PNC MORTGAGE ACCEPTANCE CORP.
Commercial Mortgage Pass-Through Certificates
Series ________
UNDERWRITING AGREEMENT
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[Underwriter #1]
[Address]
[Underwriter #2]
[Address]
[Underwriter #3]
[Address]
Ladies and Gentlemen:
PNC Mortgage Acceptance Corp., a Missouri corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to sell
to ___________________ ("[Underwriter #1]"), ___________________ ("[Underwriter
#2]") and ___________________ ("[Underwriter #3]"; and, collectively with
[Underwriter #1] and [Underwriter #2], the "Underwriters"), their respective
allocations, as set forth in Schedule I hereto, of those classes (each, a
"Class") of the Company's Commercial Mortgage Pass-Through Certificates, Series
________, specified in Schedule II hereto (the "Offered Certificates"). The
Offered Certificates, together with the other commercial mortgage pass-through
certificates of the same series (the "Private Certificates"; and, collectively
with the Offered Certificates, the "Certificates"), will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") to be
dated as of ____________,_____ (the "Cut-off Date"), among the Company, as
depositor, Midland Loan Services Inc., as master servicer (the "Master
Servicer"), and ______________as special servicer (the "Special Servicer"), and
_______________, as trustee (the "Trustee"). The Certificates will evidence the
entire beneficial ownership of a trust fund (the "Trust Fund") to be established
by the Company pursuant to the Pooling and Servicing Agreement. The Trust Fund
will consist primarily of a pool (the "Mortgage Pool") of monthly pay,
commercial and multifamily mortgage loans (the "Mortgage Loans") transferred by
the Company to the Trust Fund and listed in an attachment to the Pooling and
Servicing Agreement. Multiple real estate mortgage investment conduit ("REMIC")
elections are to be made with respect to the Trust Fund with the resulting
REMICs being referred to as "REMIC I", "REMIC II" and "REMIC III", respectively.
The Private Certificates will be sold by the Company to
[Underwriter #1] pursuant to a certificate purchase agreement of even date
herewith (the "Certificate Purchase Agreement").
The Mortgage Loans will be acquired by the Company as follows:
(1) Certain of the Mortgage Loans (the "Midland Loans") will
be acquired by the Company from Midland Loan Services, Inc. ("MLS"),
pursuant to a mortgage loan purchase agreement dated
______________,_____ (the "MLS Loan Purchase Agreement"), between the
Company and MLS.
(2) Certain of the Mortgage Loans (the "[Other Seller] Loans")
will be acquired by the Company from ___________________ ("[Other
Seller]"), pursuant to a mortgage loan purchase agreement dated
______________,_____ (the "[Other Seller] Loan Purchase Agreement"),
between the Company and [Other Seller].
MLS and [Other Seller] collectively constitute the "Mortgage
Loan Sellers. The [Other Seller] Loan Purchase Agreement and the MLS Loan
Purchase Agreement collectively constitute the "Mortgage Loan Purchase
Agreements".
The Offered Certificates and the Mortgage Loans are described
more fully in the Basic Prospectus and the Prospectus Supplement (each of which
terms is defined below) which the Company is furnishing to the Underwriters.
Capitalized terms used but not otherwise defined herein will have the respective
meanings assigned thereto in the Prospectus Supplement.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
___________) on Form S-3, pursuant to which the offer and sale of the
Offered Certificates will and can be registered under the Securities
Act of 1933, as amended (the "Act"). Such registration statement has
become effective. No stop order suspending the effectiveness of such
registration statement has been issued or is in effect, and no
proceedings for such purpose are pending or, to the Company's
knowledge, threatened by the Commission. 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 under the Act, is hereinafter called the
"Prospectus Supplement"; and the Basic Prospectus and the Prospectus
Supplement together are hereinafter called the "Prospectus". Any
preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 402(a) or Rule 424 under the Act is
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hereinafter called a "Preliminary Prospectus Supplement"; and any such
Preliminary Prospectus Supplement and the form of prospectus that
accompanied it are hereinafter together called a "Preliminary
Prospectus". References herein to the Prospectus or Prospectus
Supplement shall exclude information incorporated therein by reference
pursuant to a filing made in accordance with Section 9 hereof, but
shall include any ABS Term Sheet (as defined in Section 9) actually
included therein other than by incorporation by reference (and
regardless of whether such ABS Term Sheet is also incorporated therein
by reference). The Company, as depositor with respect to the Trust
Fund, will file with the Commission within 15 days of the issuance of
the Offered Certificates a report on Form 8-K setting forth specific
information concerning the Offered Certificates.
(b) As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to
Rule 424 under the Act, when, prior to the Closing Date (as defined in
Section 3), any other amendment to the Registration Statement becomes
effective, when, prior to the Closing Date, any supplement to the
Prospectus Supplement is filed with the Commission, and at the Closing
Date, (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 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, 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 any
Underwriter, directly for use therein, or (Y) the information
contained in or omitted from any Computational Materials (as defined
in Section 9 hereof) or ABS Term Sheets (also as defined in Section
9), or any amendment thereof or supplement thereto, incorporated by
reference in the Registration Statement, any Preliminary Prospectus or
the Prospectus (or any amendment thereof or supplement thereto) by
reason of a filing made in accordance with Section 9.
(c) The Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Missouri,
with full power and authority (corporate and other) to own its
properties and conduct its business, as described in the Prospectus,
and to enter into and perform its obligations under this Agreement,
the Mortgage Loan Purchase Agreements and the Pooling and Servicing
Agreement. The Company is conducting its business so as to comply with
all applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business, except where such
non-compliance would not materially and adversely affect the business,
operations, financial condition, properties or assets of the Company.
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(d) The Commission has not made any request for any further
amendment of the Registration Statement or the Prospectus or for any
additional information, regarding the Offered Certificates, and the
Company has not receive 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.
(e) The Company has entered into the Mortgage Loan Purchase
Agreements and, at or prior to the Closing Date, the Company will have
entered into the Pooling and Servicing Agreement; this Agreement and
the Mortgage Loan Purchase Agreements have been duly authorized,
executed and delivered by the Company, and the Pooling and Servicing
Agreement, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company; and this Agreement
constitutes, the Mortgage Loan Purchase Agreements constitute and the
Pooling and Servicing Agreement, when delivered by the Company, will
constitute, valid and binding agreements of the Company, enforceable
against the Company in accordance with their respective terms, except
as such enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, moratorium, receivership, reorganization or similar laws
affecting the rights of creditors generally, (B) general principles of
equity, whether enforcement is sought 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 any provisions of this Agreement, any Mortgage Loan
Purchase Agreement or the Pooling and Servicing Agreement which
purport or are construed to provide indemnification from securities
law liabilities.
(f) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus. The issuance and sale of the Certificates
have been duly and validly authorized by the Company, and the
Certificates, when duly and validly executed, authenticated and
delivered by the Trustee in accordance with the Pooling and Servicing
Agreement and paid for in accordance with this Agreement and the
Certificate Purchase Agreement, will be entitled to the benefits of
the Pooling and Servicing Agreement.
(g) Neither the sale of the Offered Certificates to the
Underwriters pursuant hereto, nor the consummation of any other of the
transactions contemplated in, nor the fulfillment of any of the terms
of this Agreement, any Mortgage Loan Purchase Agreement or the Pooling
and Servicing Agreement, will result in the breach of any term or
provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a material breach, violation or
acceleration of or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it is bound, or any
statute, order or regulation applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries is a
party to, bound by or in breach or violation of any indenture or other
agreement or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which
materially and adversely affects the ability of the
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Company to perform its obligations under this Agreement, any Mortgage
Loan Purchase Agreement or the Pooling and Servicing Agreement.
(h) There are no actions or proceedings against 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, any Mortgage Loan Purchase 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, any Mortgage Loan Purchase Agreement or the Pooling and
Servicing Agreement, (C) which might materially and adversely affect
the performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement, any Mortgage Loan
Purchase Agreement, the Pooling and Servicing Agreement or the Offered
Certificates or (D) seeking to affect adversely the federal income tax
attributes of the Offered Certificates described in the Prospectus.
(i) There has not been any material adverse change in the
business, operations, financial condition, properties or assets of the
Company since the date of its latest audited financial statements
which would have a material adverse effect on the ability of the
Company to perform its obligations under this Agreement, any Mortgage
Loan Purchase Agreement or the Pooling and Servicing Agreement.
(j) Except for the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreements which will be filed with the
Commission within 15 days of the issuance of the Offered Certificates
as exhibits to a Current Report on Form 8-K, there are no contracts,
indentures or other documents of a character required by the Act or by
the rules and regulations thereunder to be described or referred to in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by
reference as exhibits thereto.
(k) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Offered Certificates pursuant to
this Agreement, any Mortgage Loan Purchase Agreement and the Pooling
and Servicing Agreement, except such as have been, or as of the
Closing Date will have been, obtained or such as may otherwise be
required under applicable state securities laws in connection with the
purchase and offer and sale of the Offered Certificates by the
Underwriters and any recordation of the respective assignments of the
Mortgage Loan documents to the Trustee pursuant to the Pooling and
Servicing Agreement, that have not been completed.
(l) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the
business now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of
any such license, certificate, authority or permit which, singly or in
the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect business, operations,
financial condition, properties or assets of the Company.
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(m) Any taxes, fees and other governmental charges payable by the
Company in connection with the execution and delivery of this
Agreement and the Pooling and Servicing Agreement or the issuance and
sale of the Offered Certificates (other than such federal, state and
local taxes as may be payable on the income or gain recognized
therefrom) have been or will be paid at or prior to the Closing Date.
(n) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Company (A) will convey, or cause to be
conveyed, to the Trustee all of the Company's right, title and
interest in and to the Mortgage Loans free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens") granted by or imposed upon the
Company, and (B) will have the power and authority to transfer or
cause the transfer of the Mortgage Loans to the Trustee and to sell
the Offered Certificates to the Underwriters. Upon execution and
delivery of the Pooling and Servicing Agreement by the Trustee, the
Trustee will have acquired ownership of all of the Company's right,
title and interest in and to the Mortgage Loans, and upon delivery to
the Underwriters of the Offered Certificates pursuant hereto, each
Underwriter will have good title to the Offered Certificates purchased
by such Underwriter, in each case free of any Liens granted by or
imposed upon the Company.
(o) The Company is not, and the issuance and sale of the Offered
Certificates in the manner contemplated by the Prospectus will not
cause the Company or the Trust Fund to be, subject to registration or
regulation as an "investment company" under the Investment Company Act
of 1940, as amended (the "Investment Company Act").
(p) 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 Offered
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. The
consideration received by the Company upon the sale of the Offered
Certificates to the Underwriters will constitute reasonably equivalent
value and fair consideration for the Offered Certificates. The Company
will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Offered Certificates to the
Underwriters. The Company is not selling the Offered Certificates to
the Underwriters with any intent to hinder, delay or defraud any of
the creditors of the Company.
(q) At the Closing Date, the respective classes of Offered
Certificates shall have been assigned ratings no lower than those set
forth in Schedule II hereto by the nationally recognized statistical
rating organizations identified in Schedule II hereto (the "Rating
Agencies").
(r) The Trust Fund will qualify as three separate real estate
mortgage investment conduits (each, a "REMIC") for federal income tax
purposes pursuant to Section 860D of the Internal Revenue Code of
1986, as amended (the "Code"); the Class [S], Class [A-1A], Class
[A-1B], Class [A-2], Class [A-3], Class [A-4], Class [B-1], Class
[B-2], Class [B-3],
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Class [B-4], Class [B-5], Class [B-6], Class [B-7], Class [B-8], Class
[C] and Class [D] Certificates (collectively, the "REMIC III Regular
Certificates") will constitute "regular interests" in REMIC III; and
the Class [R-I], Class [R-II] and Class [R-III] Certificates will, in
the case of each such Class, constitute the sole class of "residual
interests" in the related REMIC.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal or
notional amount of each Class of the Offered Certificates set forth opposite
each such Underwriter's name in Schedule I hereto.
The purchase price for each Class of the Offered Certificates
as a percentage of the aggregate principal or notional amount thereof as of the
Closing Date is set forth in Schedule II hereto. There will be added to the
purchase price of the Offered Certificates interest in respect of each Class of
the Offered Certificates at the interest rate applicable to such Class from the
Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and sale
of the Offered Certificates contemplated hereby (the "Closing"), shall be made
at the date, location and time of delivery set forth in Schedule II hereto, or
such later date as shall be mutually acceptable to the 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"). Each Class of Offered Certificates will be represented by one
or more definitive global Certificates to be deposited by or on behalf of the
Company with DTC. Delivery of the Offered Certificates shall be made to the
Underwriters against payment by the Underwriters of the purchase price thereof
to or upon the order of the Company by wire transfer of immediately available
funds or by such other method as may be acceptable to the Company.
The Company agrees to have the Offered Certificates available
for inspection and checking by the Underwriters in ____________, ________, not
later than _________ (_________ time) on the business day prior to the Closing
Date.
4. Offering by Underwriters. It is understood that each
Underwriter proposes to offer its allocable share of the Offered Certificates
for sale to the public as set forth in the Prospectus. It is further understood
that the Company in reliance upon Policy Statement 105, has not filed and will
not file an offering statement pursuant to Section 352-e of the General Business
Law of the State of New York with respect to the Offered Certificates. As
required by Policy Statement 105, each Underwriter therefore covenants and
agrees with the Company that sales of the Offered Certificates made by such
Underwriter in the State of New York will be made only to institutional
investors within the meaning of Policy Statement 105.
5. Agreements. The Company agrees with each Underwriter that:
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(a) The Company will promptly advise the Underwriters (i)
when, during any period that a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any amendment to the Registration
Statement affecting the Offered Certificates shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration Statement
or the Prospectus or for any additional information relating to the Offered
Certificates, (iii) of 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 and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will not file any
amendment to the Registration Statement affecting the Offered Certificates or
any supplement to the Prospectus affecting the Offered Certificates unless the
Company has furnished the Underwriters with a copy for their review prior to
filing, and will not file any such proposed amendment or supplement to which the
Underwriters may reasonably object (provided that the foregoing does not apply
to periodic reports filed pursuant to the Exchange Act of 1934, as amended (the
"Exchange Act") and incorporated by reference into the Prospectus). Subject to
the foregoing sentence, the Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said Rule. The Company will use its best efforts to prevent the issuance of any
stop order suspending the effectiveness of the Registration Statement affecting
the Offered Certificates and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (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 3:00 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 3:00 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 3:00
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. Notwithstanding the foregoing provisions of this
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Section 5(b), the Company shall have no obligation to file any materials
provided by any Underwriter pursuant to Section 9 which, in the reasonable
determination of the Company, contain erroneous information or contain any
untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that, at the
request of the related Underwriter, the Company will file Computational
Materials or ABS Term Sheets that contain a material error or omission if
clearly marked "superseded by materials dated _____________" and accompanied by
corrected Computational Materials or ABS Terms Sheets that are marked, "material
previously dated _____________ as corrected". The Company shall give notice to
the Underwriters of its determination not to file any materials pursuant to the
preceding sentence and agrees to file such materials if the Underwriters
reasonably object to such determination within one business day after receipt of
such notice.
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the rules under the Act, the
Company promptly will prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance and, if
such amendment or supplement is required to be contained in a post-effective
amendment to the Registration Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible; provided, however, that the Company will not be required to file any
such amendment or supplement with respect to any Computational Materials or ABS
Term Sheets incorporated by reference in the Prospectus other than as provided
in Section 9.
(d) The Company will furnish to each Underwriter and counsel
for the Underwriters, without charge, for so long as delivery of a prospectus
relating to the Offered Certificates may be required by the Act, as many copies
of the Prospectus, the Preliminary Prospectus, if any, and any amendments and
supplements thereto as the respective Underwriters may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as any
Underwriter may designate and will maintain such qualification in effect so long
as required for the distribution of the Offered Certificates; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(f) The Company will use the net proceeds received by it from
the sale of the Offered Certificates in the manner specified in the Prospectus
under "Use of Proceeds".
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(g) Whether or not the transactions contemplated in the
Pooling and Servicing Agreement are consummated or this Agreement is terminated,
the Company will pay or cause the payment of all expenses incident to the
performance of the obligations of the Company under this Agreement, including,
without limitation, (i) the fees, disbursements and expenses of the Company's
counsel in connection with the purchase of the Mortgage Loans and the issuance
and sale of the Offered Certificates, (ii) all fees and expenses incurred in
connection with the registration and delivery of the Offered Certificates under
the Act, and all other fees or expenses in connection with the preparation and
filing of the Registration Statement, any Preliminary Prospectus, the Prospectus
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the quantities hereinabove specified, (iii) all
costs and expenses related to the transfer and delivery of the Offered
Certificates to the Underwriters, including any transfer or other taxes payable
thereon, (iv) the costs of printing or producing any "blue sky" memorandum in
connection with the offer and sale of the Offered Certificates under state
securities laws and all expenses in connection with the qualification of the
Offered Certificates for the offer and sale under state securities laws as
provided in Section 5(e), including, without limitation, filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the "blue sky" memorandum, (v)
the cost of printing the Offered Certificates, (vi) the costs and charges of any
transfer agent, registrar or depository, (vii) the fees and expenses of the
Rating Agencies incurred in connection with the issuance and sale of the Offered
Certificates and (vii) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise
made in this Section.
The Company shall also be responsible for the payment of all
out-of-pocket costs and expenses incurred by the Underwriters, including,
without limitation, (i) the fees and disbursements of counsel for the
Underwriters and (ii) such additional costs arising out of any Computational
Materials and ABS Term Sheets prepared and/or distributed by the Underwriters,
in connection with the purchase and sale of the Offered Certificates; provided,
however, that if the Underwriters terminate this Agreement other than pursuant
to Section 7 or 10(b) hereof, the Underwriters shall be responsible for their
out-of-pocket costs and expenses.
(h) So long as any Offered Certificates are outstanding, the
Company will, or will cause the Master Servicer or Special Servicer to, furnish
or make available to each Underwriter a copy of (i) the annual statement of
compliance delivered by each of the Master Servicer and the Special Servicer to
the Trustee under the Pooling and Servicing Agreement, (ii) the annual
independent public accountants' servicing report furnished to the Trustee in
respect of each of the Master Servicer and the Special Servicer pursuant to the
Pooling and Servicing Agreement, (iii) each report of the Company, the Trustee,
the Master Servicer or the Special Servicer regarding the Offered Certificates
filed with the Commission under the Exchange Act or mailed to the holders of the
Offered Certificates and (iv) from time to time, upon request of such
Underwriter, such other information concerning the Offered Certificates which
may be furnished by the Company, the Trustee, the Master Servicer or the Special
Servicer without undue expense and without violation of applicable law or the
Pooling and Servicing Agreement.
(i) The Company shall deliver to each Underwriter a copy of
the Prospectus (exclusive of information incorporated therein and further
exclusive of the exhibits and annexes to
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the Prospectus Supplement) at or prior to the printing thereof, marked to show
changes from the Preliminary Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Agreement shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company contained herein
as of the date hereof and as of the Closing Date, to the accuracy in all
material respects of the statements the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance in all material
respects by the Company of its obligations hereunder and to the following
additional conditions with respect to the Offered Certificates:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the parties hereto,
threatened; and the Prospectus Supplement shall have been filed with the
Commission within the time period prescribed by the Commission.
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of the
Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(c) The Underwriters shall have received with respect to the
Company a good standing certificate from the Secretary of State of the State of
Missouri, dated not earlier than ten days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or
an assistant secretary of the Company, in his or her 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, a
Mortgage Loan Purchase 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 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 the Company) has occurred
since the date of the good standing certificate referred to in paragraph (c)
above which has affected the good standing of the Company under the laws of the
State of Missouri. Such certificate shall be accompanied by true and complete
copies (certified as such by the Secretary or an assistant secretary of the
Company) of the certificate of incorporation and by-laws of the Company, as in
effect on the Closing Date, and of the resolutions of the Company and any
required shareholder consent relating to the transactions contemplated in this
Agreement and the Pooling and Servicing Agreement.
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(e) The Underwriters shall have received from Xxxxxxxx & Xxxxxx L.L.P.,
counsel for the Company, a favorable opinion, dated the Closing Date and
reasonably satisfactory in form and substance to counsel for the Underwriters,
to the effect that:
(i) The Registration Statement and any amendments thereto have
become effective under the Act.
(ii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or threatened.
(iii) The Registration Statement, each amendment thereto (if
any), the Basic Prospectus and the Prospectus Supplement, as of their
respective effective or issue dates (other than the financial
statements, schedules and other financial and statistical information
contained therein or omitted therefrom, as to which such counsel need
express no opinion), complied as to form in all material respects with
the applicable requirements of the Act and the rules and regulations
thereunder.
(iv) To such counsel's knowledge, there are no material
contracts, indentures or other documents relating to the Offered
Certificates of a character required to be described or referred to in
the Registration Statement or the Prospectus Supplement or to be filed
as exhibits to the Registration Statement, other than those described
or referred to therein or filed or incorporated by reference as
exhibits thereto and other than any documents required to be filed as
exhibits to a Current Report on Form 8-K within 15 days after the
Closing Date.
(v) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Missouri
and has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement, the Mortgage Loan
Purchase Agreements and the Pooling and Servicing Agreement.
(vi) Each of this Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Company.
(vii) Each of the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by (A)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the rights of creditors
generally, (B) general principles of equity, regardless of whether
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 any provision
of any such agreement which purports or is construed to provide
indemnification with respect to securities law violations.
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(viii) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this Agreement and
the Certificate Purchase Agreement, will be entitled to the benefits of
the Pooling and Servicing Agreement.
(ix) Neither the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement nor the consummation of any of
the other transactions contemplated by, or the fulfillment by the
Company of the terms of, this Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement, will conflict with
or result in a breach or violation of any term or provision of, or
constitute a default (or an event which with the passing of time or
notification or both, would constitute a default) under, (A) the
certificate of incorporation or by-laws of the Company, or (B) to the
knowledge of such counsel, any indenture or other agreement or
instrument to which the Company is a party or by which it is bound, or
(C) any New York, Missouri or federal statute or regulation applicable
to the Company, or (D) to the knowledge of such counsel, any order of
any New York, Missouri or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company, except, in the case of any of (B), (C) or (D), for any
conflict, breach, violation or default that, in the judgment of such
counsel, is not reasonably likely to materially and adversely affect
the Company's ability to perform its obligations under this Agreement,
any Mortgage Loan Purchase Agreement or the Pooling and Servicing
Agreement.
(x) No consent, approval, authorization or order of any
federal, State of Missouri or State of New York court, agency or other
governmental body is required for the consummation by the Company of
the transactions contemplated by the terms of this Agreement, the
Mortgage Loan Purchase Agreements and the Pooling and Servicing
Agreement, except such as may be required under the securities laws of
the State of Missouri, the State of New York and other particular
States in connection with the purchase and the offer and sale of the
Offered Certificates by the Underwriters as to which such counsel need
express no opinion, except such as have been obtained and except for
any recordation of the respective assignments of the Mortgage Loan
documents to the Trustee pursuant to the Pooling and Servicing
Agreement that have not been completed.
(xi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended. The Trust
Fund is not required to be registered under the Investment Company Act.
(xii) The statements set forth in the Prospectus Supplement
under the headings "Description of the Certificates" and "The Pooling
and Servicing Agreement" and in the Basic Prospectus under the headings
"Description of the Certificates" and "Servicing of the Mortgage
Loans", insofar as such statements purport to summarize certain
material provisions of the Offered Certificates and the Pooling and
Servicing Agreement, provide a fair and accurate summary of such
provisions.
(xiii) The statements set forth in each of the Basic
Prospectus and the Prospectus Supplement under the headings "ERISA
Considerations", "Material Federal Income Tax
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Consequences" and "Legal Investment", to the extent that they purport
to describe certain matters of federal law or legal conclusions with
respect thereto, while not discussing all possible consequences of an
investment in the Offered Certificates to all investors, provide in all
material respects a fair and accurate summary of such matters and
conclusions set forth under such headings.
(xiv) As described in the Prospectus Supplement, and assuming
compliance with all the provisions of the Pooling and Servicing
Agreement, (A) REMIC I will qualify as a REMIC within the meaning of
Sections 860A through 860G of the Internal Revenue Code of 1986 in
effect on the date hereof (the "REMIC Provisions") and the REMIC I
Regular Interests (as defined in the Pooling and Servicing Agreement)
will be "regular interests" and the Class [R-I] Certificates will
evidence the sole class of "residual interests" in REMIC I (as both
terms are defined in the REMIC Provisions in effect on the Closing
Date), (B) REMIC II will qualify as a REMIC within the meaning of the
REMIC Provisions, and the REMIC II Regular Interests (as defined in the
Pooling and Servicing Agreement) will be "regular interests" and the
Class [R-II] Certificates will evidence the sole class of "residual
interests" in REMIC II, and (C) REMIC III will qualify as a REMIC
within the meaning of the REMIC Provisions, and the REMIC III Regular
Certificates will evidence "regular interests" and the Class [R-III]
Certificates will evidence the sole class of "residual interests" in
REMIC III.
(xv) The portion of the Trust Fund consisting of the Grantor
Trust (as defined in the Pooling and Servicing Agreement) will be
classified as a grantor trust under subpart E, part I of subchapter J
of the Internal Revenue Code of 1986.
Such opinion (x) may express its reliance as to factual
matters on certificates of government and agency officials and the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement, the Mortgage Loan
Purchase Agreements and the Pooling and Servicing Agreement, (y) may assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto (other than the Company) and may
otherwise be based on such assumptions as may be reasonably acceptable to
counsel for the Underwriters, and (z) may be qualified as an opinion only on the
law of the State of Missouri, the law of the State of New York and the federal
laws of the United States of America.
Based on such counsel's participation in conferences with
officers and other representatives of the Company and of the Master Servicer,
the Special Servicer, the Trustee, the Underwriters, the Mortgage Loan Sellers,
and their respective counsel, at which the contents of the Registration
Statement and the Prospectus were discussed, and relying as to facts necessary
to the determination of materiality to the extent such counsel may do so in the
exercise of its professional responsibility upon the certificates and statements
of officers and other representatives of the Company, the Mortgage Loan Sellers
and others, and, although such counsel need not pass upon or assume
responsibility for the actual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xii) and (xiii) above) and need not make an independent
check or verification thereof, and (with limited exception) such counsel did not
review any documents relating to the Mortgage Loans other than loan summaries
-14-
prepared by MLS and [Other Seller], on the basis of the foregoing, such counsel
shall also confirm that nothing has come to the attention of such counsel that
would lead such counsel to believe that the Registration Statement or any
amendment thereof (other than (x) financial statements, schedules and other
numerical, financial and statistical data included therein or omitted therefrom
and (y) the documents incorporated therein, as to which such counsel need
express no opinion), as of its effective date, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus (other than (x) financial statements, schedules and other numerical,
financial and statistical data included therein or omitted therefrom and (y) the
documents incorporated therein, as to which such counsel need express no
opinion), as of the date of the Prospectus Supplement and at the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(f) The Underwriters shall have received from their counsel an
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters.
(g) The Underwriters shall have received, with respect to each
of the Trustee, the Master Servicer and the Special Servicer a favorable opinion
of counsel, dated the Closing Date and satisfactory to counsel for the
Underwriters, addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and delivery
of the Pooling and Servicing Agreement by such party and, subject to the same
limitations as set forth in Section 6(e)(vii), the enforceability of the Pooling
and Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of parties to, this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto (other than such party) and
may be based upon such other assumptions as may be reasonably acceptable to
counsel for the Underwriters. Such opinion may be qualified as an opinion only
on the laws of the jurisdiction wherein such party is organized, the laws of the
State of New York and the federal laws of the United States of America.
(h) The Underwriters shall have received from ____________,
certified public accountants, a letter dated ______________,_____ and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, stating in effect that, using the assumptions and methodology
described in such letter, they have compared such numbers and percentages set
forth in the electronic database prepared by MLS with respect to the Midland
Loans to the corresponding information in the loan documents identified in such
letter relating to the Midland Loans, respectively, and found each such number
and percentage set forth in such database to be in agreement with the
corresponding information in such loan documents.
(i) The Underwriters shall have received from ___________,
certified public accountants, a letter dated ______________,_____ and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, stating in effect that, using the assumptions and methodology
described in such letter, they have compared such numbers and percentages set
forth
-15-
in the electronic database prepared by [Other Seller] with respect to the [Other
Seller] Loans to the corresponding information in the loan documents identified
in such letter relating to the [Other Seller] Loans, and found each such number
and percentage set forth in such database to be in agreement with the
corresponding information in such loan documents.
(j) The Underwriters shall have received from ____________,
certified public accountants, letters dated the date of the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and
satisfactory in form and substance to the 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 letters, they have
(based on the Mortgage Loan databases referred to in paragraphs (h) and (i)
above) recalculated such numbers and percentages set forth in the Preliminary
Prospectus Supplement and the Prospectus Supplement as the Underwriters may
reasonably request and as are agreed to by ____________, compared the results of
their calculations to the corresponding items in the Preliminary Prospectus
Supplement and the Prospectus Supplement, respectively, and found each such
number and percentage set forth in the Preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, to be in agreement with the results of such
calculations.
(k) The Underwriters shall have received all opinions,
certificates and other documents required under the Mortgage Loan Purchase
Agreements to be delivered by the respective Mortgage Loan Sellers and their
counsel in connection with their sales of Mortgage Loans to the Company, and
each such opinion shall be dated the Closing Date and addressed to the
Underwriters.
(l) The Underwriters shall have received all opinions rendered
to the rating agency or agencies identified on Schedule II hereto, by counsel to
the Company and the Mortgage Loan Sellers, and each such opinion shall be dated
the Closing Date and addressed to the Underwriters.
(m) The Offered Certificates shall have been assigned the
ratings indicated on Schedule II hereto by the Rating Agencies.
(n) The Mortgage Loan Sellers shall have sold the Mortgage
Loans to the Company pursuant to the Mortgage Loan Purchase Agreements.
(o) The Company and the Mortgage Loan Sellers shall have
furnished the Underwriters with such further information, certificates and
documents as the Underwriters may reasonably have requested, and all proceedings
in connection with the transactions contemplated by this Agreement and all
documents incident hereto shall be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their counsel.
(p) Subsequent to the date hereof, there shall not have
occurred any change, or development including a prospective change, in or
affecting the business or properties of the Company or a Mortgage Loan Seller
which, in the judgment of the Underwriters after consultation with the Company,
materially impairs the investment quality of the Offered Certificates so as to
-16-
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Offered Certificates as contemplated in the Prospectus.
7. Cancellation for Failure to Perform. If any of the
conditions specified in Section 6 shall not have been fulfilled in all material
respects when and as provided by this Agreement, or if any of the opinions and
certificates mentioned in Section 6 or elsewhere in this Agreement shall not be
in all material respects reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing, or by telephone or by either telegraph
or telecopier confirmed in writing.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the meaning of
the Act or the Exchange Act, against any and all losses, claims, damages,
liabilities, costs and expenses, joint or several, to which such Underwriter or
any such controlling person may become subject, under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment of or supplement to any such document, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
will reimburse each Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending against such loss, claim, damage, liability, cost, expense or
action; provided, however, that the Company shall not be liable to any
Underwriter (or any such person controlling such Underwriter) in any such case
to the extent that any such loss, claim, damage, liability, cost or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus Supplement or the Prospectus Supplement (or any amendment
thereof or supplement thereto) as to which such Underwriter has agreed to
indemnify the Company pursuant to Section 8(b); and provided, further, that such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling an Underwriter) from whom
the person asserting any such loss, claim, damage, liability, cost or expense
purchased the Offered Certificates which are the subject thereof if (i) such
Underwriter did not give or send to such person a copy of the Prospectus (or the
Prospectus as most recently amended or supplemented) at or prior to the
confirmation of the sale of such Offered Certificates to such person in any case
where such delivery is required by the Act, (ii) the Company has furnished to
such Underwriter copies of the Prospectus (or the Prospectus as most recently
amended or supplemented) in sufficient quantity at least one business day prior
to such Underwriter's confirmation of the sale of such Offered Certificates to
such person, and (iii) the untrue statement or omission of a material fact
contained in such Preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as most recently amended or supplemented). This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
-17-
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, against any
and all losses, claims, damages, liabilities, costs and expenses to which the
Company or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities, costs and expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto), or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; but only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by such
Underwriter specifically for use in such document. In addition, each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, against any and all losses, claims, damages,
liabilities, costs and expenses to which the Company or any such director,
officer or controlling person may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Computational Materials or ABS Term Sheets (or amendments thereof or supplements
thereto) delivered to prospective investors by such Underwriter, which were also
furnished to the Company by such Underwriter pursuant to or as contemplated by
Section 9 and made a part of, or incorporated by reference in, the Registration
Statement or in any Preliminary Prospectus Supplement or the Prospectus (or any
amendment thereof or supplement thereto) by reason of a filing made pursuant to
Section 9, or arise out of or are based on the omission or alleged omission to
state in any such document a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
(and when read in conjunction with the Prospectus), not misleading; provided,
however, that no Underwriter shall be liable to the extent that any loss, claim,
damage, liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in any
Computational Materials or ABS Term Sheets (or any amendment thereof or
supplement thereto) made in reliance upon and in conformity with (A) the
representations and warranties of any Mortgage Loan Seller set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement or (B) any
other information concerning the nature and characteristics of the Mortgage
Loans, the Mortgaged Properties or the Borrowers furnished to the Underwriters
by the Company or any Mortgage Loan Seller (the error in any such other
information concerning the characteristics of the Mortgage Loans, the Mortgaged
Properties or the Borrowers or the breach in such representations and warranties
that gave rise to such untrue statement or omission, a "Collateral Error"),
except to the extent that the related Mortgage Loan Seller or the Company
notified such Underwriter in writing of such Collateral Error or provided in
written or electronic form information superseding or correcting such Collateral
Error (in any case, a "Corrected Collateral Error") prior to the time of
confirmation of sale to the person that purchased the Offered Certificates that
are the subject of any such loss, claim, damage, liability, cost or expense, or
action in respect thereof, and such Underwriter failed to deliver to such person
corrected
-18-
Computational Materials or ABS Term Sheets (or, if the superseding or correcting
information was contained in the Prospectus, failed to deliver to such person
the Prospectus as amended or supplemented) at or prior to confirmation of such
sale to such person. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. Any Computational Materials
or ABS Term Sheets (or amendments thereof or supplements thereto) so furnished
to the Company by any particular Underwriter shall relate exclusively to and be,
to the extent provided herein, the several responsibility of such Underwriter
and no other Underwriter.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) of this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under paragraph (a) or (b) of this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from the liability under such paragraph, except to the extent that the
indemnifying party was prejudiced by such failure, and the omission so to notify
the indemnifying party will not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than under
paragraph (a) or (b), as applicable, of this Section 8. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party);
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by [Underwriter #1] in the case of
paragraph (a) of this Section 8 and by the Company in the case of paragraph (b)
of this Section 8, representing the indemnified parties under such paragraph (a)
or (b), as the case may be, who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
An indemnifying party shall not be liable for any settlement
of any proceeding effected without its consent. If any proceeding is settled
with such consent or if there is a final
-19-
judgment for the plaintiff, however, the indemnifying party shall indemnify the
indemnified party from and against any loss, claim, damage, liability, cost or
expense by reason of such settlement or judgment. Notwithstanding the foregoing,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel for which the indemnifying
party is obligated under this Section 8, (ii) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (iii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages,
liabilities, costs or expenses referred to in and intended to be covered under
such paragraph (a) or (b), as the case may be, then the indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities, costs or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offer and
sale of the Offered Certificates pursuant hereto or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in the such losses, claims, damages, liabilities, costs
or expenses, as well as any other relevant equitable considerations; provided,
however, that in no case shall any Underwriter (except as may be provided in
Section 8(e) or in any agreement among underwriters relating to the offering of
the Offered Certificates) be responsible under this Section 8(d) for any amount
in excess of the underwriting discount applicable to the Offered Certificates
purchased by such Underwriter hereunder. The relative benefits received by the
Company on the one hand, and the Underwriters on the other, in connection with
the offering of the Offered Certificates shall be deemed to be in the same
respective proportions that the total net proceeds from the sale of the Offered
Certificates (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters in
connection with the offering of the Offered Certificates, bear to the aggregate
offering price of the Offered Certificates. The relative fault of the Company on
the one hand and of any Underwriter on the other 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
-20-
or by such Underwriter, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities, costs or expenses (or actions in respect thereof) referred to above
in this Section 8 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to the
extent that the indemnifying party will be ultimately obligated to pay such
expenses. If any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the indemnified party that received such payment shall promptly refund the
amount so paid to the indemnifying party.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8(d), each person who controls an Underwriter within the meaning of
the Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding sentence of this Section 8(d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 8(d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any liability it or they may have under this
Section 8(d), except to the extent that it or they were prejudiced by such
failure, and the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any liability it
or they may have otherwise than under this Section 8(d).
(e) The Underwriters further agree as follows:
(i) [Underwriter #1] will indemnify and hold harmless each of
[Underwriter #2] and [Underwriter #3]against any losses, claims,
damages, liabilities, costs or expenses to which either [Underwriter
#2] or [Underwriter #3], as the case may be, may become subject, under
the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities, costs or expenses arise out of or are based upon
any untrue statements or alleged untrue statements or omissions or
alleged omissions made in (i) any ABS Term Sheets and/or Computational
Materials relating to the Offered Certificates (or any amendments
thereof or supplements thereto) developed, mailed or otherwise
transmitted by [Underwriter #1], or (ii) any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendments thereof or
supplements thereto) in reliance upon and in conformity with written
information furnished to the Company by [Underwriter #1] for use in
such document; and
-21-
[Underwriter #1] will reimburse [Underwriter #2] and [Underwriter #3],
as applicable, for any legal or other expenses reasonably incurred
thereby in connection with investigating or defending any such action
or claim as such expenses are incurred.
(ii) [Underwriter #2] will indemnify and hold harmless each of
[Underwriter #1] and [Underwriter #3]against any losses, claims,
damages, liabilities, costs or expenses to which either [Underwriter
#1] and [Underwriter #3], as the case may be, may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities, costs or expenses arise out of or are
based upon any untrue statements or alleged untrue statements or
omissions or alleged omissions made in (i) any ABS Term Sheets and/or
any Computational Materials (or any amendments thereof or supplements
thereto) developed, mailed or otherwise transmitted by [Underwriter
#2], or (ii) any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written information furnished to
the Company by [Underwriter #2] for use in such document; and
[Underwriter #2] will reimburse [Underwriter #1] and [Underwriter #3],
as applicable, for any legal or other expenses reasonably incurred
thereby in connection with investigating or defending any such action
or claim as such expenses are incurred.
(iii) [Underwriter #3]will indemnify and hold harmless each of
[Underwriter #1] and [Underwriter #2] against any losses, claims,
damages, liabilities, costs or expenses to which either [Underwriter
#1] and [Underwriter #2], as the case may be, may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities, costs or expenses arise out of or are
based upon any untrue statements or alleged untrue statements or
omissions or alleged omissions made in (i) any ABS Term Sheets and/or
Computational Materials (or any amendments thereof or supplements
thereto) developed, mailed or otherwise transmitted by [Underwriter
#3], or (ii) any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written information furnished to
the Company by [Underwriter #3]for use in such document; and
[Underwriter #3]will reimburse [Underwriter #1] and [Underwriter #2],
as applicable, for any legal or other expenses reasonably incurred
thereby in connection with investigating or defending any such action
or claim as such expenses are incurred.
(iv) Each Underwriter agrees to pay its proportionate share
(based on its underwriting proportion as set forth in this Agreement)
of any losses, claims, damages, liabilities, costs or expenses, joint
or several, under the Act, the Exchange Act or otherwise, paid by any
other Underwriter to any person or entity (other than to the
contributing Underwriter), arising out of or based upon any untrue
statement or alleged untrue statement of any material fact contained
in the Registration Statement, any Preliminary Prospectus, the
Prospectus, any Computational Materials or ABS Term Sheets relating to
the Offered Certificates, or any amendment of or supplement to any
such document, or arising out of or based upon the omission or alleged
omission to state in any such document a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (provided that the payment
contemplated by this clause (iv) shall not cover any losses, claims,
damages, liabilities, costs or expenses referred to in and
-22-
intended to be covered by clause (i), (ii) or (iii) of this Section
8(e)); and each Underwriter will pay such proportionate share of any
legal or other expenses reasonably incurred by another Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability, cost or expense (or any action in respect thereof).
Notwithstanding the foregoing, this clause (iv) is not intended to
cover any losses, claims, damages, liabilities, costs or expenses
referred to in the preceding sentence to the extent that they have
otherwise been covered by any indemnification by or contribution from
the Company or a Mortgage Loan Seller.
(v) The provisions of Section 8(c) shall apply as between the
Underwriters with respect to indemnities and payments under this
Section 8(e), except a contributing Underwriter under clause (iv) of
this Section 8(e) cannot assume the defense of any action.
(vi) If the indemnities or payments provided in clauses (i),
(ii), (iii) or (iv) of this Section 8(e), as the case may be, are
unavailable to or, except in the case of clause (iv) of this Section
8(e), insufficient to hold harmless an indemnified party under such
clause in respect of any losses, claims, damages, liabilities, costs
or expenses (or actions in respect thereof) referred to therein and
intended to be covered thereby, then the indemnifying or contributing
party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities, costs or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect both the relative benefits
received by such indemnified party on the one hand and the
indemnifying or contributing party on the other, in each case as
Underwriter, from the offering of the Offered Certificates, and the
relative fault of such indemnified party on the one hand and the
indemnifying or contributing party on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages, liabilities, costs or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by an indemnified party on the one hand and
indemnifying or contributing party on the other shall be deemed to be
in the same proportion to the amount of Offered Certificates
underwritten by each such party. The relative fault of an indemnified
party or beneficiary on the one hand and the indemnifying or
contributing party on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement or
omission or alleged omission relates to information supplied by such
indemnified party on the one hand or the indemnifying or contributing
party on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities, costs or expenses
(or actions in respect thereof) referred to above in this clause (vi)
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 clause (vi), neither the indemnified party nor the indemnifying
or contributing party 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
sold, exceeds the amount of any damages which such party has otherwise
been required to pay by reason of such untrue statement 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
-23-
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(vii) The obligations of [Underwriter #1] under clauses (i), (iv)
and (vi) above shall be in addition to any liability which
[Underwriter #1] may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls
[Underwriter #2] or [Underwriter #3], as applicable, within the
meaning of the Act or the Exchange Act; the obligations of
[Underwriter #2] under clauses (ii), (iv) and (vi) above shall be in
addition to any liability which [Underwriter #2] may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls [Underwriter #1] or [Underwriter #3], as
applicable, within the meaning of the Act or the Exchange Act; and the
obligations of [Underwriter #3]under clauses (iii), (iv) and (vi)
above shall be in addition to any liability which [Underwriter #3]may
otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls [Underwriter #1] or [Underwriter
#2], as applicable, within the meaning of the Act or the Exchange Act.
9. Computational Materials and ABS Term Sheets. (a) Not later
than 3:00 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, 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/PSA 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/PSA Letters, the "No-Action
Letters"), if the filing of such materials with the Commission is a condition of
the relief granted in such letters and, in the case of any such materials that
constitute "Collateral Term Sheets" within the meaning of the PSA Letter, such
Collateral Term Sheets have not previously been delivered to the Company as
contemplated by Section 9(b)(i) below. For purposes of this Agreement,
"Structural Term Sheets" shall have the meaning set forth in the PSA Letter.
Each delivery of Computational Materials and/or ABS Term Sheets to the Company
and its counsel pursuant to this paragraph (a) shall be made in paper form and,
in the case of ABS Term Sheets, electronic format suitable for filing with the
Commission.
(b) Each Underwriter represents and warrants to and agrees
with the Company, as of the date hereof and as of the Closing Date, as
applicable, that:
(i) if such Underwriter has provided any Collateral Term Sheets
to potential investors in the Offered Certificates prior to the date
hereof and if the filing of such materials with the Commission is a
condition of the relief granted in the PSA Letter, then in each such
case such Underwriter delivered to the Company and its counsel, in the
manner contemplated by Section 9(a), a copy of such materials no later
than 3:00 p.m., New York
-24-
City time, on the first business day following the date on which such
materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated
or consolidated form) and ABS Term Sheets furnished to the Company
pursuant to Section 9(a) or as contemplated in Section 9(b)(i)
constitute all of the materials relating to the Offered Certificates
furnished by such Underwriter (whether in written, electronic or other
format) to prospective investors in the Offered Certificates prior to
the date hereof, except for any Preliminary Prospectus and any
Computational Materials and ABS Term Sheets with respect to the
Offered Certificates which are not required to be filed with the
Commission in accordance with the No-Action Letters, and all
Computational Materials and ABS Term Sheets provided by such
Underwriter to potential investors in the Offered Certificates comply
with the requirements of the No-Action Letters;
(iii) such Underwriter did not furnish to any prospective
investor any Computational Materials and/or ABS Term Sheets with
respect to the Offered Certificates that such Underwriter actually
knew at the time of delivery to include any untrue statement of a
material fact or, when read in conjunction with the Prospectus, to
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;
(iv) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to prospective investors
contained and will contain a legend, prominently displayed on the
first page thereof, indicating that the information contained therein
will be superseded by information 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
(v) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS
Term Sheets or other materials relating to the Offered Certificates
(whether in written, electronic or other format) to any potential
investor unless such potential investor has received a Prospectus
prior to or at the same time as the delivery of such Computational
Materials, ABS Term Sheets or other materials.
(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 Underwriters or counsel for the Underwriters to amend or
supplement the Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or ABS Term Sheets provided by any
Underwriter pursuant to or as contemplated by this Section 9 or the omission to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made (and when read in
conjunction with the Prospectus), not misleading, or if it shall be necessary to
amend or supplement any Current Report to comply with the Act or the Exchange
Act or the rules thereunder, the Underwriters, at their expense (or, if such
amendment or supplement is necessary in order for any Current Report to comply
with the Act or the Exchange Act or the rules thereunder, at the expense of the
Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such
-25-
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.
(d) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Company or its counsel to amend or supplement the Prospectus
as a result of an untrue statement of a material fact contained in any
Computational Materials or ABS Term Sheets provided by any Underwriter pursuant
to or as contemplated by this Section 9 or the omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they made (and when read in conjunction with the
Prospectus), not misleading, or if it shall be necessary to amend or supplement
any Current Report to comply with the Act or the Exchange Act or the rules
thereunder, the Company promptly will notify each Underwriter of the necessity
of such amendment or supplement, and the Underwriters, at their expense (or, if
such amendment or supplement is necessary in order for any Current Report to
comply with the Act or the Exchange Act or the rules thereunder, at the expense
of the Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which 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.
10. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the
amount of the Offered Certificates agreed by such Underwriter to be purchased
under this Agreement, upon tender of such Offered Certificates in accordance
with the terms hereof, and the amount of the Offered Certificates not purchased
does not aggregate more than 10% of the total amount of the Offered Certificates
set forth in Schedule I hereof (based on aggregate purchase price), the
remaining Underwriters shall be obligated to take up and pay for the Offered
Certificates that the withdrawing or defaulting Underwriter agreed but failed to
purchase.
(b) If any Underwriter shall fail to take up and pay for the
amount of the Offered Certificates agreed by such Underwriter to be purchased
under this Agreement (such Underwriter being a "Defaulting Underwriter"), upon
tender of such Offered Certificates in accordance with the terms hereof, and the
amount of the Offered Certificates not purchased aggregates more than ___% of
the total amount of the Offered Certificates set forth in Schedule I hereto
(based on aggregate price), and arrangements satisfactory to the remaining
Underwriter(s) and the Company for the purchase of such Certificates by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination, the Company shall not be under any
liability to any Underwriter (except to the extent provided in Section 5(g) and
Section 8 hereof) nor shall any Underwriter (other than a Defaulting
Underwriter) be under any liability to the Company (except to the extent
provided in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve
any Defaulting Underwriter from any liability it may have to the Company or to
the other Underwriters by reason of its failure to take up and pay for Offered
Certificates as agreed by such Defaulting Underwriter.
-26-
11. Termination Upon the Occurrence of Certain Events. Any
Underwriter may terminate its obligations under this Agreement in the absolute
discretion of such Underwriter, by notice given to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company, any Mortgage Loan
Seller or any of their respective affiliates shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or State of New York authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, and (b) such event, singly or together with any other of the
events specified in clauses (a)(i) through (iv) above, makes it, in the judgment
of such Underwriter, impracticable to market the Offered Certificates on the
terms and in the manner contemplated in the Prospectus.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and representatives and the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Offered Certificates.
The provisions of Sections 5(g), 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any Underwriter, will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to it
at its address set forth on Schedule I hereto (or, at such other address as may
be furnished by such Underwriter to the Company in accordance with this Section
13); or, if sent to the Company, will be mailed, delivered or either telegraphed
or transmitted by telecopier and confirmed to it at PNC Mortgage Acceptance
Corp., 000 X. 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Chief
Executive Officer, Telecopy No.: (000) 000-0000 (or at such other address as may
be furnished by the Company to each Underwriter in accordance with this Section
13).
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors, heirs and legal representatives, and no other person will have
any right or obligation hereunder.
15. Miscellaneous. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York,
without regard to conflicts of law principles. This Agreement may be executed in
any number of counterparts, each of which shall for all purposes be deemed to be
an original and all of which shall together constitute but one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought.
-27-
[SIGNATURE PAGE FOLLOWS]
-28-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Underwriters.
Very truly yours,
PNC MORTGAGE ACCEPTANCE CORP.
By:
------------------------
Name:
Title:
Accepted at New York, New York,
as of the date first written above.
[UNDERWRITER #1]
By:
------------------------------
Name:
Title:
Accepted at New York, New York,
as of the date first written above.
[UNDERWRITER #2]
By:
------------------------------
Name:
Title:
Accepted at New York, New York,
as of the date first written above.
[UNDERWRITER #3]
By:
------------------------------
Name:
Title:
-29-
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and Class Certificates to be Purchased
addresses) ----- (Express as a Percentage
----------------- of the Total Principal or
Notional Amount of that Class)
------------------------------
[Underwriter #1] Class [S] ____%
[Address] Class [A-1A] ____%
Class [A-1B] ____%
Class [A-2] ____%
Class [A-3] ____%
Class [A-4] ____%
Class [B-1] ____%
Class [B-2] ____%
[Underwriter #2] Class [S] ____%
[Address] Class [A-1A] ____%
Class [A-1B] ____%
Class [A-2] ____%
Class [A-3] ____%
Class [A-4] ____%
Class [B-1] ____%
Class [B-2] ____%
[Underwriter #3] Class [S] ____%
[Address] Class [A-1A] ____%
Class [A-1B] ____%
Class [A-2] ____%
Class [A-3] ____%
Class [A-4] ____%
Class [B-1] ____%
Class [B-2] ____%
SCHEDULE II
Registration Statement No. __________
Basic Prospectus dated ___________, ____
Prospectus Supplement dated ___________, ____
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series ________
Cut-off Date: ___________, ____
Closing: _______ on ___________, ____
at the offices of _______________
Schedule II (continued)
Initial
Aggregate Certificate
Class [D]esignation Principal Balance Initial Purchase Price(2) Rating (3)
------------------- or Notional Pass-Through Rate ----------------- ----------
Amount of Class(1)
------------------
Class [S] $_________(4) ____%
Class [A-1A] $_________ ____%
Class [A-1B] $_________ ____%
Cllass [A-2] $_________ ____%
Class [A-3] $_________ ____%
Class [A-4] $_________ ____%
Class [B-1] $_________ ____%
Class [B-2] $_________ ____%
------------------
(1) Plus or minus a permitted variance of __%.
(2) Expressed as a percentage of the aggregate stated or notional amount,
as applicable, of the relevant class of Offered Certificates to be
purchased. The purchase price for each class of the Offered
Certificates will include accrued interest at the initial Pass-Through
Rate therefor on the aggregate stated or notional amount, as
applicable, thereof to be purchased from the Cut-off Date to but not
including the Closing Date.
(3) By each of _________ and _________, respectively.
(4) Aggregate Notional Amount.
