5-
(l) The issue and sale of the Certificates, the compliance by the Depositor with all of the
provisions of this Agreement, the Pooling Agreement and the Purchase Agreement, and the
consummation of the transactions herein and therein contemplated, (1) will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to
which the Depositor is a party or by which the Depositor is bound or to which any of the property
or assets of the Depositor is subject, (2) will not result in any violation of the provisions of
the Certificate of Limited Partnership or the limited partnership agreement of the Depositor or any
statute, rule or regulation or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor, or any of its properties; and (3) except as
contemplated by the Pooling Agreement, will not result in the creation or imposition of any lien,
charge or encumbrance upon any of its property or assets pursuant to the terms of any such
indenture, mortgage, contract, agreement or other instrument referred to in clause (1) above. No
consent, approval, authorization, order, filing, registration or qualification of or with any such
court or governmental agency or body is required for the authorization, issue and sale of the
Publicly Offered Certificates or the consummation by the Depositor of the other transactions
contemplated by this Agreement, the Pooling Agreement or the Purchase Agreement except such as have
been obtained under the Securities Act, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky laws in connection with the
purchase and offering of the Publicly Offered Certificates by the Underwriters;
(m) 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 Certificates and
insofar as they purport to describe the provisions of the documents referred to therein, are
accurate, complete and fair;
(n) Other than as set forth or contemplated in the Prospectus or in the Time of Sale
Information, there are no legal or governmental actions, proceedings or investigations pending to
which the Depositor is a party or to which the Depositor or any property of the Depositor is
subject that are required to be described in the Prospectus or Time of Sale Information or that, if
determined adversely to the Depositor, would individually or in the aggregate (i) have a material
adverse effect on the condition (financial or otherwise), earnings, affairs, business, properties
or prospects of the Depositor, and, to the best of the Depositors knowledge, no such actions,
proceedings or investigations are threatened or contemplated by governmental authorities or
threatened by others, (ii) invalidate this Agreement, the Pooling Agreement, the Purchase Agreement
or the Certificates, (iii) prevent the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement, the Pooling Agreement or the Purchase Agreement,
(iv) materially and adversely affect the performance by the Depositor of its obligations under, or
the validity or enforceability against the Depositor of, this Agreement, the Pooling Agreement, the
Purchase Agreement or the Certificates or (v) adversely affect the federal income tax attributes of
the Certificates described in the Prospectus or the Time of Sale Information;
(o) The Depositor will, at the Time of Delivery, own the Mortgage Loans, free and clear of any
lien, mortgage, pledge, charge, security interest, adverse claim or other encumbrance, and, at the
Time of Delivery, the Depositor will have full power and authority to
-6-
sell and deliver the Mortgage Loans to the Trustee under the Pooling Agreement and at the Time
of Delivery will have duly authorized such assignment and delivery to the Trustee by all necessary
action;
(p) Any taxes, fees and other governmental charges in connection with the execution, delivery
and performance of this Agreement, the Pooling Agreement, the Purchase Agreement and the Publicly
Offered Certificates will have been paid at or prior to the Time of Delivery;
(q) Neither the Depositor nor the Trust is, and neither the sale of the Certificates in the
manner contemplated by the Prospectus nor the activities of the Trust pursuant to the Pooling
Agreement will cause the Depositor or the Trust to be (i) required to be registered as an
investment company or (ii) under the control of an investment company, in the case of clauses
(i) and (ii) as such terms are defined under the Investment Company Act of 1940, as amended (the
Investment Company Act), and the Pooling Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended;
(r) At the Time of Delivery, the Mortgage Loans will have been duly and validly assigned and
delivered by the Depositor to the Trustee;
(s) There are no contracts, indentures or other documents of a character required by the
Securities Act or by the rules and regulations thereunder to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that have not been so described or referred to therein or so filed or incorporated by reference as
exhibits thereto;
(t) Any information delivered by or on behalf of the Depositor to any Rating Agency did not,
and as of the Time of Delivery will not, contain 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; provided that this representation and warranty shall not
apply to the absence of pricing or price dependent information as of the date of the Prospectus
Supplement or to any Mortgage Loan Seller Information, any Master Servicer Information, any Special
Servicer Information, any Operating Advisor Information, any Trustee Information, any Certificate
Administrator Information or any Underwriter Information;
(u) Under generally accepted accounting principles and for federal income tax purposes, the
Depositor will report the transfer of the Mortgage Loans to the Trustee in exchange for the
Certificates and the sale of the Publicly Offered Certificates to the Underwriters pursuant to this
Agreement as a sale of the interest in the Mortgage Loans evidenced by the Publicly Offered
Certificates. The consideration received by the Depositor upon the sale of the Publicly Offered
Certificates to the Underwriters will constitute reasonably equivalent value and fair consideration
for the Publicly Offered Certificates. The Depositor will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Publicly Offered Certificates to the
Underwriters. The Depositor is not selling the Publicly Offered Certificates to the Underwriters
with any intent to hinder, delay or defraud any of the creditors of the Depositor;
(v) The Depositor has not relied on the Underwriters for any tax, regulatory, accounting or
other advice with respect to compliance with or registration under any statute, rule
-7-
or regulation of any governmental, regulatory, administrative or other agency or authority.
The Depositor acknowledges and agrees that (i) the terms of this Agreement and the offering
(including the price of the Certificates) were negotiated at arms length between sophisticated
parties represented by counsel; (ii) no fiduciary, advisory or agency relationship between the
Depositor and the Underwriters has been created as a result of any of the transactions contemplated
by this Agreement, irrespective of whether any Underwriter has advised or is advising the Depositor
on other matters; (iii) the Underwriters obligations to the Depositor in respect of the offering,
and the purchase and sale, of the Certificates are set forth in this Agreement in their entirety;
(iv) it has obtained such legal, tax, accounting and other advice as it deems appropriate with
respect to this Agreement and the transactions contemplated hereby and any other activities
undertaken in connection therewith, and it is not relying on the Underwriters with respect to any
such matters; and (v) the Depositor will not claim that the Underwriters, or any of them, has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the
Depositor in connection with the transactions contemplated hereby or the process leading thereto;
(w) The Depositor is not, and on the date on which the first bona fide offer of the Offered
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; and
(x) The Depositor has executed and delivered a written representation to each Rating Agency
that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (D) of Rule 17g-5 of
the Exchange Act (Rule 17g-5), and the Depositor has complied, and will hereafter comply,
with each such representation.
Section 2. Each Underwriter represents and warrants to, and agrees with, the Depositor, that:
(a) In relation to each member state of the European Economic Area which has implemented the
Prospectus Directive (each, a Relevant Member State), it has not made and will not make
an offer of the Publicly Offered Certificates to the public in that Relevant Member State prior to
the publication of a prospectus in relation to the Publicly Offered Certificates which has been
approved by the competent authority in that Relevant Member State or, where appropriate, approved
in another Relevant Member State and notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except that it may, with effect from and
including the relevant implementation date, make an offer of Publicly Offered Certificates to the
public in that Relevant Member State at any time pursuant to the following exemptions, if they have
been implemented in that Relevant Member State: (A) to any legal entity which is a qualified
investor as defined in the Prospectus Directive; (B) to fewer than 100 or, if the Relevant Member
State has implemented the relevant provisions of the 2010 PD Amending Directive, 150, natural or
legal persons (other than qualified investors as defined in the Prospectus Directive) subject to
obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Depositor
for any such offer; or (C) in any other circumstances which do not require the publication by the
Depositor of a prospectus pursuant to Article 3(2) of the Prospectus Directive. For the purposes
of this Section 2(i), (1) the expression an offer of the Publicly Offered Certificates to the
public in relation to any Publicly Offered Certificates in any Relevant Member State means the
communication in any form and by any
-8-
means of sufficient information on the terms of the offer and the Publicly Offered
Certificates to be offered so as to enable an investor to decide to purchase or subscribe to the
Publicly Offered Certificates, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State, (2) the expression Prospectus
Directive means Directive 2003/71/EC (and amendments thereto, including by the 2010 PD Amending
Directive to the extent implemented in each Relevant Member State) and includes any relevant
implementing measure in each Relevant Member State, and (3) the expression 2010 PD Amending
Directive means Directive 2010/73/EU. European Economic Area means Austria, Belgium, Bulgaria,
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,
Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland,
Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and United Kingdom.
(b) In the United Kingdom, it has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000, as
amended (the FSMA)) received by it in connection with the issue or sale of the Publicly
Offered Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the
Depositor.
(c) Each Underwriter has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Publicly Offered Certificates in, from or
otherwise involving the United Kingdom.
(d) Each Underwriter will not offer or sell any Publicly Offered 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 of Japan and any other applicable
laws, regulations and ministerial guidelines of Japan.
(e) It has not provided, as of the date of this Agreement, and covenants with the Depositor
that it will not provide, on or prior to the Closing Date, to any Rating Agency or other
nationally recognized statistical rating organization (within the meaning of the Exchange Act),
any information, written or oral, relating to the Trust, the Certificates, the transactions
contemplated by this Agreement or the Pooling Agreement or any other information, that could be
reasonably determined to be relevant to determining an initial credit rating for the Certificates
(as contemplated by Rule 17g-5(a)(3)(iii)(C)), without the prior consent of the Depositor.
(f) It will not provide to any Rating Agency or other nationally recognized statistical
rating organization (within the meaning of the Exchange Act), any information, written or oral,
relating to the Trust, the Certificates, the transactions contemplated by this Agreement or the
Pooling Agreement or any other information, that could be reasonably determined to be relevant to
undertaking credit rating surveillance for the Certificates (as contemplated by Rule
17g-5(a)(iii)(3)(D)), without the prior consent of the Depositor.
-9-
Section 3. Subject to the terms and conditions herein set forth, the Depositor agrees to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Depositor, at a purchase price determined in accordance with Schedule II hereto,
the principal amount of the Publicly Offered Certificates in accordance with Schedule II hereto.
Upon the authorization by you of the release of the Publicly Offered Certificates, the several
Underwriters propose to offer the Publicly Offered Certificates for sale to the public (which may
include selected dealers) upon the terms and conditions set forth in the Prospectus.
Section 4. (a) The Publicly Offered Certificates to be purchased by the Underwriters will be
represented by one or more definitive global Certificates in book-entry form, which will be
deposited by or on behalf of the Depositor with The Depository Trust Company (DTC) or its
designated custodian. The Depositor will deliver such Certificates to each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer to the
Depositor of Federal (same day) funds, by causing DTC to credit such Certificates to the respective
accounts of the Underwriters at DTC. The Depositor will cause the certificates representing such
Certificates to be made available to the Underwriters for checking at least twenty-four hours prior
to the Time of Delivery at an office designated by the Underwriters (the Designated
Office). The time and date of such delivery and payment shall be 10:00 a.m., New York City
time, on December 15, 2011, or such other time and date as the Underwriters and the Depositor may
agree upon in writing. Such time and date are herein called the Time of Delivery and
such date is herein called the Closing Date.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross-receipt for the Offered Certificates and
any additional documents requested by the Underwriters pursuant to Section 7(o) hereof, will be
delivered at the offices of Sidley Austin LLP (Sidley) at 787 Seventh Avenue, New York,
NY 10019 (the Closing Location), and the Publicly Offered Certificates will be delivered
at the Designated Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 3:00 p.m., New York City time, on the New York Business Day prior to the Time of
Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the purposes of this
Section 4, Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
Section 5. The Depositor agrees with each of the Underwriters:
(a) If required, to file the Prospectus with the Commission pursuant to and in accordance with
Rule 424(b) under the Securities Act not later than the time specified therein by means reasonably
calculated to result in filing with the Commission pursuant to such rule. The Depositor will
advise the Underwriters promptly of any such filing pursuant to and within the time frames set
forth in Rule 424(b). Subject to Section 12, the Depositor will cause each Issuer Free Writing
Prospectus to be transmitted for filing pursuant to Rule 433 under the Securities Act by means
reasonably calculated to result in filing with the Commission pursuant to said rule;
(b) To make no amendment or any supplement to the Registration Statement or the Prospectus as
amended or supplemented prior to the Closing Date, or to prepare, use, authorize,
-10-
approve, refer to or file any Issuer Free Writing Prospectus, without furnishing the
Underwriters with a copy of the proposed form thereof and providing the Underwriters with a
reasonable opportunity to review the same; and during such same period to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the Prospectus as amended or
supplemented or any amended Prospectus has been filed or mailed for filing, of the issuance of any
stop order by the Commission, of the suspension of the qualification of any of the Publicly Offered
Certificates for offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus as amended or supplemented or for
additional information; and, in the event of the issuance of any such stop order or of any order
preventing or suspending the use of any prospectus relating to the Publicly Offered Certificates or
suspending any such qualification, to use promptly its best efforts to obtain withdrawal of such
order;
(c) Promptly from time to time to take such action as the Underwriters may reasonably request
in order to qualify the Publicly Offered Certificates for offering and sale under the securities
laws of such states as the Underwriters may request and to continue such qualifications in effect
so long as necessary under such laws for the distribution of such Certificates; provided,
that in connection therewith neither the Trust nor the Depositor shall be required to qualify to do
business, or to file a general consent to service of process in any jurisdiction;
(d) To furnish the Underwriters with copies of the Registration Statement (including
exhibits), copies of the Prospectus and each Free Writing Prospectus (as amended or supplemented),
and the Pooling Agreement, in such quantities as the Underwriters may from time to time reasonably
request; and if, before a period of six months shall have elapsed after the Closing Date and the
delivery of a prospectus shall be at the time required by law in connection with sales of any such
Publicly Offered Certificates, either (i) any event shall have occurred as a result of which the
Prospectus would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or (ii) for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus, as amended or supplemented, to notify each
Underwriter and upon their request to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as each Underwriter may from time to time reasonably
request an amendment or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance; and in case any Underwriter is required by law to deliver a
prospectus in connection with sales of any of such Certificates at any time six months or more
after the Closing Date, upon such Underwriters request, to prepare and deliver to the Underwriter
as many copies as such Underwriter may request of an amended or supplemented prospectus complying
with the Securities Act;
(e) So long as any of the Publicly Offered Certificates are outstanding, to furnish the
Underwriters copies of all reports or other communications (financial or other) furnished to
Holders of Certificates, and to deliver to each Underwriter during such same period, (i) as soon as
they are available, copies of any reports and financial statements furnished to or filed with the
Commission; (ii) copies of each amendment to any of the Pooling Agreement and the Purchase
-11-
Agreement; and (iii) such additional information concerning the business and financial
condition of the Depositor or the Trust as each Underwriter may from time to time reasonably
request; and
(f) Not to be or become, or allow the Trust to become, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act.
Section 6. The Depositor covenants and agrees with the several Underwriters that the Depositor
will pay or cause to be paid the following: (i) the Commissions filing fees with respect to the
Publicly Offered Certificates; (ii) the fees, disbursements and expenses of counsel and accountants
for the Depositor in connection with the issue of the Certificates and all other expenses in
connection with the preparation and printing of all amendments and supplements thereto and the
mailing and delivery of copies thereof to the Underwriters and dealers; (iii) the cost of preparing
the Certificates, printing or producing this Agreement, the Pooling Agreement, any Blue Sky
Supplement and any term sheets, computational materials, the Time of Sale Information, any Issuer
Free Writing Prospectus, the Prospectus and any other document produced in connection with the
offering, purchase, sale and delivery of the Publicly Offered Certificates and all amendments and
supplements thereto and the mailing and delivery of copies thereof to the Underwriters and dealers;
(iv) all expenses in connection with the qualification of the Offered Certificates for offering and
sale under state securities laws as provided in Section 5(c) of this Agreement, including the
reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky Supplement; (v) any fees charged by securities
rating services for rating the Certificates; (vi) the fees and expenses of each of the Trustee, the
Certificate Administrator, the Master Servicer, the Special Servicer and the Operating Advisor and
of any agent of the Trustee, the Certificate Administrator, the Master Servicer, the Special
Servicer or the Operating Advisor, as applicable, and the reasonable fees and disbursements of
counsel for the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer
or the Operating Advisor, as applicable, in connection with the Pooling Agreement, the Purchase
Agreement, the Publicly Offered Certificates and the applicable Indemnification Agreements; and
(vii) all other costs and expenses incident to the performance of the Depositors obligations
hereunder that are not otherwise specifically provided for in this Section 6. It is understood,
however, that, except as provided in this Section 6 and Sections 8, 11 and 13(c) hereof, each
Underwriter will pay all of its own costs and expenses, including the fees of its counsel, transfer
taxes on resale of any of the Offered Certificates by it and any advertising expenses connected
with any offers it may make.
Section 7. The obligations of the Underwriters hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other statements of the
Depositor herein are, at and as of the Time of Delivery, true and correct, the condition that the
Depositor shall have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Pooling Agreement, the Purchase Agreement, the Indemnification Agreements (referred to
in Section 1(d) of this Agreement) and all of the other agreements identified in such agreements
shall have been duly entered into by all of the respective parties;
-12-
(b) Sidley Austin LLP, special counsel to the Depositor, shall have furnished to the
Underwriters its written opinion, dated the Time of Delivery, in form and substance satisfactory to
the Underwriters;
(c) Sidley Austin LLP, special counsel to the Depositor, shall have furnished to the
Underwriters its letter relating to the Free Writing Prospectus as of the Time of Sale and to the
Prospectus as of the date thereof and as of the Time of Delivery, dated the Time of Delivery, in
form and substance satisfactory to the Underwriters;
(d) Counsel to the Underwriters shall have furnished to the Underwriters its letter relating
to the Free Writing Prospectus as of the Time of Sale and to the Prospectus as of the date thereof
and as of the Time of Delivery, dated the Time of Delivery, in form and substance satisfactory to
the Underwriters;
(e) In-house counsel for the Depositor shall have furnished to the Underwriters a written
opinion, dated the Time of Delivery, in form and substance satisfactory to the Underwriters;
(f) Counsel for the Mortgage Loan Seller satisfactory to the Underwriters shall have furnished
to the Underwriters its written opinion, dated the Time of Delivery, in form and substance
satisfactory to the Underwriters;
(g) Counsel for the Mortgage Loan Seller satisfactory to the Underwriters shall have furnished
to the Underwriters its letter relating to the Free Writing Prospectus as of the Time of Sale and
to the Prospectus as of the date thereof and as of the Time of Delivery, dated the Time of
Delivery, in form and substance satisfactory to the Underwriters and counsel for the Underwriters;
(h) Counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the
Certificate Administrator and the Trustee, in each case satisfactory to the Underwriters shall have
furnished to the Underwriters its written opinion, dated the Time of Delivery, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters;
(i) Counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the
Certificate Administrator and the Trustee, in each case satisfactory to the Underwriters shall have
furnished to the Underwriters its letter relating to the Free Writing Prospectus as of the Time of
Sale and to the Prospectus as of the date thereof and as of the Time of Delivery, dated the Time of
Delivery, in form and substance satisfactory to the Underwriters and counsel for the Underwriters;
(j) The independent accountants of the Depositor or other accountants acceptable to the
Underwriters shall have furnished to the Underwriters a letter or letters, dated the date hereof,
and a letter or letters, dated the Time of Delivery, respectively, containing statements and
information of the type customarily included in accountants comfort letters and agreed upon
procedures letters with respect to certain financial and statistical information contained in the
Time of Sale Information and the Prospectus, in each case as to such matters as the Underwriters
may reasonably request and in form and substance satisfactory to the Underwriters;
-13-
(k) (i) Neither the Depositor nor any of its subsidiaries shall have sustained since August
17, 2011 any loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Time of Sale Information as of
the Time of Sale or in the Prospectus as amended prior to the Time of Delivery, and (ii) since the
respective dates as of which information is given in the Prospectus as amended prior to the Time of
Delivery there shall not have been any change in the financial condition of the Depositor or any of
its subsidiaries or any change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, shareholders equity or results of operations
of the Depositor and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the Time of Delivery, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Underwriters so material and adverse as
to make it impracticable or inadvisable to proceed with the offering or the delivery of the
Publicly Offered Certificates on the terms and in the manner contemplated in the Time of Sale
Information and the Prospectus as first amended or supplemented;
(l) On or after the date hereof, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities or any material disruption in commercial banking or
securities settlement or clearance services in the United States; (iii) the outbreak or escalation
of hostilities involving the United States or the declaration by the United States of a national
emergency or war; or (iv) the occurrence of any other calamity or crisis or any change in the
financial, political or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iii) or (iv) in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the Publicly
Offered Certificates on the terms and in the manner contemplated in the Time of Sale Information
and the Prospectus;
(m) The Depositor shall have furnished or caused to be furnished to the Underwriters at the
Time of Delivery certificates of its officers satisfactory to the Underwriters as to the accuracy
in all material respects of its representations and warranties herein at and as of such Time of
Delivery, as to the performance of all of its obligations hereunder to be performed at or prior to
such Time of Delivery and, as to such other matters as the Underwriters may reasonably request;
(n) The Underwriters shall have received evidence satisfactory to them that the Publicly
Offered Certificates specified on Schedule I hereto are rated in the rating category or
categories as indicated in the Time of Sale Information by the rating agency or agencies specified
therein;
(o) The Underwriters shall have received such further opinions, information, certificates and
documents as the Underwriters may reasonably have requested, and all proceedings in connection with
the transactions contemplated by this Agreement and all documents incident hereto and thereto shall
be in all material respects reasonably satisfactory in form and substance to the Underwriters and
their counsel;
-14-
(p) The Registration Statement shall be effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement has been issued and no proceeding for
that purpose has been instituted or threatened by the Commission, and the Prospectus Supplement and
each Free Writing Prospectus required to be filed by the Depositor pursuant to Section 12 shall
have been filed or transmitted for filing by means reasonably calculated to result in a filing with
the Commission pursuant to Rule 424(b) or Rule 433 under the Securities Act, as applicable; and
(q) On or after the date of this Agreement (i) no downgrading shall have occurred in the
rating accorded the Depositors debt securities or preferred equity by any nationally recognized
statistical rating organization, as that term is defined in Section 3(a)(62) of the Exchange Act,
and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Depositors debt securities
or preferred equity.
Section 8. (a) The Depositor shall indemnify and hold harmless each Underwriter, its
affiliates, directors and officers and each person, if any, who controls such Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
losses, expenses, claims, damages or liabilities, joint or several (and will reimburse each
Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, for any legal fees and other expenses incurred in connection with any suit, action,
investigation or proceeding, liability or any claim asserted, as such fees and expenses are
incurred), to which such Underwriter, its affiliates, directors and officers and each person, who
controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act may become subject, under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, expenses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment or supplement thereto or the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement
of any material fact contained in the Prospectus Supplement or the Base Prospectus or any amendment
or supplement thereto or the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading or (iii) any untrue statement or alleged untrue statement of a material fact
contained in the Time of Sale Information or any Issuer Free Writing Prospectus or any Issuer
Information contained in any Underwriter Free Writing Prospectus, or the omission or alleged
omission to state a material fact necessary to make the statements therein (when read in
conjunction with the other Time of Sale Information), in light of the circumstances under which
they were made, not misleading, which untrue statement or omission referred to in this clause (iii)
was not corrected by Corrective Information subsequently supplied by the Depositor or the Mortgage
Loan Seller to such Underwriter at least 1 Business Day prior to the Time of Sale and if such
Corrective Information was so delivered, the subject loss, expenses, claim, damage or liability
would not have resulted but for the fact that such Underwriter sold Publicly Offered Certificates
to the person asserting such loss, expenses, claim, damage or liability without delivering to such
person such Corrective Information prior to the Time of Sale, or (iv) any breach of the
representation and warranty in Section 1(w); provided, however, that, in
-15-
the case of clauses (i) and (ii) above, the Depositor shall not be liable in any such case to
the extent that any such loss, expense, claim, damage or liability is caused by any such untrue
statement or omission or alleged untrue statement or omission with respect to any information in
the Prospectus as to which such Underwriter has agreed to indemnify the Depositor pursuant to
Section 8(b); and provided, further, that the Depositor shall have no obligation to
so indemnify and hold harmless to the extent that such loss, expense, claim, damage or liability
arises out of or is based upon an untrue statement or omission or an alleged untrue statement or
omission with respect to any Mortgage Loan Seller Information, any Master Servicer Information, any
Special Servicer Information, any Operating Advisor Information, any Trustee Information, any
Certificate Administrator Information or any Underwriter Information.
(b) Each Underwriter shall, severally and not jointly, indemnify and hold harmless the
Depositor and its affiliates, directors and officers and each person, if any, who controls the
Depositor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any losses, expenses, claims, damages or liabilities to which the Depositor or its
affiliates, directors or officers or any person who controls the Depositor within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, may become subject, under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, expenses, claims, damages or
liabilities (or actions in respect thereof) arise out of, or are based upon (i) any untrue
statements or alleged untrue statements of a material fact, or omissions or alleged omissions to
state a material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, in the Underwriter Information with respect to such
Underwriter and (ii) any untrue statements or alleged untrue statements of a material fact in any
Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter or omission or
alleged omission to state in such Underwriter Free Writing Prospectus a material fact necessary in
order to make the statements therein (when read in conjunction with the Time of Sale Information),
in the light of the circumstances under which they were made, not misleading; provided,
that no Underwriter shall be obligated to so indemnify and hold harmless the Depositor to the
extent such losses, expenses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (A) an untrue statement or alleged untrue statement or omission or alleged
omission with respect to any Issuer Information, any Mortgage Loan Seller Information, any Master
Servicer Information, any Special Servicer Information, any Operating Advisor Information, any
Trustee Information or any Certificate Administrator Information, or (B) with respect to
information that is also contained in the Time of Sale Information.
Each Underwriter (the Indemnifying Underwriter) will indemnify and hold harmless the
other Underwriters, each affiliate, officer and director of any such other Underwriter and each
person, if any, who controls any such other Underwriter within the meaning of either the Securities
Act or the Exchange Act (such indemnified parties, individually and collectively, the Non
Indemnifying Underwriter) from and against any and all losses, expenses, claims, damages or
liabilities, joint or several, to which the Non Indemnifying Underwriter becomes subject under the
Securities Act, the Exchange Act or other federal or state statutory law or regulation, common law
or otherwise insofar as such losses, expenses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission (when read in conjunction with the
Time of Sale Information) to state a material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not
-16-
misleading at the Time of Sale, contained in any Underwriter Free Writing Prospectus prepared
by such Indemnifying Underwriter or (ii) the failure of such Indemnifying Underwriter, or any
member of its selling group, to comply with any provision of Section 12, and agrees to reimburse
such Non Indemnifying Underwriter, as incurred for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim, damage, liability or
action, except to the extent such losses, claims, damages or liabilities are caused by a
misstatement or omission resulting from an error or omission in the Issuer Information which was
not corrected by Corrective Information subsequently supplied by the Depositor or the Mortgage Loan
Seller to any Underwriter at least 1 Business Day prior to the Time of Sale, or in any Mortgage
Loan Seller Information, Master Servicer Information, Special Servicer Information, Operating
Advisor Information, Trustee Information or Certificate Administrator Information. This agreement
will be in addition to any liability that any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party, except to the extent that
such omission to notify materially prejudices the indemnifying party and in no event relieves it of
liability it may otherwise then have under Section 8(a) and (b). Upon request of the indemnified
party, the indemnifying party shall retain counsel reasonably satisfactory to the indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to the indemnifying
party) to represent the indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding
as incurred. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation and other than under the circumstances
described in clauses (i) through (iii) of the next sentence. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have agreed to the retention of such counsel, (ii) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them or (iii) the indemnifying party shall have
failed to designate within a reasonable period of time counsel reasonably satisfactory to the
indemnified party (in which case the fees and expenses shall be paid as incurred by the
indemnifying party). In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified
-17-
parties in connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances. An indemnifying
party shall not be liable for any settlement of any proceeding effected without its written consent
(which consent shall not be unreasonably withheld, conditioned or delayed). However, if settled
with such consent or if there be a final judgment for the plaintiff, the indemnifying party shall
indemnify the indemnified party from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing two sentences, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel for which the indemnifying party is obligated under this subsection, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the date of such
settlement. If an indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if such settlement (i)
provides for an unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party in such proceeding
by the other parties to such settlement and (ii) does not require a statement as to, or an
admission of, fault, culpability or failure to act by or on behalf of the indemnified party,
without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
expenses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, expenses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received by the Depositor on
the one hand and the Underwriters on the other from the offering of the Publicly Offered
Certificates subject to this Agreement (taking into account the portion of the proceeds of the
offering realized by each). If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Depositor on the one hand and
the Underwriters on the other in connection with the statements or omissions which resulted in such
losses, expenses, claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the Depositor on the
one hand and the Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the sale of the Publicly Offered Certificates by the Underwriters (before
deducting expenses) received by the Depositor bear to the total underwriting fees, discounts and
commissions received by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Depositor on the one hand or the Underwriters on the other and the parties relative intent,
knowledge, access to information concerning the matter with respect to which the claim was
asserted, and opportunity to correct or prevent such statement or omission any other equitable
considerations appropriate under the circumstances. The Depositor and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
-18-
subsection (d) were determined by pro rata or per capita allocation (even if the Underwriters
were treated as one entity for such purposes) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, expenses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim, which expenses the
indemnifying party shall pay as and when incurred at the request of the indemnified party.
Notwithstanding the provisions of subsection (c) above and this subsection (d), no Underwriter
shall be required to contribute or deemed to contribute any amount in excess of the amount by which
the total underwriting discounts and commissions and other fees received by such Underwriter in
connection with the offering of the Publicly Offered Certificates exceeds the amount of damages
that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligation
in this subsection (d) to contribute are several in proportion to their respective underwriting
obligations and not joint. The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any indemnified party at law or
in equity.
(e) The obligations of the Depositor under this Section 8 shall be in addition to any
liability which the Depositor may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of any Underwriter or any Person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act; and the obligations of
the Underwriters with respect to any Publicly Offered Certificates under this Section 8 shall be in
addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Depositor and to each
Person, if any, who controls the Depositor within the meaning of the Securities Act or the Exchange
Act.
(f) The amount paid or payable by an indemnified party as a result of the losses, expenses,
claims, damages or other liabilities (or actions in respect thereof) referred to in this Section 8
shall be deemed to include any legal fees and disbursements or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim,
which expenses the indemnifying party shall pay as and when incurred at the request of the
indemnified party. In the event that any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying party hereunder, the
party which received such payment shall promptly refund the amount so paid to the party which made
such payment.
Section 9. (a) If any Underwriter shall default in its obligation to purchase Publicly
Offered Certificates which it has agreed to purchase hereunder, you may in your discretion arrange
for you or another party or other parties to purchase such Certificates on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Certificates, then the Depositor shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties satisfactory to
-19-
you to purchase such Certificates on such terms. In the event that, within the respective
prescribed periods, you notify the Depositor that you have so arranged for the purchase of such
Certificates, or the Depositor notifies you that it has so arranged for the purchase of such
Certificates, you or the Depositor shall have the right to postpone the Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Depositor agrees to file promptly any amendments to the Registration
Statement or the Prospectus which in your opinion may thereby be made necessary. The term
Underwriter as used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement with respect to
such Certificates.
(b) If, after giving effect to any arrangements for the purchase of the Publicly Offered
Certificates of a defaulting Underwriter or Underwriters by you and the Depositor as provided in
subsection (a) above, the aggregate principal amount of such Publicly Offered Certificates which
remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the
Publicly Offered Certificates, then the Depositor shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Publicly Offered Certificates which
such non-defaulting Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of
Publicly Offered Certificates which such non-defaulting Underwriter agreed to purchase hereunder)
of the Publicly Offered Certificates of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Certificates of a
defaulting Underwriter or Underwriters by you and the Depositor as provided in subsection (a)
above, the aggregate principal amount of such Certificates which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Offered Certificates, or if the Depositor
shall not exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Certificates of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Depositor, except for the expenses to be borne by the Depositor and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
Section 10. The respective indemnities, agreements, representations, warranties and other
statements of the Depositor and the several Underwriters as set forth in this Agreement, shall
remain in full force and effect, regardless of any termination of this Agreement, any investigation
(or any statement as to the results thereof) made in connection with the issuance of Certificates
by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Depositor,
or any officer or director or controlling person of the Depositor and shall survive delivery of and
payment for the Offered Certificates.
Section 11. If this Agreement shall be terminated pursuant to Section 9 hereof, the Depositor
shall not be under any liability to any Underwriter except as provided in Sections 6
-20-
and 8 hereof; but if for any reason the Certificates are not delivered by or on behalf of the
Trustee as provided herein, other than by Underwriters failure to comply with their obligations
hereunder, the Depositor will reimburse the Underwriters for all out-of-pocket expenses, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations
for the purchase, sale and delivery of the Offered Certificates, but the Depositor shall be under
no further liability to any Underwriter with respect to such Certificates except as provided in
Section 6 and Section 8 hereof.
Section 12. (a) The Underwriters may prepare and provide to prospective investors free
writing prospectuses, or portions thereof, which the Depositor is required to file with the
Commission in electronic format and will use reasonable efforts to provide to the Depositor such
free writing prospectuses, or portions thereof, in either Microsoft Word® or Microsoft Excel®
format and not in a PDF, except to the extent that the Depositor, in its sole discretion, waives
such requirements, subject to the following conditions (to which such conditions each Underwriter
agrees (provided that no Underwriter shall be responsible for any breach of the following
conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the Underwriters shall not convey
or deliver any written communication to any person in connection with the initial offering
of the Publicly Offered Certificates, unless such written communication (1) is made in
reliance on Rule 134 under the Securities Act, (2) is made in reliance on Rule 172 under the
Securities Act, (3) constitutes a prospectus satisfying the requirements of Rule 430B under
the Securities Act or (4) constitutes Time of Sale Information or a Free Writing Prospectus
that does not constitute Time of Sale Information. The Underwriters shall not convey or
deliver in connection with the initial offering of the Offered Certificates any materials in
reliance on 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.
(ii) Each Underwriter shall deliver to the Depositor, no later than two Business Days
prior to the date of first use thereof or such later date as may be agreed to by the
Depositor that allows the Depositor to satisfy the requirements of Rule 433 under the
Securities Act, (a) any Free Writing Prospectus that was prepared by or on behalf of such
Underwriter (an Underwriter Free Writing Prospectus) and that contains any issuer
information, as defined in Rule 433(h) under the Securities Act and footnote 271 of the
Commissions Securities Offering Reform Release No. 33-8591 (Issuer Information)
(which the parties hereto agree includes, without limitation, Mortgage Loan Seller
Information), and (b) any Free Writing Prospectus or portion thereof prepared by or on
behalf of such Underwriter that contains only a description of the final terms of the
Offered Certificates. Notwithstanding the foregoing, any Free Writing Prospectus that
contains only ABS Informational and Computational Materials may be delivered by an
Underwriter to the Depositor not later than the later of (A) two Business Days prior to the
due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act or
such later date as may be agreed to by the Depositor or (B) the date of first use of such
Free Writing Prospectus.
-21-
(iii) 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
12(a)(ii) 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 Offered Certificates.
(iv) 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 12(a)(ii) did
not, as of the Time of Sale, and will not as of the Closing Date, include any untrue
statement of a material fact or omit any material fact necessary to make the statements
contained therein (when read in conjunction with the Time of Sale Information), in light of
the circumstances under which they were made, not misleading; provided,
however, that such Underwriter makes no representation to the extent such
misstatements or omissions were the result of any inaccurate Issuer Information, Mortgage
Loan Seller Information, Master Servicer Information, Special Servicer Information,
Operating Advisor Information, Certificate Administrator Information or Trustee Information,
which information was not corrected by Corrective Information subsequently supplied by the
Depositor or any Mortgage Loan Seller to such Underwriter within a reasonable period of time
prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered by any Underwriter to the
Depositor pursuant to Section 12(a)(ii); and
(C) 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.
Notwithstanding the foregoing, the Depositor shall not be required to file (1) Issuer Information
contained in any Underwriter Free Writing Prospectus or Free Writing Prospectus of any other
offering participant other than the Depositor, 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 Offered Certificates, or (2) any Free Writing Prospectus or portion
thereof that contains a description of the Offered Certificates or the offering of the Offered
Certificates which does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to Section 12(a)(v)(C)
by the Depositor shall be filed with the Commission not later than the date of first use of
the Free Writing Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof required to be filed that contains
only the description of the final terms of the Publicly Offered Certificates shall be filed
by the Depositor with the Commission within two days of the later of the date
-22-
such final terms have been established for all classes of Publicly Offered Certificates
and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required to be filed that contains
only ABS Informational and Computational Material shall 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 Publicly Offered Certificates pursuant to Rule 424(b) under the Securities Act or two
Business Days after the first use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be filed pursuant to Section 12(a)(v)(C)
shall, 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 Business Days after the Depositor becomes aware of
the publication, radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(vii) Each Underwriter (with the reasonable cooperation of the Depositor) shall file
with the Commission, or provide to the Depositor at least two Business Days prior to the
time such filing is required, 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.
(viii) Notwithstanding the provisions of Section 12(a)(vii), each Underwriter shall
file, or cause to be filed, 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 Business Days after such Underwriter becomes aware of the
publication, radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(ix) Notwithstanding the provisions of Sections 12(a)(v) and 12(a)(ii), neither the
Depositor 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, and no Underwriter shall be required to file any Free
Writing Prospectus to the extent that the information contained therein is included in a
prospectus or Free Writing Prospectus previously filed that relates to the offering of the
Publicly Offered Certificates.
(x) The Depositor and the Underwriters each agree that any Free Writing Prospectuses
prepared by it shall contain the following legend, or substantially equivalent legend that
complies with Rule 433 of the Securities Act:
-23-
The depositor has filed a registration statement (including a prospectus)
with the SEC for the offering to which this communication relates. Before
you invest, you should read the prospectus in that registration statement
and other documents the depositor has filed with the SEC for more complete
information about the depositor, the issuing trust, and this offering. You
may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov. Alternatively, the depositor, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling toll-free 1-877-443-0083.
(xi) The Depositor and each Underwriter agree to retain all Free Writing Prospectus that they
have used and that are not required to be filed pursuant to this Section 12 for a period of three
years following the initial bona fide offering of the Publicly Offered Certificates.
(xii) (A) In the event that the Depositor becomes aware that, as of the Time of Sale, any
Issuer Free Writing Prospectus contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein (when read in conjunction
with the Time of Sale Information), in light of the circumstances under which they were made, not
misleading (a Defective Issuer Free Writing Prospectus), the Depositor shall notify the
Underwriters of such untrue statement or omission within one Business Day after discovery and the
Depositor shall, if requested by the Underwriters, prepare and deliver to the Underwriters a Free
Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free
Writing Prospectus (such corrected Issuer Free Writing Prospectus, a Corrected Issuer Free
Writing Prospectus).
(B) In the event that any Underwriter becomes aware that, as of the Time of Sale, any
Underwriter Free Writing Prospectus delivered to an investor in any Publicly Offered
Certificates contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the circumstances under which
they were made, not misleading (together with a Defective Issuer Free Writing Prospectus, a
Defective Free Writing Prospectus), such Underwriter shall notify the Depositor of
such untrue statement or omission within one Business Day after discovery.
(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an Underwriter Free
Writing Prospectus, prepare a Free Writing Prospectus that corrects the material
misstatement in or omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a Corrected Free Writing
Prospectus);
(2) deliver the Corrected Free Writing Prospectus to each investor which
received the Defective Free Writing Prospectus prior to entering into a contract of
sale with such investor;
-24-
(3) notify such investor in a prominent fashion that the prior contract of
sale with the investor has been terminated, and of the investors rights as a result
of termination of such agreement;
(4) provide such investor with an opportunity to affirmatively agree to
purchase the Publicly Offered Certificates on the terms described in the Corrected
Free Writing Prospectus; and
(5) comply with any other requirements for reformation of the original
contract of sale with such investor, as described in Section IV.A.2.c of the
Commissions Securities Offering Reform Release No. 33-8591.
(D) In the event that the Defective Free Writing Prospectus was an Issuer Free Writing
Prospectus, and the Underwriters shall in good faith incur any costs to an investor in
connection with the reformation of the contract of sale with the investor, the Depositor
agrees to reimburse the Underwriters for such costs; provided that, before incurring
such costs, the Underwriters first permit the Depositor access to the applicable investor
and an opportunity to attempt to mitigate such costs through direct negotiation with such
investor.
(xiii) Each Underwriter covenants with the Depositor that after the Prospectus is
available such Underwriter shall not distribute any written information concerning the
Publicly Offered Certificates to a prospective investor unless such information is preceded
or accompanied by the Prospectus.
Section 13. (a) Any Underwriter may terminate its obligations under this Agreement by notice
to the Depositor at any time at or prior to the Time of Delivery if the sale of the Certificates
provided for herein is not consummated because of any failure or refusal on the part of the
Depositor to comply with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Depositor shall be unable to perform its obligations under this Agreement.
(b) The obligations of the Underwriters to purchase the Certificates shall be terminable by
the Underwriters if at any time on or prior to the Time of Delivery (i) any change, or any
development or event involving a prospective change in the condition (financial or other),
business, properties or results of operations of the Depositor or the Trust which, in the judgment
of the Underwriters, is material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the Publicly Offered
Certificates; (ii) any downgrading in the rating of any of the Publicly Offered Certificates by any
nationally recognized statistical rating organization (as defined under the Exchange Act), or any
public announcement that any such organization has under surveillance or review its rating of any
of the Publicly Offered Certificates (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change
in U.S. or international financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of the Underwriters, be likely to prejudice materially
the success of the proposed issue, sale or distribution of the Publicly Offered Certificates,
whether in the primary market or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities
-25-
generally on the New York Stock Exchange or over-the-counter market, or any setting of minimum
prices for trading on such exchange or market, or any suspension of trading of any Publicly Offered
Certificates on any relevant exchange or in the over-the-counter market; (v) any general moratorium
on commercial banking activities declared by any Federal or New York State authorities; (vi) any
major disruption of settlements of securities or clearance services in the United States; or (vii)
any attack on, outbreak or escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or international calamity or
emergency if, in the judgment of the Underwriters, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed
with completion of the public offering or the sale or any payment for the Certificates.
(c) If any Underwriter terminates its obligations under this Agreement in accordance with
Section 13(a), the Depositor shall reimburse such Underwriter for all reasonable out-of pocket
expenses (including reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by such Underwriter in connection with the proposed purchase and sale of the Certificates.
Section 14. CCRE hereby covenants and agrees with the Underwriters that CCRE shall be liable
to the Underwriters and the officers, directors and controlling persons referred to in Section 8(a)
of this Agreement to the same extent as the Company for all of the obligations of the Company under
Section 8 of this Agreement. CCRE further agrees that the Underwriters shall not be bound or
obligated to initially request the Company to perform any of its obligations under Section 8 of
this Agreement, but may instead initially request CCRE to perform such obligations. Additionally,
CCRE agrees that the Underwriters shall not be bound or obligated in any way to exhaust recourse
against the Company before being entitled to demand the performance by CCRE of the Companys
obligations under Section 8 of this Agreement. Performance by CCRE of any of the Companys
obligations under Section 8 of this Agreement shall be deemed to be performance thereof by the
Company and performance by the Company of its obligations under Section 8 of this Agreement shall
be deemed to be performance thereof by CCRE.
Section 15. All statements, requests, notices and agreements hereunder shall be in writing and
shall be deemed to have been duly given if (a) personally delivered, (b) mailed by registered or
certified mail, postage prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee or (d) transmitted by telex or facsimile transmission (or any
other type of electronic transmission agreed upon by the parties) and confirmed by a writing
delivered by any of the means described in (a), (b) or (c), if (i) in the case of CF&Co., addressed
to Cantor Fitzgerald & Co., 499 Park Avenue, New York, New York 10022, Attention: Stephen Merkel
and Shawn Matthews, (ii) in the case of DBSI, to Deutsche Bank Securities Inc., 60 Wall Street, New
York, New York 10005, Attention: Lainie Kaye, with a copy to Cadwalader, Wickersham & Taft, One
World Financial Center, New York, New York 10281, Attention: Anna H. Glick, Esq., (iii) in the
case of Barclays, addressed to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019,
Attention: Francis Gilhool, fax number: (646) 758-5334, with a copy to Barclays Capital Inc., Legal
Department, 745 Seventh Avenue, New York, New York 10019, Attention: Capital Markets, (iv) in the
case of Nomura, to Nomura Securities International, Inc., Two World Financial Center, Building B,
New York,
-26-
New York 10281-1198, Attention: Legal Department (facsimile number: (212) 667-1047), (v) in
the case of CastleOak Securities, L.P., 110 East 59th Street, 2nd Floor,
Attention: Philip Ippolito, fax number: (212) 308-7342, (vi) in the case of the Depositor,
addressed to CCRE Commercial Mortgage Securities, L.P., 110 East 59th Street, New York, New York
10022, Attention: Anthony Orso and (v) in the case of any such party, to such other address and/or
fax number as may be provided by such party to the other parties hereto.
Section 16. This Agreement shall be binding upon, and inure solely to the benefit of the
Underwriters, the Depositor and, to the extent provided in Section 8 hereof, the officers and
directors of the Depositor and each person who controls the Depositor or any Underwriter, within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and no other
person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any
of the Offered Certificates from any Underwriter shall be deemed a successor or assign merely by
reason of such purchase.
Section 17. Time shall be of the essence of this Agreement.
Section 18. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 19. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF
THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY
SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL
BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF
BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
Section 20. This Agreement may be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Agreement in Portable Document Format (PDF)
-27-
or by facsimile transmission shall be effective as delivery of a manually executed original
counterpart of this Agreement.
Section 21. The Depositor and each Underwriter is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to support any U.S.
federal income tax benefits expected to be claimed with respect to such transaction, and all
materials of any kind (including tax opinions and other tax analyses) related to those benefits,
without the Depositor or Underwriters , as applicable, imposing any limitations of any kind.
Section 22. This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated except by a writing signed by the party against
whom enforcement of such amendment, waiver, discharge or termination is sought.
-28-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the undersigned two counterparts hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Depositor and each of the Underwriters.
|
|
|
|
|
|
Very truly yours,
CCRE COMMERCIAL MORTGAGE SECURITIES, L.P.
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
Accepted as of the date hereof:
CANTOR FITZGERALD & CO.,
as Underwriter
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
DEUTSCHE BANK SECURITIES INC.
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
BARCLAYS CAPITAL INC.
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
CASTLEOAK SECURITIES, LP
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
NOMURA SECURITIES INTERNATIONAL, INC.
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
Acknowledged and agreed:
CANTOR COMMERCIAL REAL ESTATE LENDING, L.P.
SCHEDULE I
|
|
|
|
|
|
|
|
|
|
|
Approximate Initial |
|
|
|
|
|
|
Certificate Principal |
|
|
Initial Certificate |
|
Class of Certificates |
|
Balance |
|
|
Rate |
|
Class A-1 |
|
$ |
52,288,000 |
|
|
|
1.5577 |
% |
Class A-2 |
|
$ |
341,412,000 |
|
|
|
3.0614 |
% |
Class A-3 |
|
$ |
34,139,000 |
|
|
|
3.8172 |
% |
Class A-4 |
|
$ |
114,021,000 |
|
|
|
3.8343 |
% |
Sch. I-1
SCHEDULE II
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class of Certificates |
|
Price |
|
|
CF&CO. |
|
|
DBSI |
|
|
Barclays |
|
|
Nomura |
|
|
CastleOak |
|
Class A-1 |
|
|
100.00007 |
% |
|
$ |
96,497 |
|
|
$ |
42,934,522 |
|
|
$ |
9,256,981 |
|
|
$ |
0 |
|
|
$ |
0 |
|
Class A-2 |
|
|
101.49979 |
% |
|
$ |
630,074 |
|
|
$ |
280,338,909 |
|
|
$ |
60,443,017 |
|
|
$ |
0 |
|
|
$ |
0 |
|
Class A-3 |
|
|
101.49986 |
% |
|
$ |
63,003 |
|
|
$ |
28,032,084 |
|
|
$ |
6,043,912 |
|
|
$ |
0 |
|
|
$ |
0 |
|
Class A-4 |
|
|
101.50000 |
% |
|
$ |
210,425 |
|
|
$ |
93,624,485 |
|
|
$ |
20,186,090 |
|
|
$ |
0 |
|
|
$ |
0 |
|
Sch. II-1
ANNEX A
Free Writing Prospectus List
Annex A-1-1
The information in this free writing prospectus may be amended and/or supplemented prior to the
time of sale. The information in this free writing prospectus supersedes any contrary information
contained in any prior free writing prospectus relating to the subject securities and will be
superseded by any contrary information contained in any subsequent free writing prospectus prior to
the time of sale. In addition, certain information regarding the subject securities is not yet
available and, accordingly, has not been included in this free writing
prospectus.
STATEMENT REGARDING THIS FREE WRITING PROSPECTUS
The depositor has filed a registration statement (including the prospectus) with the SEC
(SEC File No. 333-172863) for the offering to which this communication relates. Before you invest,
you should read the base prospectus in the registration statement and other documents the depositor
has filed with the SEC for more complete information about the depositor, the issuing entity and
this offering. You may get these documents for free by visiting EDGAR on the SEC website at
www.sec.gov. Alternatively, the depositor or Cantor Fitzgerald & Co., any other underwriter, or
any dealer participating in this offering will arrange to send to you the prospectus if you request
it by calling toll-free 1-877-443-0083 or by email to ccreprospectus@cantor.com.
This free writing prospectus does not contain all information that is required to be included
in the prospectus and the prospectus supplement.
THIS FREE WRITING PROSPECTUS, DATED NOVEMBER 23, 2011
MAY BE AMENDED OR SUPPLEMENTED PRIOR TO TIME OF SALE
$541,860,000 (Approximate)
CFCRE Commercial Mortgage Trust 2011-C2
as Issuing Entity
CCRE Commercial Mortgage Securities, L.P.
as Depositor
Cantor Commercial Real Estate Lending, L.P.
as Sponsor and Loan Seller
Commercial Mortgage Pass-Through Certificates, Series 2011-C2
The Commercial Mortgage Pass-Through Certificates, Series 2011-C2 will include 16 classes
of certificates, 4 of which CCRE Commercial Mortgage Securities, L.P. is offering pursuant to this
free writing prospectus. The Series 2011-C2 certificates will represent the beneficial ownership
interests in the issuing entity only and will not represent the obligations of the depositor, the
sponsor or any of their affiliates. The issuing entitys main assets will be a pool of 51 fixed
rate mortgage loans secured by first liens on various types of commercial, multifamily and
manufactured housing community properties. Neither the certificates nor the underlying mortgage
loans are insured or guaranteed by any governmental agency or instrumentality.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Approximate Initial |
|
|
|
|
|
|
|
|
Initial Certificate |
|
Pass-Through |
|
Pass-Through Rate |
|
Expected Ratings |
|
Rated Final |
Class |
|
Principal Amount(1) |
|
Rate(2) |
|
Description |
|
(Fitch/Moodys)(3) |
|
Distribution Date |
Class A-1
|
|
$ |
52,288,000 |
|
|
|
% |
|
|
(6)
|
|
AAA(sf)/Aaa(sf)
|
|
December 2047 |
Class A-2
|
|
$ |
341,412,000 |
|
|
|
% |
|
|
(6)
|
|
AAA(sf)/Aaa(sf)
|
|
December 2047 |
Class A-3
|
|
$ |
34,139,000 |
|
|
|
% |
|
|
(6)
|
|
AAA(sf)/Aaa(sf)
|
|
December 2047 |
Class A-4
|
|
$ |
114,021,000 |
|
|
|
% |
|
|
(6)
|
|
AAA(sf)/Aaa(sf)
|
|
December 2047 |
|
|
|
|
|
(Footnotes to table begin on page S-8) |
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE NOT APPROVED OR
DISAPPROVED OF THE OFFERED CERTIFICATES OR DETERMINED IF THIS FREE WRITING PROSPECTUS OR THE
ATTACHED PROSPECTUS ARE TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE. THE DEPOSITOR WILL NOT LIST THE OFFERED CERTIFICATES ON ANY SECURITIES EXCHANGE OR ANY
AUTOMATED QUOTATION SYSTEM OF ANY NATIONAL SECURITIES ASSOCIATION.
You should carefully consider the Risk Factors beginning on page S-35 of this free writing
prospectus and page 5 of the attached prospectus.
Each class of certificates will receive distributions of interest and principal, as
applicable, monthly, commencing on January 17, 2012. Credit enhancement will be provided by
certain classes of subordinate certificates that will be subordinate to certain classes of senior
certificates as described under Description of the Offered CertificatesSubordination in this
free writing prospectus.
The underwriters, Cantor Fitzgerald & Co., Barclays Capital Inc., Deutsche Bank Securities
Inc., CastleOak Securities, L.P. and Nomura Securities International, Inc., will purchase the
offered certificates from CCRE Commercial Mortgage Securities, L.P. and will offer them to the
public at negotiated prices, plus, in certain cases, accrued interest, determined at the time of
sale. Cantor Fitzgerald & Co., Barclays Capital Inc. and Deutsche Bank Securities Inc. will act as
co-lead bookrunning managers in the following manner: Cantor Fitzgerald & Co. will act as sole
bookrunning manager with respect to approximately $95,930,000 of the offered certificates, Barclays
Capital Inc. will act as sole bookrunning manager with respect to approximately $95,930,000 of the
offered certificates, and Deutsche Bank Securities Inc. will act as sole bookrunning manager with
respect to approximately $350,000,000 of the offered certificates. The underwriters expect to
deliver the offered certificates to purchasers in book-entry form only through the facilities of
The Depository Trust Company in the United States and Clearstream Banking, société anonyme and
Euroclear Bank, as operator of the Euroclear System in Europe against payment in New York, New York
on or about December , 2011.
|
|
|
|
|
Cantor Fitzgerald & Co.
|
|
|
|
Deutsche Bank Securities |
|
|
Barclays Capital
|
|
|
CastleOak Securities, L.P.
|
|
|
|
Nomura Securities International, Inc. |
December , 2011
A-1