EXECUTION COPY
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1
UNDERWRITING AGREEMENT
March 19, 1999
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Asset Securitization Corporation, 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"), for which
Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Xxxxx") and Xxxxxx Brothers Inc. ("Xxxxxx
Brothers") are acting as co-representatives (in such capacity, the
"Representatives"), those classes (each, a "Class") of the Commercial Mortgage
Asset Trust ("CMAT"), Commercial Mortgage Pass-Through Certificates, Series
1999-C1, that are specified in Schedule II hereto (the classes so specified, the
"Offered Certificates"). The Offered Certificates will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") to be
dated as of March 11, 1999 (the "Cut-off Date"), among the Company as depositor,
First Union National Bank as servicer (the "Servicer"), Lennar Partners, Inc. as
special servicer (the "Special Servicer"), LaSalle National Bank as trustee (the
"Trustee") and ABN AMRO Bank, N.V. as fiscal agent (the "Fiscal Agent"). The
Offered Certificates will evidence undivided interests in 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. Two
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 the
"Upper-Tier REMIC" and the
"Lower-Tier REMIC". One or more portions of the Trust Fund are each also
intended to constitute a grantor trust under the Internal Revenue Code of 1986
(the "Code"). Eleven other classes of the CMAT Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 (such other classes, the "Private Certificates";
and, collectively with the Offered Certificates, the "Certificates"), are also
to be issued pursuant to the Pooling and Servicing Agreement but do not form a
part of this offering. The Offered Certificates are described more fully in the
Basic Prospectus and the Prospectus Supplement (each of which terms is defined
below) which the Company has furnished to each Representative. Capitalized terms
used but not defined herein have the respective meanings assigned thereto in the
Prospectus Supplement.
Certain of the Mortgage Loans (the "NHA Mortgage Loans") were
or, on or before the Closing Date (as defined in Section 3), will be acquired by
the Company from Nomura Holding America Inc. ("NHA") pursuant to a Mortgage Loan
Purchase and Sale Agreement dated as of March 11, 1999 (the "NHA/Company
Mortgage Loan Purchase and Sale Agreement"), between NHA as seller and the
Company as purchaser. The remaining Mortgage Loans (the "CCA Mortgage Loans")
were or, on or before the Closing Date, will be acquired by the Company from The
Capital Company of America LLC ("CCA") pursuant to a Mortgage Loan Purchase and
Sale Agreement dated as of March 11, 1999 (the "CCA/Company Mortgage Loan
Purchase and Sale Agreement"; and, together with the NHA/Company Mortgage Loan
Purchase and Sale Agreement, the "Mortgage Loan Purchase and Sale Agreements").
1. Representations and Warranties of the Company, NHA and CCA.
(a) The Company represents and warrants to, and agrees with, each Underwriter
that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-53859)
on Form S-3 for the registration under the Securities Act of 1933, as
amended (the "Act"), of the Offered Certificates, which registration
statement has become effective and copies of which (together with all
exhibits thereto and all documents incorporated by reference therein)
have heretofore been delivered to the Representatives for each of the
other Underwriters. The Company meets, and upon initial issuance of the
Offered Certificates will meet, the requirements for use of Form S-3
under the Act. 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 the
Underwriters 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
of 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 with the
Commission pursuant to Rule 424 is hereinafter called a "Preliminary
Prospectus Supplement", and any Preliminary Prospectus Supplement
together with the prospectus it supplements is hereinafter called a
"Preliminary Prospectus". Any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of the corresponding
Preliminary Prospectus Supplement or the Prospectus Supplement, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of the corresponding
Preliminary Prospectus Supplement or the Prospectus Supplement, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report or other information or documentation filed
on behalf of the Trust Fund pursuant to Sections 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the Offered Certificates in the form in which it is filed
with the Commission pursuant to Rule 424 under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing). The Company has not
filed any post-effective amendment to the Registration Statement and
will not, without your prior consent (which consent shall not be
unreasonably withheld), file any other amendment to the Registration
Statement (unless such amendment does not relate to or affect the
Offered Certificates) or make any change in the Basic Prospectus or the
Prospectus Supplement until after the end of the period during which a
prospectus is required to be delivered by the Underwriters (or by any
dealer that is part of the selling group) to purchasers of the Offered
Certificates under the Act. The Company, as depositor with respect to
the Trust Fund, will file with the Commission within fifteen days of
the issuance of the Offered Certificates a report on Form 8-K setting
forth specific information concerning the Offered Certificates (the
"Form 8-K").
(ii) 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,
any other amendment to the Registration Statement becomes effective,
when any supplement to the Prospectus Supplement is filed with the
Commission, and at the Closing Date, (A) 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 and regulations of the Commission thereunder, (B) 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 (C) 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 statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (X) 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 either
Representative, or by any Underwriter through either Representative,
specifically for use in the preparation thereof, or (Y) the information
contained in or omitted from any Current Report (as defined in Section
5(e) hereof), or any amendment thereof or supplement thereto,
incorporated by reference in the Registration Statement or the
Prospectus (or any amendment thereof or supplement thereto), except to
the extent that any such statement or omission is based on statements
or information (or omissions therefrom) provided by the Company to any
Underwriter.
(iii) As of the date hereof, when the Prospectus Supplement is
first filed pursuant to Rule 424 under the Act, when, prior to the
Closing Date, any other amendment to the Registration Statement becomes
effective, when any supplement to the Prospectus is filed with the
Commission, and at the Closing Date, there has not and will not have
been (A) any request by the Commission for any further amendment of the
Registration Statement or the Prospectus or for any additional
information, (B) 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 (C)
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.
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has been duly qualified or registered as a foreign
corporation for the transaction of business and is in good standing
under the laws of all jurisdictions in which it owns or leases property
of a nature or transacts business of a type that would require such
qualifications or in which the failure to so qualify or be in good
standing could, individually or in the aggregate, have a material
adverse effect on the business, condition or properties of the Company.
(v) The Company has all requisite power and authority
(corporate and other) and all requisite authorizations, approvals,
orders, licenses, certificates and permits of and from all governmental
or regulatory officials and bodies to own its properties, to conduct
its business as described in the Registration Statement and the
Prospectus and to execute, deliver and perform this Agreement and the
Pooling and Servicing Agreement, except such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution by the Underwriters of the Offered Certificates, all such
authorizations, approvals, orders, licenses, certificates and permits
are in full force and effect; and, except
as otherwise set forth or contemplated in the Registration Statement or
the Prospectus, there are no legal or governmental proceedings pending
or, to the best of the Company's knowledge, threatened, that would
result in a material modification, suspension or revocation thereof.
(vi) This Agreement has been and, as of the Closing Date, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase and Sale
Agreements will have been duly authorized, executed and delivered by
the Company.
(vii) Assuming due authorization, execution and delivery by
the other parties thereto, as of the Closing Date, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase and Sale Agreements
will each constitute a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general principles of equity.
(viii) The Offered Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus; the Offered Certificates have been
duly and validly authorized by the Company, and will, when duly and
validly executed and authenticated by the Trustee and delivered to and
paid for by the Underwriters in accordance with this Agreement and the
Pooling and Servicing Agreement, be entitled to the benefits of the
Pooling and Servicing Agreement.
(ix) The issue and sale of the Offered Certificates and the
compliance by the Company with all of the provisions of this Agreement
and the Pooling and Servicing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Offered Certificates or the consummation by the
Company of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, except such as have been, or will have
been prior to the Closing Date, obtained under the Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Certificates by the
Underwriters;
(x) Other than as set forth or contemplated in the Prospectus
Supplement, there are no legal or governmental proceedings pending, and
at the Closing Date there will be no legal or governmental proceedings
pending, to which the Company is a party or of which any property of
the Company is the subject which, if determined adversely to the
Company, would individually or in the aggregate have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, properties or prospects of the Company, and to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(xi) As of the date hereof and as of the Closing Date, there
are and will be 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
(A) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement or the Offered Certificates, (B) 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, (C) which might materially and adversely affect
the validity or enforceability of this Agreement, the Pooling and
Servicing Agreement, either Mortgage Loan Purchase and Sale Agreement
or the Offered Certificates or (D) seeking to affect adversely the
federal income tax attributes, or attributes under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), of the
Offered Certificates described in the Prospectus.
(xii) Since December 31, 1998, there has not been any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, operations, financial
condition, properties or assets of the Company, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented or
as disclosed to the Representatives during the meeting that occurred on
February 26, 1999 between representatives of Xxxxxxx Xxxxx and Xxxxxx
Brothers and the Chief Financial Officer of NHA (the "February 26
Meeting").
(xiii) 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.
(xiv) 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 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.
(xv) 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. At the Closing
Date, the Company will have full power and authority to sell and
deliver the Mortgage Loans to the Trustee under the Pooling and
Servicing Agreement and will have duly authorized such assignment and
delivery to the Trustee by all necessary actions.
(xvi) At the Closing Date, the Mortgage Loans will have been
duly and validly assigned and delivered by the Company to the Trustee
under the Pooling and Servicing Agreement.
(xvii) As of the Closing Date, each of the Mortgage Loans will
meet, in all material respects, the descriptions thereof in the
Prospectus, and on the Closing Date, the Company (pursuant to the
Pooling and Servicing Agreement) will assign to the Trustee for the
benefit of the Certificateholders certain representations and
warranties with respect to the Mortgage Loans made by NHA and CCA in
their respective Mortgage Loan Purchase and Sale Agreements, and such
representations and warranties will be true and correct in all material
respects. The written information (including information on
electromagnetic tape or that was otherwise provided in electronic form)
regarding the Mortgage Loans that was provided to the Rating Agencies
and the Underwriters by the Company, NHA, CCA or any of their
affiliates (including any supplement or amendment thereto, the
"Mortgage Pool Information"), taken together with the Prospectus
Supplement, will not, as of the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(xviii) The Trust Fund is not, and neither the issuance and
sale of the Offered Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling
and Servicing Agreement will cause the Trust Fund to be, an "investment
company" or under the control of an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
(xix) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Company will report the
transfer of the Mortgage Loans to the Trustee in exchange for the
Certificates and the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement as a sale of the interest in
the Mortgage Loans evidenced by the Offered Certificates.
(xx) Neither the Company nor any of its affiliates have
mailed, published, disseminated, distributed, transmitted, furnished or
otherwise made available to any person or entity a prospectus (within
the meaning of Section 2(a)(10) of the Act) with respect to the Offered
Certificates, other than the Prospectus or any Preliminary Prospectus.
(b) NHA represents and warrants to, and agrees with, each
Underwriter that:
(i) NHA has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and has been duly qualified or registered as a foreign corporation for
the transaction of business and is in good standing under the laws of
all jurisdictions in which it owns or leases property of a nature or
transacts business of a type that would require such qualifications or
in which the failure to so qualify or be in good standing could,
individually or in the aggregate, have a material adverse effect on the
business, condition or properties of NHA.
(ii) NHA has all requisite power and authority (corporate and
other) and all requisite authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental or regulatory
officials and bodies to own its properties, to conduct its business and
to execute, deliver and perform its obligations under this Agreement
and each Mortgage Loan Purchase and Sale Agreement, all such
authorizations, approvals, orders, licenses, certificates and permits
are in full force and effect; and there are no legal or governmental
proceedings pending or, to the best of NHA's knowledge, threatened,
that would result in a material modification, suspension or revocation
thereof.
(iii) This Agreement has been and, as of the Closing Date, the
Mortgage Loan Purchase and Sale Agreements will have been, duly
authorized, executed and delivered by NHA.
(iv) Assuming due authorization, execution and delivery by the
other parties thereto, as of the Closing Date, each Mortgage Loan
Purchase and Sale Agreement will constitute a valid and legally binding
obligation of NHA, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general principles of equity.
(v) Compliance by NHA with this Agreement and the Mortgage
Loan Purchase and Sale Agreements will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which NHA is a party or by which
NHA is bound or to which any of the property or assets of NHA is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or the ByLaws of NHA or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over NHA, or any of its properties; and no
consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
entry by NHA into this Agreement or either of the Mortgage Loan
Purchase and Sale Agreements or the performance by NHA of its
obligations under this Agreement or either of the Mortgage Loan
Purchase and Sale Agreements, except such as have already been
obtained.
(vi) There are no legal or governmental proceedings pending,
and at the Closing Date there will be no legal or governmental
proceedings pending, to which NHA is a party or of which any property
of NHA is the subject which, if determined adversely to NHA, would
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
properties or prospects of NHA, and to the best of NHA's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(vii) As of the date hereof and as of the Closing Date, there
are and will be no actions or proceedings against, or investigations
of, NHA pending, or, to the knowledge of NHA, threatened, before any
court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement or either Mortgage Loan Purchase and Sale
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or either Mortgage Loan
Purchase and Sale Agreement, or (C) which might materially and
adversely affect the validity or enforceability of this Agreement or
either Mortgage Loan Purchase and Sale Agreement.
(viii) Since December 31, 1998, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, operations,
financial condition, properties or assets of NHA, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented or
as disclosed to the Representatives during the February 26 Meeting.
(ix) Any taxes, fees and other governmental charges payable by
NHA in connection with the execution and delivery of this Agreement and
the Mortgage Loan Purchase and Sale Agreements or the sale of the NHA
Mortgage Loans (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.
(x) Immediately prior to the assignment of the NHA Mortgage
Loans to the Company, NHA will have good title to, and will be the sole
owner of, each NHA Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance. At the Closing
Date, NHA will have full power and authority to sell and deliver the
NHA Mortgage Loans to the Company under the NHA/Company Mortgage Loan
Purchase and Sale Agreement and will have duly authorized such
assignment and delivery to the Company by all necessary actions.
(xi) At the Closing Date, the NHA Mortgage Loans will have
been duly and validly assigned and delivered by NHA to the Company
under the NHA/Company Mortgage Loan Purchase and Sale Agreement.
(xii) As of the Closing Date, each of the NHA Mortgage Loans
will meet, in all material respects, the descriptions thereof in the
Prospectus, and on the Closing Date, NHA (pursuant to the NHA/Company
Mortgage Loan Purchase and Sale Agreement) will make to the Company
certain representations and warranties with respect to the NHA Mortgage
Loans, and such representations and warranties will be true and correct
in all material respects. The written information (including
information on electromagnetic tape or that was otherwise provided in
electronic form) regarding the NHA Mortgage Loans that was provided to
the Rating Agencies and the Underwriters by the Company, NHA, CCA or
any of their affiliates (including any supplement or amendment thereto,
the "NHA Mortgage Loan Information"), taken together with the
Prospectus Supplement, will not, as of the Closing Date, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(xiii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, NHA will report the transfer of
the NHA Mortgage Loans to the Company pursuant to the NHA/Company
Mortgage Loan Purchase and Sale Agreement as a sale of the NHA Mortgage
Loans.
(c) CCA represents and warrants to, and agrees with, each
Underwriter that:
(i) CCA has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware and has been duly qualified or registered as a foreign
entity for the transaction of business and is in good standing under
the laws of all jurisdictions in which it owns or leases property of a
nature or transacts business of a type that would require such
qualifications or in which the failure to so qualify or be in good
standing could, individually or in the aggregate, have a material
adverse effect on the business, condition or properties of CCA.
(ii) CCA has all requisite power and authority and all
requisite authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental or regulatory officials and bodies
to own its properties, to conduct its business and to execute, deliver
and perform its obligations under this Agreement and the CCA/Company
Mortgage Loan Purchase and Sale Agreement, all such authorizations,
approvals, orders, licenses, certificates and permits are in full force
and effect; and there are no legal or governmental proceedings pending
or, to the best of CCA's knowledge, threatened, that would result in a
material modification, suspension or revocation thereof.
(iii) This Agreement has been and, as of the Closing Date, the
CCA/Company Mortgage Loan Purchase and Sale Agreement will have been,
duly authorized, executed and delivered by CCA.
(iv) Assuming due authorization, execution and delivery by the
other parties thereto, as of the Closing Date, the CCA/Company Mortgage
Loan Purchase and Sale Agreement will constitute a valid and legally
binding obligation of CCA, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
(v) Compliance by CCA with this Agreement and the CCA/Company
Mortgage Loan Purchase and Sale Agreement will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument to which CCA is a party or by
which CCA is bound or to which any of the property or assets of CCA is
subject, nor will such action result in any violation of the provisions
of the organizational documents of CCA or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over CCA, or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
entry by CCA into this Agreement or the CCA/Company Mortgage Loan
Purchase and Sale Agreement or the performance by CCA of its
obligations under this Agreement or the CCA/Company Mortgage Loan
Purchase and Sale Agreement, except such as have already been obtained.
(vi) There are no legal or governmental proceedings pending,
and at the Closing Date there will be no legal or governmental
proceedings pending, to which CCA is a party or of which any property
of CCA is the subject which, if determined adversely to CCA, would
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
properties or prospects of CCA, and to the best of CCA's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(vii) As of the date hereof and as of the Closing Date, there
are and will be no actions or proceedings against, or investigations
of, CCA pending, or, to the knowledge of CCA, threatened, before any
court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement or the CCA/Company Mortgage Loan Purchase
and Sale Agreement, (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or the CCA/Company
Mortgage Loan Purchase and Sale Agreement, or (C) which might
materially and adversely affect the validity or enforceability of this
Agreement or the CCA/Company Mortgage Loan Purchase and Sale Agreement.
(viii) Since December 31, 1998, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, operations,
financial condition, properties or assets of CCA, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented as
disclosed to the Representatives during the February 26 Meeting.
(ix) Any taxes, fees and other governmental charges payable by
CCA in connection with the execution and delivery of this Agreement and
the CCA/Company Mortgage Loan Purchase and Sale Agreement or the sale
of the CCA Mortgage Loans (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.
(x) Immediately prior to the assignment of the CCA Mortgage
Loans to the Company, CCA will have good title to, and will be the sole
owner of, each NHA Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance. At the Closing
Date, CCA will have full power and authority to sell and deliver the
CCA Mortgage Loans to the Company under the CCA/Company Mortgage Loan
Purchase and Sale Agreement and will have duly authorized such
assignment and delivery to the Company by all necessary actions.
(xi) At the Closing Date, the CCA Mortgage Loans will have
been duly and validly assigned and delivered by CCA to the Company
under the CCA/Company Mortgage Loan Purchase and Sale Agreement.
(xii) As of the Closing Date, each of the CCA Mortgage Loans
will meet, in all material respects, the descriptions thereof in the
Prospectus, and on the Closing Date, CCA (pursuant to the CCA/Company
Mortgage Loan Purchase and Sale Agreement) will make to the Company
certain representations and warranties with respect to the CCA Mortgage
Loans, and such representations and warranties will be true and correct
in all material respects. The written information (including
information on electromagnetic tape or that was otherwise provided in
electronic form) regarding the CCA Mortgage Loans that was provided to
the Rating Agencies and the Underwriters by the Company, NHA, CCA or
any of their affiliates (including any supplement or amendment thereto,
the "CCA Mortgage Loan Information"), taken together with the
Prospectus Supplement, will not, as of the Closing Date, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(xiii) Under GAAP and for federal income tax purposes, CCA
will report the transfer of the CCA Mortgage Loans to the Company
pursuant to the CCA/Company Mortgage Loan Purchase and Sale Agreement
as a sale of the CCA Mortgage Loans.
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 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 amount thereof as of the Closing Date
(as defined below) 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 Underwriters 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") in the United States and Cedel Bank, societe anonyme ("Cedel")
and the Euroclear System ("Euroclear") in Europe. 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 several Underwriters against payment by the
several 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 10:00 a.m. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) For so long as the delivery by the Underwriters (or by any
dealer that is part of the selling group) is required in connection with the
offering and sale of the Offered Certificates, the Company will make no further
amendment or supplement to the Registration Statement or (unless such amendment
does not relate to or affect the Offered Certificates) Prospectus as amended or
supplemented from time to time hereafter which shall be reasonably disapproved
by the Representatives promptly after reasonable notice thereof. The Company
will advise the Representatives promptly of any proposal or request to amend the
Registration Statement (unless such amendment does not relate to or affect the
Offered Certificates) or supplement the Prospectus after the Closing Date and
furnish the Representatives with copies thereof. The Company will file
promptly all reports, documentation and information required to be filed on
behalf of the Trust Fund with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery by the Underwriters
(or by any dealer that is part of the selling group) of a prospectus is required
in connection with the offering or sale of the Offered Certificates, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
the Registration Statement, of any suspension of the qualification of the
Offered Certificates for offering or sale in any jurisdiction known to the
Company, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information. The
Company will, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to the Offered
Certificates or suspending any such qualification, promptly use its best efforts
to obtain the withdrawal of such order.
(b) Promptly from time to time, the Company will take such
action as the Representatives may reasonably request to qualify the Offered
Certificates for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and will comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Offered Certificates, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to take any action
that would subject it to general or unlimited service of process in any
jurisdiction.
(c) Prior to 10:00 a.m., New York City time, on the New York
business day next succeeding the date of this Agreement and from time to time,
for so long as a prospectus is required to be delivered by the Underwriters (or
by any dealer that is part of the selling group) to purchasers of the Offered
Certificates under the Act (or, with respect to any particular Underwriter, if
longer, for so long as such Underwriter holds an interest in Offered
Certificates) but in no event beyond the close of business, New York City time,
on the 270th day following the Closing Date, the Company will furnish the
Underwriters with copies of the Prospectus in New York City as amended or
supplemented in such quantities as the Representatives may reasonably request.
If the delivery of a prospectus is required at any time in connection with the
offering or sale of the Offered Certificates and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, the Company will notify the
Representatives and, upon their request, file such document and prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably request of
an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
(d) 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 Servicer and the Special Servicer pursuant to Sections 3.14 and 3.15 of
the Pooling and Servicing Agreement, as soon as such statements are furnished to
the Company.
(e) 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 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 1:00 p.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 1:00 p.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 Underwriters 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 2:00
p.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.
6. Expenses. The Company will pay or cause the payment of the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Offered Certificates
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) all of the
Underwriters' reasonable out-of-pocket costs and expenses (including the fees,
disbursements and expenses of the Underwriters' counsel and other third parties
retained by the Underwriters) in connection with the issue and offering of the
Offered Certificates (except as otherwise provided in Section 8 and other than
those solely belonging
to any Underwriter which shall default in its obligation to purchase the Offered
Certificates which it has agreed to purchase hereunder); (iii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the
Pooling and Servicing Agreement, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Offered
Certificates, including the fees and disbursements of counsel for the
Underwriters in connection with any of the foregoing; (iv) all expenses in
connection with the qualification of the Offered Certificates for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and Legal Investment
Surveys; (v) any fees charged by the Rating Agencies for rating the Offered
Certificates; (vi) the cost of preparing the Offered Certificates; (vii) the
fees and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Pooling and
Servicing Agreement and the Offered Certificates; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 6. On the Closing Date, the
Company shall deposit $300,000 into an account held at a depository institution
and in a manner satisfactory to the Representatives, which funds will be
available to satisfy the Company's obligations under this Section 6.
7. Conditions to the Obligations to the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Agreement shall be subject, in the discretion of the Representatives, to
the accuracy 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 of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance 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 initiated 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, the Pooling and Servicing Agreement and the Mortgage
Loan Purchase and Sale Agreements 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 30 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, any
Mortgage Loan Purchase and Sale 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, in any Mortgage Loan
Purchase and Sale Agreement 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 such party) 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 its incorporation. 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, any Mortgage Loan Purchase and Sale Agreement and/or the Pooling and
Servicing Agreement.
(e) Counsel for the Underwriters shall have furnished to the
Underwriters such opinion or opinions, dated the Closing Date, with respect to
the Pooling and Servicing Agreement, the Offered Certificates, the Registration
Statement, the Prospectus Supplement and other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters.
(f) Counsel for the Company (which, in the case of the opinion
described in Exhibit A-1 hereto, may be in-house counsel) satisfactory to the
Representatives shall have furnished to the Underwriters their written opinion,
dated the Closing Date, substantially in the forms attached hereto as Exhibits
A-1, A-2 and A-3, with such changes as are satisfactory to or reasonably
requested by the Representatives.
(g) The Underwriters shall have received from CCA a
certificate, dated the Closing Date and executed by an executive officer of CCA,
to the effect that: (i) the representations and warranties of CCA in the
CCA/Company Mortgage Loan Purchase and Sale 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) CCA 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.
(h) The Underwriters shall have received with respect to CCA a
good standing certificate from the Secretary of State of the State of Delaware,
dated not earlier than 30 days prior to the Closing Date.
(i) The Underwriters shall have received from the Secretary or
an assistant secretary of CCA, in his individual capacity, a certificate, dated
the Closing Date, to the effect that: (i) each individual who, as an officer or
representative of CCA, signed this Agreement or the CCA/Company Mortgage Loan
Purchase and Sale Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or in such Mortgage Loan Purchase and Sale 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 CCA) has occurred since the date of the good
standing certificate referred to in paragraph (h) above which has affected the
good standing of CCA under the laws of the state of its organization. Each such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of CCA) of the organizational
documents of CCA, as in effect on the Closing Date, and of the resolutions of
CCA and any required member consent relating to the transactions contemplated in
the CCA/Company Mortgage Loan Purchase and Sale Agreement.
(j) Counsel for CCA (which, in the case of the opinion
described in Exhibit B-1 hereto, may be in-house counsel) satisfactory to the
Representatives shall have furnished to the Underwriters their written opinion,
dated the Closing Date, substantially in the forms attached hereto as Exhibits
B-1, B-2, B-3 and B-4, with such changes as are satisfactory to or reasonably
requested by the Representatives.
(k) The Underwriters shall have received from NHA a
certificate, dated the Closing Date and executed by an executive officer of NHA,
to the effect that: (i) the representations and warranties of NHA in this
Agreement and in each Mortgage Loan Purchase and Sale 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) NHA 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.
(l) The Underwriters shall have received with respect to NHA a
good standing certificate from the Secretary of State of the State of Delaware,
dated not earlier than 30 days prior to the Closing Date.
(m) The Underwriters shall have received from the Secretary or
an assistant secretary of NHA, in his individual capacity, a certificate, dated
the Closing Date, to the effect that: (i) each individual who, as an officer or
representative of NHA, signed this Agreement or any Mortgage Loan Purchase and
Sale Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated in this Agreement
or any Mortgage Loan Purchase and Sale 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 NHA) has occurred since the date of the good
standing certificate referred to in paragraph (l) above which has affected the
good standing of NHA under the laws of the state of its incorporation. Each such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of NHA) of the certificate of
incorporation and by-laws of NHA, as in effect on the Closing Date, and of the
resolutions of NHA and any required shareholder consent relating to the
transactions contemplated in this Agreement or any Mortgage Loan Purchase and
Sale Agreement.
(n) Counsel for NHA (which, in the case of the opinion
described in Exhibit C-1 hereto, may be in-house counsel) satisfactory to the
Representatives shall have furnished to the Underwriters their written opinion,
dated the Closing Date, substantially in the forms attached hereto as Exhibits
C-1 and C-2, with such changes as are satisfactory to or reasonably requested by
the Representatives.
(o) Short Term Asset Receivable Trust ("START") shall have
furnished the Underwriters with a certificate signed by one or more of its
authorized signatories, dated as of the Closing Date, satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(p) Counsel for START satisfactory to the Representatives
shall have furnished the Underwriters with their written opinion satisfactory in
form and substance to the Representatives and counsel for the Underwriters.
(q) The Servicer shall have furnished the Underwriters with a
certificate signed by one or more of its officers satisfactory to the
Representatives, dated as of the Closing Date, to the effect that the
representations and warranties of the Servicer in the Pooling and Servicing
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date.
(r) Counsel for the Servicer satisfactory to the
Representatives shall have furnished the Underwriters with their written opinion
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(s) The Special Servicer shall have furnished the Underwriters
with a certificate signed by one or more of its officers satisfactory to the
Representatives, dated as of the Closing Date, to the effect that the
representations and warranties of the Special Servicer in the Pooling and
Servicing Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date.
(t) Counsel for the Special Servicer satisfactory to the
Representatives shall have furnished the Underwriters with their written opinion
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(u) The Trustee shall have furnished the Underwriters with a
certificate signed by one or more of its officers satisfactory to the
Representatives, dated as of the Closing Date, to the effect that the
representations and warranties of the Trustee in the Pooling and Servicing
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date.
(v) Counsel for the Trustee satisfactory to the
Representatives shall have furnished the Underwriters with their written opinion
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(w) Counsel for the Fiscal Agent satisfactory to the
Representatives shall have furnished the Underwriters with their written opinion
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(x) The Underwriters shall have received a certificate of the
Company confirming all filings made a part of the Registration Statement as of
the Closing Date that relate to the Offered Certificates.
(y) The Underwriters shall have received from counsel for the
Company, NHA, CCA and START copies of any opinion(s) rendered thereby to the
Rating Agencies, together with a letter from such counsel, dated the Closing
Date, authorizing the Underwriters to rely on such opinion(s) as if addressed to
them.
(z) The Underwriters shall have received from Price
Waterhouse, certified public accountants, a letter dated the Closing Date and
satisfactory in form and substance to the Underwriters 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 letter, they have
recalculated such numbers and percentages set forth in the Prospectus and
Computational Materials as the Underwriters may reasonably request and as are
agreed to by Price Waterhouse, compared the results of their calculations to the
corresponding items in the Prospectus, and found each such number and percentage
set forth in the Prospectus to be in agreement with the results of such
calculations.
(aa) The Offered Certificates listed on Schedule II hereto
shall have been rated as indicated on such Schedule by the rating agency or
agencies indicated.
(bb) Since December 31, 1998, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, operations, financial condition,
properties or assets of the Company, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented or as disclosed to the
Representatives during the February 26 Meeting, the effect of which is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Offered Certificates on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
(cc) Since December 31, 1998, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, operations, financial condition,
properties or assets of NHA, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented or as disclosed to the Representatives
during the February 26 Meeting, the effect of which is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates on the terms and in the manner contemplated in the Prospectus as
amended or supplemented.
(dd) Since December 31, 1998, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, operations, financial condition,
properties or assets of CCA, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented or as disclosed to the Representatives
during the February 26 Meeting, the effect of which is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates on the terms and in the manner contemplated in the Prospectus as
amended or supplemented.
(ee) Subsequent to the date hereof, there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event specified in
this clause (iii) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Offered Certificates on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(ff) All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto and thereto,
shall be satisfactory in form and substance to the Representatives and counsel
for the Underwriters, and the Representatives and counsel for the Underwriters
shall have received such additional information, certificates and documents as
they may reasonably request.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages, or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any breach of the
representations and warranties
of the Company set forth in Section 1(a) (whether made as of the date hereof or
as of the Closing Date), which breach occurred as of the date hereof or as of
the Closing Date, and (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any Preliminary
Prospectus Supplement, the Registration Statement, any Computational Materials
and ABS Term Sheets provided to prospective investors with respect to the
Offered Certificates, any marketing materials (in any format) shown or otherwise
presented or made available as part of a "roadshow" to prospective investors
with respect to the Offered Certificates, the Prospectus as amended or
supplemented and any other prospectus relating to the Offered Certificates, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
in the case of each of clause (i) and clause (ii) will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided that the Company will not be
liable under the indemnity agreement in subsection (a)(i) to the extent that any
such loss, claim, damage or liability that arises out of or is based on a breach
of representation or warranty contemplated by clause (i) above constitutes
consequential damages; and provided, further, that the Company will not be
liable under the indemnity agreement in subsection (a)(ii) to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
contemplated by clause (ii) above and made in any Preliminary Prospectus, any
Preliminary Prospectus Supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Offered Certificates, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use in the Prospectus as amended or supplemented; and provided,
further, that the Company will not be liable under the indemnity agreement in
subsection (a)(ii) with respect to any such loss, claim, damage or liability
that arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission contemplated by clause (ii) above and
made in any Computational Materials provided to investors with respect to the
Offered Certificates except to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
information provided to the Underwriters by the Company, NHA, CCA or any of
their affiliates or any third party in their employ; and provided, further, that
the Company will not be liable to any Underwriter under indemnity agreement in
subsection (a)(ii) with respect to any Preliminary Prospectus to the extent that
any such loss, claim, damage or liability of such Underwriter results from the
fact that such Underwriter sold Offered Certificates to a person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the Prospectus
as then amended or supplemented in any case where such delivery is required by
the Act, if the Company has previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was identified in writing (which
writing may consist of blacklined copies of the Prospectus showing the changes)
at such time to such Underwriter and corrected in the Prospectus or the
Prospectus as then amended or supplemented.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
Preliminary Prospectus Supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Offered Certificates, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any Preliminary Prospectus Supplement, the Prospectus as amended or
supplemented and any other prospectus relating to the Offered Certificates, or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action 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 to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and its affiliates (other than Nomura
Securities International, Inc. ("NSI")) on the one hand and the Underwriters on
the other from the offering of the Offered Certificates to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and its affiliates (other than NSI) on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and its affiliates (other than NSI) on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and its
affiliates (other than NSI) on the one hand or the Underwriters 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 (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Certificates underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to the Offered Certificates and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. Computational Materials and ABS Term Sheets. (a) Not later
than 2:00 p.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 (or able to be readily
converted to a 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 1:00 p.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 (or, in the case of any actual investor in the Offered
Certificates, prior to the date on which the Prospectus is delivered
thereto), except for any Preliminary Prospectus with respect to the
Offered
Certificates 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;
(iii) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to potential 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; and
(iv) information included in the ABS Term Sheets with respect
to the Offered Certificates shall be of a type included in the
Prospectus.
(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 Company, the Underwriters or their respective 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 the Underwriters pursuant to or as contemplated by this Section 9 or
the omission to state a material fact required, when considered in conjunction
with the Prospectus, to be stated therein or necessary to make the statements
therein, 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 rules thereunder, the Company or the Underwriters, as the case may
be, shall promptly notify the others of the necessity of such amendment or
supplement, and the Underwriters, at the expense of the Company, shall promptly
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 and either indicated
orally to an Underwriter that it would purchase, or actually did purchase,
Offered Certificates, it being understood and agreed that the Underwriters will
use all reasonable efforts to prepare such amendment or supplement and furnish
it to the Company for filing with the Commission at the same time as the
materials it is intended to correct and, in any event, within three (3) Business
Days of the discovery or receipt of written notice by the Representatives of the
subject untrue statement or omission (provided that there shall be no delay in
the timely filing of the earlier materials that contain the untrue statement or
omission).
10. Substitution of Underwriters. (a) If any Underwriter shall
default in its obligation to purchase the Offered Certificates which it has
agreed to purchase hereunder, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such
Offered Certificates on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Offered Certificates, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Offered
Certificates on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Offered Certificates, or the Company notifies the
Representatives that it has so arranged for the purchase of such Offered
Certificates, the Representatives or the Company shall have the right to
postpone the Closing Date for such Offered Certificates for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party hereto.
(b) If, after giving effect to any arrangements for the
purchase of the Offered Certificates of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Offered Certificates which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Offered Certificates, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Offered
Certificates which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Offered Certificates which such
Underwriter agreed to purchase hereunder) of the Offered Certificates of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; provided that, if NSI is a defaulting Underwriter, the Company shall not
be permitted to require the other Underwriters to purchase any of the Offered
Certificates that NSI was required but failed to purchase hereunder; and
provided, further, that nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Offered Certificates of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Offered Certificates which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Offered
Certificates, as referred to in subsection (b) above, or if the Company shall
not (or, because NSI is a defaulting Underwriter, the Company is not entitled
to) exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Offered Certificates of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, the Company or
NHA, except for the expenses to be borne by the Company as provided in Section 6
hereof, the indemnity and contribution agreements in
Section 8 hereof and the obligations of NHA under Section 17 hereof (insofar as
they relate to the Company's obligations under Section 8 hereof); but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
11. Representations and Indemnities to Survive. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, NHA, CCA and the several Underwriters, as set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Offered Certificates
12. The Representatives. In all dealings hereunder, the
Representatives shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in any notice given to the Company by both
Representatives in accordance with Section 13.
13. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to the address of the
Representatives as set forth on the first page hereof; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement: Attention:
Secretary; and if to CCA shall be delivered or sent by mail, telex or facsimile
transmission to Two World Financial Center - Building B, New York, New York
10281-1198, Attention: Manager - Mortgage Finance Department; and if to NHA
shall be delivered or sent by mail, telex or facsimile transmission to Two World
Financial Center - Building B, New York, New York 10281-1198, Attention: Manager
- Mortgage Finance Department; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriter's Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. Successors; Binding Effect. This Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the Company,
NHA, CCA and, to the extent provided in Sections 8, 11, 17 and 18 hereof, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No purchaser
of any of the Offered Certificates from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Miscellaneous. This Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument. Time shall be of the
essence of this Agreement. As used herein, "business day" (without any other
clarification) shall mean any day when the Commission's office in Washington,
D.C. is open for business.
17. Obligations of NHA. NHA 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, against any failure by
the Company to perform any of its obligations under Section 8 hereof (as they
relate to the indemnity agreement in clause (ii) of Section 8(a) and the
corresponding contribution obligations in Section 8(d)) and, further, against
any failure by CCA to perform any of its obligations under Section 18 hereof, in
each case promptly after receipt from any Underwriter of written notice of any
such failure.
18. Obligations of CCA. CCA 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, against any failure by
the Company to perform any of its obligations under Section 8 hereof (as they
relate to the indemnity agreement in clause (i) of Section 8(a) and the
corresponding contribution obligations in Section 8(d)), promptly after receipt
from any Underwriter of written notice of any such failure.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us four counterparts hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, NHA and the several Underwriters.
Very truly yours,
ASSET SECURITIZATION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
NOMURA HOLDING AMERICA INC.*
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
THE CAPITAL COMPANY OF AMERICA LLC
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
*Nomura Holding America Inc. is executing this Underwriting Agreement solely
with respect to its representations, warranties, covenants and obligations set
forth in Section 1(b) and Section 17 and with respect to the matters set forth
in Section 11, Section 12, Section 13, Section 14, Section 15 and Section 16.
1999-C1 Underwriting Agreement
Accepted at New York, New York as of the date first written above on behalf of
the several Underwriters listed on Schedule X.
XXXXXXX, XXXXX & CO.
By: /s/ X. Xxxxxxxx Xxxxxx
---------------------------------
Name: X. Xxxxxxxx Xxxxxx
Title: Vice President
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
1999-C1 Underwriting Agreement
SCHEDULE I
Principal Amount
of Relevant
Class of Offered
Certificates to be Purchased
(Expressed as a Percentage
of the Entire Principal
Underwriter Class Amount of Such Class)
Xxxxxxx, Xxxxx & Co. A-1, A-2, A-3 and A-4 39%
Xxxxxx Brothers, Inc. A-1, A-2, A-3 and A-4 39%
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation A-1, A-2, A-3 and A-4 17%
Nomura Securities International, Inc. A-1, A-2, A-3 and A-4 5%
Xxxxxxx, Xxxxx & Co. B and D 35%
Xxxxxx Brothers, Inc. B and D 35%
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation B and D 15%
Nomura Securities International, Inc. B and D 15%
Xxxxxxx, Xxxxx & Co. C and E 0%
Xxxxxx Brothers, Inc. C and E 0%
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation C and E 0%
C and E 100%
Nomura Securities International, Inc.
1999-C1 Underwriting Agreement
SCHEDULE II
Registration Statement No. 333-53859
Basic Prospectus dated March 19, 1999
Prospectus Supplement dated March 19, 1999
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series
1999-C1, Class A-1,
Class A-2, Class A-3,
Class A-4, Class B,
Class C, Class D and
Class E
Cut-off Date: March 11, 1999
Closing: 10:00 a.m. on March 25, 1999
at the offices of
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
1999-C1 Underwriting Agreement
Initial Aggregate Certificate
Principal Initial
Class Designation Balance of Class(1) Pass-Through Rate Purchase Price(2) Rating (3)
----------------- ---------------- ----------------- -------------- ----------
Class A-1 $350,000,000 6.250% 99.971175% Aaa/AAA
Class A-2 $100,000,000 6.585% 100.465015% Aaa/AAA
Class A-3 $800,000,000 6.640% 100.447375% Aaa/AAA
Class A-4 $448,115,000 6.975% 100.016365% Aaa/AAA
Class B $106,875,000 7.230% 100.459325% Aa2/AA
Class C $130,624,000 7.350% 98.643770% A2/A
Class D $136,562,000 7.350% 88.206495% Baa2/BBB
Class E $35,625,000 7.350% 82.390550% Baa3/BBB-
------------------
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate principal amount 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
principal amount 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 Standard & Poor's
Ratings Services, a Division of the XxXxxx-Xxxx Companies, Inc.,
respectively.
Exhibit A-1
-----------
ASC--IN-HOUSE OPINION
March 25, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
I am Secretary of and Counsel to Asset Securitization Corporation, a
Delaware corporation ("ASC"). I have been asked to deliver this opinion in
connection with the issuance of Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 (the "Certificates"), issued
pursuant to the Pooling and Servicing Agreement dated as of March 11, 1999 (the
"Pooling and Servicing Agreement"), by and among ASC, as depositor, LaSalle
National Bank, as trustee, First Union National Bank, as servicer, Lennar
Partners, Inc., as special servicer, and ABN AMRO Bank N.V., as fiscal agent.
Capitalized terms used and not otherwise defined herein have the meanings
given to them in the Underwriting Agreement dated March 19, 1999 (the
"Underwriting Agreement"), by and among ASC, The Capital Company of America LLC,
a Delaware limited liability company ("CCA"), Nomura Holding America Inc., a
Delaware corporation ("NHA"), and Xxxxxxx, Xxxxx & Co. ("Xxxxxxx, Xxxxx") and
Xxxxxx Brothers Inc. ("Xxxxxx"), as representatives of the underwriters
described therein (Xxxxxxx, Xxxxx and Lehman, collectively with Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation and Nomura Securities International,
Inc., the "Underwriters") and, if not defined therein, in the Pooling and
Servicing Agreement. I have examined such documents as I believe are necessary
or appropriate for the purposes of this opinion, including the certificate of
incorporation, by-laws and resolutions adopted by the Board of Directors of ASC,
the Pooling and Servicing Agreement, the Underwriting Agreement, the Mortgage
Loan Purchase and Sale Agreement, dated as of March 11, 1999 (the "CCA/Mortgage
Loan Purchase Agreement"), by and between ASC, as purchaser, and CCA, as seller,
and acknowledged by NHA, the Mortgage Loan Purchase and Sale Agreement, dated as
of March 11, 1999 (the "NHA/Mortgage Loan Purchase Agreement"), by and between
ASC, as purchaser, and NHA, as seller, the form of assignment and delivery of
the Mortgage Loans and related collateral therefor and all exhibits thereto (the
Pooling and Servicing Agreement, the Underwriting Agreement, the CCA/Mortgage
Loan Purchase Agreement and the NHA/Mortgage Loan Purchase Agreement,
collectively, the "Agreements"). In reaching such opinions, I have assumed
without investigation, except as expressly set forth below, that there are no
facts inconsistent with the assumptions made in paragraph A through D below.
A. All signatures of parties, other than ASC, on all documents are genuine.
Each person executing any instrument, document or agreement, whether
individually or on behalf of a firm or other business entity, other than ASC, is
duly authorized to do so.
B. All documents submitted as original are authentic; and all photostatic
copies, and all copies certified by a governmental custodian or a party to the
transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
D. All other parties to documents, other than ASC, have the requisite power
and authority to consummate the transaction contemplated by the Agreements and
to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of law
and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. ASC is a corporation, duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, and is duly qualified to do
business in the State of New York as a foreign corporation.
2. ASC has all requisite corporate power and authority to execute, deliver
and perform its obligations under the Agreements.
3. The execution, delivery and performance of the Agreements by ASC have
been duly authorized by all necessary corporate action of ASC.
4. Neither the issuance and sale of the Certificates nor the execution,
delivery or performance of the terms of the Agreements will result in the breach
of any term or provision of the certificate of incorporation or by-laws of ASC
or conflict with, result in a breach or violation of or the acceleration of
indebtedness under, or constitute a default under, the terms of any indenture,
agreement or instrument of which I have knowledge to which ASC is a party or by
which it is bound, or any order or decree of any court, regulatory body,
administrative agency or governmental body having jurisdiction over ASC and
known to me as being applicable to ASC.
5. To my knowledge, there is no action, suit or proceeding against, or
investigation of, ASC pending or threatened against ASC before any court,
administrative agency or other tribunal which, either individually or in the
aggregate, (a) asserts the invalidity of any of the Agreements or the
Certificates, (b) seeks to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by the Agreements or (c)
which would materially and adversely affect (i) the performance by ASC of its
obligations under, or the validity or enforceability of, any of the Agreements
or the Certificates, or (ii) any rights with regard to the Mortgaged Properties
or the Mortgage Loans.
In addition to the qualifications set forth above, the opinions herein are
also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the opinions
expressed herein concern only the laws of the State of New York, as currently in
effect, the federal laws of the United States of America, as currently in
effect, and the corporate laws of the State of Delaware, as currently in effect.
2. I assume no obligation to supplement this opinion if, after the date
hereof, any applicable laws change or I become aware of any facts that might
change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this letter. No
other opinions should be inferred beyond the matters expressly stated.
The opinions expressed in this letter may be relied upon solely by the
addressees hereof solely with respect to the transactions described in the
Agreements, and may not be relied upon by any other person or entity, without my
specific prior written consent.
Sincerely,
SCHEDULE A
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 0XX Xxxxx
Xxx Xxxx, XX 00000
Nomura Securities International, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Standard & Poor's Rating Services
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxxx, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Exhibit A-2
-----------
ASC - CWT OPINION
March 25, 1999
Xxxxxxx, Xxxxx & Co. Xxxxxx Brothers Inc.
00 Xxxxx Xxxxxx 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Nomura Securities International, Inc. Xxxxxxxxx, Xxxxxx & Xxxxxxxx
2 World Financial Center Securities Corporation
Building B, 21st Floor 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 7(f) of the Underwriting
Agreement, dated March 19, 1999 (the "Underwriting Agreement"), by and among
Asset Securitization Corporation, a Delaware corporation ("ASC"), The Capital
Company of America LLC, a Delaware limited liability company ("CCA"), Nomura
Holding America Inc., a Delaware corporation ("NHA") and Xxxxxxx, Xxxxx & Co.
("Xxxxxxx, Xxxxx") and Xxxxxx Brothers Inc. ("Xxxxxx"), as representatives of
the underwriters described therein (Xxxxxxx, Xxxxx and Xxxxxx, collectively with
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Nomura Securities
International, Inc., the "Underwriters"). We have acted as special counsel to
(1) ASC and CCA in connection with the purchase by ASC from CCA, pursuant to a
Mortgage Loan Purchase and Sale Agreement dated as of March 11, 1999 (the
"CCA/Mortgage Loan Purchase and Sale Agreement"), by and between ASC and CCA and
acknowledged by NHA, of the mortgage loans described therein; (2) ASC and NHA in
connection with the purchase by ASC from NHA, pursuant to a Mortgage Loan
Purchase and Sale Agreement dated as of March 11, 1999 (the "NHA/Mortgage Loan
Purchase and Sale Agreement" and collectively with the CCA/Mortgage Loan
Purchase and Sale Agreement, the "Mortgage Loan Purchase and Sale Agreements"),
by and between ASC and NHA, of the mortgage loans described therein; (3) ASC in
connection with (a) the issuance of the Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, consisting of
nineteen classes: the "Class A-1 Certificates," the "Class A-2 Certificates,"
the "Class A-3 Certificates," the "Class A-4 Certificates," the "Class B
Certificates," the "Class C Certificates," the "Class D Certificates," the
"Class E Certificates," the "Class X Certificates," the "Class F Certificates,"
the "Class G Certificates," the "Class H Certificates," the "Class J
Certificates," the "Class K Certificates," the "Class L Certificates," the
"Class M-1 Certificates," the "Class M-2 Certificates," the "Class R
Certificates" and the "Class LR Certificates" (collectively, the
"Certificates"); and (b) the sale by ASC and the purchase by the Underwriters
pursuant to the Underwriting Agreement of the Class A-1, the Class A-2, the
Class A-3, the Class A-4, the Class B, the Class C, the Class D and the Class E
Certificates (collectively, the "Offered Certificates"); (4) NHA in connection
with the acknowledgment by NHA of the CCA/Mortgage Loan Purchase and Sale
Agreement; (5) CCA in connection with the execution by CCA of the Underwriting
Agreement; and (6) NHA in connection with the execution by NHA of the
Underwriting Agreement. The Certificates are being issued pursuant to a Pooling
and Servicing Agreement dated as of March 11, 1999 (the "Pooling and Servicing
Agreement"), by and among ASC, as depositor, LaSalle National Bank, as trustee,
First Union National Bank, as servicer, Lennar Partners, Inc., as special
servicer, and ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used and
not otherwise defined herein have the meanings given to them in the Pooling and
Servicing Agreement.
The Certificates will evidence beneficial ownership interests in a trust
fund (the "Trust Fund") the assets of which will consist primarily of the
mortgage loans (the "Mortgage Loans") identified in Exhibit B to the Pooling and
Servicing Agreement, together with certain related assets.
In rendering the opinions set forth below, we have examined and relied upon
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Underwriting Agreement, the Pooling and Servicing
Agreement, the Mortgage Loan Purchase and Sale Agreements and all exhibits
thereto (collectively, the "Agreements"), the Registration Statement on Form S-3
No. 333-53859 which was filed with the Securities and Exchange Commission (the
"Commission") on September 21, 1998 and which became effective on September 25,
1998 (the "Registration Statement"), the Preliminary Prospectus, dated March 1,
1999, the Preliminary Prospectus Supplement dated March 1, 1999 relating to the
Offered Certificates, the Prospectus dated March 19, 1999 (the "Base
Prospectus") and the Prospectus Supplement dated March 19, 1999 relating to the
Offered Certificates (the "Prospectus Supplement", and together with the Base
Prospectus, the "Prospectus"); such Prospectus to be filed with the Commission
pursuant to Rule 424(b)(5) of the Securities Act of 1933, as amended (the "Act")
on or before March ___, 1999, specimen forms of the Offered Certificates, and
such certificates, corporate and public records and other documents, agreements,
instruments and opinions, including, among other things, the documents delivered
at the closing of the purchase and sale of the Offered Certificates (the
"Closing") and the opinion of Xxxxxxxx X. Xxxxxxx, Esq., Secretary of and
Counsel to ASC, dated of even date herewith, as we have deemed necessary as a
basis for such opinions expressed below. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents, agreements
and instruments submitted to us as originals, the conformity to original
documents, agreements and instruments of all documents, agreements and
instruments submitted to us as copies or specimens, the authenticity of the
originals of such documents, agreements and instruments submitted to us as
copies or specimens, the conformity of the text of each document filed with the
Commission through the Commission's Electronic Data Gathering, Analysis and
Retrieval System to the printed document reviewed by us, and the accuracy of the
matters set forth in the documents, agreements and instruments we reviewed. As
to any facts material to such opinions that were not known to us, we have relied
upon statements, certificates and representations of officers and other
representatives of ASC, NHA, CCA, the Servicer, the Special Servicer, the
Trustee, the Fiscal Agent and the Underwriters included in the Agreements and
other documents, certificates and opinions delivered at the Closing and of
public officials. We have examined such questions of law as we have deemed
necessary for purposes of these opinions.
We have assumed that each party to the Agreements had the power and
authority to enter into and perform the obligations undertaken by it under the
Agreements to which it is a party, that the Agreements were duly authorized,
executed and delivered by each such party (other than ASC, as to which we have
relied upon the opinion of Xxxxxxxx X. Xxxxxxx, Esq., Secretary of and Counsel
to ASC, referenced above) and that, with respect to each such party (other than
ASC), each such Agreement constitutes the legal, valid, and binding agreement of
such party. As used herein, "to our knowledge" means the actual awareness,
without independent investigation, of facts or other information by any lawyer
in our firm actively involved in the transactions contemplated by the
Agreements.
We express no opinion concerning the laws of any jurisdiction other than
the substantive laws of the State of New York and, where expressly referred to
below, the substantive federal laws of the United States of America (in each
case without regard to conflicts of laws principles), and we express no opinion
as to whether a court outside the State of New York would honor the choice of
New York law in any agreement or instrument referred to herein.
Based upon, and subject to the foregoing, we are of the opinion that:
1. The Registration Statement is effective under the Act, and, to our
knowledge, no stop order with respect thereto has been issued, or proceeding for
that purpose has been instituted or threatened by the Commission.
2. The Registration Statement, the Prospectus and any further amendments
and supplements thereto made by ASC prior to the date of the Closing (in each
case excluding any information incorporated by reference therein and any
numerical, financial, statistical and quantitative data included therein, as to
which we express no view), as of the date it became effective, as of the date of
the Prospectus Supplement or as of the date of such later amendment or
supplement, as the case may be, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and the rules
and regulations thereunder applicable to such documents as of the relevant date.
3. To our knowledge, there are no contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus, as
amended or supplemented, which are not filed or described as required.
4. The statements in the Base Prospectus under the headings "Federal Income
Tax Consequences," "ERISA Considerations" and "Legal Investment" and in the
Prospectus Supplement under the headings "Certain Federal Income Tax
Consequences," "Certain ERISA Considerations" and "Legal Investment," insofar as
such statements purport to summarize matters of federal law or legal conclusions
with respect thereto, have been reviewed by us and are correct in all material
respects. The statements made under the captions "Description of the
Certificates" and "Description of the Agreements" in the Base Prospectus and
"The Pooling and Servicing Agreement" and "Description of the Offered
Certificates" in the Prospectus Supplement, insofar as such statements
constitute a summary of the terms of the Offered Certificates and the Pooling
and Servicing Agreement, are correct in all material respects.
5. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by
the Pooling and Servicing Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
6. Assuming that the elections required by Section 860D(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), are properly made, and assuming
that the Trust Fund is administered in compliance with the Pooling and Servicing
Agreement as in effect on the Closing Date, and with any subsequent changes in
the law, including any amendments to the Code or applicable Treasury regulations
thereunder, (a) the Upper-Tier REMIC, the Lower-Tier REMIC, the Atlanta Marriott
REMIC, the DDRA REMIC and the Overland MHP REMIC will each qualify for treatment
for federal income tax purposes as a real estate mortgage investment conduit, as
defined in Section 860D of the Code; (b) the Class A-1, the Class A-2, the Class
A-3, the Class A-4, the Class B, the Class C, the Class D, the Class E, the
Class X, the Class F, the Class G, the Class H, the Class J, the Class K, the
Class L, the Class M-1 and the Class M-2 Certificates will represent "regular
interests" in the Upper-Tier REMIC and the Class R and the Class LR Certificates
will represent the sole classes of "residual interests" in the Upper-Tier REMIC
and the Lower-Tier REMIC, respectively, within the meaning of the Code.
Furthermore, (i) those portions of the Trust Fund consisting of the right to
receive (w) the Repurchase Return of Premium Amount, (x) the Repurchase Price
Return of Premium Distribution Account, (y) the Excess Interest and (z) the
Excess Interest Distribution Account will be characterized for federal income
tax purposes as a grantor trust under Subpart E of Part 1 of Subchapter J of the
Code; (ii) the Class X Certificates represent undivided beneficial interests in
that portion of the Trust Fund consisting of the Repurchase Return of Premium
Amount and the Repurchase Price Return of Premium Distribution Account; and
(iii) the Class A-2, the Class A-3, the Class A-4, the Class B, the Class C, the
Class D, the Class E, the Class F, the Class G, the Class H, the Class J, the
Class K, the Class L, Class M-1 and Class M-2 Certificates will represent pro
rata undivided beneficial interests in that portion of the Trust Fund consisting
of the Excess Interest and the Excess Interest Distribution Account.
7. Each of the Agreements has been duly executed and delivered by ASC and
constitutes the legal, valid and binding agreement of ASC, enforceable against
ASC in accordance with its terms, subject to applicable bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and except that rights to indemnification and
contribution may be limited by applicable law or public policy.
8. No consent, approval, authorization of, registration or filing with, or
notice to, any State of New York or federal governmental or regulatory
authority, agency, department, commission, board, bureau, body or
instrumentality is required for the execution, delivery or performance of, or
compliance by ASC with, the Agreements except such recordations of the
assignments of the Mortgage Loans or the reassignments of assignments of leases,
rents and profits or filings of UCC Financing Statements that have not yet been
completed.
9. Neither the issuance and sale of the Offered Certificates nor the
execution, delivery and performance of the terms of the Agreements by ASC will
conflict with, or result in a violation of, any New York State or federal law
that is, to our knowledge, applicable to ASC.
10. The Offered Certificates have been validly issued and are outstanding
and entitled to the benefits provided by the Pooling and Servicing Agreement.
11. Assuming that the Class A-1, Class A-2, Class A-3, Class A-4 and Class
B Certificates are rated at the time of issuance in one of the two highest
rating categories by a nationally recognized statistical rating organization,
each such Certificate at the time of the issuance thereof will be a "mortgage
related security" as such term is defined in Section 3(a)(41) of the Exchange
Act.
We have rendered the opinions expressed herein based on facts and
circumstances existing, and applicable laws, rules, regulations, court
decisions, and governmental and regulatory authority determinations in effect,
on the date hereof. We assume no obligation to update or supplement this letter
to reflect any facts, circumstances, laws, rules, or regulations, or any changes
thereto, or any court or other authority or commission decisions or governmental
or regulatory authority determinations which may hereafter occur or come to our
attention.
We are furnishing this opinion to each addressee hereof solely for its
benefit in connection with the transactions referred to herein. This opinion is
not to be relied upon, used, circulated, quoted or otherwise referred to by any
other person or for any other purpose without our prior written consent.
Very truly yours,
Exhibit A-3
-----------
CWT 10B-5 LETTER--PUBLICS
March 25, 1999
Xxxxxxx, Xxxxx & Co. Xxxxxx Brothers Inc.
00 Xxxxx Xxxxxx 0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Jenrette Nomura Securities International, Inc.
Securities Corporation 2 World Financial Center
000 Xxxx Xxxxxx, 0xx Xxxxx Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
This letter is with reference to the registration under the Securities Act
of 1933 (the "Act") and offering of Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D and Class E Certificates (collectively
referred to herein as the "Offered Certificates"). This letter is being
delivered to you pursuant to Section 7(f) of the Underwriting Agreement (the
"Underwriting Agreement"), by and among Asset Securitization Corporation
("ASC"), The Capital Company of America LLC ("CCA"), Nomura Holding America Inc.
and Xxxxxxx, Xxxxx & Co. ("Xxxxxxx, Xxxxx") and Xxxxxx Brothers Inc. ("Xxxxxx"),
as representatives of the underwriters described therein (Xxxxxxx, Xxxxx and
Xxxxxx, collectively with Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
and Nomura Securities International, Inc., the "Underwriters").
A registration statement on Form S-3 No. 333-53859 was filed with the
Securities and Exchange Commission (the "Commission") on September 21, 1998 and
became effective on September 25, 1998 (the "Registration Statement"). The
Offered Certificates have been offered by a Preliminary Prospectus, dated March
1, 1999, as supplemented by a Preliminary Prospectus Supplement, dated March 1,
1999 relating to the Offered Certificates, and a Final Prospectus, dated March
19, 1999 (the "Base Prospectus"), as supplemented by the Final Prospectus
Supplement, dated March 19, 1999 (the "Prospectus Supplement") relating to the
Offered Certificates, which updates or supplements certain information contained
in the Base Prospectus (the Base Prospectus and the Prospectus Supplement,
together, the "Prospectus"). Capitalized terms used and not otherwise defined
herein have the meanings given to them in the Pooling and Servicing Agreement,
dated as of March 11, 1999, among ASC, as depositor, LaSalle National Bank, as
trustee, First Union National Bank, as servicer, Lennar Partners Inc., as
special servicer, and ABN AMRO Bank N.V., as fiscal agent.
We assume, for purposes of this letter, the conformity of the text of each
document filed with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval System to the printed document reviewed by us.
This letter is also limited to the actual awareness, without independent
investigation, of facts or other information by any lawyer in our firm actively
involved in the transactions contemplated by the Underwriting Agreement. For
purposes hereof, the terms "Registration Statement," "Base Prospectus,"
"Prospectus Supplement" and "Prospectus" do not include the Form 8-Ks, or the
exhibits thereto, filed with the Commission relating to the Offered
Certificates, and we express no view with respect thereto, other than those
materials attached hereto as Schedule A (such attached materials, the "Covered
Materials").
We have not ourselves checked the accuracy, completeness or fairness of, or
otherwise verified, the information contained in the Registration Statement, the
Prospectus (and any further amendment or supplement thereto made by ASC prior to
the Closing Date) or the Covered Materials and we do not pass upon or assume any
responsibility therefor (other than as set forth in paragraph 2, 3 and 4 of our
opinion to you of even date herewith on behalf of ASC (the "Opinion Letter")).
In particular, without limiting the generality of the foregoing and with your
consent, we have not reviewed the Mortgage Files or other documents prepared or
delivered in connection with the origination or modification of the Mortgage
Loans. However, in the course of our participation in the preparation of the
Registration Statement and the Prospectus and our review of the Covered
Materials, we have attended certain conferences and participated in
conversations with representatives of ASC, ASC's independent public accountants,
CCA, counsel to CCA, NHA and counsel to NHA, each in connection with the
origination of certain of the Mortgage Loans, and with the Underwriters and
their counsel. On the basis of the information which we gained in the course of
the representation referred to above and our examination of the documents
referred to in the Opinion Letter, considered in light of our understanding of
applicable law and the experience we have gained through our practice, nothing
has come to our attention in the course of our review of the Registration
Statement, the Prospectus and the Covered Materials which causes us to believe
that: (i) as of the effective date of the Registration Statement, as of the date
of any post-effective amendment thereof or as of the date hereof, the
Registration Statement, as amended, 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; (ii) as of the date of
the Prospectus Supplement or as of the date hereof, the Prospectus contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; or (iii) as of the
date on which such materials were filed by ASC under Form 8-K, the Covered
Materials, when read together with the Prospectus, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances in which they were
made, not misleading; it being understood that we express no view as to the
adequacy or accuracy of (i) the financial statements, schedules or other
financial or statistical data included in the Registration Statement or the
Prospectus or (ii) any information contained in any computer disk accompanying
the Prospectus.
We are furnishing this letter based on facts and circumstances existing,
and applicable laws, rules, regulations, court decisions, and governmental and
regulatory authority determinations in effect, on the date hereof. We assume no
obligation to update or supplement this letter to reflect any facts,
circumstances, laws, rules, or regulations, or any changes thereto, or any court
or other authority or body decisions or governmental or regulatory authority
determinations which may hereafter occur or come to our attention.
We are furnishing this letter to each addressee hereof solely for its
benefit in connection with the transactions referred to herein. This letter is
not to be relied upon, used, circulated, quoted or otherwise referred to by any
other person or for any other purpose without our prior written consent.
Very truly yours,
SCHEDULE A
LIST OF COVERED MATERIALS
-------------------------
Exhibit B-1
CCA--IN-HOUSE OPINION
March 25, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
I am Assistant Secretary of and Counsel to The Capital Company of America
LLC, a Delaware limited liability company ("CCA"). I have been asked to deliver
this opinion in connection with the sale by CCA and the purchase by Asset
Securitization Corporation ("ASC"), pursuant to the Mortgage Loan Purchase and
Sale Agreement dated As of March 11, 1999 (the "Mortgage Loan Purchase and Sale
Agreement"), by and between CCA and Asset Securitization Corporation, of the
Mortgage Loans described therein and the assignment and delivery of such
Mortgage Loans and related collateral therefor by CCA to the Trustee and in
connection with the execution by CCA of the Underwriting Agreement dated March
19, 1999 (the "Underwriting Agreement" and, together with the Mortgage Loan
Purchase Agreement, the "Agreements"), by and among Asset Securitization
Corporation, CCA, Nomura Holding America Inc. and Xxxxxxx, Xxxxx & Co. and
Xxxxxx Brothers Inc., as representatives of the underwriters described therein.
Capitalized terms used and not otherwise defined herein have the meanings given
to them in the Pooling and Servicing Agreement dated as of March 11, 1999, by
and among ASC, as depositor, LaSalle National Bank, as trustee, First Union
National Bank, as servicer, Lennar Partners, Inc., as special servicer, and ABN
AMRO Bank N.V., as fiscal agent.
I have examined such documents as I believe are necessary or appropriate
for the purposes of this opinion, including the certificate of formation,
incumbency resolution and operating agreement adopted by the members of CCA and
the Agreements and all exhibits thereto. In reaching such opinions, I have
assumed without investigation, except as expressly set forth below, that there
are no facts inconsistent with the assumptions made in paragraphs A through D
below.
A. All signatures of parties, other than CCA, on all documents are genuine.
Each person executing any such instrument, document or agreement, whether
individually or on behalf of a firm or other business entity, other than CCA, is
duly authorized to do so.
B. All documents submitted as original are authentic, and all photostatic
copies, and all copies certified by a governmental custodian or a party to the
transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
D. All other parties to documents, other than CCA, have the requisite power
and authority to consummate the transactions contemplated by the Agreements and
to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of law
and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. The execution, delivery and performance of the terms of the Agreements
will not result in the breach or violation of or a default under any order or
decree of any court, regulatory body, administrative agency or governmental body
having jurisdiction over CCA and known to me as being applicable to CCA.
2. To my knowledge, there is no action, suit or proceeding against, or
investigation of, CCA pending or threatened against CCA before any court,
administrative agency or other tribunal which, either individually or in the
aggregate, (a) asserts the invalidity of the Agreements, (b) seeks to prevent
the consummation of any of the transactions contemplated by the Agreements or
(c) which would materially and adversely affect (i) the performance by CCA of
its obligations under, or the validity or enforceability of, the Agreements, or
(ii) any rights with regard to the Mortgaged Properties or the Mortgage Loans.
3. The execution, delivery and performance by CCA of, and the consummation
of the transactions contemplated by, the Agreements do not and will not result
in a breach of, constitute a default under, require any consent under, or result
in the acceleration or required prepayment of any indebtedness pursuant to the
terms of, any agreement or instrument of which I have actual knowledge (such
actual knowledge solely based on discussions with members of CCA's senior
management and without further investigation) to which CCA is a party or by
which it is bound or to which it is subject, or result in the creation or
imposition of any lien upon any property of CCA pursuant to the terms of any
such agreement or instrument, any of which occurrences, either in any one
instance or in the aggregate, would allow into question the validity of the
Agreements or be reasonably likely to impair materially the ability of CCA to
perform under the terms of the Agreements.
In addition to the qualifications set forth above, the opinions herein are
also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the opinions
expressed herein concern only the laws of the State of New York, as currently in
effect, and the federal laws of the United States of America, as currently in
effect and the corporate law of the State of Delaware, as currently in effect.
2. I assume no obligation to supplement this opinion if, after the date
hereof, any applicable laws change or I become aware of any facts that might
change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this letter. No
other opinions should be inferred beyond the matters expressly stated.
The opinions expressed in this letter may be relied upon solely by the
addressees hereof solely with respect to the transactions described in the
Agreements, and may not be relied upon by any other person or entity, without my
specific prior written consent.
Sincerely,
SCHEDULE A
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Nomura Securities International, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Standard & Poor's Rating Services
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxxx, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Exhibit B-2
-----------
CCA--CWT OPINION
March 25, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 4 of the Mortgage Loan
Purchase and Sale Agreement dated as of March 11, 1999 (the "Mortgage Loan
Purchase Agreement"), by and between The Capital Company of America LLC, a
Delaware limited liability company ("CCA"), and Asset Securitization
Corporation, a Delaware corporation (the "Purchaser"), and acknowledged by
Nomura Holding America Inc., a Delaware corporation ("NHA"), and pursuant to
Section 7(j) of the Underwriting Agreement, dated March 19, 1999 (the
"Underwriting Agreement" and, together with the Mortgage Loan Purchase
Agreement, the "Agreements"), by and among Asset Securitization Corporation,
CCA, NHA and Xxxxxxx, Xxxxx & Co. and Xxxxxx Brothers Inc., as representatives
of the underwriters described therein. We have acted as special counsel to CCA
in connection with the execution by CCA of the Underwriting Agreement and the
sale by CCA and the purchase by the Purchaser of the mortgage loans (the
"Mortgage Loans") which are described in the Mortgage Loan Purchase Agreement.
Capitalized terms used and not otherwise defined herein have the meanings given
to them in the Mortgage Loan Purchase Agreement and, if not defined therein, in
the Underwriting Agreement.
In rendering the opinion set forth below, we have examined and relied upon
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Agreements and such certificates, corporate records and
other documents and instruments, as we have deemed necessary as a basis for such
opinion hereinafter expressed, including those delivered at the closing for the
sale of the Mortgage Loans and the sale of the Offered Certificates. In addition
we have relied, with your permission, on the opinion of counsel of Xxxxxxxx X.
Xxxxxxx, Esq., Assistant Secretary of and Counsel to CCA, and on the opinions of
Xxxxxxxx & Xxxxxxxx and of Xxxxxx, Xxxxxxxx & Xxxxxxx LLP, each special counsel
to CCA, each dated of even date herewith. In connection with such examination,
we have assumed the genuineness of all signatures, the authenticity of all
documents, agreements and instruments submitted to us as originals, and the
conformity to original documents, agreements and instruments of all documents
and instruments submitted to us as copies or specimens, the authenticity of the
originals of such documents, agreements and instruments submitted to us as
copies or specimens, and the accuracy of the matters set forth in the documents,
agreements and instruments we reviewed. As to any facts material to such opinion
that were not known to us, we have relied, with your consent, upon statements,
certificates and representations of officers and other representatives of CCA.
As used herein, "to our knowledge" means the actual awareness, without
independent investigation, of facts or other information by any lawyer in our
firm actively involved in the transactions contemplated by the Agreements.
We have assumed that each party to the Agreements had the power and
authority to enter into and perform the obligations undertaken by it under the
Agreements, that the Agreements were duly authorized, executed and delivered by
each of the parties thereto (other than CCA, as to which we have relied on the
opinions of Xxxxxxxx X. Xxxxxxx, Esq., Assistant Secretary of and Counsel to
CCA, Xxxxxx, Xxxxxxxx & Xxxxxxx LLP and Shearman & Xxxxxxxx, each referenced
above), and that each of the Agreements constitutes the legal, valid, and
binding agreement of the of the parties thereto (other than CCA).
We express no opinion concerning the laws of any jurisdiction other than
the substantive laws of the State of New York (without regard to conflicts of
laws principles), and we express no opinion as to whether a court outside the
State of New York would honor the choice of New York law in any agreement or
instrument referred to herein.
Based upon, and subject to the foregoing, we are of the opinion that:
1. Each Agreement constitutes the legal, valid and binding agreement of
CCA, enforceable against CCA in accordance with its terms, subject to applicable
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization
and similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2. No consent, approval, authorization of, registration or filing with, or
notice to, any State of New York or federal governmental or regulatory
authority, agency, department, commission, board, bureau, body or
instrumentality is required for the execution, delivery or performance of, or
compliance by CCA with, the Agreements except such recordations of the
assignments of the Mortgage Loans or the reassignments of assignments of leases,
rents and profits or filings of UCC Financing Statements that have not yet been
completed.
3. Neither the sale of the Mortgage Loans nor the execution, delivery and
performance of the terms of the Agreements by CCA will conflict with, or result
in the violation of, any New York State or federal law that is, to our
knowledge, applicable to CCA.
We have rendered the opinions expressed herein based on facts and
circumstances existing, and applicable laws, rules, regulations, court
decisions, and governmental and regulatory authority determinations in effect,
on the date hereof. We assume no obligation to update or supplement this letter
to reflect any facts, circumstances, laws, rules, or regulations, or any changes
thereto, or any court or other authority or commission decisions or governmental
or regulatory authority determinations which may hereafter occur or come to our
attention.
We are furnishing this opinion to each addressee hereof solely for its
benefit in connection with the transaction referred to herein. This opinion is
not to be relied upon, used, circulated, quoted or otherwise referred to by any
other person or for any other purpose without our prior written consent.
Very truly yours,
SCHEDULE A
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Nomura Securities International, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Standard & Poor's Rating Services
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Exhibit B-3
CCA -- DELAWARE COUNSEL OPINION
March 25, 1999
TO EACH OF THE PERSONS LISTED ON
SCHEDULE I ATTACHED HERETO
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
We have acted as special Delaware counsel for The Capital Company of
America LLC, a Delaware limited liability company (the "Company") in connection
with, among other things, the Interim Amended and Restated Limited Liability
Company Agreement of the Company dated June 26, 1998 (the "Operating Agreement")
by Nomura Asset Capital Corporation, a Delaware corporation ("NACC"). This
opinion is furnished to you pursuant to Section 4 of the Mortgage Loan Purchase
and Sale Agreement dated as of March 11, 1999 (the "Purchase Agreement") by and
between the Company and Asset Securitization Corporation ("ASC"), and
acknowledged by Nomura Holding America Inc., a Delaware corporation ("NHA") and
pursuant to Section 7(j) of the Underwriting Agreement, dated March 19, 1999
(the "Underwriting Agreement" and, together with the Purchase Agreement, the
"Transaction Agreements"), by and among Asset Securitization Corporation, the
Company, NHA and Xxxxxxx, Xxxxx & Co. and Xxxxxx Brothers Inc., as
representatives of the underwriters described therein. We have been engaged as
special Delaware counsel for the Company in connection with the giving of this
opinion. Terms used herein and not otherwise defined herein shall have the
meaning set forth in the Operating Agreement.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
1. The Certificate of Formation of the Company dated as of January 29,
1998, as filed in the Office of the Secretary of State of the State of Delaware
(the "Secretary of State") on January 29, 1998;
2. The Limited Liability Company Agreement of the Company dated [as of]
February 19, 1998 (the "Original Agreement"), by NHA;
3. The Operating Agreement;
4. The Contribution Agreement dated as of June 18, 1998, by and between NHA
and NACC, pursuant to which NHA transferred its membership interest in the
Company to NACC (the "Contribution Agreement");
5. A Long Form Certificate of Good Standing for the Company dated March __,
1999 obtained from the Secretary of State;
6. The cancelled Membership Certificate originally issued to NHA on
February 19, 1998 (the "Original Certificate");
7. The Membership Certificate issued to NACC on June 18, 1998 (the
"Outstanding Certificate");
8. The Register of Membership Interests (the "Membership Register")
reflecting (i) the issuance of the Original Certificate, (ii) the cancellation
of the Original Certificate in connection with the Contribution Agreement and
the transfer from NHA to NACC occurring thereunder; and (iii) the issuance to
NACC of the Outstanding Certificate;
9. Resolutions of the Board of Managers of the Company dated as of March
__, 1999 (the "Resolutions"), with respect to the authorization of the
Transaction Agreements;
10. A Certificate of a duly authorized officer of the Company dated March
__, 1999, certifying as to certain factual matters, including, without
limitation, the non-occurrence of any event of dissolution under the Operating
Agreement, [the status of transfers and withdrawals from the Company, and the
non-existence of any assets or employees in the State of Delaware];
11. The Purchase Agreement;
12. The Underwriting Agreement; and
13. A search dated March __, 1999 (the "Search") of the docket records of
the Court of Common Pleas, Superior Court, the Court of Chancery and the Supreme
Court of the State of Delaware, in each of New Castle County, Kent County and
Sussex County, as well as the United States District Court for the State of
Delaware (the "Courts"), reflecting the through dates of the Search pertaining
to each of the Courts, respectively, as to the non-existence of a decree of
judicial dissolution under Section 18-802 of the Act.
The documents referred to in (1), (2) and (3) are collectively referred to
herein as the "Company's Organizational Documents." The documents referred to in
(2), (3), (4), (11) and (12) are collectively referred to as the "Agreements"
and individually as an "Agreement."
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in (1) through (13) above. We have assumed that there
exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein.
In addition, we have conducted no independent factual investigation of our
own but rather have relied solely on the foregoing documents, the statements and
information set forth therein and the additional matters related or assumed
therein, all of which we have assumed to be true, complete and accurate.
Whenever a statement herein is qualified by the phrase "known by us" or a
correlative phrase, it is intended to indicate the current and actual knowledge
of the attorneys in the firm who have rendered legal services in connection with
the transactions described herein.
Based upon the foregoing, and upon an examination of such questions of law
of the State of Delaware as we have considered necessary or appropriate, and
subject to the assumptions, qualifications, limitations and exceptions set forth
herein, we are of the opinion that:
A. The Company (i) has been duly formed as a limited liability company and
is validly existing and in good standing under the laws of the State of
Delaware, and (ii) has the requisite limited liability company power and
authority to enter into the Transaction Agreements and to perform its respective
obligations thereunder.
B. The execution, delivery and performance by the Company of the
Transaction Agreements (i) have been duly authorized by all necessary limited
liability company action on behalf of the Company, and (ii) do not result in a
violation of the Company's Organizational Documents or any statutory law or
regulation of the State of Delaware known by us to be applicable to the Company.
C. No authorization, consent or approval of, and no notice to or filing
with, any governmental authority or regulatory body of the State of Delaware is
required for the due execution, delivery and performance by the Company of the
Transaction Agreements.
All of the foregoing opinions contained herein are subject to the following
assumptions, qualifications, limitations, and exceptions:
a. The foregoing opinions are limited to the laws of
the State of Delaware presently in effect, excluding
the securities provisions thereof. We have not
considered and express no opinion on the laws of any
other jurisdiction, including, without limitation,
federal laws and rules and regulations relating
thereto.
b. We have assumed that all signatures on documents
examined by us are genuine, that all documents
submitted to us as originals are authentic and that
all documents submitted to us as copies conform with
the originals.
c. We have assumed the due execution and delivery by
each party thereto of each document examined by us.
In addition, we have assumed the due authorization by
each party thereto (exclusive of the Company, as to
the Transaction Agreements) of each document examined
by us, and that each of such parties (exclusive of
the Company, as to the Transaction Agreements) has
the full power, authority, and legal right to
execute, deliver and perform under each such
document. We also have assumed that each of the
parties (exclusive of the Company) to each of the
Agreements is a legal entity duly formed, validly
existing and in good standing under the laws of their
respective jurisdictions of organization and that the
Agreements to which each of such entities to each of
the Agreements (other than, in the case of the
Company, as expressly set forth in Paragraph B) is a
party do not result in the breach of the terms of,
and do not contravene its constituent documents or
any law, rule or regulation applicable to it. We have
also assumed that each of the Agreements to which
each of such entities is a party does not (other
than, in the case of the Company as expressly set
forth in Paragraphs B and C) (x) result in the breach
of the terms of, and does not contravene, any
contractual restriction binding upon such entities,
or (y) require under any law, statute, rule, or
regulation any filing with, or any approval or
consent of, any governmental authority. We have
further assumed the legal capacity of any natural
persons who are signatories to any of the Agreements
or other documents examined by us.
d. We have assumed that all of the Agreements other
than the Operating Agreement constitute legal, valid,
binding and enforceable obligations of each of the
parties thereto in accordance with their respective
terms and under the stated laws of governance
thereof.
e. We have assumed that the Agreements to which the
Company is a party do not cause the Company to
operate outside of the limitations set forth in the
Risk Management Agreement.
f. We have assumed that the transactions contemplated
by the Agreements to which the Company is a party do
not result in a violation of any Japanese law or
regulatory requirement by Nomura Japan or Nomura.
g. We express no opinion on any filings that may be
required pursuant to the Uniform Commercial Code as
in effect in the State of Delaware.
h. We have assumed that the Company's Organizational
Documents and the Agreements constitute the entire
agreement among the parties thereto with respect to
the subject matter thereof, including with respect to
the admission of members to, and the creation,
operation, dissolution and winding up of, the
Company.
This opinion is rendered solely for your benefit in connection with the
maters set forth herein and, without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose. Xxxxxxxx & Xxxxxxxx and Xxxxxxxxxx, Xxxxxxxxxx & Xxxx may rely on this
opinion in connection with any legal opinion being rendered by the same on the
date hereof with respect to the matters set forth herein.
Very truly yours,
SCHEDULE A
Asset Securitization Corporation
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Nomura Securities International, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
The Capital Company of America LLC
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Standard & Poor's Rating Services
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Exhibit B-4
-----------
CCA--NEW YORK COUNSEL OPINION
March 25, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4 of the Mortgage Loan
Purchase and Sale Agreement dated as of March 11, 1999 (the "Mortgage Loan
Purchase Agreement") by and between The Capital Company of America LLC ("CCA"),
and Asset Securitization Corporation ("ASC"), and acknowledged by Nomura Holding
America Inc., a Delaware corporation ("NHA") and pursuant to Section 7(j) of the
Underwriting Agreement, dated March 19, 1999 (the "Underwriting Agreement" and,
together with the Mortgage Loan Purchase Agreement, the "Agreements"), by and
among Asset Securitization Corporation, CCA, NHA and Xxxxxxx, Xxxxx & Co. and
Xxxxxx Brothers Inc., as representatives of the underwriters described therein.
We have been engaged as special outside counsel for CCA in connection with the
giving of this opinion. Terms used herein and not otherwise defined shall have
the meanings assigned to them in the Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein, including, without limitation, the Agreements. We have examined that
certain Risk Management Agreement, dated as of June 26, 1998, by and between CCA
and NHA (the "Risk Management Agreement"). We have also examined such other
public and corporate documents and records as we deem necessary or appropriate
in connection with this opinion.
In addition, we have examined the originals, or copies certified or
otherwise identified to our satisfaction, of such corporate records of CCA,
certificates of public officials and of officers of CCA and agreements and
instruments as we have deemed necessary as a basis for the opinions expressed
below. As to questions of fact material to such opinions, we have, when relevant
facts were not independently established by us, relied upon certificates and
representations of CCA and its affiliates or of their respective officers or of
public officials. We have not made any independent investigation, nor do we
opine on, the compliance by CCA with any financial ratio or other financial
requirement contained in the Agreements, both before and after giving effect to
the transactions contemplated by the Agreements.
In our examination of the documents referred to above, we have assumed (i)
the due execution and delivery, pursuant to due authorization, of the Agreement
by all parties thereto (other than CCA), (ii) the authenticity of all such
documents submitted to us as originals and (iii) the conformity to originals of
such Agreement submitted to us as copies.
In addition, we have assumed, without independent investigation, that (i)
each of the parties to the Agreements (each, a "Transaction Party") is a
corporation, limited liability company or other entity duly organized and
validly existing under the laws of the jurisdiction of its organization, (ii)
each Transaction Party has full power and authority (corporate, company and
otherwise) to execute, deliver and perform its obligations under the Agreements,
(iii) the execution, delivery and performance by each Transaction Party of the
Agreement (A) have been duly authorized by all necessary action (corporate,
company, trust or otherwise) and (B) do not (1) contravene the charter or other
constituent documents of such Transaction Party, (2) except with respect to
Generally Applicable Law (as defined below) with respect to CCA (as to which we
make no assumption), violate any law, rule or regulation applicable to such
Transaction Party or (3) conflict with or result in the breach of any document
or instrument binding on any Transaction Party (other than the Covered
Agreements, as defined below, and the Risk Management Agreement) and (iv) except
with respect to Generally Applicable Law with respect to CCA (as to which we
make no assumption), no authorization, approval, consent or other action by, and
no notice to or filing with, any governmental or public body or any other third
party is required for the due execution, delivery or performance by any
Transaction Party of the Agreements or, if any such authorization, approval,
consent, action, notice or filing is required therefor, it has been duly
obtained or made and is in full force and effect. As used in this opinion
letter, "Generally Applicable Law" means federal laws of the United States of
America and the laws of the State of New York and any rule or regulation
promulgated thereunder or pursuant thereto applicable to the execution, delivery
or performance of the Agreements and which are generally applicable to the
execution, delivery or performance of documents with terms and provisions of the
type contained in the Agreements and not applicable thereto because of the
specific nature of the assets or business of the Transaction Parties or any of
their respective affiliates.
Based upon the foregoing examination and assumptions and upon such other
investigation as we have deemed necessary and subject to the qualifications set
forth below, we are of the following opinion:
1. Each of the Agreements has been duly executed and delivered by CCA.
2. The execution, delivery and performance by CCA of, and the consummation
of the transactions contemplated by, the Agreements do not and will not (a)
violate any Generally Applicable Law or (b) result in a breach of, constitute a
default under, require any consent under, or result in the acceleration or
required prepayment of any indebtedness pursuant to the terms of, any agreement
or instrument listed on Schedule B attached hereto, to which CCA is a party or
by which it is bound or to which it is subject (the "Covered Agreements").
3. CCA is qualified to do business and is in good standing in the State of
New York.
4. The Agreements and the transactions contemplated thereby do not and will
not violate the Risk Management Agreement.
The opinions set forth above are subject to the following qualifications:
(a) We express no opinion on the creation or perfection of any security or
ownership interests pursuant to the Agreements.
(b) Our opinions above are limited to the laws of the States of New York
and Delaware and the federal laws of the United States of America and we do not
express any opinion herein concerning any other law.
This opinion letter is rendered for the sole benefit of the addressees
hereof and no other person or entity is entitled to rely hereon. Copies of this
letter may not be made available, and this opinion letter may not be quoted or
referred to in any other document made available, to any other person or entity,
except to any rating agency or accountant or attorney for any person or entity
entitled hereunder to rely hereon or to whom or which this opinion letter may be
disclosed as provided herein, or as otherwise required by law.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you or any other person who is permitted
to rely on the opinions expressed herein as specified in the next preceding
paragraph of any development or circumstance of any kind including any change of
law or fact that may occur after the date of this opinion letter even though
such development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion letter.
Accordingly, any person relying on this opinion letter at any time should seek
advice of its counsel as to the proper application of this opinion letter at
such time.
Very truly yours,
SCHEDULE A
Asset Securitization Corporation LaSalle National Bank
2 World Financial Center 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx X, 00xx Xxxxx Xxxxxxx, XX 00000-0000
Xxx Xxxx, XX 00000
Xxxxxxx, Xxxxx & Co. ABN AMRO Bank N.V.
00 Xxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000 Xxxxxxx, XX 00000-4102
Xxxxxx Brothers Inc. Standard & Poor's Rating Services
3 World Financial Center 00 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Xxxxx'x Investors Service, Inc.
Securities Corporation 00 Xxxxxx Xxxxxx
000 Xxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
Nomura Securities International, Inc. Cadwalader, Xxxxxxxxxx & Xxxx
2 World Financial Center 000 Xxxxxx Xxxx
Xxxxxxxx X, 00xx Xxxxx Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
The Capital Company of America LLC
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
SCHEDULE B
Covered Agreements
Master Repurchase Agreement Governing Purchases and Sales of Eligible
Assets dated as of June 26, 1998 between CCA and Nomura Asset Capital
Corporation (the "Repo Agreement").
Short Term Loan Agreement dated as of June 26, 1998 between CCA and
Nomura Asset Capital Corporation (the "Short Term Loan Agreement").
Master Repurchase Agreement dated as of June 26, 1998 between CCA and
Nomura Securities (Bermuda) Ltd.
Exhibit C-1
-----------
NHA--NEW YORK COUNSEL OPINION
March 25, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4 of the NHA/Mortgage
Loan Purchase Agreement and Section 7(n) of the Underwriting Agreement (each as
defined below). We have been engaged as special outside counsel for Nomura
Holding America Inc., a Delaware corporation ("NHA") in connection with the
giving of this opinion regarding (1) the Mortgage Loan Purchase and Sale
Agreement (the "NHA/Mortgage Loan Purchase and Sale Agreement"), dated as of
March 11, 1999, by and between NHA and Asset Securitization Corporation, a
Delaware corporation ("ASC"); (2) NHA's obligation to repurchase any Mortgage
Loans pursuant to the Mortgage Loan Purchase and Sale Agreement (the
"CCA/Mortgage Loan Purchase and Sale Agreement"), dated as of March 11, 1999, by
and between The Capital Company of America LLC and the Purchaser and
acknowledged by NHA; and (3) the Underwriting Agreement, dated March 19, 1999
(the "Underwriting Agreement" and, together with the NHA/Mortgage Loan Purchase
Agreement and the CCA/Mortgage Loan Purchase Agreement, the "Agreements"), by
and among Asset Securitization Corporation, CCA, NHA and Xxxxxxx, Xxxxx & Co.
and Xxxxxx Brothers Inc., as representatives of the underwriters described
therein. Capitalized terms not defined herein have the meanings assigned to them
in the Underwriting Agreement, and if not defined therein, in the NHA/Mortgage
Loan Purchase Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein, including, without limitation, the Agreements. We have also examined
such other public and corporate documents and records as we deem necessary or
appropriate in connection with this opinion.
In addition, we have examined the originals, or copies certified or
otherwise identified to our satisfaction, of such corporate records of NHA,
certificates of public officials and of officers of NHA and agreements and
instruments as we have deemed necessary as a basis for the opinions expressed
below. As to questions of fact material to such opinions, we have, when relevant
facts were not independently established by us, relied upon certificates and
representations of NHA and its affiliates or of their respective officers or of
public officials. We have not made any independent investigation, nor do we
opine on, the compliance by NHA with any financial ratio or other financial
requirement contained in the Agreement, both before and after giving effect to
the transactions contemplated by the Agreement.
In our examination of the documents referred to above, we have assumed (i)
the due execution and delivery, pursuant to due authorization, of the Agreements
by all parties thereto (other than NHA), (ii) the authenticity of all such
documents submitted to us as originals and (iii) the conformity to originals of
such Agreements submitted to us as copies.
In addition, we have assumed, without independent investigation, that (i)
each of the parties to the Agreements, other than NHA (each, a "Transaction
Party") is a corporation, limited liability company or other entity duly
organized and validly existing under the laws of the jurisdiction of its
organization, (ii) each Transaction Party has full power and authority
(corporate, company and otherwise) to execute, deliver and perform its
obligations under the Agreements, (iii) the execution, delivery and performance
by each Transaction Party of the Agreements (A) have been duly authorized by all
necessary action (corporate, company, trust or otherwise) and (B) do not (1)
contravene the charter or other constituent documents of such Transaction Party,
(2) except with respect to Generally Applicable Law (as defined below) with
respect to NHA (as to which we make no assumption), violate any law, rule or
regulation applicable to such Transaction Party or (3) conflict with or result
in the breach of any document or instrument binding on any Transaction Party and
(iv) except with respect to Generally Applicable Law with respect to NHA (as to
which we make no assumption), no authorization, approval, consent or other
action by, and no notice to or filing with, any governmental or public body or
any other third party is required for the due execution, delivery or performance
by any Transaction Party of the Agreements or, if any such authorization,
approval, consent, action, notice or filing is required therefor, it has been
duly obtained or made and is in full force and effect. As used in this opinion
letter, "Generally Applicable Law" means federal laws of the United States of
America, the laws of the State of Delaware and the laws of the State of New York
and any rule or regulation promulgated thereunder or pursuant thereto applicable
to the execution, delivery or performance of the Agreements and which are
generally applicable to the execution, delivery or performance of documents with
terms and provisions of the type contained in the Agreements and not applicable
thereto because of the specific nature of the assets or business of the
Transaction Parties or any of their respective affiliates.
Based upon the foregoing examination and assumptions and upon such other
investigation as we have deemed necessary and subject to the qualifications set
forth below, we are of the following opinion:
1. NHA is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is qualified to do business
and is in good standing in the State of New York.
2. NHA has all requisite corporate power, authority and legal right to
execute and deliver the Agreements and observe the terms and conditions of the
Agreements.
3. The execution, delivery and performance by NHA of the Agreements have
been duly authorized by all necessary corporate action on the part of NHA. The
Agreements have been duly executed and delivered by NHA.
4. No consent, approval, authorization or order of, and no filing or
registration with, any court or governmental agency or regulatory body is
required on the part of NHA for the execution, delivery or performance by NHA of
the Agreements.
5. The execution, delivery and performance by NHA of, and the consummation
of the transactions contemplated by, the Agreements do not and will not (a)
violate any provision of NHA's charter or by-laws, (b) violate any Generally
Applicable Law, or (c) violate any order, writ, injunction or decree of any
court or governmental authority or agency or any arbitral award applicable to
NHA of which we have knowledge and which, either in any one instance or in the
aggregate, would call into question the validity of the Agreements or be
reasonably likely to impair materially the ability of NHA to perform under the
terms of the Agreement.
6. There is no action, suit, proceeding or investigation pending or, to our
knowledge, threatened against NHA which, in our judgment, either in any one
instance or in the aggregate, would be reasonably likely to result in any
material adverse change in properties, business or financial condition, or
prospects of NHA or in any material impairment of the right or ability of NHA to
carry on its business substantially as now conducted or in any material
liability on the part of NHA or which would draw into question the validity or
enforceability of the Agreements or the validity of any action taken or to be
taken in connection with the transactions contemplated thereby, or which would
be reasonably likely to impair materially the ability of NHA to perform under
the terms of the Agreements.
The opinions set forth above are subject to the following qualifications:
(a) We express no opinion on the creation or perfection of any security or
ownership interests pursuant to the Agreements.
(b) Our opinions above are limited to the laws of the States of New York
and Delaware and the federal laws of the United States of America and we do not
express any opinion herein concerning any other law.
This opinion letter is rendered for the sole benefit of the addressees
hereof and no other person or entity is entitled to rely hereon. Copies of this
letter may not be made available, and this opinion letter may not be quoted or
referred to in any other document made available, to any other person or entity,
except to any rating agency or accountant or attorney for any person or entity
entitled hereunder to rely hereon or to whom or which this opinion letter may be
disclosed as provided herein, or as otherwise required by law.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you or any other person who is permitted
to rely on the opinions expressed herein as specified in the next preceding
paragraph of any development or circumstance of any kind including any change of
law or fact that may occur after the date of this opinion letter even though
such development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion letter.
Accordingly, any person relying on this opinion letter at any time should seek
advice of its counsel as to the proper application of this opinion letter at
such time.
Very truly yours,
SCHEDULE A
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Nomura Securities International, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Standard & Poor's Rating Services
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxxx, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Exhibit C-2
-----------
NHA--CWT OPINION
March 25, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 4 of the Mortgage Loan
Purchase and Sale Agreement, dated as of March 11, 1999 (the "NHA/Mortgage Loan
Purchase and Sale Agreement"), by and between Asset Securitization Corporation,
a Delaware corporation ("ASC") and Nomura Holding America Inc., a Delaware
corporation ("NHA"), and pursuant to Section 7(n) of the Underwriting Agreement,
dated March 19, 1999 (the "Underwriting Agreement"), by and among ASC, The
Capital Company of America LLC ("CCA"), NHA and Xxxxxxx, Xxxxx & Co. and Xxxxxx
Brothers Inc., as representatives of the underwriters described therein. We have
acted as special counsel to NHA in connection with: (a) the execution by NHA of
the Underwriting Agreement; (b) the sale by NHA and the purchase by ASC,
pursuant to the NHA/Mortgage Loan Purchase and Sale Agreement, of the mortgage
loans described therein; and (c) the acknowledgment by NHA of the Mortgage Loan
Purchase and Sale Agreement, dated as of March 11, 1999 (the "CCA/Mortgage Loan
Purchase and Sale Agreement" and, together with the NHA/Mortgage Loan Purchase
and Sale Agreement, the "Mortgage Loan Purchase and Sale Agreements"), by and
between ASC and CCA, and acknowledged by NHA. Capitalized terms used and not
otherwise defined herein have the meanings given to them in the NHA/Mortgage
Loan Purchase and Sale Agreement and, if not defined therein, in the
Underwriting Agreement.
In rendering the opinions set forth below, we have examined and relied upon
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Underwriting Agreement, the Mortgage Loan Purchase and Sale
Agreements and all the respective exhibits thereto (collectively, the
"Agreements") and such certificates, corporate records and other documents and
instruments, as we have deemed necessary as a basis for such opinion hereinafter
expressed, including those delivered at the closing for the sale of the Mortgage
Loans and the sale of the Offered Certificates. In addition we have relied, with
your permission, on the opinion of counsel of Xxxxxxx Xxxxxxxx, Esq., Counsel to
NHA, and of Shearman & Xxxxxxxx, special counsel to NHA, each dated of even date
herewith. In connection with such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents, agreements and instruments
submitted to us as originals, the conformity to original documents, agreements
and instruments of all documents, agreements and instruments submitted to us as
copies or specimens, the authenticity of the originals of such documents,
agreements and instruments submitted to us as copies or specimens, and the
accuracy of the matters set forth in the documents, agreements and instruments
we reviewed. As to any facts material to such opinions that were not known to
us, we have relied upon statements, certificates and representations of officers
and other representatives of ASC, NHA, CCA, the Servicer, the Special Servicer,
the Trustee, the Fiscal Agent and the Underwriters included in the Agreements
and other documents, certificates and opinions delivered at the Closing and of
public officials. We have examined such questions of law as we have deemed
necessary for purposes of these opinions.
We have assumed that each party to the Agreements had the power and
authority to enter into and perform the obligations undertaken by it under the
Agreements to which it is a party, that the Agreements were duly authorized,
executed and delivered by such party, and that, with respect to each such party
(other than NHA), each such Agreement constitutes the legal, valid, and binding
agreement of such party.
We express no opinion concerning the laws of any jurisdiction other than
the substantive laws of the State of New York (without regard to conflicts of
laws principles), and we express no opinion as to whether a court outside the
State of New York would honor the choice of New York law in any agreement or
instrument referred to herein.
Based upon and subject to the foregoing, we are of the opinion that each of
the Agreements constitutes the legal, valid and binding agreement of NHA,
enforceable against NHA in accordance with its terms, subject to applicable
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization
and similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and except that
rights to indemnification and contribution may be limited by applicable law or
public policy.
We have rendered the opinions expressed herein based on facts and
circumstances existing, and applicable laws, rules, regulations, court
decisions, and governmental and regulatory authority determinations in effect,
on the date hereof. We assume no obligation to update or supplement this letter
to reflect any facts, circumstances, laws, rules or regulations, or any changes
thereto, or any court or other authority or commission decisions or governmental
or regulatory authority determinations which may hereafter occur or come to our
attention.
We are furnishing this opinion to each addressee hereof solely for its
benefit in connection with the transactions referred to herein. This opinion is
not to be relied upon, used, circulated, quoted or otherwise referred to by any
other person or for any other purpose without our prior written consent.
Very truly yours,
SCHEDULE A
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Nomura Securities International, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Standard & Poor's Rating Services
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Exhibit C-3
-----------
NHA--IN-HOUSE OPINION
March 25, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
I am Chief Legal Officer of Nomura Holding America Inc., a Delaware
corporation ("NHA"), and have acted as counsel to NHA with respect to certain
matters in connection with (1) the Mortgage Loan Purchase and Sale Agreement,
dated as of March 11, 1999 (the "NHA/Mortgage Loan Purchase and Sale
Agreement"), by and between Asset Securitization Corporation and NHA, (2) the
Underwriting Agreement, dated March 19, 1999 (the "Underwriting Agreement"), by
and among Asset Securitization Corporation, a Delaware corporation, The Capital
Company of America LLC, a Delaware limited liability company ("CCA"), NHA and
Xxxxxxx, Xxxxx & Co. and Xxxxxx Brothers Inc., as representatives of the
underwriters described therein, and (3) the Mortgage Loan Purchase and Sale
Agreement, dated as of March 11, 1999 (the "CCA/Mortgage Loan Purchase and Sale
Agreement" and, together with the NHA/Mortgage Loan Purchase and Sale Agreement
and the Underwriting Agreement, the "Agreements"), by and between ASC, CCA and
acknowledged by NHA. Capitalized terms not defined herein have the meanings
assigned to them in the Underwriting Agreement and, if not defined therein, in
the NHA/Mortgage Loan Purchase Agreement.
In connection with rendering this opinion letter, I have examined the
Agreements and such other documents as I have deemed necessary. As to matters of
fact, I have examined and relied upon representations, warranties and covenants
of the parties contained therein and, where I have deemed appropriate,
representations or certifications of officers of parties thereto or public
officials. In rendering this opinion letter, except for the matters that are
specifically addressed in the opinions expressed below, I have assumed (i) the
authenticity of all documents submitted to me as originals, the authenticity of
all signatures (other than NHA) and the conformity to the originals of all
documents submitted to me as copies, (ii) the necessary entity formation and
continuing existence in the jurisdiction of formation, and the necessary
licensing and qualification in all jurisdictions, of all parties to all
documents, (iii) the necessary authorization, execution, delivery and
enforceability of all documents, and the necessary entity power with respect
thereto, (iv) the conformity of the underlying assets and related documents to
the requirements of the agreements to which this opinion letter related and (v)
that there is not and will not be any other agreement that modifies or
supplements the agreements expressed in the documents to which this opinion
letter relates and that renders any of the opinions expressed below inconsistent
with such documents as so modified or supplemented.
In rendering this opinion letter, I do not express any opinion with respect
to matters involving the laws of any jurisdiction other than the State of New
York and the federal laws of the United States of America.
Based upon and subject to the foregoing, it is my opinion that the
execution, delivery and performance by NHA of, and the consummation of the
transactions contemplated by, the Agreements do not and will not result in a
breach of, constitute a default under, require any consent under, or result in
the acceleration or required prepayment of any indebtedness pursuant to the
terms of, any agreement or instrument of which I have actual knowledge (such
actual knowledge solely based on discussions with members of NHA's senior
management and without further investigation) to which NHA is a party or by
which it is bound or to which it is subject, or result in the creation or
imposition of any lien upon any property of NHA pursuant to the terms of any
such agreement or instrument, any of which occurrences, either in any one
instance or in the aggregate, would allow into question the validity of the
Agreements or be reasonably likely to impair materially the ability of NHA to
perform under the terms of the Agreements.
This opinion letter is rendered for the sole benefit of the addressees
hereof and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be made available, and this opinion letter may not be
quoted or referred to in any other document made available, to any other person
or entity, except to any rating agency or accountant or attorney for any person
or entity entitled hereunder to rely hereon or to whom or which this opinion
letter be disclosed as provided herein, or as otherwise required by law.
Very truly yours,
SCHEDULE A
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Nomura Securities International, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Standard & Poor's Rating Services
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxxxx, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
