EXECUTION COPY
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG3
UNDERWRITING AGREEMENT
October 5, 1999
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to sell
to the underwriters named in Schedule I hereto (the "Underwriters"; provided,
however, that if you are the only underwriter named in Schedule I hereto, then
the terms "Underwriter" and "Underwriters" shall refer solely to you), for which
you are acting as representative (in such capacity, the "Representative"), those
classes (each, a "Class") of the Company's Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, specified in Schedule II hereto (the "Offered
Certificates"). The Offered Certificates, together with the other commercial
mortgage pass-through certificates of the same series (the "Private
Certificates"; and, collectively with the Offered Certificates, the
"Certificates"), will be issued pursuant to a Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") to be dated as of October 1, 1999 (the
"Cut-off Date"), among the Company, as depositor, GE Capital Loan Services,
Inc., as master servicer (the "Master Servicer"), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). The Certificates
will evidence the entire beneficial ownership of a trust fund (the "Trust Fund")
to be established by the Company pursuant to the Pooling and Servicing
Agreement. The Trust Fund will consist primarily of a pool (the "Mortgage Pool")
of conventional, monthly pay, commercial and multifamily mortgage loans (the
"Mortgage Loans") transferred by the Company to the Trust Fund and listed in an
attachment to the Pooling and Servicing Agreement. Multiple real estate mortgage
investment conduit ("REMIC") elections are to be made with respect to the Trust
Fund with the resulting REMICs being referred to as "REMIC I", "REMIC II",
"REMIC III" and the "Loan REMICs", respectively. The Company acquired certain of
the Mortgage Loans from Column Financial, Inc. ("Column") and the remaining
Mortgage Loans from GE Capital Access, Inc. ("GECA"; and collectively with
Column, the "Mortgage Loan Sellers"), in each case pursuant to a Mortgage Loan
Purchase and Sale Agreement (each, a "Mortgage Loan Purchase and Sale
Agreement") dated as of the date hereof, between the Company and the particular
Mortgage Loan Seller. The Offered Certificates and the Mortgage Loans are
described more fully in the Basic Prospectus and the Prospectus Supplement (each
of which terms is defined below) which the
Company is furnishing to the Underwriters. Capitalized terms used but not
otherwise defined herein will have the respective meanings assigned thereto in
the Prospectus Supplement.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-82275) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of the offer and sale of the Offered Certificates, which registration
statement has become effective and copies of which have heretofore been
delivered to the Representative. Such registration statement meets the
requirements set forth in Rule 415(a)(1) under the Act and complies in all other
material respects with such Rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement, dated the date
specified in Schedule II hereto, to the prospectus, dated the date specified in
Schedule II hereto, relating to the Offered Certificates and the method of
distribution thereof and has previously advised you of all further information
(financial and other) with respect to the Offered Certificates set forth
therein. Such registration statement, including the exhibits thereto, as amended
at the date hereof is hereinafter called the "Registration Statement"; such
prospectus, in the form in which it will be filed with the Commission pursuant
to Rule 424 under the Act, is hereinafter called the "Basic Prospectus"; such
supplement to the Basic Prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424 under the Act, is hereinafter called the
"Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement
together are hereinafter called the "Prospectus". Any preliminary form of the
Prospectus Supplement which has heretofore been filed pursuant to Rule 402(a) or
Rule 424 under the Act is hereinafter called a "Preliminary Prospectus
Supplement"; and any such Preliminary Prospectus Supplement and the form of
prospectus that accompanied it are hereinafter together called a "Preliminary
Prospectus". References herein to the Prospectus or Prospectus Supplement shall
exclude information incorporated therein by reference pursuant to a filing made
in accordance with Section 9 hereof, but shall include any ABS Term Sheet (as
defined in Section 9) actually included therein other than by incorporation by
reference (and regardless of whether such ABS Term Sheet is also incorporated
therein by reference). The Company, as depositor with respect to the Trust Fund,
will file with the Commission within 15 days of the issuance of the Offered
Certificates a report on Form 8-K setting forth specific information concerning
the Offered Certificates.
(b) As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to Rule 424
under the Act, when, prior to the Closing Date (as defined in Section 3), any
other amendment to the Registration Statement becomes effective, when, prior to
the Closing Date, any supplement to the Prospectus Supplement is filed with the
Commission, and at the Closing Date, (i) the Registration Statement, as amended
as of any such time, and the Prospectus, as amended or supplemented as of any
such time, complied or will comply in all material respects with the applicable
requirements of the Act and the rules thereunder, (ii) the Registration
Statement, as amended as of any such time, did not and will not contain any
untrue statement of a material fact and did not and will not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) the Prospectus, as amended or supplemented as
of any such time, did not and will not contain an untrue statement of a material
fact and did not and will not omit to state a material fact necessary in order
to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Company makes no representations or
warranties as to (A) the information contained in or omitted from the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by any Underwriter, directly for use therein, (B) the information
contained in or omitted from the Prospectus, or any amendment thereof or
supplement thereto, in reliance upon and conformity with (1) the Master Tape (it
being acknowledged that the Master Tape was used to prepare the Prospectus
Supplement, including, without limitation, Exhibit A-1 and Exhibit A-2 to the
Prospectus Supplement and the accompanying diskette), (2) the representations
and warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement, or (3) any other information
concerning the characteristics of the Mortgage Loans, the related borrowers (the
"Borrowers") or the related mortgaged properties (the "Mortgaged Properties")
furnished to the Company or the Underwriters by any Mortgage Loan Seller, (C)
the information regarding the Mortgage Loans, the related Borrowers and the
related Mortgaged Properties contained in or omitted from the Prospectus
Supplement, or any amendment thereof or supplement thereto, under the headings
"Summary of the Prospectus Supplement--The Mortgage Loans and the Underlying
Real Properties", "Risk Factors" and "Description of the Mortgage Pool" or on
Exhibit A-1 or Exhibit A-2 thereto or on the accompanying diskette, or (D) the
information contained in or omitted from any Computational Materials (as defined
in Section 9 hereof) or ABS Term Sheets, or any amendment thereof or supplement
thereto, incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any amendment thereof or supplement
thereto) by reason of a filing made in accordance with Section 9. The "Master
Tape" consists of the compilation of underlying information and data regarding
the Mortgage Loans covered by the Independent Accountants Report on Applying
Agreed Upon Procedures dated October 5, 1999, as supplemented to the Closing
Date, and rendered by Xxxxxx Xxxxxxxx LLP.
(c) The Company is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full power
and authority (corporate and other) to own its properties and conduct its
business, as described in the Prospectus, and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement, and is
conducting its business so as to comply in all material respects with all
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting business.
(d) The Company is not aware of (i) any request by the Commission
for any further amendment of the Registration Statement or the Prospectus or for
any additional information, regarding the Offered Certificates (ii) the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose or (iii) any notification with respect to the suspension of the
qualification of the Offered Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
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(e) At or prior to the Closing Date, the Company will have entered
into the Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Company, and the Pooling and Servicing
Agreement, when delivered by the Company, will have been duly authorized,
executed and delivered by the Company; and this Agreement constitutes, and the
Pooling and Servicing Agreement, when delivered by the Company, will constitute,
valid and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, liquidation, moratorium, receivership,
reorganization or similar laws affecting the rights of creditors generally, (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of any provisions of this Agreement or the Pooling and Servicing
Agreement which purport or are construed to provide indemnification from
securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in the
Prospectus; the issuance and sale of the Offered Certificates have been duly and
validly authorized by the Company, and such Certificates will, when duly and
validly executed and authenticated by the Trustee in accordance with the Pooling
and Servicing Agreement, be entitled to the benefits of the Pooling and
Servicing Agreement.
(g) Neither the sale of the Offered Certificates to the Underwriters
pursuant hereto, nor the consummation of any other of the transactions
contemplated herein, nor the fulfillment of any of the terms of the Pooling and
Servicing Agreement or this Agreement, will result in the breach of any term or
provision of the certificate of incorporation or by-laws of the Company or
conflict with, result in a material breach, violation or acceleration of or
constitute a default under, the terms of any indenture or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it is bound, or any statute, order or regulation applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries is a party to,
bound by or in breach 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 the ability of the
Company to perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(h) There are no actions or proceedings against, or investigations
of, the Company pending, or, to the knowledge of the Company, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement or the Offered
Certificates, (ii) seeking to prevent the issuance of the Offered Certificates
or the consummation of any of the transactions contemplated by this Agreement or
the Pooling and Servicing Agreement, (iii) which might materially and adversely
affect the performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement, the Pooling and Servicing Agreement or the
Offered Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Offered Certificates described in the Prospectus.
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(i) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Company since the
date of its latest audited financial statements which would have a material
adverse effect on the ability of the Company to perform its obligations under
the Pooling and Servicing Agreement.
(j) There are no contracts, indentures or other documents of a
character required by the Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and the
Pooling and Servicing Agreement, except such as have been, or as of the Closing
Date will have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and offer and
sale of the Offered Certificates by the Underwriters and any recordation of the
respective assignments of the Mortgage Loan documents to the Trustee pursuant to
the Pooling and Servicing Agreement, that have not been completed.
(l) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company.
(m) Any taxes, fees and other governmental charges payable by the
Company in connection with the execution and delivery of this Agreement and the
Pooling and Servicing Agreement or the issuance and sale of the Offered
Certificates (other than such federal, state and local taxes as may be payable
on the income or gain recognized therefrom) have been or will be paid at or
prior to the Closing Date.
(n) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance; provided that this representation and warranty is
made on the basis of the assumption that the Mortgage Loan Sellers delivered to
the Company good title to each Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance.
(o) The transfer of the Mortgage Loans to the Trustee and the sale
of the Certificates by the Company, at the Closing Date, will be treated by the
Company for financial accounting and reporting purposes as a sale of assets and
not as a pledge of assets to secure debt.
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2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, the principal or notional amount of
each Class of the Offered Certificates set forth opposite each such
Underwriter's name in Schedule I hereto..
The purchase price for each Class of the Offered Certificates as a
percentage of the aggregate principal or notional amount thereof as of the
Closing Date is set forth in Schedule II hereto. There will be added to the
purchase price of the Offered Certificates interest in respect of each Class of
the Offered Certificates at the interest rate applicable to such Class from the
Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and sale of
the Offered Certificates contemplated hereby (the "Closing"), shall be made at
the date, location and time of delivery set forth in Schedule II hereto, or such
later date as shall be mutually acceptable to the Representative and the Company
(such date and time of purchase and sale of the Offered Certificates being
herein called the "Closing Date"). Delivery of the Offered Certificates will be
made in book-entry form through the facilities of The Depository Trust Company
("DTC"). Each Class of Offered Certificates will be represented by one or more
definitive global Certificates to be deposited by or on behalf of the Company
with DTC. Delivery of the Offered Certificates shall be made to the Underwriters
against payment by the Underwriters of the purchase price thereof to or upon the
order of the Company by wire transfer of immediately available funds or by such
other method as may be acceptable to the Company.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that each Underwriter
proposes to offer its allocable share of the Offered Certificates for sale to
the public as set forth in the Prospectus. It is further understood that the
Company in reliance upon Policy Statement 105, has not filed and will not file
an offering statement pursuant to Section 352-e of the General Business Law of
the State of New York with respect to the Offered Certificates. As required by
Policy Statement 105, each Underwriter therefore covenants and agrees with the
Company that sales of the Offered Certificates made by such Underwriter in the
State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.
5. Agreements. The Company agrees with each Underwriter that:
(a) The Company will promptly advise the Underwriters (i) when,
during any period that a prospectus relating to the Offered Certificates is
required to be delivered under the Act, any amendment to the Registration
Statement affecting the Offered Certificates shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration Statement
or the Prospectus, or for any additional information, affecting or in respect of
the Offered Certificates, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement affecting the
Offered Certificates or the institution or threatening of any
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proceeding for that purpose and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will not file any amendment to the
Registration Statement affecting the Offered Certificates or any supplement to
the Prospectus unless the Company has furnished the Underwriters with a copy for
their review prior to filing, and will not file any such proposed amendment or
supplement to which the Representative may reasonably object, in any event until
after the end of the period during which a prospectus is required to be
delivered to purchasers of the Offered Certificates under the Act. Subject to
the foregoing sentence, the Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said Rule. The Company will use its best efforts to prevent the issuance of any
stop order suspending the effectiveness of the Registration Statement affecting
the Offered Certificates and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to the
Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company by
an Underwriter prior to 10:30 a.m. (New York City time) and (ii) the date on
which this Agreement is executed and delivered. The Company will cause one
Collateral Term Sheet (as defined in Section 9 below) with respect to the
Offered Certificates that is delivered by 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 the Underwriters prior to 10:30 a.m.
(New York City time). In addition, if at any time prior to the availability of
the Prospectus Supplement, the Underwriters have delivered to any prospective
investor a subsequent Collateral Term Sheet that reflects, in the reasonable
judgment of the Representative and the Company, a material change in the
characteristics of the Mortgage Loans from those on which a Collateral Term
Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet that
is delivered by the Underwriters 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 the Underwriters prior to 10:30
a.m. (New York City time). In each case, the Company will promptly advise the
Underwriters when such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing provisions of this Section 5(b), the
Company shall have no obligation to file any materials provided by any
Underwriter pursuant to Section 9 which, in the reasonable determination of the
Company, are not required to be filed pursuant to the Xxxxxx Letters or the PSA
Letter (each as defined in Section 9 below), or 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
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Materials or ABS Term Sheets provided by any Underwriter to the Company pursuant
to Section 9 hereof. The Company shall give notice to the Underwriters of its
determination not to file any materials pursuant to the preceding sentence and
agrees to file such materials if the Representative 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 Offered
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 any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the rules under the Act, the
Company promptly will prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance and, if
such amendment or supplement is required to be contained in a post-effective
amendment to the Registration Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible; provided, however, that the Company will not be required to file any
such amendment or supplement with respect to any Computational Materials or ABS
Term Sheets incorporated by reference in the Prospectus other than any
amendments or supplements of such Computational Materials or ABS Term Sheets
that are furnished to the Company pursuant to Section 9 hereof which the Company
determines to file in accordance therewith.
(d) The Company will furnish to any Underwriter and counsel for the
Underwriters, without charge, for so long as delivery of a prospectus relating
to the Offered Certificates may be required by the Act, as many copies of the
Prospectus, the Preliminary Prospectus, if any, and any amendments and
supplements thereto as such Underwriter may reasonably request.
(e) The Company agrees that, so long as the Offered Certificates
shall be outstanding, it will deliver or cause to be delivered to the
Underwriters the annual statements as to compliance and the annual statements of
a firm of independent public accountants, furnished to the Trustee by the Master
Servicer and the Special Servicer pursuant to Sections 3.13 and 3.14 of the
Pooling and Servicing Agreement, as soon as such statements are furnished to the
Company.
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Representative may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(g) All costs and expenses in connection with the transactions
contemplated hereby will be payable in accordance with the Term Sheet for the
Joint Conduit Securitization between the Representative and GECA.
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(h) The Company shall deliver to each Underwriter a copy or series
of copies of the Prospectus (exclusive of information incorporated therein and
further exclusive of the exhibits and annexes to the Prospectus Supplement) at
or prior to the printing thereof, marked to show changes from the Preliminary
Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Agreement shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company contained herein
as of the date hereof and as of the Closing Date, to the accuracy in all
material respects of the statements of the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance in all material
respects by the Company of its obligations hereunder and to the following
additional conditions with respect to the Offered Certificates:
(a) 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 threatened; and the Prospectus Supplement shall have been
filed with the Commission within the time period prescribed by the Commission.
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of the
Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(c) The Underwriters shall have received with respect to the Company
a good standing certificate from the Secretary of State of the State of
Delaware, dated not earlier than ten days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling and
Servicing Agreement or any other document or certificate delivered on or before
the Closing Date in connection with the transactions contemplated herein or in
the Pooling and Servicing Agreement, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (ii) no event (including, without limitation, any act or
omission on the part of the Company) has occurred since the date of the good
standing certificate referred to in paragraph (c) above which has affected the
good standing of the Company under the laws of the State of Delaware. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement and the Pooling and Servicing
Agreement.
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(e) The Underwriters shall have received from Sidley & Austin,
counsel for the Company, a favorable opinion, dated the Closing Date and
reasonably satisfactory in form and substance to counsel for the Underwriters,
to the effect that:
(i) The Registration Statement has become effective under the Act.
(ii) To 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 threatened.
(iii) The Registration Statement, the Basic Prospectus and the
Prospectus Supplement, as of their respective effective or issue dates
(other than the financial statements, schedules and other financial and
statistical information contained therein or omitted therefrom, as to
which such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations thereunder.
(iv) To such counsel's knowledge, there are no material contracts,
indentures or other documents relating to the Offered Certificates of a
character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware and
has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and the Pooling and Servicing
Agreement.
(vi) Each of this Agreement and the Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the Company.
(vii) Each of the Pooling and Servicing Agreement and this Agreement
constitutes a valid, legal and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
(A) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance and injunctive relief, regardless
of whether considered in a proceeding in equity or at law, (B) the effect
of certain laws, regulations and judicial and other decisions upon the
availability and enforceability of certain remedies including the remedies
of specific performance and self-help and provisions purporting to waive
the obligation of good faith, materiality, fair dealing, diligence,
reasonableness or objection to venue or forum, to confer subject matter
jurisdiction on a federal court located within the State of New York to
adjudicate any controversy in any situation in which such court would not
have subject matter jurisdiction, to waive the right to jury trial, to
impose a penalty or forfeiture, to release, exculpate or exempt a party
from, or indemnify that party for, liability for its own action or
inaction to the extent that the action or inaction includes negligence,
recklessness or willful or unlawful conduct, to sever any provision of any
agreement, to restrict access to legal or
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equitable remedies, to establish evidentiary standards, to appoint any
person or entity as the attorney-in-fact of any other person or entity, to
require that any agreement may only be amended, modified or waived in
writing, to provide that all rights or remedies of any party are
cumulative and may be enforced in addition to any other right or remedy,
to provide that the election of a particular remedy does not preclude
recourse to one or more other remedies, to provide that the failure to
exercise or the delay in exercising rights or remedies will not operate as
a waiver of any such rights or remedies, to waive rights or remedies which
can not be waived as a matter of law, to provide for set-off unless there
is mutuality between the parties or to provide that any agreement is to be
governed by or construed in accordance with the laws of any jurisdiction
other than the State of New York, (C) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, fraudulent
conveyance and transfer, moratorium and other similar laws affecting the
rights of creditors or secured parties and (D) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of any provision of
any agreement which purports or is construed to provide indemnification
with respect to securities law violations.
(viii) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with this Agreement, will be entitled
to the benefits of the Pooling and Servicing Agreement.
(ix) Neither the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement nor the consummation of any of the
other transactions contemplated by, or the fulfillment by the Company of
the terms of, this Agreement and the Pooling and Servicing Agreement, will
conflict with or result in a breach or violation of any term or provision
of the certificate of incorporation or by-laws of the Company or any
federal or State of New York statute or regulation, except such counsel
need express no opinion as to compliance with the securities laws of the
State of New York and other particular States in connection with the
purchase and the offer and sale of the Offered Certificates by the
Underwriters.
(x) No consent, approval, authorization or order of any federal or
State of New York court, agency or other governmental body is required for
the consummation by the Company of the transactions contemplated by the
terms of this Agreement and the Pooling and Servicing Agreement, except
such as may be required under the securities laws of the State of New York
and other particular States in connection with the purchase and the offer
and sale of the Offered Certificates by the Underwriters as to which such
counsel need express no opinion, and except such as have been obtained.
(xi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended. The Trust
Fund is not required to be registered under the Investment Company Act of
1940, as amended.
(xii) The statements set forth in the Prospectus Supplement under
the headings "Description of the Offered Certificates" and "Servicing of
the Mortgage Loans" and in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing
Documents", insofar as such statements purport to summarize certain
material
-11-
provisions of the Offered Certificates and the Pooling and Servicing
Agreement, are accurate in all material respects.
(xiii) The statements set forth in the Prospectus Supplement under
the headings "Certain ERISA Considerations", "Federal Income Tax
Consequences" and "Legal Investment", and in the Basic Prospectus under
the headings "ERISA Considerations", "Federal Income Tax Consequences" and
"Legal Investment", to the extent that they purport to describe certain
matters of federal law or legal conclusions with respect thereto, while
not discussing all possible consequences of an investment in the Offered
Certificates to all investors, provide in all material respects an
accurate summary of such matters and conclusions set forth under such
headings.
(xiv) As described in the Prospectus Supplement, and assuming
compliance with all the provisions of the Pooling and Servicing Agreement,
(A) REMIC I will qualify as a REMIC within the meaning of Sections 860A
through 860G of the Internal Revenue Code of 1986 in effect on the date
hereof (the "REMIC Provisions") and the REMIC I Regular Interests (as
defined in the Pooling and Servicing Agreement) will be "regular
interests" and the Class R-I Certificates will evidence the sole class of
"residual interests" in REMIC I (as both terms are defined in the REMIC
Provisions in effect on the Closing Date), (B) REMIC II will qualify as a
REMIC within the meaning of the REMIC Provisions, and the REMIC II Regular
Interests (as defined in the Pooling and Servicing Agreement) will be
"regular interests" and the Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II, and (C) REMIC III will qualify
as a REMIC within the meaning of the REMIC Provisions, and the Class S,
Class A-1A, Class A-1B, Class A-1C, Class A-2, Class A-3, Class A-4, Class
A-5, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7, Class B-8, Class C and Class D Certificates will evidence
"regular interests" and the Class R-III Certificates will evidence the
sole class of "residual interests" in REMIC III.
(xv) The respective portions of the Trust Fund consisting of Grantor
Trust E and Grantor Trust R-I (each as defined in the Pooling and
Servicing Agreement) will each be classified as a grantor trust under
subpart E, part I of subchapter J of the Internal Revenue Code of 1986.
Such opinion (x) may express its reliance as to factual matters on
certificates of government and agency officials and the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement and the Pooling and Servicing Agreement, (y)
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto (other than the Company)
and may otherwise be based on such assumptions as may be reasonably acceptable
to counsel for the Underwriters, and (z) may be qualified as an opinion only on
the law of the State of New York, the federal laws of the United States of
America and the General Corporation Law of the State of Delaware.
-12-
Based on such counsel's participation in conferences with officers
and other representatives of the Company and of the Master Servicer, the Special
Servicer, the Trustee, the Underwriters, the Mortgage Loan Sellers, and their
respective counsel, at which the contents of the Registration Statement and the
Prospectus were discussed and, although such counsel need not pass upon or
assume responsibility for the actual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xii) and (xiii) above) and need not make an independent
check or verification thereof, on the basis of the foregoing, such counsel shall
also confirm that nothing has come to the attention of such counsel that would
lead such counsel to believe that the Registration Statement (other than (x)
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and (y) the documents incorporated
therein, as to which such counsel need express no opinion), as of its effective
date, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the Prospectus
Supplement and at the Closing Date, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (other than (x) financial statements, schedules and other
numerical, financial and statistical data included therein or omitted therefrom
and (y) the documents incorporated therein, as to which such counsel need
express no opinion).
(f) The Underwriters shall have received from counsel to each
Mortgage Loan Seller, a letter, dated the Closing Date, and reasonably
satisfactory in form and substance to counsel for the Underwriters, to the
effect that, based on such counsel's participation in conferences with officers
and other representatives of the Company, the Master Servicer, the Special
Servicer, the Trustee, the Underwriters, the Mortgage Loan Sellers, and their
respective counsel, at which the contents of the Prospectus Supplement were
discussed and, although such counsel need not pass upon or assume responsibility
for the actual accuracy, completeness or fairness of the statements contained in
the Prospectus Supplement and need not make an independent check or verification
thereof, nothing has come to the attention of such counsel that would lead such
counsel to believe that the Prospectus Supplement, as of the date of the
Prospectus Supplement and at the Closing Date, insofar as it relates to the
characteristics of the Mortgage Loans sold by such Mortgage Loan Seller to the
Company, the related Mortgaged Properties and/or the related Borrowers,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (other than
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and the documents incorporated
therein, as to which such counsel need express no opinion).
(g) The Underwriters shall have received from their counsel an
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to the Representative.
(h) The Underwriters shall have received, with respect to each of
the Master Servicer, the Special Servicer and the Trustee, a favorable opinion
of counsel, dated the Closing Date and satisfactory to counsel for the
Underwriters, addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and delivery
of the Pooling and Servicing Agreement by such party and, subject to the same
limitations as set forth in
-13-
Section 6(e)(vii), the enforceability of the Pooling and Servicing Agreement
against such party. Such opinion may express its reliance as to factual matters
on representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of parties to,
this Agreement and the Pooling and Servicing Agreement and on certificates
furnished by public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the party on behalf of which such opinion is
being rendered and be based upon such other assumptions as may be reasonably
acceptable to counsel for the Underwriters. Such opinion may be qualified as an
opinion only on the laws of the jurisdiction wherein the subject party is
organized, the laws of the State of New York and the federal laws of the United
States of America.
(i) The Underwriters shall have received from Xxxxxx Xxxxxxxx LLP,
certified public accountants, letters dated the date of the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, stating in effect that, using the assumptions and methodology used
by the Company, all of which shall be described in such letters, they have
recalculated such numbers and percentages set forth in the Preliminary
Prospectus Supplement and the Prospectus Supplement as the Representative may
reasonably request and as are agreed to by Xxxxxx Xxxxxxxx LLP, compared the
results of their calculations to the corresponding items in the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and found
each such number and percentage set forth in the Preliminary Prospectus
Supplement and the Prospectus Supplement, respectively, to be in agreement with
the results of such calculations.
(j) The Underwriters shall have received all opinions, certificates
and other documents required under the Mortgage Loan Sale and Purchase
Agreements to be delivered by the respective Mortgage Loan Sellers and their
counsel in connection with their sales of Mortgage Loans to the Company, and
each such opinion shall be dated the Closing Date and addressed to the
Underwriters.
(k) The Underwriters shall have received all opinions rendered to
the rating agency or agencies identified on Schedule II hereto, by counsel to
the Company and the Mortgage Loan Sellers, and each such opinion shall be dated
the Closing Date and addressed to the Underwriters.
(l) The Offered Certificates listed on Schedule II hereto shall have
been rated as indicated on such Schedule by the rating agency or agencies
identified on such Schedule and such ratings shall not have been rescinded.
(m) All proceedings in connection with the transactions contemplated
by this Agreement, and all documents incident hereto and thereto, shall be
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters.
(n) Subsequent to the date hereof, there shall not have occurred any
change, or development including a prospective change, in or affecting the
business or properties of the Company which, in the judgment of the
Representative after consultation with the Company, materially impairs the
investment quality of the Offered Certificates so as to make it impractical or
-14-
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates as contemplated in the Prospectus.
7. Cancellation for Failure to Perform. If any of the conditions
specified in Section 6 shall not have been fulfilled in all material respects
when and as provided by this Agreement, or if any of the opinions and
certificates mentioned in Section 6 or elsewhere in this Agreement shall not be
in all material respects reasonably satisfactory in form and substance to the
Representative and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representative. Notice of such cancellation
shall be given to the Company in writing, or by telephone or by either telegraph
or telecopier confirmed in writing.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the meaning of
the Act or the Exchange Act, against any and all losses, claims, damages,
liabilities, costs and expenses, joint or several, to which such Underwriter or
any such controlling person may become subject, under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (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, any Preliminary Prospectus, the Prospectus, or any
amendment of or supplement to any such document, 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, in the light
of the circumstances under which they were made, not misleading, and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending against such loss, claim, damage, liability, cost, expense or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability, cost or expense (A) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein, (B) arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto) in reliance upon and
in conformity with (1) the Master Tape (it being acknowledged that the Master
Tape was used to prepare any Preliminary Prospectus Supplement and the
Prospectus Supplement, including, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the accompanying diskette), (2) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement or (3) any other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers furnished to the Company by any Mortgage Loan Seller, or (C)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment thereof or supplement thereto) with
respect to the Mortgage Loans, the Mortgaged Properties, the Borrowers and/or
the Mortgage Loan Sellers under the headings "Summary of the Prospectus
Supplement--The Mortgage Loans and the Underlying Real Properties", "Risk
Factors"
-15-
and "Description of the Mortgage Pool" therein or on Exhibit A-1 or Exhibit A-2
thereto or on the accompanying diskette, or (D) arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Computational Materials or ABS Term Sheets (or any amendments
thereof or supplements thereto) furnished to prospective investors and made a
part of, or incorporated by reference into, the Registration Statement or in any
Preliminary Prospectus or the Prospectus (or any amendment thereof or supplement
thereto) by reason of a filing made pursuant to Section 9 (it being understood
and agreed that if any ABS Term Sheet is both incorporated by reference into the
Prospectus or any Preliminary Prospectus and also actually included therein,
this clause (D) is intended solely to exclude the version of such ABS Term Sheet
that is incorporated by reference therein); and provided, further, that such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling an Underwriter) from whom
the person asserting any such loss, claim, damage, liability, cost or expense
purchased the Offered Certificates which are the subject thereof if (w) such
Underwriter did not deliver to such person a copy of the Prospectus (or the
Prospectus as most recently amended or supplemented) at or prior to the
confirmation of the sale of such Certificates to such person in any case where
such delivery is required by the Act, (x) the Company has previously furnished
to such Underwriter copies thereof in sufficient quantity, (y) the untrue
statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as most recently
amended or supplemented) and (z) such correction would have cured the defect
giving rise to any such loss, claim, damage, liability, cost or expense. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, against any and all
losses, claims, damages, liabilities, costs and expenses to which the Company or
any such director, officer or controlling person may become subject under the
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities, costs and expenses (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 (i) any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto), or (ii) any
Computational Materials or ABS Term Sheets (or amendments thereof or supplements
thereto) delivered to prospective investors by such Underwriter, which were also
furnished to the Company by such Underwriter pursuant to or as contemplated by
Section 9 and made a part of, or incorporated by reference in, the Registration
Statement or in any Preliminary Prospectus Supplement or the Prospectus (or any
amendment thereof or supplement thereto) by reason of a filing made pursuant to
Section 9, or arise out of or are based on the omission or alleged omission to
state in any such document a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made (and, in
the case of Computational Materials and ABS Term Sheets, when read in
conjunction with the Prospectus), not misleading; provided, however, that no
Underwriter shall be liable for any such loss, claim, damage, liability, cost or
expense that arises out of an untrue statement or alleged untrue statement or
omission or alleged omission in any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto),
including, without limitation, any ABS Term Sheet actually included therein,
except to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information relating to such Underwriter furnished to the Company by
-16-
such Underwriter specifically for use in such document; and provided, further,
that no Underwriter shall be liable to the extent that any loss, claim, damage,
liability, cost or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in any Computational
Materials or ABS Term Sheets (or any amendment thereof or supplement thereto)
made in reliance upon and in conformity with (A) the Master Tape (it being
acknowledged that the Master Tape was used to prepare any Computational
Materials and ABS Term Sheets), (B) the representations and warranties of any
Mortgage Loan Seller set forth in or made pursuant to the related Mortgage Loan
Purchase and Sale Agreement or (C) any other information concerning the
characteristics of the Mortgage Loans, the Mortgaged Properties or the Borrowers
furnished to the Underwriters by the Company or any Mortgage Loan Seller (the
error in the Master Tape or any such other information concerning the
characteristics of the Mortgage Loans, the Mortgaged Properties or the Borrowers
or the breach in such representations and warranties that gave rise to such
untrue statement or omission, a "Collateral Error"), except to the extent that
the related Mortgage Loan Seller or the Company notified such Underwriter in
writing of such Collateral Error or provided in written or electronic form
information superseding or correcting such Collateral Error (in any case, a
"Corrected Collateral Error") prior to the time of confirmation of sale to the
person that purchased the Offered Certificates that are the subject of any such
loss, claim, damage, liability, cost or expense, or action in respect thereof,
and such Underwriter failed to deliver to such person corrected Computational
Materials or ABS Term Sheets (or, if the superseding or correcting information
was contained in the Prospectus, failed to deliver to such person the Prospectus
as amended or supplemented) at or prior to confirmation of such sale to such
person. This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. For all purposes of this Agreement, the Company
acknowledges that the statements set forth in the second sentence of the last
paragraph of the cover page, and the first sentence of the third paragraph, the
first sentence of the fifth paragraph and the first sentence of the sixth
paragraph under the heading "Method of Distribution" in the Prospectus
Supplement and any Preliminary Prospectus Supplement constitute the only
information furnished in writing by or on behalf of the Underwriters for
inclusion in the documents referred to in the foregoing indemnity (other than
any Computational Materials or ABS Term Sheets (or amendments thereof or
supplements thereto) furnished to the Company by any Underwriter for filing
pursuant to Section 9, any such ABS Term Sheet to be treated separately from any
version thereof actually included in the Prospectus as described in Section 1(a)
hereof), and the Underwriters confirm that such statements are correct. Any
Computational Materials or ABS Term Sheets (or amendments thereof or supplements
thereto) so furnished to the Company by any particular Underwriter shall relate
exclusively to and be, to the extent provided herein, the several responsibility
of such Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under paragraph
(a) or (b) of this Section 8 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 paragraph (a) or (b) of this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under paragraph (a) or (b), as
applicable, of this Section 8. In case any such action is brought against any
indemnified party, and it notifies the 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
-17-
to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party); provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by the Representative in the case of paragraph (a) of this Section 8
and by the Company in the case of paragraph (b) of this Section 8, representing
the indemnified parties under such paragraph (a) or (b), as the case may be, who
are parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages,
liabilities, costs or expenses referred to in and intended to be covered under
such paragraph (a) or (b), as the case may be, above, then the indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities, costs or expenses as
follows:
(i) in the case of any such losses, claims, damages, liabilities,
costs and expenses (or actions in respect thereof) referred to in and
intended to be covered under paragraph (a) above, in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such
discount and the purchase price of the Offered Certificates specified in
Schedule II hereto and the Company is responsible for the balance (or, if
such allocation is not permitted by applicable law or if the indemnified
party failed to give the notice required in Section 8(c) or in the last
paragraph of this Section 8(d), in such proportion as would be determined
pursuant
-18-
to the immediately following clause (ii)); provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Offered Certificates)
be responsible under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Offered Certificates purchased by
such Underwriter hereunder; and
(ii) in the case of any losses, claims, damages, liabilities, costs
and expenses (or actions in respect thereof) referred to in and intended
to be covered under paragraph (b) above, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the statement or
omissions which resulted in such losses, claims, damages, liabilities,
costs or expenses (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact that is the basis for such loss, claim, damage, liability,
cost or expense, results from information prepared by the Company on the
one hand or an Underwriter on the other and 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 subsection (d) were determined by pro
rata allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities, costs
or expenses (or actions in respect thereof) referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that the
indemnifying party will be ultimately obligated to pay such expenses. If any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the indemnified party
that received such payment shall promptly refund the amount so paid to the
indemnifying party.
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 8(d), each person who controls an Underwriter within the meaning of the
Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding sentence of this Section 8(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 8(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 liability it or they may have otherwise than
under this Section 8(d).
-19-
9. Computational Materials and ABS Term Sheets. (a) Not later than
10:30 a.m., New York City time, on the date hereof, the Underwriters shall
deliver to the Company and its counsel, as provided below, a complete copy of
all materials provided by the Underwriters to prospective investors in the
Offered Certificates which constitute either (i) "Computational Materials"
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx 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") or (ii) "ABS 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, together with the Xxxxxx Letters, the "No-Action Letters"), if
the filing of such materials with the Commission is a condition of the relief
granted in such letters and, in the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, such Collateral
Term Sheets have not previously been delivered to the Company as contemplated by
Section 9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company and its counsel
pursuant to this paragraph (a) shall be made in paper form and, in the case of
ABS Term Sheets, electronic format suitable for filing with the Commission.
(b) Each Underwriter represents and warrants to and agrees with the
Company, as of the date hereof and as of the Closing Date, as applicable, that:
(i) if such Underwriter has provided any Collateral Term Sheets to
potential investors in the Offered Certificates prior to the date hereof
and if the filing of such materials with the Commission is a condition of
the relief granted in the PSA Letter, then in each such case such
Underwriter delivered to the Company and its counsel, in the manner
contemplated by Section 9(a), a copy of such materials no later than 10:30
a.m., New York City time, on the first business day following the date on
which such materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant
to Section 9(a) or as contemplated in Section 9(b)(i) constitute all of
the materials relating to the Offered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to
prospective investors in the Offered Certificates prior to the date
hereof, except for any Preliminary Prospectus and any Computational
Materials and ABS Term Sheets with respect to the Offered Certificates
which are not required to be filed with the Commission in accordance with
the No-Action Letters, and all Computational Materials and ABS Term Sheets
provided by such Underwriter to potential investors in the Offered
Certificates comply with the requirements of the No-Action Letters;
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(iii) on the respective dates any such Computational Materials
and/or ABS Term Sheets with respect to the Offered Certificates referred
to in Section 9(b)(ii) were last furnished by such Underwriter to each
prospective investor, on the date of delivery thereof to the Company
pursuant to or as contemplated by this Section 9 and on the Closing Date,
such Computational Materials and/or ABS Term Sheets did not and will not
include any untrue statement of a material fact or, when read in
conjunction with the Prospectus, 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;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates were furnished to a prospective
investor and on the date hereof, such Underwriter possessed, and on the
date of delivery of such materials to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, such Underwriter
will possess, the capability, knowledge, expertise, resources and systems
of internal control necessary to ensure that such Computational Materials
and/or ABS Term Sheets conform to the representations and warranties of
such Underwriter contained in subparagraphs (ii) and (iii) above of this
Section 9(b);
(v) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to prospective investors
contained and will contain a legend, prominently displayed on the first
page thereof, indicating that the information contained therein will be
superseded by the description of the Mortgage Loans contained in the
Prospectus and, except in the case of the initial Collateral Term Sheet,
that such information supersedes the information in all prior Collateral
Term Sheets;
(vi) all Computational Materials and ABS Term Sheets with respect to
the Offered Certificates furnished by such Underwriter to prospective
investors contained and will contain a legend generally to the effect that
the Company has not participated in the preparation of or authorized the
distribution of such Computational Materials or ABS Term Sheets; and
(vii) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS Term
Sheets or other materials relating to the Offered Certificates (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time
as the delivery of such Computational Materials, ABS Term Sheets or other
materials;
provided that no Underwriter makes any representation or warranty as to whether
any Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement or omission resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriter from the
related Mortgage Loan Seller or the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
-21-
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Representative or counsel for the Underwriters to amend or
supplement the Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or ABS Term Sheets provided by any
Underwriter pursuant to or as contemplated by this Section 9 or the omission to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made (and when read in conjunction with
the Prospectus), not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the Exchange Act or the
rules thereunder, the Underwriters, at their expense (or, if such amendment or
supplement is necessary in order for any Current Report to comply with the Act
or the Exchange Act or the rules thereunder, at the expense of the Company),
shall 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 and shall distribute such amendment
or supplement to each prospective investor in the Offered Certificates that
received such information being amended or supplemented. 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 Prospectus, omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, 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 the Underwriters to the Company pursuant to this paragraph (c)) or
(ii) such filing is not required under the Act. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, 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. Notwithstanding the foregoing, no Underwriter makes any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriter from the related
Mortgage Loan Seller or the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Corrected Collateral Error).
(d) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Company or its counsel to amend or supplement the Prospectus
as a result of an untrue statement of a material fact contained in any
Computational Materials or ABS Term Sheets provided by any Underwriter pursuant
to or as contemplated by this Section 9 or the omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they made (and when read in conjunction with the
Prospectus), not misleading, or if it shall be necessary to amend or supplement
any Current Report to comply with the Act or the Exchange Act or the rules
thereunder, the Company promptly will notify each Underwriter of the necessity
of such amendment or supplement, and the Underwriters, at their expense (or, if
such amendment or supplement is necessary in order for any Current Report to
comply with the Act or the Exchange Act or the rules thereunder, at the expense
of the Company), shall 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
-22-
will effect such compliance and shall distribute such amendment or supplement to
each prospective investor in the Offered Certificates that received such
information being amended or supplemented. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, 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. Notwithstanding the foregoing, no Underwriter makes any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriter from the related
Mortgage Loan Seller or the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Corrected Collateral Error).
(e) The Underwriters further agree to provide to the Company, at
their own expense, any accountants' letters obtained relating to the
Computational Materials and/or ABS Term Sheets, which accountants' letters shall
be addressed to the Company or shall state that the Company may rely thereon;
provided that the Underwriters shall have no obligation to procure any such
letter.
10. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the amount
of the Offered Certificates agreed by such Underwriter to be purchased under
this Agreement, upon tender of such Offered Certificates in accordance with the
terms hereof, and the amount of the Offered Certificates not purchased does not
aggregate more than 10% of the total amount of the Offered Certificates set
forth in Schedule I hereof (based on aggregate purchase price), the remaining
Underwriters shall be obligated to take up and pay for the Offered Certificates
that the withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the amount
of the Offered Certificates agreed by such Underwriter to be purchased under
this Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender
of such Offered Certificates in accordance with the terms hereof, and the amount
of the Offered Certificates not purchased aggregates more than 10% of the total
amount of the Offered Certificates set forth in Schedule I hereto (based on
aggregate price), and arrangements satisfactory to the remaining Underwriter(s)
and the Company for the purchase of such Certificates by other persons are not
made within 36 hours thereafter, this Agreement shall terminate. In the event of
any such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g) and Section 8 hereof)
nor shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some reason permitted under this Agreement, to purchase the
amount of the Offered Certificates such Underwriter agreed to purchase
hereunder) be under any liability to the Company (except to the extent provided
in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve any
Defaulting Underwriter from any liability it may have to the Company or to the
other Underwriter(s) by reason of its failure to take up and pay for Offered
Certificates as agreed by such Defaulting Underwriter.
-23-
11. Termination Upon the Occurrence of Certain Events. This
Agreement shall be subject to termination in the absolute discretion of the
Representative by notice given to the Company prior to delivery of and payment
for all Offered Certificates if prior to such time (i) trading in securities of
the Company or any affiliate on the New York Stock Exchange shall have been
suspended or limited, or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared by either federal
or New York State authorities, or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Representative, impractical to market the Offered
Certificates.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Offered Certificates. The
provisions of Sections 5(g), 7, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any Underwriter, will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to it
at its address set forth on Schedule I hereto (or, at such other address as may
be furnished by such Underwriter to the Company in accordance with this Section
13); or, if sent to the Company, will be mailed, delivered or either telegraphed
or transmitted by telecopier and confirmed to it at 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: X. Xxxxx XxXxxxx (or at such other address
as may be furnished by the Company to each Underwriter in accordance with this
Section 13); or, if sent to the Additional Party, will be mailed, delivered or
either telegraphed or transmitted by telecopier and confirmed to it at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: X. Xxxxx XxXxxxx (or at
such other address as may be furnished by the Additional Party to each
Underwriter in accordance with this Section 13).
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors, heirs and legal representatives, and no other person will have
any right or obligation hereunder.
15. Miscellaneous. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York applicable to
agreements made and to be performed entirely in said State. This Agreement may
be executed in any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together constitute but one
and the same instrument. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought.
-24-
16. Obligations of the Additional Party. The Additional Party
agrees, in consideration of and as an inducement to the Underwriters' purchase
of the Offered Certificates from the Company, to indemnify and hold harmless
each Underwriter, and each person who controls each Underwriter within the
meaning of the Act or the Exchange Act, against any failure by the Company to
perform any of its obligations under Section 8 hereof (as they relate to the
indemnity agreement of the Company in Section 8(a) and the corresponding
contribution obligations in Section 8(d) (the "Covered Obligations")), promptly
after receipt from any Underwriter of written notice of any such failure. The
Additional Party hereby waives notice of acceptance of its obligations hereunder
and notice of any obligation or liability to which it may apply, and waives
presentment, demand for payment, protest, notice of dishonor or non-payment of
any such obligation or liability, suit or the taking of other action by any
party hereto against, and any other notice to, the Additional Party. The
Additional Party's obligations hereunder shall not be affected by any events,
occurrences or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor or surety, and such obligations
will only be discharged by full, complete and final payment of the Covered
Obligations.
[SIGNATURE PAGE FOLLOWS]
-25-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Additional Party and the Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/ X. Xxxxx Xx Xxxxx
-----------------------------------------
Name: X. Xxxxx Xx Xxxxx
Title: Senior Vice President
DLJ MORTGAGE CAPITAL, INC.*
By: /s/ X. Xxxxx Xx Xxxxx
-----------------------------------------
Name: X. Xxxxx Xx Xxxxx
Title: Senior Vice President
Accepted at New York, New York,
as of the date first written above, on
behalf of each of the underwriters
identified on Schedule I hereto.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ X. Xxxxx Xx Xxxxx
-----------------------------
Name: X. Xxxxx Xx Xxxxx
Title: Senior Vice President
* DLJ Mortgage Capital, Inc. is executing this Underwriting Agreement solely
with respect to its obligations set forth in Section 16 and with respect
to the matters set forth in Section 12, Section 13, Section 14 and Section
15.
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
---------------------------- ----- ----------------------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Class S $899,289,205(1)
Securities Corporation Class A-1A $140,618,000
000 Xxxx Xxxxxx Xxxxx X-0X $509,118,000
New York, New York 10172 Class A-1C $17,716,000
Attention: N. Xxxxx XxXxxxx Class A-2 $25,000,000
Class A-3 $49,461,000
Class A-4 $13,489,000
Class A-5 $15,738,000
Class B-1 $17,986,000
Class B-2 $15,737,000
----------
(1) Notional Amount
SCHEDULE II
Registration Statement No. 333-82275
Basic Prospectus dated October 5, 1999
Prospectus Supplement dated October 5, 1999
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series 1999-CG3, Class S,
Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class A-3, Class A-4,
Class A-5, Class B-1 and Class B-2
Cut-off Date: October 1, 1999
Closing: 10:00 a.m. on October 12, 1999
at the offices of
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Schedule II (continued)
Initial
Aggregate Certificate
Principal Balance
or Notional Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating (3)
----------------- ------------------ ----------------- ----------------- ----------
Class S $899,289,205(4) 0.8943% 4.4238% Aaa/AAA
Class A-1A $140,618,000 7.1200% 100.515625% Aaa/AAA
Class A-1B $509,118,000 7.3400% 100.484375% Aaa/AAA
Class A-1C $17,716,000 7.4400% 100.140625% Aa1/AAA
Class A-2 $25,000,000 7.5400% 100.53125% Aa2/AA
Class A-3 $49,461,000 7.7300% 100.5000% A2/A
Class A-4 $13,489,000 7.8300% 100.453125% A3/A
Class A-5 $15,738,000 8.1200% 100.53125% Baa1/A-
Class B-1 $17,986,000 8.2400% 98.609375% Baa2/BBB
Class B-2 $15,737,000 8.2400% 93.015625% Baa3/BBB-
----------
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Offered Certificates to be purchased.
The purchase price for each class of the Offered Certificates will include
accrued interest at the initial Pass-Through Rate therefor on the
aggregate stated or notional amount, as applicable, thereof to be
purchased from the Cut-off Date to but not including the Closing Date.
(3) By each of Xxxxx'x Investors Service, Inc. and Fitch IBCA, Inc.,
respectively
(4) Aggregate Notional Amount.
