EXHIBIT 1.1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
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_______________, 199_
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introduction. Bear Xxxxxxx Commercial Mortgage Securities Inc., a
Delaware corporation (the "Company"), from time to time proposes to issue and
sell Commercial Mortgage Pass-Through Certificates ("Certificates") in various
series (each a "Series"), and, within each Series, in various classes, in one
or more offerings on terms determined at the time of sale. The Certificates of
each series will be issued pursuant to a pooling and servicing agreement (each,
a "Pooling and Servicing Agreement") among the Company, as depositor, one or
more master servicers which may include the Company and a third-party trustee
(the "Trustee"). Upon issuance, the Certificates of each series will evidence
undivided interests in the Trust Fund (as defined in the Pooling and Servicing
Agreement) established for such series containing mortgages or, in the event
the Trust Fund, or a portion thereof, constitutes the upper tier of a two-tier
real estate mortgage investment conduit ("REMIC"), the Trust Fund may contain
interests issued by a lower tier trust which will contain mortgages, all as
described in the Prospectus (as defined below). Terms not defined herein which
are defined in the Pooling and Servicing Agreement shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
Whenever the Company determines to make an offering of a Series of
Certificates (an "Offering") through you or an underwriting syndicate managed
or co-managed by you, it will offer to enter into an agreement ("Terms
Agreement") providing for the sale of such Certificates to, and the purchase
and offering thereof by, you and such other co-managers and underwriters, if
any, which have been selected by you and have authorized you to enter into such
Terms Agreement and other related documentation on their behalf (the
"Underwriters," which term shall include you whether acting alone in the sale
of Certificates or as a co-manager or as a member of an underwriting
syndicate). The Terms Agreement relating to each Offering shall specify the
principal amount of Certificates to be issued and their terms not otherwise
specified in the Pooling and Servicing Agreement, the price at which the
Certificates are to be purchased by each of the Underwriters from the Company
and the initial public offering price or the method by which the price at which
the Certificates are to be sold will be determined. The Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and the
Company. Each Offering governed by this
Agreement, as supplemented by the applicable Terms Agreement, shall inure to
the benefit of and be binding upon the Company and each of the Underwriters
participating in the Offering of such Certificates.
The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to you as of the date hereof, and to the Underwriters
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) A registration statement, including a prospectus, and such
amendments thereto as may have been required to the date hereof, relating to
the Certificates and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended ("Act"), have been filed
with the Securities and Exchange Commission ("Commission") and such
registration statement as amended has become effective. Such registration
statement as amended and the prospectus relating to the sale of Certificates
constituting a part thereof as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to Rule 424 of the
rules and regulations of the Commission ("Rules and Regulations") under the
Act, including any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act which were filed under the Securities Exchange Act
of 1939, as amended (the "Exchange Act") on or before the Effective Date of the
Registration Statement or the date of the Prospectus Supplement, are
respectively referred to herein as the "Registration Statement" and the
"Prospectus"; provided, however, that a supplement to the Prospectus (a
"Prospectus Supplement") prepared pursuant to Section 5(a) hereof shall be
deemed to have supplemented the Prospectus only with respect to the Offering of
the Series of Certificates to which it relates. The conditions of Rule 415
under the Act have been satisfied with respect to the Company and the
Registration Statement.
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material respects to
the requirements of the Act and the Rules and Regulations, and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement, the Registration Statement
and the Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations, and the Prospectus will not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading; provided,
however, that the foregoing does not apply to (i) statements or omissions in
such documents based upon written information furnished to the Company by any
Underwriter specifically for use therein or (ii) any Current Report (as defined
in Section 5(b) below) or in any amendment thereof or supplement thereto,
incorporated by reference in such Registration Statement or such Prospectus (or
any amendment thereof or supplement thereto).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus except as otherwise stated therein,
(A) there has been no material adverse change in the condition,
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financial or otherwise, earnings, affairs, regulatory situation or business
prospects of the Company whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the Company
which are material, other than those in the ordinary course of business.
(d) This Agreement has been, and the Pooling and Servicing Agreement,
when executed and delivered as contemplated hereby and thereby will have been,
duly executed and delivered by the Company and each constitutes, or will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms,
subject, as to the enforceability of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights of
creditors generally, and to general principles of equity and the discretion of
the court (regardless of whether enforceability of such remedies is considered
in a proceeding in equity or at law).
(e) At the applicable Closing Date, each applicable Terms Agreement
will have been duly authorized, executed and delivered by the Company and will
be legal, valid and binding obligation of the Company enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency, moratorium,
fraudulent conveyance and other laws affecting the rights of creditors
generally, and to general principles of equity and the discretion of the court
(regardless of whether enforceability of such remedies is considered in a
proceeding in equity or at law).
(f) The issuance of the Certificates has been duly authorized by the
Company and, when such Certificates are executed and authenticated in
accordance with the Pooling and Servicing Agreement and delivered against
payment pursuant to this Agreement, such Certificates will be validly issued
and outstanding; and the Certificates will be entitled to the benefits provided
by the Pooling and Servicing Agreement. The Certificates are in all material
respects in the form contemplated by the Pooling and Servicing Agreement.
(g) Neither the Company nor the Trust Fund is or, as a result of the
offer and sale of the Certificates as contemplated in this Agreement will
become, an "investment company" as defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or an "affiliated person" of
any such "investment company" that is registered or is required to be
registered under the Investment Company Act (or an "affiliated person" of any
such "affiliated person"), as such terms are defined in the Investment Company
Act.
(h) The representations and warranties made by the Company in the
Pooling and Servicing Agreement and made in any Officer's Certificate of the
Company delivered pursuant to the Pooling and Servicing Agreement will be true
and correct at the time made and on the Closing Date.
3. Purchase, Sale and Delivery of Certificates. Delivery of and
payment for the Certificates shall be made at your office or at such other
location as you shall make known at such time as shall be specified in the
applicable Terms Agreement, each such time being herein referred to as a
"Closing Date." Delivery of the Certificates shall be made by the Company to
the Underwriters against payment of the purchase price specified in the
applicable Terms Agreement in Federal Funds by wire or check. Unless delivery
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is made through the facilities of the Depository Trust Company, the
Certificates so to be delivered will be in definitive, fully registered form,
in such denominations and registered in scab names as you request, and will be
made available for inspection and packaging at your office at least twenty-four
hours prior to the applicable Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees with you
and the several Underwriters participating in the Offering of any Series of
Certificates that:
(a) In connection with the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement to be filed under the Act setting
forth the principal amount of Certificates covered thereby and their terms not
otherwise specified in the Prospectus, the price at which the Certificates are
to be purchased by the Underwriters from the Company, either the initial public
offering price or the method by which the price at which the Certificates are
to be sold will be determined, the selling concession and reallowance, if any,
any delayed delivery arrangements, and such other information as you and the
Company deem appropriate in connection with the offering of the Certificates,
but the Company will not file any amendments to the Registration Statement or
any amendments or supplements to the Prospectus, unless it shall first have
delivered copies of such amendments or supplements to you, and you shall not
have objected thereto promptly after receipt thereof. The Company will advise
you or your counsel promptly (i) when notice is received from the Commission
that any post-effective amendment to the Registration Statement has become or
will become effective, and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Certificates, or of any proceedings or examinations that may lead to such an
order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as the Company is
advised thereof, and will use its best efforts to prevent the issuance of any
such order or communication and to obtain as soon as possible its lifting, if
issued.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect to
each Series of Certificates that are delivered by the Underwriters to the
Company pursuant to Section 8 to be filed with the Commission on a Current
Report on Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the
Securities Exchange Act of 1934, as Amended (the "Exchange Act") on the
business day immediately following the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company
by any of the Underwriters prior to 10:30 a.m. (and will use its best efforts
to cause such Computational Materials and Structural Term Sheets to be so filed
prior to 2:00 p.m., New York time, on such business day), and will promptly
advise you when such Current Report has been so filed. The Company will cause
one Collateral Term Sheet (as defined in Section 9 below) with respect to an
Offering of a Series that is delivered by any of the Underwriters to the
Company in accordance with the provisions of Section 9 to be filed with the
Commission on a Current Report pursuant to Rule 13a-11 under the Exchange Act
on the business day immediately following the day on
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which such Collateral Term Sheet is delivered to counsel for the company by any
of the Underwriters prior to 10:30 a.m. In addition, if at any time prior to
the availability of the related Prospectus Supplement, any of the Underwriters
has delivered to any prospective investor a subsequent Collateral Term Sheet
that reflects, in the reasonable judgment of such Underwriter and the Company,
a material change in the characteristics of the Mortgage Loans for the related
Series from those on which a Collateral Term Sheet with respect to the related
Series previously filed with the Commission was based, the Company will cause
any such Collateral Term Sheet that is delivered by such Underwriter to the
Company in accordance with the provisions of Section 9 to be filed with the
Commission on a Current Report on the business day immediately following the
day on which such Collateral Term Sheet is delivered to counsel for the Company
by such Underwriter prior to 2:00 p.m. In each case, the Company will promptly
advise you when such Current Report has been so filed. Notwithstanding the four
preceding sentences, the Company shall have no obligation to file any materials
provided by any of the Underwriters pursuant to Sections 8 and 9 which (i) in
the reasonable determination of the Company are not required to be filed
pursuant to the Xxxxxx Letters or the PSA Letter (each as defined in Section 8
below), or (ii) contain erroneous information or contain any untrue statement
of a material fact or, when read in conjunction with the Prospectus and
Prospectus Supplement, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any Computational
Materials or ABS Term Sheets (as defined in Section 9 below) provided by such
Underwriter to the Company pursuant to Section 8 or Section 9 hereof. The
Company shall give notice to you and such Underwriter of its determination not
to file any materials pursuant to clause (i) of the preceding sentence and
agrees to file such materials if such Underwriter or you reasonably object to
such determination within one business day after receipt of such notice.
(c) If at any time when a prospectus relating to the Certificates is
required co be delivered under the Act any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance; provided, however,
that the Company will not be required to file any such amendment or supplement
with respect to any Computational Materials, Structural Term Sheets or
Collateral Term Sheets incorporated by reference in the Prospectus other than
any amendments or supplements of such Computational Materials or Structural
Term Sheets that are furnished to the Company by the Underwriter pursuant to
Section 8(e) hereof or any amendments or supplements of such Collateral Term
Sheets that are furnished to the Company by the Underwriter pursuant to Section
9(d) hereof which are required to be filed in accordance therewith.
(d) With respect to each Series of Certificates, the Company will make
generally available to the holders of the Certificates and will deliver to you,
in each case as soon as practicable, an earnings statement covering
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the twelve-month period beginning after the date of the Terms Agreement in
respect of such series of Certificates, which will satisfy the provisions of
Section 11(a) of the Act with respect to the Certificates.
(e) The Company will furnish to you copies of the Registration
Statement (two of which will be signed and will include all documents and
exhibits thereto or incorporated by reference therein), each related
preliminary prospectus, the Prospectus, and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as you
request.
(f) The Company will arrange for the qualification of the Certificates
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as you reasonably designate and will continue such
qualifications in effect so long as reasonably required for the distribution;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not qualified on the date of the
related Terms Agreement or to take any action which would subject it to general
or unlimited service of process in any jurisdiction in which it is not, on the
date of the related Terms Agreement, subject to such service of process.
(g) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement and any Terms Agreement and will reimburse
the Underwriters for any expenses (including fees and disbursements of counsel
and accountants) incurred by them in connection with qualification of the
Certificates and determination of their eligibility for investment under the
laws of such jurisdictions as you designate and the printing of memoranda
relating thereto, for any fees charged by the nationally recognized statistical
rating agencies for the rating of the Certificates, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Certificates,
if applicable, and for expenses incurred in distributing preliminary
prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Company will file or cause to be filed, on a timely and complete
basis, all documents that are required to be filed by the Company with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(i) So long as the Certificates of a Series shall be outstanding, the
Company will deliver to you the annual statement of compliance delivered to the
Trustee pursuant to the Pooling and Servicing Agreement and the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to the Pooling and Servicing Agreement as soon as such statements are
furnished to the Trustee.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters named in any Terms Agreement to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Company as of the date hereof, the dare of the
applicable Terms Agreement and the applicable Closing Date, to the accuracy of
the statements made in any officers' certificates (each an "Officer's
Certificate") pursuant to the provisions hereof, to the
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performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a)(i) At the time the applicable Terms Agreement is executed,
Deloitte & Touche and/or any other firm of certified independent public
accountants acceptable to you shall have furnished to you a letter, addressed
to you, and in form and substance satisfactory to you in all respects, stating
in effect that using the assumptions and methodology used by the Company, all
of which shall be described in such letter or the Prospectus Supplement, they
have recalculated such numbers, percentages and weighted average lives get
forth in the prospectus as you may reasonably request, compared the results of
their calculations to the corresponding items in the Prospectus, and found each
such number, percentage, and weighted average life set forth in the Prospectus
to be in agreement with the results of such calculations. To the extent
historical financial delinquency or related information is included with
respect to one or more master servicers, such letter or letters shall also
relate to such information.
(ii) At the Closing Date, ________________________ and/or any other
firm of certified independent public accountants acceptable to you shall have
furnished to you a letter, addressed to you, and in form and substance
satisfactory to you in all respects, relating to the extent such information is
not covered in the letter or letters provided pursuant to clause (a)(i), to a
portion of the information set forth on the Mortgage Loan Schedule attached to
the Pooling and Servicing Agreement and the characteristics of the mortgage
loans, as presented in the Prospectus Supplement or the Form 8-K relating
thereto, or if a letter relating to the same information is provided to the
Trustee, indicating that you are entitled to rely upon its letter to the
Trustee.
(b) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the business or properties of the Company or any of its affiliates
the effect of which, in any case, is, in your judgment, so material and adverse
as to make it impracticable or inadvisable to proceed with the Offering or the
delivery of the Certificates as contemplated by the Registration Statement and
the Prospectus. All actions required to be taken and all filings required to be
made by the Company under the Act and the Exchange Act prior to the sale of the
Certificates shall have been duly taken or made; and prior to the applicable
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted, or to the knowledge of the Company or you, shall be
contemplated by the Commission or by any authority administering any state
securities or Blue Sky law.
(c) Unless otherwise specified in any applicable Terms Agreement for a
Series, the Certificates shall be rated in one of the four highest grades by
one or more nationally recognized statistical rating agencies specified in said
Terms Agreement.
(d) You shall have received the opinion of counsel for the Company,
dated the applicable Closing Date, to the effect that:
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(i) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its assets and conduct its business as
described in the Prospectus, and the Company is duly qualified as a foreign
corporation to transact business and is in good standing under the laws of the
State of New York. The Company has no subsidiaries.
(ii) Each of this Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company and assuming
due and valid authorization and execution by the other parties thereto,
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and to the application of equitable principles in any proceeding, whether at
law or in equity. Such counsel's opinion may be qualified, in the case of the
indemnity provisions in this Agreement, to applicable law or judicial policy.
(iii) The Pooling and Servicing Agreement has been duly and
validly authorized, executed and delivered by the Company and assuming due and
valid authorization and execution by the other parties thereto, constitutes the
valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto and to the application of
equitable principles in any proceeding, whether at law or in equity.
(iv) The Certificates are in a form authorized by the Pooling and
Servicing Agreement, have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as specified in the
Pooling and Servicing Agreement and delivered against payment pursuant to this
Agreement and the related Terms Agreement, will be validly issued and
outstanding; and the Certificates will be entitled to the benefits of the
Pooling and Servicing Agreement.
(v) The Registration Statement has become effective under the
Act, and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
Act, and the Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates, complied
as to form in all material respects with the requirements of the Act and the
Rules and Regulations thereunder; such counsel has no reason to believe that
either the Registration Statement as of its effective date contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or the Prospectus as of the date of any Terms Agreement contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion as to
the financial statements or other financial data or notes thereto or any
statistical or tabular data
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contained or incorporated by reference in the Registration Statement or the
Prospectus).
(vi) The statements in the Prospectus and Prospectus Supplement
under the heading "Certain Federal Income Tax Consequences," to the extent that
they constitute matters of law or legal conclusions, have been prepared or
reviewed by such counsel and provide a fair summary of such law or conclusions;
the statements in the Prospectus to the extent modified by the statements in
the Prospectus Supplement under the headings "Summary of Terms," "Description
of the Certificates" and "The Pooling and Servicing Agreement" and such other
headings as you may request, insofar as such statements constitute a summary of
the proposed transaction and of the provisions of the Certificates or the
Pooling and Servicing Agreement, constitute a fair and accurate summary of such
transaction and provisions.
(vii) Neither the Company nor the Trust Fund is, or as a result
of the offer and sale of the Certificates as contemplated in the Prospectus and
in this Agreement will become, an "investment company" as defined in the
Investment Company Act, or an "affiliated person" of any such "investment
company" that is registered or is required to be registered under the
Investment Company Act (or an "affiliated person" of any such "affiliated
person"), as such terms are defined in the Investment Company Act.
[(viii) The Certificates offered pursuant to the Registration
Statement and indicated as such in the Prospectus Supplement will be mortgage
related securities, as defined in Section 3(a)(41) of the Exchange Act, so long
as such Certificates are rated in one of the two highest grades by at least one
nationally recognized statistical rating agency.]
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
Each opinion also shall relate to such other matters as may be
specified in the related Terms Agreement or as to which you reasonably may
request. In rendering any such opinion, counsel for the Company may rely on
certificates of responsible officers of the Company, the Trustee, and public
officials or, as to matters of law other than New York or Federal law, on
opinions of other counsel (copies of which opinions shall be delivered to you),
provided that, in cases of opinions of other counsel, counsel for the Company
shall include in its opinion a statement of its belief that both it and you are
justified in relying on such opinions.
(e) You shall have received from counsel for the Company a letter,
dated as of the Closing Date, stating that you may rely on the opinions
delivered by such firm under the Pooling and Servicing Agreement and to the
rating agency or agencies rating the Certificates as if such opinions were
addressed directly to you (copies of which opinions shall be delivered to you).
(f) You shall have received from counsel for the Underwriters, if such
counsel is different from counsel to the Company, such opinion or opinions,
dated as of the Closing Date, with respect to the validity of the Certificates,
the Registration Statement, the Prospectus and other related matters as the
Underwriters may require, and the Company shall have furnished
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to such counsel such documents as they may have requested from it for the
purpose of enabling them to pass upon such matters.
(g) You shall have received Officer's Certificates signed by such of
the principal executive, financial and accounting officers of the Company as
you may request, dated as of the Closing Date, in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct; that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date; that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated; that, subsequent to the respective dates as of
which information is given in the Prospectus, and except as set forth or
contemplated in the Prospectus, there has not been any material adverse change
in the general affairs, business, key personnel, capitalization, financial
condition or results of operations of the Company; that except as otherwise
stated in the Prospectus, there are no material actions, suits or proceedings
pending before any court or governmental agency, authority or body or, to their
knowledge, threatened, affecting the Company or the transactions contemplated
by this Agreement; and that attached thereto are true and correct copies of a
letter or letters from the one or more nationally recognized statistical rating
agencies specified in the applicable Terms Agreement confirming that, unless
otherwise specified in said Terms Agreement, the Certificates have been rated
in one of the four highest grades by each of such agencies and that such rating
has not been lowered since the date of such letter.
The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to a particular Offering
when and as provided in this Agreement and the related Terms Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement and the related Terms Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you, this Agreement (with
respect to the related Offering) and the related Terms Agreement and all
obligations of the Underwriters hereunder (with respect to the related
Offering) and thereunder may be canceled at, or at any time prior to, the
related Closing Date by the Underwriter. Notice of such cancellation shall be
given to the Company in writing, or by telephone or telegraph confirmed in
writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act against any and all
losses, claims, damages, liabilities and expenses whatsoever (including but not
limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act,
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or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement relating to the applicable Series of Certificates (the "Applicable
Registration Statement") as it became effective or in any amendment or
supplement thereof, or in the Applicable Registration Statement or the related
Prospectus, or in any amendment thereof, or arise out of or are based upon the
omission or alleged omission (in the case of any Computational Materials or ABS
Term Sheets in respect of which the Company agrees to indemnify the
Underwriters, as set forth below, when such are read in conjunction with the
related Prospectus and Prospectus Supplement) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein (A) in reliance upon and in
conformity with written informal on furnished to the Company as herein stated
by or on behalf of the Underwriters specifically for use in connection with the
preparation thereof or (B) in any Current Report or any amendment or supplement
thereof, except to the extent that any untrue statement or alleged untrue
statement therein or omission therefrom results (or is alleged to have
resulted) directly from an error (a "Mortgage Pool Error") in the information
concerning the characteristics of the Mortgage Loans furnished by the Company
to the Underwriters in writing or by electronic transmission that was used in
the preparation of either (x) any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) included in such Current Report (or
amendment or supplement thereof) or (y) any written or electronic materials
furnished to prospective investors on which the Computational Materials (or
amendments or supplements) were based, (ii) such indemnity with respect to any
Corrected Statement (as defined below) in such Prospectus (or Prospectus
Supplement thereto) shall not inure to the benefit of the Underwriters for any
person controlling any Underwriter) from whom the person asserting any loss,
claim, damage or liability purchased the Certificates of the related Series
that are the subject thereof if such person did not receive a copy of a
Prospectus Supplement to such Prospectus at or prior to the confirmation of the
sale of such Certificates and the untrue statement or omission of a material
fact contained in such Prospectus (or Prospectus Supplement thereto) was
corrected (a "Corrected Statement") in such other supplement and such
supplement was furnished by the Company to the Underwriters prior to the
delivery of such confirmation, and (iii) such indemnity with respect to any
Mortgage Pool Error shall not inure to the benefit of the Underwriters (or any
person controlling any Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials (or any written
or electronic materials on which the Computational Materials are based) or ABS
Term Sheets that were prepared on the basis of such Mortgage Pool Error, if,
prior to the time of confirmation of the sale of the applicable series of
Certificates to such person, the Company notified the Underwriters in writing
of the Mortgage Pool Error or provided in written or electronic form
information superseding or correcting such Mortgage Pool Error (in any such
case, a "Corrected Mortgage Pool Error"), and the Underwriters failed to notify
such person thereof or to deliver to such person corrected Computational
Materials (or underlying written or electronic materials) or ABS Term Sheets.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
-11-
(b) The Underwriters severally, and not jointly, agree to indemnify
and hold harmless the Company, each of the directors of the Company, each of
the officers of the Company who shall have signed the Applicable Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, claims, damages, liabilities and expenses whatsoever (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses for actions in respect
thereof) arise out of or are based upon (A) any untrue statement or alleged
untrue statement of a material fact contained in the Applicable Registration
Statement, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon 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, in each case to the
extent, but only to the extent, that any such loss, claim, damage, liability or
expense arises our of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company, by or on
behalf of such Underwriter expressly for use therein; or (B) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) furnished
to the Company by such Underwriter pursuant to Section 8 and incorporated by
reference in such Registration Statement or the related Prospectus, Prospectus
Supplement or any amendment or supplement thereof (except that no such
indemnity shall be available for any losses, claims, damages or liabilities, or
actions in respect thereof resulting from any Mortgage Pool Error, other than a
Corrected Mortgage Pool Error). This indemnity will be in addition to any
liability which the Underwriters may otherwise have. The Company acknowledges
that, unless otherwise set forth in the applicable Terms Agreement, the
statements set forth in the last paragraph of the cover page and under the
caption "Method of Distribution" and the stabilization legend required by Item
502(d)(1) under Regulation S-K of the Act included in the Prospectus Supplement
relating to a Series of Certificates constitute the only information furnished
in writing by or on behalf of any Underwriter expressly for use in the
Applicable Registration Statement or the Prospectus or in any amendment thereof
or supplement thereto, as the case may be (other than any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) furnished
to the Company by such Underwriter), and each Underwriter confirms, on its
behalf, that such statements are correct.
(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 will, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the Commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability which it may have otherwise). In case any such action is brought
-12-
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right co employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying parties shall
not have employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent; provided, however, that such consent was not unreasonably
withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in Section 7 hereof is for any reason held to be
unavailable, on grounds of public policy or otherwise, from the Company or the
Underwriters or is insufficient to hold harmless a party indemnified
thereunder, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company any contribution received by the Company from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, officers of the Company who signed the Applicable
Registration Statement and directors of the Company) to which the company and
the Underwriters may be subject (i) in the case of any losses, claims, damages
and liabilities (or actions in respect thereof) which do not arise out of or
are not based upon any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or supplements
thereof), in such proportions as is appropriate to reflect the relative
benefits received by the Company on one hand and the Underwriters on the other
from the Offering of the Certificates as to which such loss, liability, claim,
damage or expense is claimed to arise or, if such allocation is not permitted
by applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7(c)
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company on one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other
-13-
relevant equitable considerations or (ii) in the case of any losses, claims,
damages and liabilities (or actions in respect thereof) which arise out of or
are based upon any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or supplements
thereof) or in any written or electronic materials distributed to prospective
investors on which the Computational Materials are based, in such proportion as
is appropriate to reflect the relative fault of the Company on the one hand and
the Underwriter that furnished such Computational Materials or ABS Term Sheets
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations; provided, however, that in
no case shall such Underwriter be responsible under this subparagraph (ii) for
any amount in excess of the aggregate Purchase Price for the Offered
Certificates.
The relative benefits received by the Company on one hand and the
Underwriters on the other shall be deemed to be in the same proportion as (x)
the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the Terms Agreement in respect of
the Offering of the Certificates as to which such loss, liability, claim,
damage or expense is claimed to arise. The relative fault of the Company on one
hand and the Underwriters on the other shall be determined by reference to,
among other things, (A) in the case of clause (i) of the preceding paragraph,
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 Company on one hand or the Underwriters on the other, (B) in
the case of clause (ii) of the preceding paragraph, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to any untrue statement or omission of a
material fact in any Computational Materials or ABS Term Sheets (or any
amendments or supplements thereof) or in any written or electronic materials
distributed by the applicable Underwriter to prospective investors on which the
Computational Materials are based, and (C) in the case of either clause (i) or
clause (ii) of the preceding paragraph, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7(d), (x) except as otherwise
provided in Section 7(d)(ii), in no case shall the Underwriters be liable or
responsible for any amount in excess of the underwriting discount set forth in
the Terms Agreement relating to the Certificates as to which such losses,
claims, damages, liabilities or expenses are claimed to arise, and (y) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7(d),
each person, if any, who controls any Underwriter within the Meaning of Section
15 of the Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the
-14-
Applicable Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of this Section 7(d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 7(d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such parry or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 7(d) or otherwise. No party shall be liable for contribution with
respect to any action or claim settled without its consent; provided, however,
that such consent was not unreasonably withheld.
8. Computational Materials and Structural Term Sheets. (a) Not later
than 2:00 p.m., New York time, on the business day before the date on which the
Current Report relating to the Certificates of a Series is required to be filed
by the Company with the Commission pursuant to Section 5(b) hereof, you and any
other applicable Underwriter shall deliver to the Company, and unless otherwise
agreed to by the Company, in a form reasonably convertible to an XXXXX filing
format, a copy of all materials provided by the Underwriters to prospective
investors in such Certificates which constitute (i) "Computational Materials,"
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to Xxxxxx, Peabody Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset
Corporation and the no-action Letter dated May 27, 1994 issued by the Division
of Corporation Finance of the Commission to the public Securities Association
(together, the "Xxxxxx Letters") and the filing of such material is a condition
of the relief granted in such letter (such materials being the "Computational
Materials"), and (ii) "Structural Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA
Letter") and the filing of such material is a condition of the relief granted
in such letter (such materials being the "Structural Term Sheets"). Each
delivery of Computational Materials and Structural Term Sheets to the Company
by you and any other applicable Underwriter pursuant to this paragraph (a)
shall be effected by delivering a copy of such materials to counsel for the
Company on behalf of the Company at the address specified by the Company and
one copy of such materials to the Company.
(b) You and each other Underwriter, by virtue of its having executed
and delivered the related Terms Agreement, which shall incorporate this Section
8(b) by reference, represents and warrants to and agrees with the Company, as
of the date of the related Terms Agreement and as of the Closing Date, that:
(i) the Computational Materials furnished to the Company pursuant
to Section 8(a) constitute (either in original, aggregated or consolidated
form) all of the materials furnished to prospective investors by such
Underwriter prior to the time of delivery thereof to the Company that are
required to be filed with the Commission with respect to the Offering of the
Certificates in accordance with the Xxxxxx Letters, and such Computational
Materials comply with the requirements of the Xxxxxx Letters;
-15-
(ii) the Structural Term Sheets furnished to the Company pursuant
to Section 8(a) constitute all of the materials furnished to prospective
investors by such Underwriter prior to the time of delivery thereof to the
Company that are required to be filed with the Commission as "Structural Term
Sheets" with respect to the related Offering of the Certificates in accordance
with the PSA Letter, and such Structural Term Sheets comply with the
requirements of the PSA Letter;
(iii) on the date any such Computational Materials or
Structural Term Sheets with respect to the Offering of the Certificates (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials are based) were last furnished to each prospective
investor and on the date of delivery thereof to the Company pursuant to Section
8(a) and on the related Closing Date, such Computational Materials (or such
other materials) or Structural Term Sheets did not and will not include any
untrue statement of a material fact or, when read in conjunction with the
related Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading: and
(iv) all Computational Materials (or underlying materials
distributed to prospective investors on which the Computational Materials were
based) or Structural Term Sheets furnished to prospective investors contained
and will contain a legend, prominently displayed on the first page thereof, to
the effect that the Company has not prepared, reviewed or participated in the
preparation of such materials and is not responsible for the accuracy thereof.
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Computational Materials or
Structural Term Sheets (or any written or electronic materials on which the
Computational Materials are based) included or will include any untrue
statement resulting directly from any Mortgage Pool Error (except any Corrected
Mortgage Pool Error, with respect to materials prepared after the receipt by
the Underwriters from the Company of notice of such Corrected Mortgage Pool
error or materials superseding or correcting such Corrected Mortgage Pool
Error).
(c) Each Underwriter delivering Computational Materials shall cause a
firm of public accountants to furnish to the Company a letter, dated as of the
date on which such Underwriter delivers any Computational Materials (which term
shall be deemed to include, for purposes of this paragraph (c), calculated
statistical information delivered to prospective investors in the form of a
Structural Term Sheet) to the Company pursuant to Section 8 (a), in form and
substance satisfactory to the Company, stating in effect that they have
verified the mathematical accuracy of any calculations performed by such
Underwriter and set forth in such Computational Materials.
(d) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or Structural Term Sheets to any particular prospective
inventor, and agrees that any Computational Materials or Structural Term Sheets
with respect to any Series of Certificates furnished to prospective investors
shall include a disclaimer in the form described in paragraph
-16-
(b)(iv) above. The Underwriters agree that they will not represent to
prospective investors that any Computational Materials or Structural Term
Sheets were prepared or disseminated on behalf of the Company.
(e) If, at any time when a prospectus relating to the Certificates of
a Series is required to be delivered under the Act, it shall be necessary to
amend or supplement the related Prospectus or Prospectus Supplement as a result
of an untrue statement of a material fact contained in any Computational
Materials or Structural Term Sheets provided by an Underwriter pursuant to this
Section 8 or the commission to state therein a material fact required, when
considered in conjunction with the related Prospectus and Prospectus
Supplement, to be stated therein or necessary to make the statements therein,
when read in conjunction with the related Prospectus and Prospectus Supplement,
not misleading, or if it shall be necessary to amend or supplement any Current
Report relating to any Computational Materials or Structural Term Sheets To
comply with the Act or the rules thereunder, such Underwriter promptly will
prepare and furnish co the Company for filing with the Commission an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance, such Underwriter will deliver an Officers
Certificate to the Company representing and warranting to the Company that, as
of the date of delivery of such amendment or supplement to the Company, such
amendment or supplement will nor include any untrue statement of a material
fact or, when read in conjunction with the related Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that such Underwriter will make no representation or warranty as to whether
any' such amendment or supplement will include any untrue statement resulting
directly from any Mortgage Pool Error (except any Corrected Mortgage Pool
Error, with respect to any such amendment or supplement prepared after the
receipt by such Underwriter from the Company of notice of such Corrected
Mortgage Pool Error or materials superseding or correcting such Corrected
Mortgage Pool Error). The Company shall have no obligation to file such
amendment or supplement if (i) the Company determines that such amendment or
supplement contains any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any such amendment or supplement provided by such
Underwriter to the Company pursuant to this paragraph (e) or (ii) the Company
reasonably determines that such filing is not required under the Act and such
Underwriter does not object as provided below. The Company shall give notice to
such Underwriter of its determination not to file an amendment or supplement
pursuant to clause (ii) of the preceding sentence and agrees to file such
amendment or supplement if such Underwriter reasonably objects to such
determination within one business day after receipt of such notice.
9. Collateral Term Sheets. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets"), to a prospective investor in the
Certificates, the applicable Underwriter shall notify the Company and its
counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is
-17-
expected to occur. Not later than 10:30 a.m., New York time, on the business
day immediately following the date on which any Collateral Term Sheet was first
delivered to a prospective investor in the Certificates of an offered series,
such applicable Underwriter shall deliver to the Company, and unless otherwise
agreed to by the Company, in a form reasonably convertible to an XXXXX format,
a complete copy of all materials provided by such Underwriter to prospective
investors in such Certificates which constitute "Collateral Term Sheets." Each
delivery of a Collateral Term Sheet to the Company pursuant to this paragraph
(e) shall be effected by delivering a copy of such materials to counsel for the
Company on behalf of the Company at the address specified by the Company and
one copy of such materials to the Company. (Collateral Term Sheets and
Structural Term Sheets are, together, referred to herein as "ABS Term Sheets.")
At the time of each such delivery, such Underwriter shall indicate in writing
that the materials being delivered constitute Collateral Term Sheets, and, if
there has been any prior such delivery with respect to the related Series,
shall indicate whether such materials differ in any material respect from any
Collateral Term Sheets previously delivered to the Company with respect to such
Series pursuant to this Section 9(a) as a result of the occurrence of a
material change in the characteristics of the related Mortgage Loans.
(b) You and each other Underwriter, by virtue of its having executed
and delivered the related Terms Agreement, which shall incorporate this Section
9(b) by reference, represents and warrants to and agrees with the Company as of
the date of the related Terms Agreement and as of the Closing Date, that:
(i) The Collateral Term Sheets furnished to the Company pursuant
to Section 9(a) constitute all of the materials furnished to prospective
investors by such Underwriter prior to time of delivery thereof to the Company
that are required to be filed with the Commission as "Collateral Term Sheets"
with respect to the related Offering of the Certificates in accordance with the
PSA Letter, and such Collateral Term Sheets comply with the requirements of the
PSA Letter;
(ii) On the date any such Collateral Term Sheets with respect to
the Offering of the Certificates were last furnished to each prospective
investor and on the date of delivery thereof to the Company pursuant to Section
9(a) and on the related Closing Date, such Collateral Term Sheets did not and
will not include any untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and
(iii) such Underwriter has not represented to any prospective
investor that any Collateral Term Sheets with respect to any Series were
prepared or disseminated on behalf of the Company, and, except as otherwise
disclosed by such Underwriter to the Company in writing prior to the date
hereof, all Collateral Term Sheets previously furnished to prospective
investors included a disclaimer to the effect set forth in Section 8(b)(iv).
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Collateral Term Sheet included or
will include any untrue statement or material omission resulting directly from
any Mortgage Pool Error except any Corrected Mortgage Pool Error, with
-18-
respect to materials prepared after the receipt by such Underwriter from the
Company of notice of such Corrected Mortgage Pool Error or materials
superseding or correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Collateral Term Sheets acknowledges
and agrees that any Collateral Term Sheets with respect to any Series of
Certificates furnished to prospective inventors from and after the date hereof
shall include a disclaimer to the effect set forth in Section 8(d) hereof, and
to the effect that the information contained in such materials supersedes the
information contained in any prior Collateral Term Sheet with respect to such
series of Certificates being offered and will be superseded by the description
of the related Mortgage Loans in the related Prospectus Supplement. The
Underwriters agree that they will not represent to any prospective investors
that any Collateral Term Sheets were prepared or disseminated on behalf of the
Company.
(d) If, at any time when a prospectus relating to the Certificates of
a Series is required to be delivered under the Act, it shall be necessary to
amend or supplement the related prospectus as a result of an untrue statement
of a material fact contained in any Collateral Term Sheets provided by an
Underwriter pursuant to this Section 9 or the omission to state therein a
material fact required, when considered in conjunction with the relates
Prospectus and Prospectus Supplement, to be stated therein or necessary to make
the statements therein, when read in conjunction with the related Prospectus
and Prospectus Supplement, not misleading, or if it shall be necessary to amend
or supplement any Current Report relating to any Collateral Term Sheets to
comply with The Act or the rules thereunder, such Underwriter promptly will
prepare and furnish to the Company for filing with the Commission an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Such Underwriter will deliver an Officer's
Certificate to the Company representing and warranting to the Company that, as
of the date of delivery of such amendment or supplement to the Company, such
amendment or supplement will not include any untrue statement of a material
fact or, when read in conjunction with the related Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
such Underwriter will make no representation or warranty as to whether any such
amendment or supplement will include any untrue statement resulting directly
from any Mortgage Pool Error (except,any Corrected Mortgage Pool Error, with
respect to any such amendment or supplement prepared after the receipt by such
Underwriter from the Company of notice of such Corrected Mortgage Pool Error or
materials superseding or correcting such Corrected Mortgage Pool Error). The
Company shall have no obligation to file such amendment or supplement if the
Company determines that (i) such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the related
Prospectus and Prospectus Supplement, omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any such amendment or supplement provided by such Underwriter to the Company
pursuant to this paragraph (d) or (ii) such filing is not required under the
Act. The Company shall give notice to such Underwriter of its determination not
to file an amendment or supplement pursuant to clause (ii) of the preceding
sentence.
-19-
10. Default of Underwriters. If any Underwriter or Underwriters
participating in an Offering of Certificates default in their obligations to
purchase Certificates hereunder and under the Terms Agreement and the aggregate
purchase price of Certificates which such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the aggregate
purchase price of the Certificates then being purchased, you may make
arrangements satisfactory to the Company for the purchase of such Certificates
by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective total commitments as
set forth in the applicable Terms Agreement (for all classes of Certificates),
to purchase the Certificates which such defaulting Underwriter or Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default
and the aggregate purchase price of Certificates with respect to which such
default or defaults occur is more than 10% of the aggregate purchase price of
Certificates then being purchased, and arrangements satisfactory to you and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours after such default, the Terms Agreement as to which such
offering relates will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 11. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve defaulting
Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the result thereof,
made by or on behalf of any Underwriter or the Company or any of its officers
or directors or any controlling person, and will survive delivery of and
payment for the Certificates and any termination of this Agreement or any Terms
Agreement, including any termination pursuant to Section 10.
12. Termination. You shall have the right to terminate any Terms
Agreement at any time prior to the applicable Closing Date if any domestic or
international event or act or occurrence has materially disrupted, or in your
opinion will in the immediate future materially disrupt, securities markets; or
if trading on the New York or American Stock Exchanges shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required on the New
York or American Stock Exchanges by the New York or American Stock Exchanges or
by order of the Commission or any other governmental authority having
jurisdiction; or if the United States shall have become involved in a war or
major hostilities; or if a banking moratorium has been declared by a state or
Federal authority, or if a banking moratorium in foreign exchange trading by
major international banks or persons has been declared; or if any new
restriction materially and adversely affecting the distribution of the series
of Certificates as to which such Terms Agreement relates shall have become
effective; or if there shall have been such change in the market for securities
in general or in political, financial or economic conditions as in your
judgment would be so materially adverse as to make it inadvisable to proceed
with the Offering, sale and delivery of the series of Certificates as
-20-
to which such Terms Agreement relates on the terms contemplated in such Terms
Agreement. Any notice or termination pursuant to this Section 12 shall be by
telephone, telex, or telegraph, confirmed in writing by letter.
13. Notices. All communications hereunder will be in writing, and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel or if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ________________; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed to
such Underwriter at the address furnished by it.
14. Successors. This Agreement and the Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and thereto, and their
respective successors and the officers and directors and controlling persons
referred to in Section 7, and no ocher person will have any right or obligation
hereunder or thereunder.
15. Representation of Underwriters. You will act for the several
Underwriters in connection with each Offering of Certificates governed by this
Agreement, and any action under this Agreement and any Terms Agreement taken by
you will be binding upon all the Underwriters identified in such Terms
Agreement.
16. Construction. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By:
------------------------------
Name:
Title:
The foregoing Underwriting Agreement hereby is confirmed and accepted as of the
date first above written.
BEAR, XXXXXXX & CO. INC.
By:
-------------------------------
Name:
Title:
-22-
EXHIBIT A
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Commercial Mortgage Pass-Through Certificates
FORM OF TERMS AGREEMENT
-----------------------
Dated: ___________, 199__
To: BEAR XXXXXXX [AND ____________]
Re: Underwriting Agreement dated _________, 199_
Series Designation: Series 19 __ - __
Class Designation Schedule:
Terms of the Certificates:
Original
Principal Interest Price to
Class Amount Rate Public(2)(3)
----- ------ ---- ------------
Distribution Dates: The __th day of each month or, if such __th day is not a
business day, the next succeeding business day commencing _______________.
---------------
(2) Do not include if the Certificates will be offered from time to time by the
Underwriter in negotiated transactions at varying prices to be determined at
the time of sale.
(3) Plus accrued interest, if any, at the applicable rate from __________.
Certificate Rating:
Mortgage Assets: The initial amounts to be included in any Reserve Account and
other accounts are as set forth, and the Mortgage Loans to be included in the
Trust Fund are as described, in Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriter for the
Certificates covered by this Agreement will be $_______________. [Purchase
price may also be separately stated by class.]
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Credit Enhancement:
[Include pool policies, letters of credit, bonds, subordination and similar
arrangements.]
Closing Date: _______, 19__, ___ a.m., N.Y. Time
The undersigned, agrees, subject to the terms and provisions of the
above-referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the respective principal amounts
of the Classes of the above referenced Series of Certificates set forth
[herein] [on Schedule I attached hereto].
BEAR, XXXXXXX CO. INC.
By:
-------------------------------
[ADDITIONAL UNDERWRITERS]
By:
-------------------------------
Title:
Accepted:
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
By:
-------------------------------
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Schedule I (for multiple underwriters)
Underwriters
Name Class Class Class Class Class
---- ----- ----- ----- ----- -----
Bear, Xxxxxxx & $ $ $ $ $
Co. Inc.
[Other
Underwriters]
------- ------- ------- ------- -------
Total
======= ======= ======= ======= =======
3
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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Commercial Mortgage Pass-Through Certificates
TERMS AGREEMENT
---------------
Dated: as of _____________
To: BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Re: Underwriting Agreement dated _______________
Underwriter: Bear, Xxxxxxx & Co. Inc.
Series Designation: Series 199_-_
Class Designation Schedule of the Certificates:
Terms of the Certificates to be Purchased by the Underwriter:
Class Original Interest Rate
----- -------- -------------
============================================================================
Defined Terms: Terms not otherwise defined herein shall have the meanings given
to such terms in the Pooling and Servicing Agreement dated as of
______________, 1998, among ___________________________.
Form of Certificates Being Purchased by the Underwriter: Book Entry.
Distribution Dates: The __ day of each month or, if such __ day is not a
business day, the next succeeding business day commencing in ____________,
1998.
Certificates Rating for the Certificates Being Purchased by the Underwriters:
Rating
Class
============================================================================
============================================================================
===
Mortgage Assets: Mortgage Loans to be included in the Trust Fund are as
described in Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriter for the
Certificates covered by this Agreement will be $_________________ (plus
$__________ in accrued interest).
Credit Enhancement: None other than the subordination described in the related
Prospectus Supplement.
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Closing Date: _________________, 1998, 9:00 a.m., New York time.
[Remainder of Page Intentionally Left Blank]
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The undersigned, as the Underwriter, agrees, subject to the terms and
provisions of the above--referenced Underwriting Agreement, which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the Classes of the above-referenced Series of
Certificates as set forth herein.
BEAR, XXXXXXX & CO., INC.
By:
-------------------------------
Name:
Title:
Accepted:
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
By:
-------------------------------
Name:
Title:
-28-
Annex A
Mortgage Loan Schedule
SEE EXHIBIT B OF THE POOLING AND SERVICING AGREEMENT
-29-
