DLJ COMMERCIAL MORTGAGE CORP.
Mortgage Pass-Through Certificates
Series _____
UNDERWRITING AGREEMENT
_________________, 19__
[Lead Underwriter's name and address]
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to sell to the
underwriters named in Schedule I hereto (the "Underwriters"; provided, however,
that if you are the only underwriter named in Schedule I, then the terms
"Underwriter" and "Underwriters" shall refer solely to you) its Mortgage
Pass-Through Certificates, Series ___ , as specified in Schedule II hereto (the
"Offered Certificates"), to be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") to be dated as of __________,
19__ (the "Cut-off Date"), among the Company, as depositor, _________________,
as master servicer (the "Master Servicer"), ____________, as special servicer
(the "Special Servicer") and ____________, as trustee (in such capacity, the
"Trustee") and REMIC administrator (in such capacity, the "REMIC
Administrator"). The Offered Certificates will be issued in classes (each, a
"Class"). The Offered Certificates will evidence undivided interests in a trust
fund (the "Trust Fund") to be established by the Company pursuant to the Pooling
and Servicing Agreement. The Trust Fund will consist primarily of a pool (the
"Pool") of [specify general characteristics of the Mortgage Loans] mortgage
loans (the "Mortgage Loans") transferred by the Company to the Trust Fund and
listed in an attachment to the Pooling and Servicing Agreement. Three 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 Class __ Certificates and
Class ___ Certificates (collectively with the Offered Certificates, the
"Certificates") are also to be issued pursuant to the Pooling and Servicing
Agreement but do not form a part of this offering. The Offered Certificates are
described more fully in the Basic Prospectus and the Prospectus Supplement (each
of which terms is defined below) which the Company is furnishing to you.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-_____) on Form S-3 for
the registration under the Securities Act of 1933, as amended (the "Act"),
of the Offered Certificates, which registration statement has become
effective and copies of which have heretofore been delivered to you. Such
registration statement meets the requirements set forth in Rule 415(a)(1)
under the Act and complies in all other material respects with such Rule.
The Company proposes to file with the Commission pursuant to Rule 424 under
the Act a supplement, dated the date specified in Schedule II hereto, to
the prospectus, dated the date specified in Schedule II hereto, relating to
the Offered Certificates and the method of distribution thereof and has
previously advised you of all further information (financial and other)
with respect to the Offered Certificates set forth therein. Such
registration statement, including the exhibits thereto, as amended at the
date hereof is hereinafter called the "Registration Statement"; such
prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424 under the Act, is hereinafter called the "Basic
Prospectus"; such supplement to the Basic Prospectus, in the form in which
it will be filed with the Commission pursuant to Rule 424 of the Act, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus
and the Prospectus Supplement together are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus Supplement which has
heretofore been filed pursuant to Rule 402(a) or Rule 424 is hereinafter
called a "Preliminary Prospectus Supplement". The Company will not, without
your prior consent, file any other amendment to the Registration Statement
or make any change in the Basic Prospectus or the Prospectus Supplement
until after the end of the period during which a prospectus is required to
be delivered to purchasers of the Offered Certificates under the Act. The
Company, as depositor with respect to the Trust Fund, will file with the
Commission within fifteen days of the issuance of the Offered Certificates
a report on Form 8-K setting forth specific information concerning the
Offered Certificates (the "Form 8-K").
(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, any other amendment to
the Registration Statement becomes effective, when any supplement to the
Prospectus Supplement is filed with the Commission, and at the Closing
Date, (i) the Registration Statement, as amended as of any such time, and
the Prospectus, as amended or supplemented as of any such time, complied or
will comply in all material respects with the applicable requirements of
the Act and the rules thereunder and (ii) the Registration Statement, as
amended as of any such time, did not and will not contain any untrue
statement of a material fact and did not and will not omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus, as amended or
supplemented as of any such time, did not and will not contain an untrue
statement of a material fact and did not and will not omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to (A) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with written information furnished to
the Company by you, or by any Underwriter through you, specifically for
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use in the preparation thereof, or (B) the information contained in or
omitted from any Current Report (as defined in Section 5(b) hereof), or any
amendment thereof or supplement thereto, incorporated by reference in the
Registration Statement or the Prospectus (or any amendment thereof or
supplement thereto).
(c) The Company is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Delaware with full power
and authority (corporate and other) to own its properties and conduct its
business, as described in the Prospectus, and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement,
and is conducting its business so as to comply in all material respects
with all applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business.
(d) The Company is not aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the Prospectus or
for any additional information, (ii) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose or (iii)
any notification with respect to the suspension of the qualification of the
Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) At or prior to the Closing Date, the Company will have entered
into the Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Company, and the Pooling and
Servicing Agreement, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company, and this Agreement and
the Pooling and Servicing Agreement will constitute valid and binding
agreements of the Company, enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, moratorium, receivership,
reorganization or similar laws affecting the rights of creditors generally,
(ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of any provisions of this Agreement
which purport 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 Offered Certificates [are "mortgage related securities"
as such term is defined in Section 3(a)(41) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and] have been duly and validly
authorized by the Company, and will, when duly and validly executed and
authenticated by the Trustee and delivered to and paid for by the
Underwriters in accordance with this Agreement and the Pooling and
Servicing Agreement, be entitled to the benefits of the Pooling and
Servicing Agreement.
(g) As of the Closing Date, the representations and warranties of the
Company set forth in Section ___ of the Pooling and Servicing Agreement
will be true and correct.
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(h) Neither the issuance and sale of the Offered Certificates, nor the
consummation of any other of the transactions contemplated herein, nor the
fulfillment of any of the terms of the Pooling and Servicing Agreement or
this Agreement, will result in the breach of any term or provision of the
certificate of incorporation or by-laws of the Company or conflict with,
result in a material breach, violation or acceleration of or constitute a
default under, the terms of any indenture or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which it
is bound, or any statute, order or regulation applicable to the Company or
any of its subsidiaries of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company or any of
its subsidiaries. Neither the Company nor any of its subsidiaries is a
party to, bound by or in breach or violation of any indenture or other
agreement or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects the ability of the Company to perform its obligations
under this Agreement and the Pooling and Servicing Agreement.
(i) There are no actions or proceedings against, or investigations of,
the Company pending, or, to the knowledge of the Company, threatened,
before any court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement or the
Offered Certificates, (ii) seeking to prevent the issuance of the Offered
Certificates or the consummation of any of the transactions contemplated by
this Agreement or the Pooling and Servicing Agreement, (iii) which might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement,
the Pooling and Servicing Agreement or the Offered Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the
Offered Certificates described in the Prospectus.
(j) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Company since
the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Company to perform its
obligations under the Pooling and Servicing Agreement.
(k) Any taxes, fees and other governmental charges in connection with
the execution and delivery of this Agreement and the Pooling and Servicing
Agreement and the execution, delivery and sale of the Offered Certificates
(other than any related income taxes) have been or will be paid at or prior
to the Closing Date.
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.
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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 (as defined below) is set forth in Schedule II hereto. There will
be added to the purchase price of the Offered Certificates interest in respect
of [each Class of] the Offered Certificates at the interest rate applicable [to
such Class] from the Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and sale of the
Offered Certificates contemplated hereby (the "Closing"), shall be made at the
date, location and time of delivery set forth in Schedule II hereto, or such
later date as the Underwriters shall designate, which date and time may be
postponed by agreement between the Underwriters and the Company or as provided
in Section 9 hereof (such date, location and time of delivery and payment for
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 Depositor with DTC. Delivery of the Offered Certificates
shall be made to the several Underwriters against payment by the several
Underwriters of the purchase price thereof to or upon the order of the Company
by wire transfer of immediately available funds or by such other method as may
be acceptable to the Company. The Offered Certificates shall be registered in
such names and in such denominations as the Underwriters may request not less
than three full business days in advance of the Closing Date.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Certificates for sale to the public as set forth in
the Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) 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 shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or the
Prospectus or for any additional information affecting or in respect of the
Offered Certificates, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement affecting
the Offered Certificates or the institution or threatening of any
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 or supplement to the Prospectus
unless the Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which you
reasonably object until after the period in which a prospectus is required
to be
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delivered to purchasers of the Offered Certificates under the Act. Subject
to the foregoing sentence, the Company will cause the Prospectus Supplement
to be transmitted to the Commission for filing pursuant to Rule 424 under
the Act by means reasonably calculated to result in filing with the
Commission pursuant to said Rule. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and Structural
Term Sheets (each as defined in Section 9 below) with respect to the
Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report
on Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Exchange
Act on the business day immediately following the later of (i) the day on
which such Computational Materials and ABS Term Sheets are delivered to
counsel for the Company by an Underwriter prior to 10:30 a.m. and (ii) the
date on which this Agreement is executed and delivered. The Company will
cause one Collateral Term Sheet (as defined in Section 9 below) with
respect to the Offered Certificates that is delivered by the Underwriters
to the Company in accordance with the provisions of Section 9 to be filed
with the Commission on a Current Report pursuant to Rule 13a-11 under the
Exchange Act on the business day immediately following the day on which
such Collateral Term Sheet is delivered to counsel for the Company by the
Underwriters prior to 10:30 a.m. 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 10:30 a.m. 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 five
preceding sentences, the Company shall have no obligation to file any
materials provided by the Underwriters pursuant to Section 9 which, in the
reasonable determination of the Company, are not required to be filed
pursuant to the Xxxxxx Letters or the PSA Letter (each as defined in
Section 9 below), or contain erroneous information or contain any untrue
statement of a material fact or, when read in conjunction with the
Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; it being understood, however, that the Company shall have
no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any Computational Materials or ABS Term Sheets (as defined in
Section 9 below) provided by the Underwriters to the Company pursuant to
Section 9 hereof. The Company shall give notice to the Underwriters of its
determination not to file any materials pursuant to the preceding sentence
and agrees to file such materials if the Underwriters reasonably object to
such determination within one business day after receipt of such notice.
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(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Act or
the rules under the Act, the Company promptly will prepare and file with
the Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and, if such amendment or supplement is
required to be contained in a post-effective amendment to the Registration
Statement, will use its best efforts to cause such amendment of the
Registration Statement to be made effective as soon as possible; provided,
however, that the Company will not be required to file any such amendment
or supplement with respect to any Computational Materials or ABS Term
Sheets incorporated by reference in the Prospectus other than any
amendments or supplements of such Computational Materials or ABS Term
Sheets that are furnished to the Company pursuant to Section 9 hereof which
the Company determines to file in accordance therewith.
(d) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer relating to the Offered
Certificates may be required by the Act, as many copies of the Basic
Prospectus, the Preliminary Prospectus Supplement, if any, and the
Prospectus Supplement and any amendments and supplements thereto as the
Underwriters may reasonably request.
[(e) The Company agrees that, so long as the Offered Certificates
shall be outstanding, it will cause the Trustee to deliver to the
Underwriters the annual statement[s] as to compliance and the annual
statement[s] of a firm of independent public accountants, furnished to the
Trustee by the Master Servicer [and the Special Servicer] pursuant to
Section[s] ______ of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Trustee.]
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualification in effect
so long as required for the distribution of the Offered Certificates;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to general or unlimited service of process
in any jurisdiction where it is not now so subject.
[(g) The Company will pay all costs and expenses in connection with
the transactions contemplated hereby, including, but not limited to, the
fees and disbursements of its counsel; the costs and expenses of printing
(or otherwise reproducing) and delivering the Pooling and Servicing
Agreement and the Offered Certificates; accounting fees and disbursements;
the
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costs and expenses in connection with the qualification or exemption of the
Offered Certificates under state securities or blue sky laws, including
filing fees and reasonable fees and disbursements of counsel in connection
therewith, in connection with the preparation of any Blue Sky Survey and in
connection with any determination of the eligibility of the Offered
Certificates for investment by institutional investors and the preparation
of any Legal Investment Survey; the expenses of printing any such Blue Sky
Survey and Legal Investment Survey; the costs and expenses in connection
with the preparation, printing and filing of the Registration Statement
(including exhibits thereto), the Basic Prospectus, the Preliminary
Prospectus Supplement, if any, and the Prospectus Supplement, the
preparation and printing of this Agreement, the furnishing to the
Underwriters of such copies of each Preliminary Prospectus Supplement, if
any, and Prospectus Supplement as the Underwriters may reasonably request
and the fees of rating agencies. [Except as provided in Section 7 hereof,]
the Underwriters shall be responsible for paying all costs and expenses
incurred by them in connection with their purchase and sale of the Offered
Certificates, including the fees of counsel to any Underwriter.]
6. Conditions to the Obligations to the Underwriters. The obligations of
the Underwriters to purchase the Offered Certificates as provided in this
Agreement shall be subject 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 the Closing Date, to the accuracy in all material respects
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance in all material respects by the Company of
its obligations hereunder and to the following additional conditions with
respect to the Offered Certificates:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened; and the Prospectus Supplement shall
have been filed with the Commission within the time period prescribed by
the Commission.
(b) The Company shall have delivered to you a certificate, dated the
Closing Date, of any of [list applicable executives] of the Company to the
effect that the signer of such certificate has carefully examined this
Agreement and the Prospectus and that: (i) to the best of his knowledge,
(A) 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, (B) 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, and (C) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and (ii)
nothing has come to his attention that would lead him to believe that the
Prospectus contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
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(c) The Underwriters shall have received from [Sidley & Austin],
counsel for the Company, a favorable opinion, dated the Closing Date and
reasonably satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) Each of this Agreement and the Pooling and Servicing
Agreement has been duly executed and delivered by the Company under
the law of the State of New York;
(ii) Each of this Agreement and the Pooling and Servicing
Agreement is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except
as enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors generally,
(B) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (C) in the case of this Agreement,
public policy considerations underlying the securities laws to the
extent that the same limit the enforceability of the provisions of
this Agreement that purport or are construed to provide
indemnification with respect to securities law violations;
(iii) The Offered Certificates, when duly executed, authenticated
and delivered in accordance with the Pooling and Servicing Agreement
and paid for in accordance with this Agreement, will be validly issued
and outstanding and entitled to the benefits of such Pooling and
Servicing Agreement;
(iv) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
trust created thereunder is not required to be registered under the
Investment Company Act of 1940, as amended;
(v) Such counsel confirms that [(based solely upon telephonic
confirmation from a representative of the Commission)] the
Registration Statement is effective under the Act and, to the best of
such counsel's knowledge, no stop order with respect thereto has been
issued, and no proceeding for that purpose has been instituted or
threatened by the Commission under the Act; such Registration
Statement (except the financial statements and schedules and other
financial and statistical data included therein and the documents
incorporated by reference therein, as to which such counsel need
express no view), at the time it became effective and the Prospectus
(except the financial statements and schedules and the other financial
and statistical data included therein and the documents incorporated
by reference therein, as to which such counsel need express no view),
as of the date of the Prospectus Supplement, appeared on their face to
be appropriately responsive in all material respects to the
requirements of the Act and the rules and regulations thereunder;
(vi) The statements set forth under the heading "Description of
the Offered Certificates" in the Prospectus, insofar as such
statements purport to summarize certain
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provisions of the Pooling and Servicing Agreement and the Offered
Certificates, provide a fair summary of such provisions;
(vii) The statements set forth in the Prospectus under the
headings "Certain Federal Income Tax Consequences" (insofar as they
relate specifically to the purchase, ownership and disposition of the
Offered Certificates) and "ERISA Considerations" (insofar as they
relate specifically to the purchase, ownership and disposition of the
Offered Certificates), to the extent that they constitute matters of
law or legal conclusions, provide a fair summary of such law or
conclusions; and
(viii) assuming compliance with all provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, each of REMIC I,
REMIC II and REMIC III will qualify as a REMIC pursuant to Section
860D of the Internal Revenue Code of 1986, as amended (the "Code"),
each Class of Certificates other than the Certificates identified in
the Prospectus Supplement as REMIC Residual Certificates, will
constitute a class of "regular interests" in a REMIC within the
meaning of the Code, and each Class of Certificates identified in the
Prospectus Supplement as a Class of REMIC Residual Certificates will
constitute the "residual interest" in a REMIC within the meaning of
the Code.
Such opinion (a) may express its reliance as to factual matters on
certificates of government and agency officials and the representations and
warranties made by, and on certificates or other documents furnished by
officers of, the parties to this Agreement and the Pooling and Servicing
Agreement, (b) 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 (c) may be qualified as an opinion only on the
law of the State of New York, the federal law of the United States of
America and the General Corporation Law of the State of Delaware.
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 REMIC Administrator, the Underwriters
and their respective counsel, at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel need
not pass upon or assume responsibility for the actual accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as stated in paragraphs [(vi) and
(vii)] above) and need not make an independent check or verification
thereof for the purpose of rendering this opinion, 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 (which for purposes of such opinion shall not be
deemed to include any exhibits filed therewith or documents incorporated by
reference therein), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of the date of the Prospectus
Supplement and at the Closing Date,
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contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(other than financial statements, schedules and other numerical, financial
and statistical data and the documents incorporated therein and the
information included under the caption "Method of Distribution" contained
in the Registration Statement, any amendment thereof and the Prospectus, as
to which such counsel need express no opinion). Insofar as questions of
materiality are involved in the foregoing opinion, such counsel may as to
factual matters necessary to the determination of materiality rely upon
certificates and other information provided by officers and other
representatives to the Company and as to determinations of materiality, may
seek in the first instance and rely where such counsel concludes such
reliance is justifiable, on the view of officers and other representatives
of the Company.
(d) The Underwriters shall have received from [Sidley & Austin] a
favorable opinion, dated the Closing Date and satisfactory in form and
substance to counsel for the Underwriters, to the effect that:
(i) The Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to enter into and perform
its obligations under this Agreement and the Pooling and Servicing
Agreement and to consummate the transactions contemplated hereby and
thereby.
(ii) Neither the offer, sale and issuance of the Offered
Certificates nor the consummation of any other of the transactions
contemplated in this Agreement or 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 the certificate of incorporation or by-laws of the Company or,
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
any State of New York, State of Delaware or federal statute or
regulation applicable to the Company or, to the knowledge of such
counsel, any order of any State of New York, State of Delaware or
federal court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company.
(iii) To the knowledge of such counsel, there are no material
contracts, indentures or other documents of the Company required to be
described or referred to in the Registration Statement or to be filed
as exhibits thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto.
(iv) There is no pending or, to the best knowledge of such
counsel, threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and
there is no
-11-
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed
as an exhibit, which is not described or filed as required.
(v) No consent, approval, authorization or order of any State of
New York, State of Delaware or federal court or governmental agency or
body is required for the consummation by the Company of the
transactions contemplated by this Agreement and the Pooling and
Servicing Agreement, except (i) such as have been obtained under the
Act and (ii) such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and the offer and sale of
the Offered Certificates by any Underwriter, as to which such counsel
need express no opinion.
Such opinion (a) may express counsel's reliance as to factual matters
on certificates of government and agency officials and the representations
and warranties made by, and on certificates or other documents furnished by
officers of, the parties to this Agreement and the Pooling and Servicing
Agreement and (b) may be qualified as an opinion only on the law of the
State of New York, the General Corporate Law of the State of Delaware and
the federal law of the United States of America.
(e) The Underwriter shall have received, with respect to each of the
Master Servicer, the Special Servicer, the REMIC Administrator and the
Trustee, a favorable opinion of counsel, dated the Closing Date, 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(c)(ii), the enforceability of the Pooling and
Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on representations and warranties made by,
and on certificates or other documents furnished by officers and/or
authorized representatives of parties to, this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials.
Such opinion may assume the due authorization, execution and delivery of
the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered.
Such opinion may be qualified as an opinion only on the General Corporation
Law of the State of Delaware (if relevant), the laws of each state in which
the writer of the opinion is admitted to practice law and the federal law
of the United States.
(f) The Underwriters shall have received from ____________, counsel
for the Underwriters, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters.
(g) The Underwriters shall have received from ________________
certified public accountants, a letter dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters stating in effect that [using the assumptions and methodology
used by the Company, all of which shall be described in such letter, they
have recalculated such numbers and percentages set forth in the Prospectus
as the Underwriters may
-12-
reasonably request and as are agreed to by _________________, compared the
results of their calculations to the corresponding items in the Prospectus,
and found each such number and percentage set forth in the Prospectus to be
in agreement with the results of such calculations]. [To the extent
historical financial information with respect to the Company and/or
historical financial, delinquency or related information with respect to
one or more servicers is included in the Prospectus, such letter or letters
shall also relate to such information.]
(h) The Offered Certificates listed on Schedule II hereto shall have
been rated as indicated on such Schedule by the rating agency or agencies
indicated.
(i) All proceedings in connection with the transactions contemplated
by this Agreement, and all documents incident hereto and thereto, shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall
have received such additional information, certificates and documents as
they may reasonably request.
If any of the conditions specified in this 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 above 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.
[7. Reimbursement of Underwriters' Expenses. If the sale of any Offered
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or therein or comply with any provision hereof or
thereof, other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of such Offered Certificates.]
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of the Act or the Exchange Act against claims, damages, or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any part of the Registration Statement when such part became
effective, or in the Registration Statement, any Preliminary Prospectus
Supplement, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission (in the
-13-
case of any Computational Materials or ABS Term Sheets (as defined in Section 9
below) in respect of which the Company agrees to indemnify any Underwriter or
any such controlling person, as set forth below, when such are read in
conjunction with the Prospectus) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability, or action; provided,
however, (i) that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made therein (A) in reliance upon and in conformity with written information
furnished to the Company by any Underwriter directly or through another
Underwriter specifically for use in the preparation thereof or (B) in any
Current Report or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) directly from an error (a "Collateral
Error") in the information concerning the characteristics of the Mortgage Loans
furnished by the Company to an Underwriter in writing or by electronic
transmission that was used in the preparation of either (x) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) or (y) any
written or electronic materials furnished to prospective investors on which the
Computational Materials (or amendments or supplements) were based, (ii) such
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter) from whom
the person asserting any such loss, claim, damage or liability purchased the
Offered Certificates which are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as amended or supplemented)
at or prior to the confirmation of the sale of such Certificates to such person
in any case where such delivery is required by the Act and the untrue statement
or omission of a material fact contained in such preliminary prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented) and
(iii) such indemnity with respect to any Collateral Error shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter) from whom
the person asserting any loss, claim, damage or liability received any
Computational Materials or ABS Term Sheets (or any written or electronic
materials on which the Computational Materials or ABS Term Sheets are based)
that were prepared on the basis of such Collateral Error, if, prior to the time
of confirmation of the sale of the applicable Offered Certificates to such
person, the Company notified such Underwriter in writing of the Collateral Error
or provided in written or electronic form information superseding or correcting
such Collateral Error (in any such case, a "Corrected Collateral Error"), and
such Underwriter failed to notify such person thereof or to deliver to such
person corrected Computational Materials (or underlying written or electronic
materials) or ABS Term Sheets. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each
-14-
Underwriter, but only with reference to (A) written information relating to such
Underwriter furnished to the Company by an Underwriter directly or through
another Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity, or (B) any Computational Materials or
ABS Term Sheets (or amendments or supplements thereof) delivered to prospective
investors by such Underwriter and furnished to the Company by such Underwriter
pursuant to or as contemplated by Section 9 and incorporated by reference in the
Registration Statement or the Prospectus or any amendment or supplement thereof
(except that no such indemnity shall be available for any losses, claims,
damages or liabilities, or actions in respect thereof, resulting from any
Collateral Error, other than a Corrected Collateral Error). This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that [the statements set forth in the
last paragraph of the cover page and under the heading "Method of Distribution"
in any Preliminary Prospectus Supplement or the Prospectus] constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing indemnity (other than
any Computational Materials or ABS Term Sheets furnished to the Company by any
Underwriter), and you confirm that such statements are correct. [Any
Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) furnished to the Company by a particular Underwriter shall relate
exclusively to and be the several responsibility of such Underwriter and no
other Underwriter.]
(c) Promptly after receipt by an indemnified party under 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 this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party (which may
be counsel representing 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 next preceding sentence (it being understood, however, that the
indemnifying party shall
-15-
not be liable for the expenses of more than one separate counsel, approved by
the Underwriters in the case of paragraph (a) of this Section 8, representing
the indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(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, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages, or
liabilities referred to in paragraph (a) or (b) above as follows:
(i) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which do not arise out of or are not based upon
any untrue statement or omission of a material fact in any Computational
Materials or ABS Term Sheets (or any amendments or supplements thereof) in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the
sum of such discount and the purchase price of the Offered Certificates
specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the
offering of the Offered Certificates) be responsible under this
subparagraph (i) for any amount in excess of the underwriting discount
applicable to the Offered Certificates purchased by such Underwriter
hereunder; and
(ii) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which arise out of or are based upon any untrue
statement or omission of a material fact in any Computational Materials or
ABS Terms Sheets (or any amendments or supplements thereof) or in any
written or electronic materials on which the Computational Materials are
based, in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and the Underwriters on the other in
connection with the statement or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact in such Computational Materials or ABS
Term Sheets (or any amendments or supplements thereof or such written or
electronic materials) results from information prepared by the Company on
the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
-16-
Notwithstanding anything to the contrary in this paragraph (d), 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, each person
who controls an Underwriter within the meaning of the 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 paragraph (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 paragraph (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 other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
9. Computational Materials and ABS Term Sheets. (a) Not later than 10:30
a.m., New York City time, on the date hereof, the Underwriters shall deliver to
the Company and its counsel, as provided below, five complete copies 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 Letters") or (ii) "ABS Term Sheets" within the meaning of
the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and together with the Xxxxxx Letters, the "No-Action Letters"), if
the filing of such materials with the Commission is a condition of the relief
granted in such letters and, in the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, such Collateral
Term Sheets have not previously been delivered to the Company as contemplated by
Section 9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company pursuant to this
paragraph (a) shall be effected by delivering four copies of such materials to
counsel for the Company on behalf of the Company at the address specified in
Section 13 hereof and one copy of such materials to the Company.
(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
-17-
in each such case such Underwriter delivered four copies of such materials
to counsel for the Company on behalf of the Company at the address
specified in Section 13 hereof and one copy of such materials to the
Company no later than 10:30 a.m., New York City time, on the first business
day following the date on which such materials were initially provided to a
potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant to
Section 9(a) or as contemplated in Section 9(b)(i) constitute all of the
materials relating to the Offered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to prospective
investors in the Offered Certificates prior to the date hereof, except for
any preliminary prospectus with respect to the Offered Certificates and any
Computational Materials and ABS Term Sheets with respect to the Offered
Certificates which are not required to be filed with the Commission in
accordance with the No-Action Letters, and all Computational Materials and
ABS Term Sheets provided by such Underwriter to potential investors in the
Offered Certificates comply with the requirements of the No-Action Letters;
(iii) on the respective dates any such Computational Materials and/or
ABS Term Sheets with respect to the Offered Certificates referred to in
Section 9(b)(ii) were last furnished by such Underwriter to each
prospective investor, on the date of delivery thereof to the Company
pursuant to or as contemplated by this Section 9 and on the Closing Date,
such Computational Materials and/or ABS Term Sheets did not and will not
include any untrue statement of a material fact, or, when read in
conjunction with the Prospectus, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates were furnished to a prospective
investor and on the date hereof, the Underwriters possessed, and on the
date of delivery of such materials to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, the Underwriters
will possess, the capability, knowledge, expertise, resources and systems
of internal control necessary to ensure that such Computational Materials
and/or ABS Term Sheets conform to the representations and warranties of the
Underwriters contained in subparagraphs (ii) and (iii) above of this
paragraph (b);
(v) all Computational Materials and ABS Term Sheets with respect to
the Offered Certificates furnished by such Underwriter to potential
investors contained and will contain a legend, prominently displayed on the
first page thereof, to the effect that the Company has not prepared,
reviewed or participated in the preparation of such Computational Materials
or ABS Term Sheets, is not responsible for the accuracy thereof and has not
authorized the dissemination thereof;
-18-
(vi) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to potential investors contained
and will contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus and, except
in the case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets; and
(vii) on and after the date hereof, such Underwriter shall not deliver
or authorize the delivery of any Computational Materials, ABS Term Sheets
or other materials relating to the Offered Certificates (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time
as the delivery of such Computational Materials, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials or ABS Term Sheets with respect to the Offered Certificates to any
prospective investor, and agree that any such Computational Materials and/or ABS
Term Sheets furnished to prospective investors shall include a disclaimer in the
form set forth in paragraph (b)(v) above. The Underwriters agree that they will
not represent to potential investors that any Computational Materials and/or ABS
Term Sheets with respect to the Offered Certificates were prepared or
disseminated on behalf of the Company.
(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 Underwriters or their counsel to amend or supplement the Prospectus as a
result of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state a material fact
required, when considered in conjunction with the Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules thereunder,
the Underwriters, at their expense, promptly will prepare and furnish to the
Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Offered Certificates that received such information being
amended or supplemented. Each Underwriter represents and
-19-
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Company shall have
no obligation to file such amendment or supplement if the Company determines
that (i) such amendment or supplement contains any untrue statement of a
material fact or, when read in conjunction with the Prospectus, omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (it being understood, however, that the Company shall
have no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any such amendment or supplement provided by the Underwriters to the
Company pursuant to this paragraph (d)) or (ii) such filing is not required
under the Act. Notwithstanding the foregoing, none of the Underwriters make any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriters from the Company of
notice of such Corrected Collateral Error or materials superseding or correcting
such Corrected Collateral Error).
(e) 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 the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state therein a material fact
required, when considered in conjunction with the Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules thereunder,
the Company promptly will notify each Underwriter of the necessity of such
amendment or supplement, and the Underwriters, at their expense (such expense to
be allocated between them based on the relative fault of the Underwriters) (or,
if such amendment or supplement is necessary due to a Collateral Error (except
any Corrected Collateral Error, with respect to materials prepared after the
receipt by the Underwriters from the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error), 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. Notwithstanding the foregoing, none of the Underwriters
make any representation or warranty as to whether any such amendment or
supplement of Computational Materials or ABS Term Sheets with respect to the
Offered Certificates included or will include any untrue statement resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriters from the
Company of notice of such Corrected Collateral Error or materials superseding or
correcting such Corrected Collateral Error).
-20-
(f) The Underwriters (at their own expense) further agree to provide to the
Company any accountants' letters obtained relating to the Computational
Materials and/or ABS Term Sheets, which accountants' letters shall be addressed
to the Company or shall state that the Company may rely thereon; provided that
the Underwriters shall have no obligation to procure any such letter.
10. Substitution of Underwriters. (a) If any Underwriter shall fail to take
up and pay for the amount of the Offered Certificates agreed by such Underwriter
to be purchased under this Agreement, upon tender of such Offered Certificates
in accordance with the terms hereof, and the amount of the Offered Certificates
not purchased does not aggregate more than 10% of the total amount of the
Offered Certificates set forth in Schedule I hereof, 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 Certificates in accordance with the terms hereof and thereof, and the
amount of the Offered Certificates not purchased aggregates more than 10% of the
total amount of the Offered Certificates set forth in Schedule I hereto, and
arrangements satisfactory to the remaining Underwriters and the Company for the
purchase of such Certificates by other persons are not made within 36 hours
thereafter, this Agreement shall terminate. In the event of any such termination
the Company shall not be under any liability to any Underwriter (except to the
extent provided in Section 5(g) and Section 8 hereof) nor shall any Underwriter
(other than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of the Offered
Certificates such Underwriter agreed to purchase hereunder) be under any
liability to the Company (except to the extent provided in Sections 8 and 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Company or any other Underwriter by reason
of its failure to take up and pay for Offered Certificates as agreed by such
Defaulting Underwriter.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters by notice given to the Company prior to
delivery of and payment for all Offered Certificates if prior to such time [(i)
trading in securities of the Company or any affiliate on the New York Stock
Exchange shall have been suspended or limited, or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by either federal or New York State authorities,] or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis, the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Underwriters, impractical
to market the Offered Certificates.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and
-21-
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 7, 8 and 9
hereof shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered or
either telegraphed or transmitted by telecopier and confirmed to them at the
addresses set forth on Schedule I hereto; or, if sent to the Company will be
mailed, delivered or either telegraphed or transmitted by telecopier and
confirmed to it at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: [______], with a copy to Sidley & Austin, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx.
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
15. Applicable Law; Counterparts. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument.
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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
several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By:
Name:
Title:
Accepted at New York, New York
as of the date first written
above.
[NAME OF LEAD UNDERWRITER]
By:
Name:
Title:
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SCHEDULE I
Principal or Notional
Amount of relevant
Underwriter Class of Offered
(and address) Class Certificates to be Purchased
------------- ----- ----------------------------
-24-
SCHEDULE II
Registration Statement No.
Basic Prospectus dated ___________, 19__
Prospectus Supplement dated ___________, 19__
Title of Certificates: Mortgage Pass-Through
Certificates, Series ________,
Cut-off Date: __________, 19__
Closing: ___________ [A.M. P.M.] __________, 19__
at the offices of
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Manner of payment of Certificate Purchase Price:
Office for delivery of non-book entry Offered Certificates:
Office for payment for Offered Certificates or wire transfer information:
Office for checking non-book entry Offered Certificates:
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Initial Aggregate Principal (or
in the case of Class __,
Class Designation Notional) Amount of Class(1) Initial Pass-Through Rate Purchase Price(2) Rating(3)
----------------- ----------------------------- ------------------------- ----------------- ---------
$ % %
$ % %
$ % %
$ % %
$ % %
$ % %
$ % %
$ % %
$ % %
-------------------
(1) Subject to a variance of plus or minus ___%
(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 ____________________.
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