BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
----------------------
September 27, 2000
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Brokerage Services, L.L.C.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Ladies and Gentlemen:
1. Introduction. Bear Xxxxxxx Commercial Mortgage Securities
Inc., a Delaware corporation (the "Company"), from time to time proposes to
issue and sell Commercial Mortgage Pass-Through Certificates ("Certificates") in
various series (each a "Series"), and, within each Series, in various classes,
in one or more offerings on terms determined at the time of sale. The
Certificates of each series will be issued pursuant to a pooling and servicing
agreement to be dated as of October 1, 2000 (the "Pooling and Servicing
Agreement") among the Company, as depositor, Xxxxx Fargo Bank, National
Association, as servicer ("Xxxxx Fargo" or the "Servicer"), GMAC Commercial
Mortgage Corporation, as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal
agent, and Xxxxx Fargo Bank Minnesota, N.A., as paying agent. Upon issuance, the
Certificates of each series will evidence undivided interests in the Trust Fund
(as defined in the Pooling and Servicing Agreement) established for such series
containing mortgage loans secured by commercial properties, multi-family
properties and manufactured housing communities (the "Mortgage Loans"), all as
described in the Prospectus (as defined below). The Mortgage Loans will be
purchased by the Company from Bear, Xxxxxxx Funding, Inc. ("BSFI"), Xxxxxx
Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc. ("Xxxxxx Xxxxxxx") and Xxxxx Fargo
(together with BSFI and Xxxxxx Xxxxxxx, the "Mortgage Loan Sellers") pursuant to
three Mortgage Loan Purchase and Sale Agreements (collectively, together with
any supplements thereto, the "Mortgage Loan Purchase Agreements"), each by and
between the Company and the applicable Mortgage Loan Seller. The Trust Fund, or
a portion thereof, may make one or more
elections to qualify as a real estate mortgage investment conduit ("REMIC")
under the Internal Revenue Code, all as described in the Prospectus (as defined
below). Terms not defined herein which are defined in the Pooling and Servicing
Agreement shall have the meanings ascribed to them in the Pooling and Servicing
Agreement.
Whenever the Company determines to make an offering of a
Series of Certificates (an "Offering") through you or an underwriting syndicate
managed or co-managed by you, it will offer to enter into an agreement ("Terms
Agreement") providing for the sale of such Certificates to, and the purchase and
offering thereof by, you and such other co-managers and underwriters, if any,
which have been selected by you and have authorized you to enter into such Terms
Agreement and other related documentation on their behalf (the "Underwriters,"
which term shall include you whether acting alone in the sale of Certificates or
as a co-manager or as a member of an underwriting syndicate). The Terms
Agreement relating to each Offering shall specify the principal amount of
Certificates to be issued and their terms not otherwise specified in the Pooling
and Servicing Agreement, the price at which the Certificates are to be purchased
by each of the Underwriters from the Company and the initial public offering
price or the method by which the price at which the Certificates are to be sold
will be determined. The Terms Agreement, which shall be substantially in the
form of Exhibit A hereto, may take the form of an exchange of any standard form
of written telecommunication between you and the Company. Each Offering governed
by this Agreement, as supplemented by the applicable Terms Agreement, shall
inure to the benefit of and be binding upon the Company and each of the
Underwriters participating in the Offering of such Certificates.
The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to you as of the date hereof, and to the Underwriters
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) A registration statement, including a prospectus, and such
amendments thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "Act"), have been filed
with the Securities and Exchange Commission ("Commission") (copies of which have
been provided to you) and such registration statement as amended has become
effective. Such registration statement as amended and the prospectus relating to
the sale of Certificates constituting a part thereof as from time to time
amended or supplemented (including any prospectus filed with the Commission
pursuant to Rule 424 of the rules and regulations of the Commission ("Rules and
Regulations") under the Act, including any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before
the effective date of the Registration Statement or the date of the Prospectus
Supplement), are respectively referred to herein as the "Registration Statement"
and the "Prospectus"; provided, however, that a supplement to the Prospectus (a
"Prospectus Supplement") prepared pursuant to Section 5(a) hereof shall be
deemed to have supplemented the Prospectus only with respect to the Offering of
the Series of Certificates to which it relates. The conditions of Rule 415 under
the Act have been satisfied with respect to the Company and the Registration
Statement, no stop order suspending the effectiveness of the Registration
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Statement is in effect and no proceedings for such purpose are pending or, to
the Depositor's knowledge, threatened by the Commission.
(b) On the effective date of the Registration Statement, the
Registration Statement, the Prospectus and the Prospectus Supplement conformed
in all material respects to the requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and on the date of each Terms Agreement,
the Registration Statement, the Prospectus and the Prospectus Supplement will
conform in all material respects to the requirements of the Act and the Rules
and Regulations, and the Prospectus and the Prospectus Supplement will not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading; provided, however, that the foregoing does not apply to (i)
statements or omissions in such documents based upon written information
furnished to the Company by any Underwriter specifically for use therein or (ii)
any Current Report (as defined in Section 5(b) below) or in any amendment
thereof or supplement thereto, incorporated by reference in such Registration
Statement or such Prospectus (or any amendment thereof or supplement thereto);
and provided, further, that the Company makes no representations or warranties
with respect to any information provided by Xxxxx Fargo or Xxxxxx Xxxxxxx for
inclusion into the Prospectus.
(c) This Agreement has been, and the Pooling and Servicing
Agreement, when executed and delivered as contemplated hereby and thereby will
have been, duly authorized, executed and delivered by the Company and each
constitutes, or will constitute when so executed and delivered, a legal, valid
and binding instrument enforceable against the Company in accordance with its
terms, except as enforceability may be limited by (A) bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights of
creditors generally, (B) general principles of equity and the discretion of the
court (regardless of whether enforceability of such remedies is considered in a
proceeding in equity or at law) and (C) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport or are
construed to provide indemnification from securities law liabilities.
(d) Each Terms Agreement when executed and delivered as
contemplated hereby and thereby will have been duly authorized, executed and
delivered by the Company and will constitute when so executed and delivered, a
legal, valid and binding obligation of the Company enforceable in accordance
with its terms, except as enforceability may be limited by (A) bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights of
creditors generally, (B) general principles of equity and the discretion of the
court (regardless of whether enforceability of such remedies is considered in a
proceeding in equity or at law) and (C) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport or are
construed to provide indemnification from securities law liabilities.
(e) The issuance of the Certificates has been duly authorized
by the Company and, when such Certificates are executed and authenticated in
accordance with the Pooling and Servicing Agreement and delivered against
payment pursuant to this Agreement, such
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Certificates will be validly issued and outstanding; and the Certificates will
be entitled to the benefits provided by the Pooling and Servicing Agreement. The
Certificates are in all material respects in the form contemplated by the
Pooling and Servicing Agreement.
(f) Neither the Company nor the Trust Fund is or, as a result
of the offer and sale of the Certificates as contemplated in this Agreement will
become, an "investment company" as defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or an "affiliated person" of
any such "investment company" that is registered or is required to be registered
under the Investment Company Act (or an "affiliated person" of any such
"affiliated person"), as such terms are defined in the Investment Company Act.
(g) The following representations and warranties will be true
and correct at the time made and/or on the Closing Date, as applicable; provided
that the following representations and warranties when made with respect to this
Agreement and the applicable Terms Agreement will be true and correct when this
Agreement and the Terms Agreement are executed and delivered:
(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to
own its property, to carry on its business as presently conducted, to
enter into and perform its obligations under this Agreement, the
applicable Terms Agreement and the Pooling and Servicing Agreement and
to create the trust pursuant hereto;
(ii) The execution and delivery by the Depositor of
the Pooling and Servicing Agreement, this Agreement and the applicable
Terms Agreement has been duly authorized by all necessary corporate
action on the part of the Depositor; neither the execution and delivery
of this Agreement, the applicable Terms Agreement and the Pooling and
Servicing Agreement, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, (i) any
of the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties; (ii) the
certificate of incorporation or bylaws of the Depositor; or (iii) the
terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor
any of its Affiliates is a party to, bound by, or in breach of or
violation of any indenture or other agreement or instrument, or subject
to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or to the
best knowledge of the Depositor may in the future materially and
adversely affect (i) the ability of the Depositor to perform its
obligations under the Pooling and Servicing Agreement, this Agreement
or the applicable Terms Agreement or (ii) the business, operations,
financial condition, properties or assets of the Depositor;
(iii) The execution, delivery and performance by the
Depositor of the Pooling and Servicing Agreement, this Agreement and
the applicable Terms Agreement and the consummation of the transactions
contemplated thereby do not require the
4
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has
been obtained, given, effected or taken prior to the date hereof;
(iv) The Pooling and Servicing Agreement has been
duly executed and delivered by the Depositor and, assuming due
authorization, execution and delivery by the Trustee, constitutes a
valid and binding obligation of the Depositor enforceable against it in
accordance with its terms;
(v) There are no actions, suits or proceedings
pending or, to the best of the Depositor's knowledge, threatened or
likely to be asserted against or affecting the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (A)
with respect to any of the transactions contemplated by the Pooling and
Servicing Agreement, the Underwriting Agreement or the applicable Terms
Agreement or (B) with respect to any other matter which in the judgment
of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and
adversely affect it or its business, assets, operations or condition,
financial or otherwise, or adversely affect its ability to perform its
obligations under the Pooling and Servicing Agreement, this Agreement
and the applicable Terms Agreement; and
(vi) Immediately prior to the consummation of the
transactions contemplated in the Pooling and Servicing Agreement, the
Depositor had good title to and was the sole owner of each Mortgage
Loan free and clear of any and all adverse claims, charges or security
interests (including liens arising under the federal tax laws or the
Employee Retirement Income Security Act of 1974, as amended).
(h) On the Closing Date, the Company (i) will have good and
marketable title to the Mortgage Loans being transferred by it to the Trust Fund
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest placed thereon by the
Company (collectively, "Liens"), to the extent good and marketable title to the
Mortgage Loans is transferred to the Company, and (ii) will have the power and
authority to transfer such Mortgage Loans to the Trust Fund, and upon execution
and delivery of the Pooling and Servicing Agreement by the Trust Fund, the Trust
Fund will have acquired ownership of all of the Company's right, title and
interest in and to the related Mortgage Loans. Upon delivery to the Underwriters
of the Certificates pursuant hereto, each Underwriter will have good title to
the Certificates purchased by such Underwriter, in each case free of Liens.
3. Purchase, Sale and Delivery of Certificates. Delivery of
and payment for the Certificates shall be made at your office or at such other
location as you shall make known at such time as shall be specified in the
applicable Terms Agreement, each such time being herein referred to as a
"Closing Date." Delivery of the Certificates shall be made by the Company to the
Underwriters against payment of the purchase price specified in the applicable
Terms Agreement in Federal Funds by wire or check. Unless delivery is made
through the facilities of the Depository Trust Company, the Certificates to be
so delivered will be in definitive, fully registered form, in such denominations
and registered in such names as you request, and will be made available for
inspection and packaging at your office at least twenty-four hours prior to the
applicable Closing Date.
5
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus. Each Underwriter shall provide written information to
the Company expressly for use in the Prospectus, and in connection with the
offering of the Certificates, each Underwriter may prepare and provide to
prospective investors Computational Materials and Structural Terms Sheets (each
as defined herein).
5. Covenants of the Company. The Company covenants and agrees
with you and the several Underwriters participating in the Offering of any
Series of Certificates that:
(a) In connection with the execution of each Terms Agreement,
the Company will prepare a Prospectus Supplement to be filed under the Act
setting forth the principal amount of Certificates covered thereby and their
terms not otherwise specified in the Prospectus, the price at which the
Certificates are to be purchased by the Underwriters from the Company, either
the initial public offering price or the method by which the price at which the
Certificates are to be sold will be determined, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such other
information as you and the Company deem appropriate in connection with the
offering of the Certificates, but the Company will not file any amendments to
the Registration Statement or any amendments or supplements to the Prospectus,
unless it shall first have delivered copies of such amendments or supplements to
you, and you shall not have reasonably objected thereto promptly after receipt
thereof. The Company will advise you or your counsel promptly (i) when notice is
received from the Commission that any post-effective amendment to the
Registration Statement has become or will become effective, and (ii) of any
order or communication suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Certificates, or of any proceedings or
examinations that may lead to such an order or communication, whether by or of
the Commission or any authority administering any state securities or Blue Sky
law, as soon as the Company is advised thereof, and will use its best efforts to
prevent the issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect to each
Series of Certificates that are delivered by the Underwriters to the Company
pursuant to Section 8 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Exchange Act on
the business day immediately following the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company by
any of the Underwriters prior to 10:30 a.m. (and will use its best efforts to
cause such Computational Materials and Structural Term Sheets to be so filed
prior to 2:00 p.m., New York time, on the following business day), and will
promptly advise you when such Current Report has been so filed. The Company will
cause one Collateral Term Sheet (as defined in Section 9 below) with respect to
an Offering of a Series that is delivered by any of the Underwriters to the
Company in accordance with the provisions of Section 9 to be filed with the
Commission on a Current Report pursuant to Rule 13a-11 under the Exchange Act on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by any of the Underwriters prior
to 10:30 a.m. In addition, if at any time prior to the availability of the
related Prospectus Supplement, any of the Underwriters has delivered to any
prospective investor a subsequent Collateral Term Sheet that reflects, in the
reasonable
6
judgment of such Underwriter and the Company, a material change in the
characteristics of the Mortgage Loans for the related Series from those on which
a Collateral Term Sheet with respect to the related Series previously filed with
the Commission was based, the Company will cause any such Collateral Term Sheet
that is delivered by such Underwriter to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by such Underwriter prior to 2:00
p.m. In each case, the Company will promptly advise you when such Current Report
has been so filed. Notwithstanding the four preceding sentences, the Company
shall have no obligation to file any materials provided by any of the
Underwriters pursuant to Sections 8 and 9 which (i) in the reasonable
determination of the Company are not required to be filed pursuant to the Xxxxxx
Letters or the PSA Letter (each as defined in Section 8 below), or (ii) contain
erroneous information or contain any untrue statement of a material fact or,
when read in conjunction with the Prospectus and Prospectus Supplement, omit to
state a material fact necessary to make the statements therein not misleading;
it being understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct, any
Computational Materials or ABS Term Sheets (as defined in Section 9 below)
provided by such Underwriter to the Company pursuant to Section 8 or Section 9
hereof. The Company shall give notice to you and such Underwriter of its
determination not to file any materials pursuant to clause (i) of the preceding
sentence and agrees to file such materials if such Underwriter or you reasonably
object to such determination within one business day after receipt of such
notice.
(c) If at any time when a prospectus relating to the
Certificates is required to be delivered under the Act any event occurs as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance; provided,
however, that the Company will not be required to file any such amendment or
supplement with respect to any Computational Materials, Structural Term Sheets
or Collateral Term Sheets incorporated by reference in the Prospectus other than
any amendments or supplements of such Computational Materials or Structural Term
Sheets that are furnished to the Company by the Underwriters pursuant to Section
8(e) hereof or any amendments or supplements of such Collateral Term Sheets that
are furnished to the Company by the Underwriters pursuant to Section 9(d) hereof
which are required to be filed in accordance therewith.
(d) With respect to each Series of Certificates, the Company
will make generally available to the holders of the Certificates and will
deliver to you, in each case as soon as practicable, an earnings statement
covering the twelve-month period beginning after the date of the Terms Agreement
in respect of such Series of Certificates, which will satisfy the provisions of
Section 11(a) of the Act with respect to the Certificates.
(e) The Company will furnish to you a copy of the Registration
Statement as originally filed (together with all documents and exhibits thereto
or incorporated by reference therein), each related preliminary prospectus, the
Prospectus, and all amendments and
7
supplements to such documents, in each case as soon as available and in such
quantities as you reasonably request.
(f) The Company will endeavor to arrange for the qualification
of the Certificates for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you reasonably designate and
will continue such qualifications in effect so long as reasonably required for
the initial distribution of Certificates; provided, however, that the Company
shall not be required to qualify to do business in any jurisdiction where it is
not qualified on the date of the related Terms Agreement or to take any action
which would subject it to general or unlimited service of process in any
jurisdiction in which it is not, on the date of the related Terms Agreement,
subject to such service of process.
(g) The Company will pay or cause to be paid all expenses
incidental to the performance of its obligations under this Agreement and any
Terms Agreement and any expenses (including fees and disbursements of Shearman &
Sterling and accountants) incurred by them in connection with the printing of
memoranda relating thereto, for any fees charged by the nationally recognized
statistical rating organizations for the rating of the Certificates, for the
filing fee of the National Association of Securities Dealers, Inc. relating to
the Certificates, if applicable, and for expenses incurred in distributing
preliminary prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to
be delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Company will file or cause to be filed, on a timely and complete
basis, all documents that are required to be filed by the Company with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(i) The Company will file with the Commission within 15 days
of the issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters named in any Terms Agreement to purchase and pay
for the Certificates will be subject to the accuracy of the representations and
warranties on the part of the Company as of the date hereof, the date of the
applicable Terms Agreement and the applicable Closing Date, to the accuracy of
the statements made in any officers' certificates (each an "Officer's
Certificate") pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a)(i) At the time the applicable Terms Agreement is executed,
Deloitte & Touche and/or any other firm of certified independent public
accountants acceptable to you shall have furnished to you a letter, addressed to
you, and in form and substance satisfactory to you in all respects, stating in
effect that using the assumptions and methodology used by the Company, all of
which shall be described in such letter or the Prospectus Supplement, they have
recalculated such numbers, percentages and weighted average lives set forth in
the prospectus as you may reasonably request, compared the results of their
calculations to the corresponding items in the Prospectus, and found each such
number, percentage, and weighted average life set
8
forth in the Prospectus to be in agreement with the results of such
calculations. To the extent historical financial delinquency or related
information is included with respect to one or more master servicers, such
letter or letters shall also relate to such information.
(ii) At the Closing Date, Deloitte & Touche and/or any other
firm of certified independent public accountants acceptable to you shall have
furnished to you a letter, addressed to you, and in form and substance
satisfactory to you in all respects, relating to the extent such information is
not covered in the letter or letters provided pursuant to clause (a)(i), to a
portion of the information set forth on the Mortgage Loan Schedule attached to
the Pooling and Servicing Agreement and the characteristics of the mortgage
loans, as presented in the Prospectus Supplement or the Form 8-K relating
thereto, or if a letter relating to the same information is provided to the
Trustee, indicating that you are entitled to rely upon its letter to the
Trustee.
(b) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the business or properties of the Company or any of its affiliates the
effect of which, in any case, is, in your judgment, so material and adverse as
to make it impracticable or inadvisable to proceed with the Offering or the
delivery of the Certificates as contemplated by the Registration Statement and
the Prospectus. All actions required to be taken and all filings required to be
made by the Company under the Act and the Exchange Act prior to the sale of the
Certificates shall have been duly taken or made; and prior to the applicable
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted, or to the knowledge of the Company or you, shall be
contemplated by the Commission or by any authority administering any state
securities or Blue Sky law.
(c) Unless otherwise specified in any applicable Terms
Agreement for a Series, the Certificates shall be rated in one of the four
highest grades by one or more nationally recognized statistical rating
organizations specified in said Terms Agreement.
(d) You shall have received the opinion of counsel for the
Company, dated the applicable Closing Date, to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its assets and conduct
its business as described in the Prospectus, and the Company is duly qualified
as a foreign corporation to transact business and is in good standing under the
laws of the State of New York. The Company has no subsidiaries.
(ii) Each of this Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by the Company and
assuming due and valid authorization and execution by the other parties thereto,
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and to the application of equitable principles in any proceeding, whether at law
or in equity. Such
9
counsel's opinion may be qualified, in the case of the indemnity provisions in
this Agreement, to applicable law or judicial policy.
(iii) The Pooling and Servicing Agreement has been
duly and validly authorized, executed and delivered by the Company and assuming
due and valid authorization and execution by the other parties thereto,
constitutes the valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and to the application of equitable principles in any proceeding, whether at law
or in equity.
(iv) The Certificates are in a form authorized by the
Pooling and Servicing Agreement, have been duly and validly authorized by all
necessary corporate action and, when executed and authenticated as specified in
the Pooling and Servicing Agreement and delivered against payment pursuant to
this Agreement and the related Terms Agreement, will be validly issued and
outstanding; and the Certificates will be entitled to the benefits of the
Pooling and Servicing Agreement.
(v) The Registration Statement has become effective
under the Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the requirements
of the Act and the Rules and Regulations thereunder; such counsel has no reason
to believe that either the Registration Statement as of its effective date
contained any untrue statement of a material fact required to be stated therein
or omitted to state any material fact necessary in order to make the statements
therein not misleading, or the Prospectus, and each amendment or supplement
thereto, as of the date of any Terms Agreement and Closing Date contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion as to
the financial statements or other financial data or notes thereto or any
statistical or tabular data contained or incorporated by reference in the
Registration Statement or the Prospectus).
(vi) The statements in the Prospectus and Prospectus
Supplement under the heading "Material Federal Income Tax Consequences" and
"ERISA Considerations" to the extent that they constitute matters of law or
legal conclusions, have been prepared or reviewed by such counsel and provide a
fair summary of such law or conclusions; the statements in the Prospectus to the
extent modified by the statements in the Prospectus Supplement under the
headings "Summary of Prospectus Supplement," "Description of the Certificates"
and "Servicing of the Mortgage Loans" and such other headings as you may
request, insofar as such statements constitute a summary of the proposed
transaction and of the provisions of the Certificates or the
10
Pooling and Servicing Agreement, constitute a fair and accurate summary of such
transaction and provisions.
(vii) Neither the Company nor the Trust Fund is, or
as a result of the offer and sale of the Certificates as contemplated in the
Prospectus and in this Agreement will become, an "investment company" as defined
in the Investment Company Act, or an "affiliated person" of any such "investment
company" that is registered or is required to be registered under the Investment
Company Act (or an "affiliated person" of any such "affiliated person"), as such
terms are defined in the Investment Company Act.
(viii) The Certificates offered pursuant to the
Registration Statement and indicated as such in the Prospectus Supplement will
not be mortgage related securities, as defined in Section 3(a)(41) of the
Exchange Act, so long as such Certificates are rated in one of the two highest
grades by at least one nationally recognized statistical rating agency.
(ix) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as amended.
Each opinion also shall relate to such other matters as may be
specified in the related Terms Agreement or as to which you reasonably may
request. In rendering any such opinion, counsel for the Company may rely on
certificates of responsible officers of the Company, the Trustee, and public
officials or, as to matters of law other than New York or Federal law, on
opinions of other counsel (copies of which opinions shall be addressed to you),
provided that, in cases of opinions of other counsel, counsel for the Company
shall include in its opinion a statement of its belief that both it and you are
justified in relying on such opinions.
(e) You shall have received from counsel for the Company a
letter, dated as of the Closing Date, stating that you may rely on the opinions
delivered by such firm under the Pooling and Servicing Agreement and to the
rating agency or agencies rating the Certificates as if such opinions were
addressed directly to you (copies of which opinions shall be delivered to you).
(f) You shall have received from counsel for the Underwriters,
if such counsel is different from counsel to the Company, such opinion or
opinions, dated as of the Closing Date, with respect to the validity of the
Certificates, the Registration Statement, the Prospectus and other related
matters as the Underwriters may require, and the Company shall have furnished to
such counsel such documents as they may have requested from it for the purpose
of enabling them to pass upon such matters.
(g) You shall have received Officer's Certificates signed by
such of the principal executive, financial and accounting officers of the
Company as you may request, dated as of the Closing Date, in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this Agreement
are true and correct; that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Date; that no stop
11
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are contemplated;
that, subsequent to the respective dates as of which information is given in the
Prospectus, and except as set forth or contemplated in the Prospectus, there has
not been any material adverse change in the general affairs, business, key
personnel, capitalization, financial condition or results of operations of the
Company; that except as otherwise stated in the Prospectus, there are no
material actions, suits or proceedings pending before any court or governmental
agency, authority or body or, to their knowledge, threatened, affecting the
Company or the transactions contemplated by this Agreement; and that attached
thereto are true and correct copies of a letter or letters from the one or more
nationally recognized statistical rating organizations specified in the
applicable Terms Agreement confirming that, unless otherwise specified in said
Terms Agreement, the Certificates have been rated in one of the four highest
grades by each of such agencies and that such rating has not been lowered since
the date of such letter.
The Company will furnish you with such conformed copies of
such opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects with respect to a particular
Offering when and as provided in this Agreement and the related Terms Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement and the related Terms Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you, this Agreement (with
respect to the related Offering) and the related Terms Agreement and all
obligations of the Underwriters hereunder (with respect to the related Offering)
and thereunder may be canceled at, or at any time prior to, the related Closing
Date by the Underwriter. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act against
any and all losses, claims, damages, liabilities and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act, or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement relating to the applicable Series of Certificates (the "Applicable
Registration Statement") as it became effective or in any amendment or
supplement thereof, or any related preliminary prospectus or the related
Prospectus, or in any amendment or supplement thereof (including the Prospectus
Supplement), or arise out of or are based upon the omission or alleged omission
(in the case of any Computational Materials or ABS Term Sheets in respect of
which the Company agrees to indemnify the Underwriters, as set forth below, when
such are read in conjunction with the related Prospectus and Prospectus
Supplement) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
12
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein (A) in reliance upon and in conformity with written information
furnished to the Company as herein stated by or on behalf of the Underwriters
specifically for use in connection with the preparation thereof or (B) in any
Current Report or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) directly from an error (a "Mortgage
Pool Error") in the information concerning the characteristics of the Mortgage
Loans furnished by the Company to the Underwriters in writing or by electronic
transmission that was used in the preparation of either (x) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) included in
such Current Report (or amendment or supplement thereof) or (y) any written or
electronic materials furnished to prospective investors on which the
Computational Materials (or amendments or supplements) were based, (ii) such
indemnity with respect to any Corrected Statement (as defined below) in such
related preliminary prospectus or such Prospectus (or Prospectus Supplement
thereto) shall not inure to the benefit of the Underwriters or any person
controlling any Underwriter) from whom the person asserting any loss, claim,
damage or liability purchased the Certificates of the related Series that are
the subject thereof if such person did not receive a copy of a Prospectus
Supplement to such Prospectus at or prior to the confirmation of the sale of
such Certificates and the untrue statement or omission of a material fact
contained in such preliminary prospectus or such Prospectus (or Prospectus
Supplement thereto) was corrected (a "Corrected Statement") in such other
supplement and such supplement was furnished by the Company to the Underwriters
prior to the delivery of such confirmation, and (iii) such indemnity with
respect to any Mortgage Pool Error shall not inure to the benefit of the
Underwriters (or any person controlling any Underwriter) from whom the person
asserting any loss, claim, damage or liability received any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or ABS Term Sheets that were prepared on the basis of such
Mortgage Pool Error, if, prior to the time of confirmation of the sale of the
applicable series of Certificates to such person, the Company notified the
Underwriters in writing of the Mortgage Pool Error or provided in written or
electronic form information superseding or correcting such Mortgage Pool Error
(in any such case, a "Corrected Mortgage Pool Error"), and the Underwriters
failed to notify such person thereof or to deliver to such person corrected
Computational Materials (or underlying written or electronic materials) or ABS
Term Sheets; provided, further, that (i) the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon any material misstatements or omissions contained
in the Prospectus Supplement regarding the Mortgage Loans purchased by the
Company from Xxxxx Fargo and Xxxxxx Xxxxxxx pursuant to the applicable Mortgage
Loan Purchase Agreement or information provided by Xxxxx Fargo or Xxxxxx Xxxxxxx
for inclusion in the Prospectus Supplement, and (ii) the Company's obligation to
so indemnify and hold harmless in respect of all other matters shall be limited
to 43.70% of such losses, claims, damages, liabilities or expenses (except that
such limitations shall not apply to losses, claims, damages, liabilities or
expenses arising out of or based upon any material misstatement or omission
contained in the Prospectus Supplement regarding the Mortgage Loans purchased by
the Company from BSFI pursuant to the applicable Mortgage Loan Purchase
Agreement or information included by BSFI for inclusion in the Prospectus
Supplement). This indemnity will be in addition to any liability which the
Company may have.
13
(b) The Underwriters severally, and not jointly, agree to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Applicable
Registration Statement, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against any losses, claims, damages, liabilities and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon (A) any untrue
statement or alleged untrue statement of a material fact contained in the
Applicable Registration Statement, as it became effective or any amendment
thereof, or any related preliminary prospectus or the Prospectus, or in any
amendment thereof or supplement thereto (including the Prospectus Supplement),
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that any such loss, claim, damage, liability or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company, by or on behalf of such Underwriter
expressly for use therein; or (B) any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to the Company by such
Underwriter pursuant to Section 8 and incorporated by reference in such
Registration Statement or the related Prospectus, Prospectus Supplement or any
amendment or supplement thereof (except that no such indemnity shall be
available for any losses, claims, damages, liabilities or expenses or actions in
respect thereof resulting from any Mortgage Pool Error, other than a Corrected
Mortgage Pool Error). This indemnity will be in addition to any liability which
the Underwriters may otherwise have. The Company acknowledges that, unless
otherwise set forth in the applicable Terms Agreement, the statements set forth
in the last paragraph of the cover page and under the caption "Method of
Distribution" included in the Prospectus Supplement relating to a Series of
Certificates constitute the only information furnished in writing by or on
behalf of any Underwriter expressly for use in the Applicable Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto
(including the Prospectus Supplement), as the case may be (other than any
Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) furnished to the Company by such Underwriter).
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability which it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after
14
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable, on grounds of public policy or otherwise, from the
Company or the Underwriters or is insufficient to hold harmless a party
indemnified thereunder, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company any contribution received by the Company from persons,
other than the Underwriters, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, officers of the Company who signed the
Applicable Registration Statement and directors of the Company) to which the
Company and the Underwriters may be subject in such proportions as is
appropriate to reflect the relative benefits received by the Company on one hand
and the Underwriters on the other from the Offering of the Certificates as to
which such loss, liability, claim, damage or expense is claimed to arise or, if
such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7(c) hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company on one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
(x) the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the Terms Agreement in respect of the
Offering of the Certificates as to which such loss, liability, claim, damage or
expense is claimed to arise. The relative fault of the Company on one hand and
the Underwriters on the other shall be determined by reference to, among other
things, (A) whether the untrue or alleged untrue
15
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on one hand or the
Underwriters on the other and (B) the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7(d), (x) in no case shall the Underwriters be liable
or responsible for any amount in excess of the underwriting discount set forth
in the Terms Agreement relating to the Certificates as to which such losses,
claims, damages, liabilities or expenses are claimed to arise, and (y) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7(d), each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Applicable
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to this Section
7(d). Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this Section 7(d), notify such party or parties from whom contribution may
be sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7(d) or otherwise. No party shall be liable
for contribution with respect to any action or claim settled without its
consent; provided, however, that such consent was not unreasonably withheld.
The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Depositor,
any Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective amount of
Certificates they have purchased hereunder, and not joint.
Each Underwriter will indemnify and hold harmless any
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either the 1933 Act or the 1934 Act (the "Non-Indemnifying
Underwriter") from and against any and all losses, claims, damages, liabilities
or expenses, joint or several, to which the Non-Indemnifying Underwriter becomes
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement of material fact contained in any
Computational Materials or ABS Term Sheets developed by, mailed or otherwise
transmitted by such Indemnifying Underwriter, or any member of its selling
group, in connection with the Certificates or in any revision or amendment
thereof or supplement
16
thereto or (ii) the failure of such Indemnifying Underwriter, or any member of
its selling group, to comply with any provision of Section 9, and agrees to
reimburse such Non-Indemnifying Underwriter, as incurred for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This agreement will
be in addition to any liability that any Underwriter may otherwise have.
8. Computational Materials and Structural Term Sheets. (a) Not
later than 10:30 a.m., New York time, on the business day before the date on
which the Current Report relating to the Certificates of a Series is required to
be filed by the Company with the Commission pursuant to Section 5(b) hereof, you
and any other applicable Underwriter shall deliver to the Company, and unless
otherwise agreed to by the Company, in a form reasonably convertible to an XXXXX
filing format, a copy of all materials provided by the Underwriters to
prospective investors in such Certificates which constitute (i) "Computational
Materials," within 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, Peabody & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994, issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters") and the filing of such
material is a condition of the relief granted in such letter (such materials
being the "Computational Materials"), and (ii) "Structural Term Sheets" within
the meaning of the no-action letter dated February 17, 1995, issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter") and the filing of such material is a condition of
the relief granted in such letter (such materials being the "Structural Term
Sheets"). Each delivery of Computational Materials and Structural Term Sheets to
the Company by you and any other applicable Underwriter pursuant to this
paragraph (a) shall be effected by delivering a copy of such materials to
counsel for the Company on behalf of the Company at the address specified by the
Company and one copy of such materials to the Company.
(b) You and each other Underwriter, by virtue of its having
executed and delivered the related Terms Agreement, which shall incorporate this
Section 8(b) by reference, represents and warrants to and agrees with the
Company, as of the date of the related Terms Agreement and as of the Closing
Date, that:
(i) the Computational Materials furnished to the
Company pursuant to Section 8(a) constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective investors by
such Underwriter prior to the time of delivery thereof to the Company that are
required to be filed with the Commission with respect to the Offering of the
Certificates in accordance with the Xxxxxx Letters, and such Computational
Materials comply with the requirements of the Xxxxxx Letters;
(ii) the Structural Term Sheets furnished to the
Company pursuant to Section 8(a) constitute all of the materials furnished to
prospective investors by such Underwriter prior to the time of delivery thereof
to the Company that are required to be filed with the Commission as "Structural
Term Sheets" with respect to the related Offering of the Certificates
17
in accordance with the PSA Letter, and such Structural Term Sheets comply with
the requirements of the PSA Letter;
(iii) on the date any such Computational Materials or
Structural Term Sheets with respect to the Offering of the Certificates (or any
written or electronic materials furnished to prospective investors on which the
Computational Materials are based) were last furnished to each prospective
investor and on the date of delivery thereof to the Company pursuant to Section
8(a) and on the related Closing Date, such Computational Materials (or such
other materials) or Structural Term Sheets did not and will not include any
untrue statement of a material fact or, when read in conjunction with the
related Prospectus and Prospectus Supplement, omit to state a material fact
necessary to make the statements therein not misleading; and
(iv) all Computational Materials (or underlying
materials distributed to prospective investors on which
the Computational Materials were based) or Structural Term Sheets furnished to
prospective investors contained and will contain a legend, prominently displayed
on the first page thereof, to the effect that the Company has not prepared,
reviewed or participated in the preparation of such materials and is not
responsible for the accuracy thereof.
Notwithstanding the foregoing, you and each such Underwriter makes no
representation or warranty as to whether any Computational Materials or
Structural Term Sheets (or any written or electronic materials on which the
Computational Materials are based) included or will include any untrue statement
resulting directly from any Mortgage Pool Error (except any Corrected Mortgage
Pool Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Mortgage Pool error or
materials superseding or correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Computational Materials shall
cause a firm of public accountants to furnish to the Company a letter, dated as
of the date on which such Underwriter delivers any Computational Materials
(which term shall be deemed to include, for purposes of this paragraph (c),
calculated statistical information delivered to prospective investors in the
form of a Structural Term Sheet) to the Company pursuant to Section 8 (a), in
form and substance satisfactory to the Company, stating in effect that they have
verified the mathematical accuracy of any calculations performed by such
Underwriter and set forth in such Computational Materials.
(d) The Underwriters acknowledge and agree that the Company
has not authorized and will not authorize the distribution of any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or Structural Term Sheets to any particular prospective
inventor, and agree that any Computational Materials or Structural Term Sheets
with respect to any Series of Certificates furnished to prospective investors
shall include a disclaimer in the form described in paragraph (b)(iv) above. The
Underwriters agree that they will not represent to prospective investors that
any Computational Materials or Structural Term Sheets were prepared or
disseminated on behalf of the Company.
18
(e) If, at any time when a prospectus relating to the
Certificates of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related Prospectus or Prospectus Supplement
as a result of an untrue statement of a material fact contained in any
Computational Materials or Structural Term Sheets provided by an Underwriter
pursuant to this Section 8 or the omission to state therein a material fact
required, when considered in conjunction with the related Prospectus and
Prospectus Supplement, to be stated therein or necessary to make the statements
therein, when read in conjunction with the related Prospectus and Prospectus
Supplement, not misleading, or if it shall be necessary to amend or supplement
any Current Report relating to any Computational Materials or Structural Term
Sheets to comply with the Act or the rules thereunder, such Underwriter promptly
will prepare and furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance, such Underwriter will deliver an
Officer's Certificate to the Company representing and warranting to the Company
that, as of the date of delivery of such amendment or supplement to the Company,
such amendment or supplement will not include any untrue statement of a material
fact or, when read in conjunction with the related Prospectus and Prospectus
Supplement, omit to state a material fact necessary to make the statements
therein not misleading; provided, however, that such Underwriter will make no
representation or warranty as to whether any such amendment or supplement will
include any untrue statement resulting directly from any Mortgage Pool Error
(except any Corrected Mortgage Pool Error, with respect to any such amendment or
supplement prepared after the receipt by such Underwriter from the Company of
notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error). The Company shall have no
obligation to file such amendment or supplement if (i) the Company determines
that such amendment or supplement contains any untrue statement of a material
fact or, when read in conjunction with the related Prospectus and Prospectus
Supplement, omits to state a material fact necessary to make the statements
therein not misleading; it being understood, however, that the Company shall
have no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any such amendment or supplement provided by such Underwriter to the
Company pursuant to this paragraph (e) or (ii) the Company reasonably determines
that such filing is not required under the Act and such Underwriter does not
object as provided below. The Company shall give notice to such Underwriter of
its determination not to file an amendment or supplement pursuant to clause (ii)
of the preceding sentence and agrees to file such amendment or supplement if
such Underwriter reasonably objects to such determination within one business
day after receipt of such notice.
9. Collateral Term Sheets. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets"), to a prospective investor in the
Certificates, the applicable Underwriter shall notify the Company and its
counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is expected
to occur. Not later than 10:30 a.m., New York time, on the business day
immediately following the date on which any Collateral Term Sheet was first
delivered to a prospective investor in the Certificates of a Series, such
applicable Underwriter shall deliver to the Company, and unless otherwise agreed
to by the Company, in a form reasonably convertible to an XXXXX format, a
complete copy of all materials provided by such Underwriter to prospective
investors in such Certificates which constitute "Collateral Term Sheets." Each
delivery of a Collateral Term Sheet to the Company pursuant to this paragraph
(a)
19
shall be effected by delivering a copy of such materials to counsel for the
Company on behalf of the Company at the address specified by the Company and one
copy of such materials to the Company. (Collateral Term Sheets and Structural
Term Sheets are, together, referred to herein as "ABS Term Sheets.") At the time
of each such delivery, such Underwriter shall indicate in writing that the
materials being delivered constitute Collateral Term Sheets, and, if there has
been any prior such delivery with respect to the related Series, shall indicate
whether such materials differ in any material respect from any Collateral Term
Sheets previously delivered to the Company with respect to such Series pursuant
to this Section 9(a) as a result of the occurrence of a material change in the
characteristics of the related Mortgage Loans.
(b) You and each other Underwriter, by virtue of its having
executed and delivered the related Terms Agreement, which shall incorporate this
Section 9(b) by reference, represents and warrants to and agrees with the
Company as of the date of the related Terms Agreement and as of the Closing
Date, that:
(i) The Collateral Term Sheets furnished to the
Company pursuant to Section 9(a) constitute all of the
materials furnished to prospective investors by such
Underwriter prior to time of delivery thereof to the Company
that are required to be filed with the Commission as
"Collateral Term Sheets" with respect to the related Offering
of the Certificates in accordance with the PSA Letter, and
such Collateral Term Sheets comply with the requirements of
the PSA Letter;
(ii) On the date any such Collateral Term Sheets with
respect to the Offering of the Certificates were last
furnished to each prospective investor and on the date of
delivery thereof to the Company pursuant to Section 9(a) and
on the related Closing Date, such Collateral Term Sheets did
not and will not include any untrue statement of a material
fact or, when read in conjunction with the Prospectus and
Prospectus Supplement, omit to state a material fact necessary
to make the statements therein not misleading; and
(iii) such Underwriter has not represented to any
prospective investor that any Collateral Term Sheets with
respect to any Series were prepared or disseminated on behalf
of the Company, and, except as otherwise disclosed by such
Underwriter to the Company in writing prior to the date
hereof, all Collateral Term Sheets previously furnished to
prospective investors included a disclaimer to the effect set
forth in Section 8(b)(iv).
Notwithstanding the foregoing, you and each such Underwriter makes no
representation or warranty as to whether any Collateral Term Sheet included or
will include any untrue statement or material omission resulting directly from
any Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect
to materials prepared after the receipt by such Underwriter from the Company of
notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Collateral Term Sheets
acknowledges and agrees that any Collateral Term Sheets with respect to any
Series of Certificates furnished to
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prospective inventors from and after the date hereof shall include a disclaimer
to the effect set forth in Section 8(d) hereof, and to the effect that the
information contained in such materials supersedes the information contained in
any prior Collateral Term Sheet with respect to such series of Certificates
being offered and will be superseded by the description of the related Mortgage
Loans in the related Prospectus Supplement. The Underwriters agree that they
will not represent to any prospective investors that any Collateral Term Sheets
were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Certificates of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related prospectus or prospectus supplement
as a result of an untrue statement of a material fact contained in any
Collateral Term Sheets provided by an Underwriter pursuant to this Section 9 or
the omission to state therein a material fact necessary to make the statements
therein, when read in conjunction with the related Prospectus and Prospectus
Supplement, not misleading, or if it shall be necessary to amend or supplement
any Current Report relating to any Collateral Term Sheets to comply with the Act
or the rules thereunder, such Underwriter promptly will prepare and furnish to
the Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Such Underwriter will deliver an Officer's Certificate to the
Company representing and warranting to the Company that, as of the date of
delivery of such amendment or supplement to the Company, such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the related Prospectus and Prospectus Supplement, omit
to state a material fact necessary to make the statements therein not
misleading; provided, however, such Underwriter will make no representation or
warranty as to whether any such amendment or supplement will include any untrue
statement resulting directly from any Mortgage Pool Error (except, any Corrected
Mortgage Pool Error, with respect to any such amendment or supplement prepared
after the receipt by such Underwriter from the Company of notice of such
Corrected Mortgage Pool Error or materials superseding or correcting such
Corrected Mortgage Pool Error). The Company shall have no obligation to file
such amendment or supplement if the Company determines that (i) such amendment
or supplement contains any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omits to
state a material fact necessary to make the statements therein not misleading;
it being understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct, any such
amendment or supplement provided by such Underwriter to the Company pursuant to
this paragraph (d) or (ii) the Company reasonably determines that such filing is
not required under the Act and such Underwriter does not object as provided
below. The Company shall give notice to such Underwriter of its determination
not to file an amendment or supplement pursuant to clause (ii) of the preceding
sentence and agrees to file such amendment or supplement if such Underwriter
reasonably objects to such determination within one business day after receipt
of such notice.
10. Default of Underwriters. If any Underwriter or
Underwriters participating in an Offering of Certificates default in their
obligations to purchase Certificates hereunder and under the Terms Agreement and
the aggregate purchase price of Certificates which such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the
aggregate purchase price of the Certificates then being purchased, you may make
arrangements satisfactory to the Company for the purchase of such Certificates
by other persons, including any
21
of the Underwriters, but if no such arrangements are made by the Closing Date
the non-defaulting Underwriters shall be obligated severally, in proportion to
their respective total commitments as set forth in the applicable Terms
Agreement (for all classes of Certificates), to purchase the Certificates which
such defaulting Underwriter or Underwriters agreed but failed to purchase. If
any Underwriter or Underwriters so default and the aggregate purchase price of
Certificates with respect to which such default or defaults occur is more than
10% of the aggregate purchase price of Certificates then being purchased, and
arrangements satisfactory to you and the Company for the purchase of such
Certificates by other persons are not made within 36 hours after such default,
the Terms Agreement as to which such offering relates will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 11. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve the defaulting Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the result thereof,
made by or on behalf of any Underwriter or the Company or any of its officers or
directors or any controlling person, and will survive delivery of and payment
for the Certificates and any termination of this Agreement or any Terms
Agreement, including any termination pursuant to Section 10.
12. Termination.
(a) Any Underwriter may terminate its obligations under this
Agreement, by notice to the Depositor, at any time at or prior to the Closing
Date if the sale of the Certificates provided for herein is not consummated
because of any failure or refusal on the part of the Depositor to comply with
the terms or to fulfill any of the conditions of this Agreement or if for any
reason the Depositor shall be unable to perform its obligations under this
Agreement, other than by reason of a failure by such Underwriter to purchase
Certificates as required hereunder.
(b) You shall have the right to terminate any Terms Agreement
at any time prior to the applicable Closing Date if any domestic or
international event or act or occurrence has materially disrupted, or in your
opinion will in the immediate future materially disrupt, securities markets; or
if trading on the New York or American Stock Exchanges shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required on the New
York or American Stock Exchanges by the New York or American Stock Exchanges or
by order of the Commission or any other governmental authority having
jurisdiction; or if the United States shall have become involved in a war or
major hostilities; or if a banking moratorium has been declared by a state or
Federal authority, or if a banking moratorium in foreign exchange trading by
major international banks or persons has been declared; or if any new
restriction materially and adversely affecting the distribution of the Series of
Certificates as to which such Terms Agreement relates shall have become
effective; or if there shall have been such change in the market for securities
in general or in political, financial or economic conditions as in your judgment
would be so materially adverse as to make it inadvisable to proceed with the
Offering, sale and delivery of the Series of
22
Certificates as to which such Terms Agreement relates on the terms contemplated
in such Terms Agreement. Any notice or termination pursuant to this Section 12
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(c) If any Underwriter terminates its obligations under this
Agreement in accordance with Section 12(a), the Depositor shall reimburse such
Underwriter for all reasonable out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by such Underwriter
in connection with this Agreement or the proposed purchase and sale of the
Certificates.
13. Notices. All communications hereunder will be in writing,
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel or if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: J. Xxxxxxxxxxx Xxxxxxx; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed to
such Underwriter at the address furnished by it.
14. Successors. This Agreement and the Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and thereto, and
their respective successors and the officers and directors and controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder or thereunder.
15. Representation of Underwriters. You will act for the
several Underwriters in connection with each Offering of Certificates governed
by this Agreement, and any action under this Agreement and any Terms Agreement
taken by you will be binding upon all the Underwriters identified in such Terms
Agreement.
16. Construction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
17. Counterparts. This Agreement may be signed in any number
of duplicate originals, each of which shall be deemed an original, which, taken
together, shall constitute one and the same instrument.
[Signatures to Follow on Next Page]
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By:
-----------------------------
Name:
Title:
S-1
The foregoing Underwriting Agreement hereby is confirmed and accepted as of the
date first above written.
BEAR, XXXXXXX & CO. INC.
By:
------------------------------------
Name:
Title:
S-2
XXXXXX XXXXXXX & CO. INCORPORATED
By:
------------------------------------
Name:
Title:
S-3
XXXXX FARGO BROKERAGE SERVICES, L.L.C.
By:
-------------------------------------
Name:
Title:
S-4
