COMMERCIAL MORTGAGE ACCEPTANCE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1999-C1
UNDERWRITING AGREEMENT
as of July 15, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CIBC World Markets Corp.
CIBC Xxxxxxxxxxx Tower
World Financial Center, 19th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PNC Capital Markets, Inc.
One PNC Plaza, 19th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Residential Funding Securities Corporation
0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Commercial Mortgage Acceptance Corp., a Missouri corporation (the
"Depositor"), proposes to sell to Xxxxxx Xxxxxxx & Co. Incorporated, Deutsche
Bank Securities Inc., CIBC World Markets Corp., PNC Capital Markets, Inc. and
Residential Funding Securities Corporation (together, the "Underwriters") the
Commercial Mortgage Pass-Through Certificates identified in Schedule I hereto
(the "Certificates") pursuant to this Underwriting Agreement, dated July 15,
1999 (this "Agreement"), between the Depositor and the Underwriters. The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Depositor and consisting primarily of a pool
(the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans").
The Mortgage Loans will be acquired by the Depositor as follows:
(1) Certain of the Mortgage Loans (the "RFC Loans") will be acquired
by the Depositor from Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMC") (which
acquired the RFC Loans from Residential Funding Corporation ("RFC")
pursuant to a mortgage loan purchase agreement dated June 30, 1999 (the
"RFC Purchase Agreement")) pursuant to a separate mortgage loan purchase
agreement, dated July 15, 1999 (the "MS/RFC Purchase Agreement") between
the Depositor and MSMC.
(2) Certain of the Mortgage Loans (the "Midland Loans") will be
acquired by the Depositor from MSMC (which acquired the Midland Loans from
Midland Loan Services, Inc. ("MLS") pursuant to a mortgage loan purchase
agreement dated June 30, 1999 (the "MLS Purchase Agreement")) pursuant to a
separate mortgage loan purchase agreement dated July 15, 1999 (the "MS/MLS
Purchase Agreement") between the Depositor and MSMC.
(3) On June 30, 1999, MSMC acquired the certificates representing all
of the ownership interests in the Midland Commercial Mortgage Owner Trust I
(the "Owner Trust") from PNC Bank, National Association ("PNC") and
Anthracite Capital, Inc. ("Anthracite") pursuant to an Owner Trust
Certificate Purchase Agreement dated as of June 30, 1999 among MSMC, PNC,
Anthracite and MLS (the "Owner Trust Purchase Agreement"). MSMC
subsequently exercised its right as owner of a majority of the Owner Trust
certificates to purchase all of the mortgage loans owned by the Owner Trust
(the "Owner Trust Loans"). Under the Owner Trust Purchase Agreement, MLS
made the representations and warranties regarding the Owner Trust Loans and
has the obligation to effect a cure with respect to, repurchase or
substitute an Owner Trust Loan in the event of a material breach of a
representation or warranty. The Owner Trust Loans will be acquired by the
Depositor from MSMC pursuant to a separate mortgage loan purchase
agreement, dated July 15, 1999 (the "MS/OT Purchase Agreement") between the
Depositor and MSMC.
(4) Certain Mortgage Loans (the "Additional Midland Loans") will be
acquired by the Depositor from Midland pursuant to the mortgage loan
purchase agreement, dated July 15, 1999 (the "Additional Midland Purchase
Agreement"), between the Depositor and Midland.
(5) Certain Mortgage Loans (the "CIBC Loans") will be acquired by the
Depositor from CIBC Inc. ("CIBC") pursuant to the mortgage loan purchase
agreement, dated July 15, 1999 (the "CIBC Purchase Agreement"), between the
Depositor and CIBC.
MLS, CIBC and RFC collectively constitute the "Mortgage Loan Sellers".
Since MLS (and not MSMC) is responsible to the Trust Fund in respect of the
representations and warranties that relate to the MLS Loans and the Owner Trust
Loans and RFC (and not MSMC) is responsible to the Trust Fund in respect of the
representations and warranties that relate to the RFC Loans, MLS and RFC are
referred to as the Mortgage Loan Sellers for those Mortgage
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Loans. The RFC Purchase Agreement, the MLS Purchase Agreement, the Owner Trust
Purchase Agreement, the Additional Midland Purchase Agreement and the CIBC
Purchase Agreement, are individually referred to as a "Mortgage Loan Purchase
Agreement" and are collectively referred to as the "Mortgage Loan Purchase
Agreements". Capitalized terms used herein but not otherwise defined herein
shall have the meanings set forth in the Mortgage Loan Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-60749) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective and copies
of which have heretofore been delivered to each Underwriter. The Depositor
proposes to file with the Commission pursuant to Rule 424(b) under the 1933 Act
a supplement to the form of prospectus included in such registration statement
relating to the Certificates and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as amended at the date
hereof, is hereinafter called the "Registration Statement"; the prospectus
included in the Registration Statement, at the time the Registration Statement
became effective, or as subsequently filed with the Commission pursuant to Rule
424(b) under the 1933 Act, is hereinafter called the "Base Prospectus"; any
supplement to the form of prospectus relating to the Certificates, in the form
in which it shall be filed with the Commission pursuant to Rule 424 (including
the Base Prospectus as so supplemented) is hereinafter called the "Prospectus
Supplement"; and the Base Prospectus and the Prospectus Supplement, together,
are hereinafter called the "Prospectus". Any preliminary form of the Prospectus
that has heretofore been filed pursuant to Rule 424(b) is hereinafter called a
"Preliminary Prospectus."
Section 1. Representations and Warranties.
(a) The Depositor represents and warrants to each Underwriter as follows:
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement has been issued or is
in effect, and no proceedings for such purpose are pending or, to the
Depositor's knowledge, threatened by the Commission; the Registration Statement
as of the effective date thereof (the "Effective Date"), and the Prospectus, as
of the date of the Prospectus Supplement, complied in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder (the "1933 Act Regulations"); all conditions to the use of Form S-3
and Rule 415 under the 1933 Act have been satisfied with respect to the
Registration Statement as of the Effective Date thereof; and the information in
the Registration Statement, as of the Effective Date, did not contain any untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and the information in the Prospectus, as of the date of the
Prospectus Supplement, did not, and as of the Closing Date (as hereinafter
defined) 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
information therein, in the light of the circumstances under which they were
made, not misleading, provided, however, that the Depositor makes no
representations, warranties or agreements as to (A) the information contained in
the Prospectus or any revision or amendment thereof or supplement thereto in
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reliance upon and in conformity with information furnished in writing to the
Depositor by Xxxxxx Xxxxxxx & Co. Incorporated on behalf of itself or any other
Underwriter specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto (the
"Underwriter Information"), or (B) any information contained in or omitted from
any Computational Materials or ABS Term Sheets (each as hereinafter defined)
required to be provided by any Underwriter to the Depositor pursuant to Section
4.
(ii) There are no legal or governmental proceedings pending or, to
the knowledge of the Depositor, threatened to which the Depositor is a party or
to which any of the properties of the Depositor are subject that are required to
be described in the Registration Statement or the Prospectus and that are not so
described, nor are there any statutes, regulations, contracts or other documents
to which the Depositor is a party or to which the Depositor or any of the
properties of the Depositor are subject that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(iii) The Depositor has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of Missouri
with corporate power and authority to enter into and perform its obligations
under this Agreement and the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of July 1, 1999, between the Depositor, MLS, as
master servicer, ORIX Real Estate Capital Markets, LLC, as special servicer,
LaSalle Bank National Association, as trustee and ABN AMRO Bank N.V., as fiscal
agent.
(iv) The execution, delivery and performance of this Agreement and
the Pooling and Servicing Agreement by the Depositor and the consummation of the
transactions contemplated herein and therein by the Depositor and compliance by
the Depositor with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and will not (A) contravene any
provision of the articles of incorporation or by-laws of the Depositor or (B)
conflict with or constitute a breach of or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Depositor pursuant to, any provision of applicable law or
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Depositor is a party or by which it may be bound or to which any of
the property or assets of the Depositor is subject, which conflict, breach,
default, lien, charge or encumbrance is reasonably likely to materially and
adversely affect the Depositor's ability to perform its obligations under this
Agreement or the Pooling and Servicing Agreement.
(v) The Certificates have been duly authorized for issuance and sale
(or will have been so authorized prior to the issuance thereof) pursuant to this
Agreement and the Pooling and Servicing Agreement. When issued, authenticated
and delivered pursuant to the provisions of this Agreement and of the Pooling
and Servicing Agreement against payment of the consideration therefor in
accordance with this Agreement, the Certificates will be duly and validly issued
and outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement, except as such enforceability may be limited by the effect
of (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the
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enforcement of the rights of creditors generally, and (B) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law. The
Certificates and the Pooling and Servicing Agreement conform in all material
respects to all statements relating thereto contained in the Prospectus.
(vi) 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 Certificates hereunder, 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 Certificates by the Underwriters and any recordation
of the respective assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not yet been completed.
(vii) This Agreement has been, and as of the Closing Date the Pooling
and Servicing Agreement will be, duly authorized, executed and delivered by the
Depositor. This Agreement constitutes, and as of the Closing Date the Pooling
and Servicing Agreement will constitute, a legal, valid and binding agreement
enforceable against the Depositor in accordance with its terms, except as such
enforceability may be limited by the effect of (A) bankruptcy, insolvency,
reorganization, receivership, moratorium 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) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport or are construed to provide
indemnification from securities law liabilities.
(viii) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause to
be conveyed to the Trustee, all of the Depositor'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 Depositor, (B) will not have assigned to any
person any of its right, title or interest in the Mortgage Loans or in the
Pooling and Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer or cause to be transferred the Mortgage Loans to the
Trustee and to sell the 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 Depositor's right, title and interest in
and to the Mortgage Loans, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor.
(ix) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause the
Depositor 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
"1940 Act").
(x) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee
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in exchange for the Certificates and the sale of the Certificates to the
Underwriters pursuant to this Agreement as a sale of the interest in the
Mortgage Loans evidenced by the Certificates. The consideration received by the
Depositor upon the sale of the Certificates to the Underwriters will constitute
reasonably equivalent value and fair consideration for the Certificates. The
Depositor will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Certificates to the Underwriters. The
Depositor is not selling the Certificates to the Underwriters with any intent to
hinder, delay or defraud any of the creditors of the Depositor.
(xi) At the Closing Date, the respective classes of Certificates
shall have been assigned ratings no lower than those set forth in Schedule I
hereto by the nationally recognized statistical rating organizations identified
in Schedule I hereto (the "Rating Agencies").
(xii) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other than
income taxes) have been paid or will be paid at or prior to the Closing Date.
(xiii) 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 REMIC III Regular Certificates will constitute "regular interests"
in a REMIC; and the Class R-I, Class R-II and Class R-III Interests will each
constitute the sole class of "residual interests" in the related REMIC.
(b) MLS represents and warrants to each Underwriter as follows:
(i) MLS has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to enter into and perform its obligations under
this Agreement.
(ii) The execution, delivery and performance of this Agreement by MLS
and the consummation of the transactions contemplated herein and therein by MLS
and compliance by MLS with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action and will not (A) contravene
any provision of the certificate of incorporation or by-laws of MLS or (B)
conflict with or constitute a breach of or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of MLS pursuant to, any provision of applicable law or contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
MLS is a party or by which it may be bound or to which any of the property or
assets of MLS is subject, which conflict, breach, default, lien, charge or
encumbrance is reasonably likely to materially and adversely affect MLS's
ability to perform its obligations under this Agreement .
(iii) This Agreement has been duly authorized, executed and delivered
by MLS.
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(c) Each Underwriter represents and warrants to the Depositor that, as of
the date hereof and as of the Closing Date, such Underwriter has complied with
all of its obligations hereunder.
Section 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Depositor shall sell to
the several Underwriters, and each Underwriter shall, severally and not jointly,
purchase from the Depositor, at the related purchase price set forth on Schedule
I hereto, Certificates of each class thereof having an actual or notional amount
as set forth on Schedule I hereto opposite their names. There will be added to
the purchase price of the Certificates an amount equal to interest accrued
thereon pursuant to the terms thereof from the Cut-off Date to but excluding the
Closing Date.
Section 3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 a.m. New York City time on July 27, 1999,
which date and time may be postponed by agreement between the Underwriters and
the Depositor (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Depositor by the Underwriters of the purchase
prices of the Certificates as set forth in Schedule I in immediately available
Federal funds wired to such bank as may be designated by the Depositor, against
delivery of the Certificates. Delivery of the Certificates will be made in
book-entry form through the facilities of The Depository Trust Company ("DTC").
Each class of Certificates will be represented by one or more definitive global
Certificates to be deposited by or on behalf of the Depositor with DTC or the
Trustee. The Certificates will be made available for examination by the
Underwriters not later than 10:00 a.m. New York City time on the last business
day prior to the Closing Date. The closing of the transactions contemplated
hereby shall be made at the offices of Xxxxxxxx & Xxxxxx L.L.P., 0000 Xxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or at such other place as shall be agreed
upon by the Underwriters and the Depositor.
Section 4. Offering by Underwriter.
(a) The Underwriters shall provide written information in respect of the
plan of distribution to the Depositor expressly for use in the Preliminary
Prospectus and the Prospectus.
(b) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Depositor, in reliance upon Policy Statement 105, has not and will not
file an offering statement pursuant to Section 352-c of the General Business Law
of the State of New York with respect to the Certificates. Each Underwriter
therefore agrees that sales of the Certificates made by such Underwriter in and
from the State of New York will be made only to institutional investors within
the meaning of Policy Statement 105.
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(c) In connection with the offering of the Certificates, the Underwriters
may prepare and provide to prospective investors (x) computational materials
("Computational Materials") as defined in the No-Action Letter of May 20, 1994
issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in response to
the request of the Public Securities Association dated May 24, 1994, as well as
the PSA Letter referred to below and (y) ABS term sheets ("ABS Term Sheets"),
each as defined in the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the "PSA Letter", and, together
with the No-Action Letters described in clause (x) above, collectively, the
"No-Action Letters"), subject to the following conditions (to which such
conditions each Underwriter agrees, severally and not jointly, with respect to
those Computational Materials, and ABS Term Sheets prepared by such
Underwriter):
(i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the No-Action
Letters shall bear a legend substantially in the form attached hereto as Exhibit
A. The Depositor shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing, this
subsection (i) will be satisfied if all Computational Materials and ABS Term
Sheets referred to herein bear a legend in a form previously approved in writing
by the Depositor.
(ii) Each Underwriter shall provide the Depositor with representative
forms of all Computational Materials and ABS Term Sheets prior to their first
use, to the extent such forms have not previously been approved by the Depositor
for use by such Underwriter. Each Underwriter shall provide to the Depositor,
for filing on Form 8-K as provided in Section 5(k), copies (in such format as
required by the Depositor) of all Computational Materials and ABS Term Sheets
that are required to be filed with the Commission pursuant to the No-Action
Letters. Such Underwriter may provide copies of the foregoing in a consolidated
or aggregated form including all information required to be filed if filing in
such format is permitted by the No-Action Letters. All Computational Materials
and ABS Term Sheets described in this subsection (ii) must be provided to the
Depositor not later than 10:00 a.m. New York City time one business day before
filing thereof is required pursuant to the terms of this Agreement and in
accordance with the No-Action Letters. No Underwriter shall provide to any
investor or prospective investor in the Certificates any Computational Materials
or ABS Term Sheets on or after the day on which Computational Materials or ABS
Term Sheets are required to be provided to the Depositor pursuant to this
subsection (ii) (other than copies of Computational Materials or ABS Term Sheets
previously submitted to the Depositor in accordance with this subsection (ii)
for filing pursuant to Section 5(k)), unless such Computational Materials or ABS
Term Sheets are preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
(iii) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided that the Computational Materials and
ABS Term Sheets may include information based on alternative methodologies or
assumptions if specified therein. If any Computational Materials or ABS Term
8
Sheets that are required to be filed were based on assumptions with respect to
the mortgage pool that differ from the mortgage pool information as reflected in
the Final Offering Document Information (as defined in the Indemnification
Certificates, as amended or supplemented, between the respective Mortgage Loan
Seller and the Depositor (collectively, the "Indemnification Certificates")) in
any material respect, or on Certificate structuring terms that were revised in
any material respect prior to the printing of the Prospectus, the Underwriter
shall prepare revised Computational Materials or ABS Term Sheets, as the case
may be, based on the Final Offering Document Information, (as defined in the
Indemnification Certificates) and structuring assumptions used in the
Prospectus, circulate such revised Computational Materials and ABS Term Sheets
to all recipients of the preliminary versions thereof that indicated orally to
the Underwriter they would purchase all or any portion of the Certificates, and
include such revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Depositor pursuant to subsection
(ii) above.
(iv) The Depositor shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any material
error or omission, provided that, at the request of the related Underwriter, the
Depositor 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 Term
Sheets that are marked, "material previously dated ___________ as corrected."
If, within the period during which the Prospectus relating to the Certificates
is required to be delivered under the 1933 Act, any Computational Materials or
ABS Term Sheets are determined, in the reasonable judgment of the Depositor or
the related Underwriter, to contain a material error or omission, the
Underwriter shall prepare a corrected version of such Computational Materials or
ABS Term Sheets, shall circulate such corrected Computational Materials or ABS
Term Sheets to all recipients of the prior versions thereof that either
indicated orally to the Underwriter they would purchase all or any portion of
the Certificates, or actually purchased all or any portion thereof, and shall
deliver copies of such corrected Computational Materials or ABS Term Sheets
(marked, "as corrected") to the Depositor for filing with the Commission in a
subsequent Form 8-K submission (subject to the Depositor's obtaining an
accountant's comfort letter in respect of such corrected Computational Materials
and ABS Term Sheets, which the parties acknowledge shall be at the expense of
the Mortgage Loan Sellers under each of the Mortgage Loan Purchase Agreements
between the related Mortgage Loan Seller and the Depositor, (including in the
case of (a) the RFC Loans, under the RFC Purchase Agreement, (b) the MLS Loans,
under the MLS Purchase Agreement and (c) the Owner Trust Loans, under the Owner
Trust Purchase Agreement)). As of the date that any Underwriter disseminates any
Computational Materials or ABS Term Sheets, such Underwriter shall not have any
knowledge or reason to believe that such Computational Materials or ABS Term
Sheets contained any material error or omission and each Underwriter agrees to
promptly notify the Depositor of any such material error or omission of which
such Underwriter becomes aware. Notwithstanding the foregoing, the Underwriters
make no representation or warranty as to whether any Computational Materials or
ABS Term Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials or ABS Term Sheets are based)
included or will include any inaccurate statement resulting directly from any
error
9
contained in the Final Offering Document Information, Preliminary Offering
Document Information and Computational Information, each as defined in the
Indemnification Certificates.
(v) Each Underwriter shall be deemed to have represented, as of the
Closing Date, that, except for Computational Materials and ABS Term Sheets
provided to the Depositor pursuant to subsection (ii) above, such Underwriter
did not provide any prospective investors with any information in written or
electronic form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the No-Action
Letters, and each Underwriter shall provide the Depositor with a certification
to that effect on the Closing Date.
(vi) In the event of any delay in the delivery by any Underwriter to
the Depositor of Computational Materials and ABS Term Sheets required to be
delivered in accordance with subsection (ii) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 5(k), the
Depositor shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the Depositor to
comply with its agreement set forth in Section 5(k) to file the Computational
Materials and ABS Term Sheets by the time specified therein.
(d) Each Underwriter further represents and warrants that, if and to the
extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in subsection (c)
above have been satisfied with respect thereto.
Section 5. Covenants of the Depositor.
The Depositor covenants with each Underwriter as follows:
(a) The Depositor will give the Underwriters notice of its intention to
file or prepare (i) any amendment to the Registration Statement at any time
prior to the Closing Date or (ii) any amendment or supplement to the Prospectus
(including any revised prospectus that the Depositor proposes for use by the
Underwriters in connection with the offering of the Certificates and that
differs from the prospectus on file at the Commission at the time the
Registration Statement became effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations) at
any time during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, and the Depositor will furnish the
Underwriters with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which the
Underwriters shall reasonably object.
(b) The Depositor will promptly give each Underwriter notice of (i) any
request by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information relating to the Certificates, (ii)
any written notification received by the Depositor of suspension of
qualification of the Certificates for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (iii) the issuance by the
10
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or, to the knowledge of the Depositor, threatening
of any proceeding for that purpose. The Depositor 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.
(c) The Depositor will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule and, if necessary, within 15 days of the Closing Date, will transmit for
filing by means reasonably calculated to result in filing with the Commission a
report on Form 8-K for purposes of filing the Pooling and Servicing Agreement,
and will promptly advise each Underwriter when the Prospectus Supplement or Form
8-K, as applicable has been so filed.
(d) The Depositor will deliver to each Underwriter and counsel to each
Underwriter, without charge, a copy of the Registration Statement as originally
filed and of each amendment thereto prior to the date hereof (including exhibits
filed therewith or incorporated by reference therein).
(e) The Depositor will furnish to each Underwriter, from time to time
during the period when a prospectus relating to the Certificates is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(f) If, during the period after the first date of the public offering of
the Certificates in which a Prospectus relating to the Certificates is required
to be delivered under the 1933 Act, any event shall occur as a result of which
it is necessary to amend or supplement the Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Depositor will forthwith amend or supplement
the Prospectus so that, as so amended or supplemented, the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Depositor will furnish to each Underwriter a reasonable
number of copies of such amendment or supplement.
(g) The Depositor will endeavor to arrange for the qualification of the
Certificates for sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Underwriters may reasonably
designate and will maintain such qualification in effect so long as required for
the initial distribution of Certificates; provided, however, that the Depositor
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or to file a general consent to service of
process in any jurisdiction.
(h) The Depositor will use the net proceeds received by it from the sale
of the Certificates in the manner specified in the Prospectus under "Use of
Proceeds".
(i) Whether or not the transactions contemplated in the Pooling and
Servicing
11
Agreement are consummated or this Agreement is terminated, the Depositor will
pay or cause to be paid all expenses incident to the performance of the
obligations of the Depositor under this Agreement, including, without
limitation, (i) the fees, disbursements and expenses of the Depositor's counsel
in connection with the purchase of the Mortgage Loans and the issuance and sale
of the Certificates, (ii) all fees and expenses incurred in connection with the
registration and delivery of the Certificates under the 1933 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 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 Certificates under state securities laws and all
expenses in connection with the qualification of the Certificates for the offer
and sale under state securities laws as provided in Section 6(b)(i)(I),
including 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 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 Certificates and (viii) all other costs and expenses incident to the
performance of the obligations of the Depositor hereunder for which provision is
not otherwise made in this Section.
Except as herein provided, the Underwriters shall be responsible for the
payment of all costs and expenses incurred by them, including, without
limitation, (i) the fees and disbursements of counsel of 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 Certificates.
(j) So long as any Certificates are outstanding, upon request of an
Underwriter, the Depositor will, or will cause the Master Servicer or Special
Servicer to, furnish to such Underwriter a copy of (i) the annual statement of
compliance delivered by the Master Servicer or the Special Servicer to the
Trustee under the Pooling and Servicing Agreement, (ii) the annual independent
public accountants' servicing report furnished to the Trustee pursuant to the
Pooling and Servicing Agreement, (iii) each report of the Depositor regarding
the Certificates filed with the Commission under the 1934 Act or mailed to the
holders of the Certificates and (iv) from time to time, such other information
concerning the Certificates which may be furnished by the Depositor, the Master
Servicer or the Special Servicer without undue expense and without violation of
applicable law or the Pooling and Servicing Agreement.
(k) The Depositor will file with the Commission within fifteen days of the
issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Prospectus. The Depositor will also
file with the Commission a report on Form 8-K setting forth all Computational
Materials and ABS Term Sheets (as such terms are defined herein) provided to the
Depositor by any Underwriter and identified by it as such within the time period
allotted for such filing pursuant to the No-Action Letters; provided, however,
that prior to such filing of the
12
Computational Materials and ABS Term Sheets by the Depositor, such Underwriter
must comply with its obligations pursuant to Section 4 and the Depositor must
receive a letter from Deloitte & Touche LLP, certified public accountants,
satisfactory in form and substance to the Depositor, to the effect that such
accountants have performed certain specified procedures, all of which have been
agreed to by the Depositor, as a result of which they have determined that the
information included in the Computational Materials and ABS Term Sheets (if
any), provided by such Underwriter to the Depositor for filing on Form 8-K
pursuant to Section 4 and this subsection (k), and that the accountants have
examined in accordance with such agreed upon procedures, is accurate except as
to such matters that are not deemed by the Depositor to be material. The
Depositor shall file any corrected Computational Materials or ABS Term Sheets
described in Section 4(c)(iv) as soon as practicable following receipt thereof.
Section 6. Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates allocated to it
as set forth on Schedule I hereto shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Depositor contained herein as of the date hereof and as of the Closing Date, to
the performance by the Depositor in all material respects of its obligations
hereunder and to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Depositor's knowledge, threatened by the Commission and the
Prospectus Supplement shall have been filed or transmitted for filing by means
reasonably calculated to result in a filing with the Commission pursuant to Rule
424(b) under the Act.
(b) On the Closing Date, such Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel to the
Depositor, in form and substance satisfactory to such Underwriter, substantially
to the effect that:
(A) The Depositor is a corporation in good standing under the
laws of the State of Missouri.
(B) The Depositor has corporate power and authority to enter
into and perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(C) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the
Depositor. Upon due authorization, execution and delivery by the other
parties thereto, the Pooling and Servicing Agreement will constitute a
valid, legal and binding agreement of the Depositor, enforceable against
the Depositor in accordance with its terms, except as enforceability may be
limited by (1) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors generally and (2) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law.
13
(D) When the Certificates, together with the other certificates
issued under the Pooling and Servicing Agreement, have been duly and
validly authorized, executed, authenticated, issued and delivered in
accordance with the Pooling and Servicing Agreement and paid for in
accordance with this Agreement and the certificate purchase agreement of
even date herewith between the Depositor and the Underwriters with respect
to the sale of the privately offered certificates to the Underwriters and
the Pooling and Servicing Agreement, the Certificates will be validly
issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(E) The Registration Statement and any amendments thereto have
become effective under the 1933 Act and, to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act, and no proceedings for that purpose have
been initiated or threatened by the Commission.
(F) At the time it became effective, the Registration Statement
and each amendment thereto (other than any financial or statistical
information included or incorporated by reference therein, as to which no
opinion need be rendered), and at the time filed with the Commission, the
Prospectus and each supplement thereto (other than any financial or
statistical information included or incorporated by reference therein as to
which no opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(G) To such counsel's knowledge, there are no material
contracts, indentures, or other documents of the Depositor 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 and other than any
documents required to be filed on Form 8-K within 15 days of the closing.
(H) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
issuance and sale of the Certificates in the manner contemplated by the
Prospectus will not cause the Depositor or the Trust Fund to be subject to
registration or regulation as an "investment company" under the Investment
Company Act of 1940, as amended.
(I) No consent, approval, authorization, or order of any New
York, Missouri or federal court or governmental agency or body is required
for the consummation by the Depositor of the transactions contemplated
herein, except (1) such as have been obtained, (2) such as may be required
under the blue sky or real estate syndication laws of any jurisdiction in
connection with the purchase and sale of the Certificates by the
Underwriters, as to which no opinion need be expressed and (3) any
recordation of the assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that has not yet been
completed.
(J) Neither the sale of the Certificates to the Underwriters
pursuant to this Agreement, nor the consummation by the Depositor of any
other of the transactions
14
contemplated by, or the fulfillment by the Depositor of the terms of, 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, (1) the articles of incorporation
or by-laws of the Depositor or, (2) to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Depositor is a
party or by which it is bound, or (3) any New York, Missouri or federal
statute or regulation applicable to the Depositor or, (4) 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 Depositor except, in the case of any of (2), (3) or
(4), for any conflict, breach, violation or default that, in the judgment
of such counsel, is not reasonably likely to materially and adversely
affect the Depositor's ability to perform its obligations under this
Agreement or the Pooling and Servicing Agreement.
(K) The statements set forth in the Prospectus Supplement under
the headings "DESCRIPTION OF THE CERTIFICATES" AND "THE POOLING AND
SERVICING AGREEMENT", insofar as such statements purport to summarize
certain provisions of the Certificates and the Pooling and Servicing
Agreement, provide a fair summary of such provisions.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriters, reasonably acceptable to the Underwriters.
(iii) In giving their opinions required by the foregoing subsections
(i) and (ii) of this Section, counsel to the Depositor and the Underwriters,
respectively, shall in each case additionally state that nothing has come to
such counsel's attention that would lead it to believe that the Prospectus
(other than any financial statements and supporting schedules and statistical
and/or accounting information included therein, as to which such counsel need
not comment), as of the date thereof or as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such statement shall be based upon,
among other things, conferences and telephone conversations with representatives
of the parties hereto, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent and such statement may be
qualified that, with limited exception, such counsel will not have reviewed any
loan documents.
(iv) Such opinion(s) may express its (their) reliance as to factual
matters on the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) 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(s) may be qualified as an opinion only
on the General Corporation Law of the State of Delaware (if applicable to an
Underwriter), the laws of the State of New York, the laws of the State of
Missouri (if applicable to the Depositor) and the federal law of the United
States. Such opinion(s) may contain such other assumptions and qualifications
reasonably
15
satisfactory to the Underwriters as counsel to the Depositor or an Underwriter,
as applicable, customarily makes in similar types of opinions relating to
similar transactions.
(c) On the Closing Date, each Underwriter shall have received a favorable
opinion, dated the Closing Date, of special tax and ERISA counsel to the
Depositor (i) regarding the qualification of each of REMIC I, REMIC II and REMIC
III as a real estate mortgage investment conduit within the meaning of Sections
860A through 860G of the Internal Revenue Code of 1986 and (ii) to the effect
that the statements in the Base Prospectus and the Prospectus Supplement under
the headings "Material Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute matters of state or federal
law or legal conclusions with respect thereto, while not purporting to discuss
all possible consequences of investment in the Certificates, are correct in all
material respects with respect to those consequences or matters that are
discussed therein. Such opinion(s) may express its (their) reliance as to
factual matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion(s) 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(s) may be qualified
as an opinion only on the federal tax and ERISA law of the United States. Such
opinion(s) may contain such other assumptions and qualifications reasonably
satisfactory to the Underwriters as such counsel customarily makes in similar
types of opinions relating to similar transactions.
(d) The Depositor shall have delivered to each Underwriter a certificate,
dated the Closing Date, of the President, an Executive Vice President or other
Vice President on behalf of the Depositor to the effect that the signer of such
certificate has examined, or has relied upon an examination conducted by
appropriate persons authorized by him or her of, this Agreement, the Prospectus,
the Pooling and Servicing Agreement and various other closing documents, and
that, to the best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of the Depositor in this
Agreement and the Pooling and Servicing Agreement are true and correct in all
material respects;
(ii) the Depositor has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(iii) since the date of this Agreement, there has been no material
adverse change in the financial condition of the Depositor;
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission; and
(v) nothing has come to the attention of such person that would lead
the signer to believe that the Prospectus (other than any Computational
Materials or ABS Term Sheets
16
incorporated therein by reference, as to which no opinion need be expressed)
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.
(e) Each Mortgage Loan Seller shall have delivered to each Underwriter a
certificate, dated the Closing Date, of the President, a Senior or Executive
Vice President or other Vice President on its behalf to the effect that the
signer of such certificate has examined, or has relied upon an examination
conducted by appropriate persons authorized by him or her of, the Prospectus,
the Pooling and Servicing Agreement, the respective Mortgage Loan Purchase
Agreement, and various other closing documents, and that, to the best of his or
her knowledge after reasonable investigation:
(i) the representations and warranties of Mortgage Loan Seller in
the respective Mortgage Loan Purchase Agreement are true and correct in all
material respects;
(ii) Mortgage Loan Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied under the respective Mortgage Loan Purchase Agreement at
or prior to the Closing Date; and
(iii) since the date of its respective Mortgage Loan Purchase
Agreement, there has been no material adverse change in the financial condition
of Mortgage Loan Seller.
(f) The Depositor and each Underwriter shall have received from Deloitte &
Touche LLP, certified public accountants, a letter dated the Closing Date, in
form and substance satisfactory to the Depositor and each Underwriter, stating
in effect that:
(i) they have performed certain specified procedures, as a result of
which they have determined that certain information of an accounting, financial
or statistical nature set forth in the Prospectus Supplement agrees with the
data sheet or computer tape prepared by or on behalf of each Mortgage Loan
Seller, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape of RFC and CIBC referred to in the immediately preceding clause
(i) to information contained in the Mortgage Loan files of RFC and CIBC and in
such other sources as shall be specified by them, and found such data and
information to be in agreement unless otherwise noted in such letter.
(g) The Depositor and each Underwriter shall have received from Ernst and
Young, certified public accountants, a letter dated the Closing Date, in form
and substance satisfactory to the Depositor and each Underwriter, stating in
effect that they have compared the data contained in the data sheet or computer
tape of MLS to information contained in the Mortgage Loan files of MLS and in
such other sources as shall be specified by them, and found such data and
information to be in agreement unless otherwise noted in such letter.
(h) Each Underwriter shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Fiscal Agent 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
17
organization, the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party, (subject to the same limitations as set forth
in Section 6(b)(i)(C)) the enforceability of the Pooling and Servicing Agreement
against such party and such other opinions as shall be reasonably requested by
such Underwriter. 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, 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 contain such other assumptions and qualifications reasonably
satisfactory to the Underwriters as counsel to such party customarily makes in
similar types of opinions relating to similar transactions.
(i) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Depositor or a Mortgage Loan Seller which such
Underwriter concludes, in the reasonable judgment of such Underwriter,
materially impairs the investment quality of the Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Certificates as contemplated by the Prospectus.
(j) The Mortgage Loan Sellers shall have sold the Mortgage Loans to
the Depositor pursuant to the Mortgage Loan Purchase Agreements.
(k) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been withdrawn,
suspended or qualified.
(l) The Depositor shall have furnished to the Underwriters 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.
Section 7. Indemnification.
(a) MLS and the Depositor shall indemnify and hold harmless each
Underwriter, its directors and officers and each person, if any, who controls
such Underwriter within the meaning of either Section 15 of the 1933 Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
from and against any and all expenses, losses, claims, damages and other
liabilities (including without limitation the reasonable costs of investigation
and legal defense) (the "Liabilities") to the extent caused by any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Preliminary Prospectus or the Prospectus or any
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, insofar as the Liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission
with respect to any information in the Prospectus as to which such Underwriter
has agreed to indemnify the Depositor pursuant to
18
Section 7(b), MLS and the Depositor shall have no obligation to so indemnify and
hold harmless.
(b) Each Underwriter shall, severally and not jointly, indemnify and hold
harmless the Depositor and MLS, their respective directors and officers who sign
the Registration Statement and each person, if any, who controls the Depositor
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all Liabilities, but only with respect to (i) untrue
statements or alleged untrue statements, or omissions or alleged omissions to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in the Underwriter
Information, (ii) any Liabilities arising out of or relating to claims asserted
by any person who purchased Certificates that are the subject thereof if such
person did not receive a copy of the Prospectus with the confirmation of the
sale of such Certificates to such person in any case where the untrue statement
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact contained in the Preliminary Prospectus was
corrected in the Prospectus and the Prospectus was furnished to such
Underwriter, and (iii) untrue statements or alleged untrue statements, or
omissions or alleged omissions to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, in the Computational Materials or ABS Term Sheets delivered to
purchasers of the Certificates by such Underwriter, to the extent that such
Computational Materials and ABS Term Sheets were prepared by such Underwriter
and incorporated by reference into the Registration Statement or the Prospectus
as a result of any filing pursuant to Section 5(k); provided, however, that such
Computational Materials shall not include any Computational Information (as
defined in the Indemnification Certificates) or any errors in the mathematical
calculations reflected in such Computational Materials to the extent such errors
result from such Computational Information; and provided, further, that any such
omission or alleged omission relating to the Computational Materials shall be
determined by reading such Computational Materials in conjunction with the
Prospectus as an integral document and in light of the circumstances under which
such statements in the Computational Materials and the Prospectus were made.
(c) Each indemnified party shall give notice in writing as promptly as
reasonably practicable to each party against whom such indemnity may be sought
(the "indemnifying party") of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve the indemnifying party, except to the
extent that the indemnifying party was prejudiced by such failure. However, the
failure to so notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have otherwise than on account of this
Agreement. Upon request of the indemnified party, the indemnifying party shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding as incurred. If any action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party may participate at its own expense in the defense of any such
action. To the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, the indemnifying party may elect to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party. In any
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the
19
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party shall
have failed to designate within a reasonable period of time counsel reasonably
satisfactory to the indemnified party (in which case the fees and expenses shall
be paid as incurred by the indemnifying party). In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent. However, if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party shall
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if 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 subsection, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. If an
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the prior written consent of the indemnified
party or, if such settlement provides for an unconditional release of the
indemnified party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by the other
parties to such settlement, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party under subsection (a) or (b) on grounds of
public policy or otherwise, then the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Depositor on the one hand and the Underwriters on the other from the
offer and sale of the 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 Depositor on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or other liabilities,
as well as any other relevant equitable considerations. The relative benefits
received by the Depositor on the one hand, and the Underwriters on the other, in
connection with the offering of the Certificates shall be deemed to be in the
same respective proportions that the total net proceeds from the sale of the
Certificates (before deducting expenses) received by the Depositor and the total
underwriting discounts and commissions received by the Underwriters in
connection with the offering of the Certificates, bear to the aggregate offering
price of the Certificates. The relative fault of the Depositor on the one hand
and of such Underwriter on the
20
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
Depositor or by such Underwriter, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The parties hereto agree that it would not be just and equitable if
contribution, as determined by subsection (d) above, were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in subsection (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
other liabilities referred to in this Section 7 shall be deemed to include any
legal fees and disbursements or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim.
In the event that any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying party
hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. Notwithstanding the
provisions of this Section 7, such Underwriter shall not be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter in connection with the
offering of the Certificates exceeds the amount of damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, any
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the respective amount of
Certificates they have purchased hereunder, and not joint.
(h) Each Underwriter will indemnify and hold harmless any other
Underwriter and each person, if any, who controls such other Underwriter within
the meaning of either the 1933 Act or the 1934 Act (the "Non-Indemnifying
Underwriter") from and against any and all losses, claims, damages or
liabilities, joint or several, to which the Non-Indemnifying Underwriter becomes
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement of material fact contained in any computational or
other written materials developed by, mailed or otherwise transmitted by such
indemnifying Underwriter, or any member of its selling group, in connection with
the Certificates or in any revision or amendment thereof or supplement thereto
or (ii) the
21
failure of such indemnifying Underwriter, or any member of its selling group, to
comply with any provision of Section 9, and agrees to reimburse such
Non-Indemnifying Underwriter, as incurred for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. This agreement will be in
addition to any liability that any indemnifying Underwriter may otherwise have.
Section 8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of any
Underwriter or any controlling person in respect of such Underwriter, and shall
survive delivery of the Certificates to the Underwriters.
Section 9. Defaulting Underwriter. If, on the Closing Date, any of the
Underwriters shall fail or refuse to purchase Certificates that it has agreed to
purchase hereunder on such date, and the aggregate principal amount of
Certificates which such defaulting Underwriter agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date, the other Underwriter(s) shall be
obligated to purchase the Certificates which such defaulting Underwriter agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Certificates that any Underwriter has agreed to purchase
pursuant to Section 3 be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of Certificates, without the
written consent of such Underwriter.
If, on the Closing Date, any of the Underwriters shall fail or refuse to
purchase Certificates that it has agreed to purchase hereunder on such date and
the aggregate principal amount of Certificates with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date and arrangements satisfactory to the
non-defaulting Underwriter(s) and the Depositor for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or of the Depositor. In any such case any such non-defaulting Underwriter or the
Depositor shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
Section 10. Termination of Agreement.
(a) Any Underwriter may terminate its obligations under this Agreement,
by notice to the Depositor, at any time at or prior to the Closing Date if the
sale of the Certificates provided for herein is not consummated because of any
failure or refusal on the part of the Depositor to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Depositor shall be unable to perform its obligations under this Agreement.
(b) Any Underwriter may terminate its obligations under this Agreement in
the
22
absolute discretion of such Underwriter, by notice given to the Depositor, 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 Depositor or Mortgage Loan
Sellers or 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 that, in the judgment of such Underwriter, is material and adverse and
(B) in the case of any of the events specified in clauses (A)(i) through (iv)
above, such event singly or together with any other such event, makes it, in the
judgment of such Underwriter, impracticable to market the Certificates on the
terms and in the manner contemplated in the Prospectus.
(c) If any Underwriter terminates its obligations under this Agreement in
accordance with Section 10(a), the Depositor shall reimburse such Underwriter
for all reasonable out-of pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by such Underwriter in
connection with this Agreement or the proposed purchase and sale of the
Certificates.
Section 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to Xxxxxx Xxxxxxx
& Co. Incorporated shall be directed to Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx; notices to
Residential Funding Securities Corporation shall be directed to Residential
Funding Securities Corporation, 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: President; notices to Deutsche Bank
Securities Inc. shall be directed to Deutsche Bank Securities Inc., 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; notices to CIBC World Markets Corp. shall be
directed to CIBC Xxxxxxxxxxx Tower, World Financial Center, 19th Floor, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxx Xxxxxxxxx;
notices to PNC Capital Markets, Inc. shall be directed to One PNC Plaza, 26th
Floor, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Xxxxx
Xxxxxx; notices to the Depositor shall be directed to Commercial Mortgage
Acceptance Corp., 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
notices to MLS shall be directed to Midland Loan Services, Inc., 000 Xxxx 00xx
Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000; and as to any party, to such
other address as may hereafter be furnished by such party to the others in
writing.
Section 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or entity, other than the Underwriters and the Depositor and
their respective successors and the controlling persons and officers and
directors
23
referred to in Sections 7 and 8 and their respective successors, heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law.
This Agreement shall 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.
Section 14. Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such amendment, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of duplicate originals, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Depositor a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Depositor in accordance with its terms.
Very truly yours,
COMMERCIAL MORTGAGE
ACCEPTANCE CORP.
By: /s/ Xxxx X. Xxxxxxx
_______________________________________
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
MIDLAND LOAN SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx Xxxxxx
_____________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxxx
_____________________________ ___________________________
Name: Xxxxxxxxxxx Xxxxxxx Name: Xxxx X. Xxxxxx
Title: Vice President Title: Vice President
CIBC WORLD MARKETS CORP.
By: /s/ Xxxxx Xxx Xxxxxxxxx
_____________________________
Name: Xxxxx Xxx Xxxxxxxxx
Title: Executive Director
25
PNC CAPITAL MARKETS, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
RESIDENTIAL FUNDING SECURITIES CORPORATION
By: /s/ Xxxx Xxxxxxxx
_____________________________
Name: Xxxx Xxxxxxxx
Title: Director
26
EXHIBIT A
_________
FORM OF LEGEND TO
COMPUTATIONAL MATERIALS AND ABS TERM SHEETS
This information is being delivered to a specific number of prospective
sophisticated investors in order to assist them in determining whether they have
an interest in the type of security described herein. It has been prepared
solely for informational purposes and is not an offer to buy or sell or a
solicitation of an offer to buy or sell any security or instrument or to
participate in any trading strategy. No representation or warranty can be given
with respect to the accuracy or completeness of the information, or with respect
to the terms of any future offer of securities conforming to the terms hereof.
Any such offer of securities would be made pursuant to a definitive Prospectus
or Private Placement Memorandum, as the case may be, prepared by the issuer
which could contain material information not contained herein and to which the
prospective purchasers are referred. In the event of any such offering, this
information shall be deemed superseded, amended and supplemented in its entirety
by such Prospectus or Private Placement Memorandum. Such Prospectus or Private
Placement Memorandum will contain all material information in respect of any
securities offered thereby and any decision to invest in such securities should
be made solely in reliance upon such Prospectus or Private Placement Memorandum.
Certain assumptions may have been made in this analysis which have resulted in
any returns detailed herein. No representation is made that any returns
indicated will be achieved. Changes to the assumptions may have a material
impact on any returns detailed. Xxxxxx Xxxxxxx & Co. Incorporated, Deutsche Bank
Securities Inc., CIBC World Markets Corp., PNC Capital Markets, Inc. and
Residential Funding Securities Corporation (collectively the "Underwriters")
disclaim any and all liability relating to this information, including without
limitation any express or implied representations and warranties for, statements
contained in, and omissions from, this information. Additional information is
available upon request. The Underwriters and others associated with them may
have positions in, and may effect transactions in, securities and instruments of
issuers mentioned herein and may also perform or seek to perform investment
banking services for the issuers of such securities and instruments. Past
performance is not necessarily indicative of future results. Price and
availability are subject to change without notice. This material may be filed
with the Securities and Exchange Commission (the "SEC") and incorporated by
reference into an effective registration statement previously filed with the SEC
under Rule 415 of the Securities Act of 1933, including in cases where the
material does not pertain to securities that are ultimately offered for sale
pursuant to such registration statement. To Xxxxxx Xxxxxxx'x readers worldwide:
In addition, please note that this publication has been issued by Xxxxxx Xxxxxxx
& Co. Incorporated, approved by Xxxxxx Xxxxxxx International Limited, a member
of The Securities and Futures Authority, and by Xxxxxx Xxxxxxx Japan Ltd. Xxxxxx
Xxxxxxx recommends that such readers obtain the advice of their Xxxxxx Xxxxxxx &
Co. Incorporated, Xxxxxx Xxxxxxx International or Xxxxxx Xxxxxxx Japan Ltd.
representative about the investments concerned.
27
SCHEDULE 1
__________
Commercial Mortgage Acceptance Corp. Commercial Mortgage Pass-Through
Certificates, Series 1999-C1
------------------------------------------------------------------------------------------------------------------------------------
Underwriter Class A-1 Class A-2 Class B Class C Class D Class E Class F Class X
----------- --------- --------- ------- ------- ------- ------- ------- -------
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx &
Co. Incorporated $88,000,000 $292,013,000 $33,021,000 $34,856,000 $11,007,000 $23,848,000 $12,842,000 $733,801,915
------------------------------------------------------------------------------------------------------------------------------------
Deutsche Bank $13,000,000 $40,000,000 $0 $0 $0 $0 $0 $0
Securities Inc.
------------------------------------------------------------------------------------------------------------------------------------
CIBC World $10,000,000 $30,000,000 $0 $0 $0 $0 $0 $0
Markets Corp.
------------------------------------------------------------------------------------------------------------------------------------
PNC Capital $10,000,000 $10,000,000 $0 $0 $0 $0 $0 $0
Markets, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Residential $12,500,000 $37,500,000 $0 $0 $0 $0 $0 $0
Funding Securities
Corporation
------------------------------------------------------------------------------------------------------------------------------------
Total $133,500,000 $409,513,000 $33,021,000 $34,856,000 $11,007,000 $23,848,000 $12,842,000 $733,801,915
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 1
----------
------------------------------------------------------------------------------------------------------
Initial Aggregate
Principal (or, in the case of Initial
Class Class X Certificates, Pass-Through Purchase
Designation Notional) Amount of Class Rate Price Rating
----------- --------------------------- ---- ------- --------
----------------------------------------------------------------------------------------------------
A-1 $133,500,000 6.86% 100.0340% AAA/Aaa
----------------------------------------------------------------------------------------------------
A-2 $409,513,000 7.28% 100.0431% AAA/Aaa
----------------------------------------------------------------------------------------------------
B $33,021,000 7.43% 100.0352% AA/Aa2
----------------------------------------------------------------------------------------------------
C $34,856,000 NWAC - 0.17% 99.9844% A/A2
----------------------------------------------------------------------------------------------------
D $11,007,000 NWAC 100.0005% A-/A3
----------------------------------------------------------------------------------------------------
E $23,848,000 NWAC 99.4418% BBB/Baa2
----------------------------------------------------------------------------------------------------
F $12,842,000 NWAC 94.6146% BBB-/Baa3
----------------------------------------------------------------------------------------------------
X $733,801,915 NWAC 4.1518% BBB-/Baa3
----------------------------------------------------------------------------------------------------
--------
Subject to a variance of plus or minus 5.0%
Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Certificates to be purchased. The
purchase price for each class of the 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.
By each of DCR and Moody's.
