BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
June 15, 1999
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Norwest Investment Services, Inc.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
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 to be dated
as of July 1, 1999 (the "Pooling and Servicing Agreement") among the Company, as
depositor, Xxxxx Fargo Bank, National Association, as servicer ("Xxxxx Fargo" or
the "Servicer"), GMAC Commercial Mortgage Corporation, as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee"), ABN AMRO Bank N.V., as fiscal agent, and Norwest Bank Minnesota,
National Association, as paying agent. 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 mortgage
loans secured by commercial properties, multi-family properties and manufactured
housing communities (the "Mortgage Loans"), all as described in the Prospectus
(as defined below). The Mortgage Loans will be purchased by the Company from
Bear Xxxxxxx Funding, Inc. ("BSFI") and Xxxxx Fargo (together with BSFI, the
"Mortgage Loan Sellers") pursuant to two Mortgage Loan Purchase and Sale
Agreements (collectively, together with any supplements thereto, the "Mortgage
Loan Purchase Agreements"), each by and between the Company and the applicable
Mortgage Loan Seller. The Trust Fund, or a portion thereof, may make one or more
elections to qualify as a real estate mortgage investment conduit ("REMIC")
under the Internal Revenue Code, 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 (the "Act"), have been filed
with the Securities and Exchange Commission ("Commission") (copies of which have
been provided to you) 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 1934, 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, no stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose are pending or, to
the Depositor's knowledge, threatened by the Commission.
(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
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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); and provided, further, that the Company makes no
representations or warranties with respect to any information provided by Xxxxx
Fargo for inclusion into the Prospectus.
(c) This Agreement has been, and the Pooling and Servicing Agreement, when
executed and delivered as contemplated hereby and thereby will have been, duly
authorized, 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, except as
enforceability may be limited by (A) bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally, (B)
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) and (C) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport or are construed to provide
indemnification from securities law liabilities.
(d) At the applicable Closing Date, each applicable Terms Agreement will
have been duly authorized, executed and delivered by the Company and will be a
legal, valid and binding obligation of the Company enforceable in accordance
with its terms, except as enforceability may be limited by (A) bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights of
creditors generally, (B) 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) and (C) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport or are
construed to provide indemnification from securities law liabilities.
(e) 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.
(f) 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
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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.
(g) The following representations and warranties made by the Company in
the Pooling and Servicing Agreement and representations and warranties 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/or on the
Closing Date, as applicable:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to
own its property, to carry on its business as presently conducted, to
enter into and perform its obligations under the Pooling and Servicing
Agreement and to create the trust pursuant hereto;
(ii) The execution and delivery by the Depositor of
the Pooling and Servicing Agreement has been duly authorized by all
necessary corporate action on the part of the Depositor; neither the
execution and delivery of the Pooling and Servicing Agreement, nor the
consummation of the transactions therein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding
on the Depositor or its properties; (ii) the certificate of
incorporation or bylaws of the Depositor; or (iii) the terms of any
indenture or other agreement or instrument to which the Depositor is a
party or by which it is bound; neither the Depositor nor any of its
Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects or to the best
knowledge of the Depositor may in the future materially and adversely
affect (i) the ability of the Depositor to perform its obligations
under the Pooling and Servicing Agreement or (ii) the business,
operations, financial condition, properties or assets of the Depositor;
(iii) The execution, delivery and performance by the
Depositor of the Pooling and Servicing Agreement and the consummation
of the transactions contemplated thereby do not require the consent or
approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained,
given, effected or taken prior to the date hereof;
(iv) The Pooling and Servicing Agreement has been
duly executed and delivered by the Depositor and, assuming due
authorization, execution and delivery by the Trustee, constitutes a
valid and binding obligation of the Depositor enforceable against it in
accordance with its terms;
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(v) There are no actions, suits or proceedings
pending or, to the best of the Depositor's knowledge, threatened or
likely to be asserted against or affecting the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (A)
with respect to any of the transactions contemplated by the Pooling and
Servicing Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the
Depositor and will, if determined adversely to the Depositor,
materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability
to perform its obligations under the Pooling and Servicing Agreement;
and
(vi) Immediately prior to the consummation of the
transactions contemplated in the Pooling and Servicing Agreement, the
Depositor had good title to and was the sole owner of each Mortgage
Loan free and clear of any and all adverse claims, charges or security
interests (including liens arising under the federal tax laws or the
Employee Retirement Income Security Act of 1974, as amended).
(h) On the Closing Date, the Company (i) will have good and marketable
title to the Mortgage Loans being transferred by it to the Trust Fund pursuant
thereto, free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest placed thereon by the Company
(collectively, "Liens"), to the extent good and marketable title to the Mortgage
Loans is transferred to the Company, and (ii) will have the power and authority
to transfer such Mortgage Loans to the Trust Fund, and upon execution and
delivery of the Pooling and Servicing Agreement by the Trust Fund, the Trust
Fund will have acquired ownership of all of the Company's right, title and
interest in and to the related Mortgage Loans. Upon delivery to the Underwriters
of the Certificates pursuant hereto, each Underwriter will have good title to
the Certificates purchased by such Underwriter, in each case free of Liens.
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 is made through the facilities
of the Depository Trust Company, the Certificates to be so delivered will be in
definitive, fully registered form, in such denominations and registered in such
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. Each Underwriter shall provide written information to the Company
expressly for use in the Prospectus, and in connection with the offering of the
Certificates, each Underwriter may prepare and provide to prospective investors
Computational Materials and Structural Terms Sheets (each as defined herein)
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:
5
(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 reasonably 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 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 the following 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 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
6
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 to 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 Underwriters pursuant to Section
8(e) hereof or any amendments or supplements of such Collateral Term Sheets that
are furnished to the Company by the Underwriters 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 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 a copy of the Registration Statement
as originally filed (together with 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 reasonably request.
(f) The Company will endeavor to 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
initial distribution of Certificates; 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
7
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 or cause to be paid all expenses incidental to
the performance of its obligations under this Agreement and any Terms Agreement
and any expenses (including fees and disbursements of O'Melveny & Xxxxx LLP and
accountants) incurred by them in connection with 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) The Company will file with the Commission within 15 days of the
issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Prospectus.
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 date 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 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 set 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, 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, 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
8
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:
(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
9
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
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," and "ERISA"
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.
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(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 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
11
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, 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 the related Prospectus,
or in any amendment or supplement 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 information 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
12
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 or 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; provided, further, that (i) the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon any material
misstatements or omissions contained in the Prospectus Supplement regarding the
Mortgage Loans purchased by the Company from Xxxxx Fargo pursuant to the
applicable Mortgage Loan Purchase Agreement or information provided by Xxxxx
Fargo for inclusion in the Prospectus Supplement, and (ii) the Company's
obligation to so indemnify and hold harmless in respect of all other matters
shall be limited to 35.38% of such losses, claims, damages, liabilities or
expenses (except that such limitations shall not apply to losses, claims,
damages, liabilities or expenses arising out of or based upon any material
misstatement or omission contained in the Prospectus Supplement regarding the
Mortgage Loans purchased by the Company from Bear Xxxxxxx pursuant to the
applicable Mortgage Loan Purchase Agreement or information included by Bear
Xxxxxxx for inclusion in the Prospectus Supplement).
(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
13
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 out 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 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 to 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
14
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 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 relevant equitable considerations.
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) 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 and (B) 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) 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
15
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
Applicable Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to 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 party 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.
The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, any
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective amount of Certificates
they have purchased hereunder, and not joint.
Each Underwriter will indemnify and hold harmless any Underwriter and each
person, if any, who controls such Underwriter within the meaning of either the
1933 Act or the 1934 Act (the "Non-Indemnifying Underwriter") from and against
any and all losses, claims, damages or liabilities, joint or several, to which
the Non-Indemnifying Underwriter becomes subject under the 1933 Act, the 1934
Act or other federal or state statutory law or regulation, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement of
material fact contained in any Computational Materials or ABS Term Sheets
developed by, mailed or otherwise transmitted by such Indemnifying Underwriter,
or any member of its selling group, in connection with the Certificates or in
any revision or amendment thereof or supplement thereto or (ii) the failure of
such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Section 9, 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. This agreement will be in addition to any liability that
any Underwriter may otherwise have.
8. Computational Materials and Structural Term Sheets. (a) Not later than
10:30 a.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
16
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;
(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
17
(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 (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 omission 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 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 Officers Certificate to the Company
representing and warranting to the Company that, as of the date of delivery of
such amendment or supplement to
18
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, 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 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 (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.
(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,
19
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 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
20
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 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 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.
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
21
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.
(a) Any Underwriter may terminate its obligations under this Agreement, by
notice to the Depositor, at any time at or prior to the Closing Date 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, other
than by reason of a failure by such Underwriter to purchase Certificates as
required hereunder.
(b) 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 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.
(c) If any Underwriter terminates its obligations under this Agreement in
accordance with Section 12(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 incurred by such Underwriter in
connection with this Agreement or the proposed purchase and sale of the
Certificates.
22
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: Xxxxx X. Xxxxxxx;
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 other 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.
17. Counterparts. This Agreement may be signed in any number of duplicate
originals, each of which shall be deemed an original, which, taken together,
shall constitute one and the same instrument.
[Signatures to Follow on Next Page]
23
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: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
The foregoing Underwriting Agreement
hereby is confirmed and accepted
as of the date first above written.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
NORWEST INVESTMENT SERVICES, INC.
By: /s/ R. Xxxxxxx Xxxxxxxx
-------------------------------
Name: R. Xxxxxxx Xxxxxxxx
Title: Senior Vice President
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(12)
----- --------- -------- ----------
Distribution Dates: The __th day of each month or, if such __th day is not a
business day, the next succeeding business day commencing _______________.
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.
--------
(1) 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.
(2) Plus accrued interest, if any, at the applicable rate from __________.
Purchase Price: The aggregate purchase price payable by the Underwriter for each
Class of Certificates covered by this Agreement will be as set forth below, plus
accrued interest, if any, from the Cut-off Date to but excluding the Closing
Date:
Class A-1 %
Class A-2 %
Class B %
Class C %
Class D %
Class E %
Class F %
Credit Enhancement:
Not applicable.
Closing Date: July 1, 1999, 10:00 a.m., N.Y. Time
2
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 on Schedule
I attached hereto.
BEAR, XXXXXXX & CO. INC.
By:
----------------------------
Name:
Title
XXXXXX XXXXXXX & CO. INCORPORATED
By:
----------------------------
Name:
Title
NORWEST INVESTMENT SERVICES, INC.
By:
----------------------------
Name:
Title
Accepted:
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
By:
----------------------------
Name:
Title
3
Schedule I (for multiple underwriters)
Underwriters
Name Class A-1 Class A-2 Class X Class B Class C Class D Class E Class F
---- --------- --------- ------- ------- ------- ------- ------- -------
Bear, Xxxxxxx & Co. Inc. 70% 70% 100% 100% 100% 100% 100% 100%
Xxxxxx Xxxxxxx & Co. 25% 25% 0% 0% 0% 0% 0% 0%
Incorporated
Norwest Investment 5% 5% 0% 0% 0% 0% 0% 0%
Services, Inc.
------ ----- ----- ----- ----- ----- ----- -----
Total: 100% 100% 100% 100% 100% 100% 100% 100%
24
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Commercial Mortgage Pass-Through Certificates
TERMS AGREEMENT
Dated: as of June 15, 1999
To: BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Re: Underwriting Agreement dated June 15, 1999
Underwriters: Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx & Co. Incorporated and
Norwest Investment Services, Inc.
Series Designation: Series 1999-WF2
Class Designation Schedule of the Certificates: Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F and Class X Certificates
Terms of the Certificates to be Purchased by the Underwriters:
Original Certificate Balance
Class or Notional Amount Initial Pass-Through Rate
----- ------------------ -------------------------
A-1 $ 338,780,000 6.800%
A-2 $ 525,789,000 7.080%
B $ 43,229,000 7.296%
C $ 43,229,000 7.376%
D $ 10,807,000 7.376%
E $ 27,018,000 7.376%
F $ 10,807,000 7.376%
X $1,080,711,380(1) 0.43120%(3)
----------
(1) The Class X Certificates are interest-only certificates. Class X
Certificateholders will not receive any principal. However, they will be
entitled to receive interest that accrues on a notional amount equal to the
aggregate of the Scheduled Principal Balances of the Mortgage Loans.
(2) The Pass-Through Rates of the Class A-1 and Class A-2 Certificates shall
be the indicated fixed rate per annum or, if a lower rate, the weighted
average of the Net Mortgage Rates of
1
the Mortgage Loans (such Net Mortgage Rates determined without taking into
account any reductions thereto resulting from modifications of the
Mortgage Loans or otherwise following the Cut-Off Date). The Pass-Through
Rates of the Class B, Class C, Class D, Class E and Class F Certificates
set forth in the table above are initial Pass-Through Rates for such
classes. For interest periods relating to Distribution Dates after August
16, 1999, the Pass-Through Rate of the Class B Certificates will be a per
annum rate equal to the NWAC Rate for such Distribution Date minus 0.08%,
and the Pass-Through Rate of the Class C, Class D, Class E and Class F
Certificates will be a per annum rate equal to the NWAC Rate for such
Distribution Date.
(3) Initial Pass-Through Rate. The Class X Pass-Through Rate with respect to
any Distribution Date will be equal to the excess, if any, of (i) the
weighted average of the non-default interest rates specified in the notes
relating to each Mortgage Loan in the trust fund, net of the related
Administrative Cost Rate, over (ii) the weighted average of the
Pass-Through Rates of the other classes of Certificates.
2
Defined Terms: Terms not otherwise defined herein shall have the meanings given
to such terms in the Pooling and Servicing Agreement dated as of July 1, 1999,
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor, Xxxxx
Fargo Bank, National Association, as servicer, GMAC Commercial Mortgage
Corporation, as special servicer, LaSalle Bank, National Association, as
trustee, ABN AMRO Bank, N.V., as fiscal agent and Norwest Bank Minnesota,
National Association, as paying agent.
Form of Certificates Being Purchased by the Underwriters: Book Entry.
Distribution Dates: The 15th day of each month or, if such 15th day is not a
business day, the next succeeding business day, commencing on August 15, 1999.
Certificate Rating for the Certificates Being Purchased by the Underwriters:
Rating
------
Class Moody's* DCR**
A-1 Aaa AAA
A-2 Aaa AAA
B Aa2 AA
C A2 A
D A3 A-
E Baa2 BBB
F Baa3 BBB-
X Aaa AAA
* Xxxxx'x Investors Service, Inc.
** Duff & Xxxxxx Credit Rating Co.
Mortgage Assets: 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 Underwriters for
each class of Certificates covered by this Agreement will be as set forth below:
Purchase Price as Percentage of
Original Certificate Balance or Original Certificate Balance or
Class Notional Amount Notional Amount
----- --------------- ---------------
A-1 $ 338,780,000 99.96425%
A-2 $ 525,789,000 99.98702%
B $ 43,229,000 99.95215%
C $ 43,229,000 99.47858%
D $ 10,807,000 98.66388%
E $ 27,018,000 96.96542%
F $ 10,807,000 90.51501%
X $1,080,711,380 2.12038%
3
Credit Enhancement: None other than the subordination described in the related
Prospectus Supplement.
Closing Date: July 1, 1999, 10:00 a.m., New York time at the offices of
O'Melveny & Xxxxx LLP, New York, New York.
[Signatures Follow on Next Page]
4
The undersigned, as the Underwriters, agree, 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 on Schedule I attached hereto.
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
NORWEST INVESTMENT SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Accepted:
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
S-1
Annex A
Mortgage Loan Schedule
SEE SCHEDULE I AND SCHEDULE II OF THE POOLING AND SERVICING AGREEMENT
Schedule I
Underwriters
UNDERWRITER CLASS A-1 CLASS A-2 CLASS X CLASS B
----------- --------- --------- ------- -------
Bear, Xxxxxxx & Co. Inc. $237,146,000 $368,052,300 $1,080,711,380 $43,229,000
Xxxxxx Xxxxxxx & Co. Incorporated $ 84,695,000 $131,447,250 $ 0 $ 0
Norwest Investment Securities, Inc. $ 16,939,000 $ 26,289,450 $ 0 $ 0
------------- ------------- -------------- -----------
Total $338,780,000 $525,789,000 $1,080,711,380 $43,229,000
UNDERWRITER CLASS C CLASS D CLASS E CLASS F
----------- ------- ------- ------- -------
Bear, Xxxxxxx & Co. Inc. $43,229,000 $10,807,000 $27,018,000 $10,807,000
Xxxxxx Xxxxxxx & Co. Incorporated $ 0 $ 0 $ 0 $ 0
Norwest Investment Securities, Inc. $ 0 $ 0 $ 0 $ 0
------------ ----------- ----------- -----------
Total $43,229,000 $10,807,000 $27,018,000 $10,807,000
