EXHIBIT 1.1
$ __________________
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
Mortgage Pass-Through Certificates, Series _________
Classes _____________
Underwriting Agreement
----------------------
___________________, 200__
X.X. Xxxxxx Securities Inc.
As Representative of the
several Underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., a Delaware
corporation (the "Depositor"), proposes to sell to the several Underwriters
listed in Schedule I hereto (the "Underwriters"), for whom you are acting as
representative (the "Representative"), $_______________ principal amount of
Mortgage Pass-Through Certificates, Series ______, Classes ___________ (the
"Offered Certificates") as set forth in Schedule I hereto. The Offered
Certificates, together with the Mortgage Pass-Through Certificates, Series
_________, Classes _______________, NR, R-I, R-II, R-III (the "Private
Certificates") are referred to herein as the "Certificates." The Certificates
will represent beneficial interests in, among other things, a pool of mortgage
loans described in the Prospectus referred to below (the "Mortgage Loans") and
certain moneys received under the Mortgage Loans after _________ 1, ____ (the
"Cut-off Date"). The Certificates will be issued pursuant to the provisions of a
pooling and servicing agreement to be dated as of ________ 1, ____ (the "Pooling
and Servicing Agreement"), among the Depositor, _______________________, as
master servicer (the "Master Servicer"), _________________, as special servicer
(the "Special Servicer"), and _______________________ as trustee (the
"Trustee").
The Depositor hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Offered Certificates, as
follows:
1. Registration Statement. The Depositor has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-3 (No. __________),
including a prospectus, relating to the Offered Certificates. The registration
statement as amended at the time when it became effective, or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, is referred to in
this Agreement as the "Registration Statement". The Depositor also has filed
with, or proposes to file with, the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the Offered
Certificates (the "Prospectus Supplement"). The related prospectus covering the
Offered Certificates in the form first used to confirm sales of the Offered
Certificates is hereinafter referred to as the "Basic Prospectus", and the Basic
Prospectus as supplemented by the Prospectus Supplement in the form first used
to confirm sales of the Offered Certificates is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement, any
preliminary prospectus used in connection with the offering of the Offered
Certificates (the "Preliminary Prospectus") or the Prospectus shall be deemed to
refer to and include any exhibits thereto and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such
Preliminary prospectus or the Prospectus, as the case may be, and any reference
to "amend," "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed as of the Closing Date (as defined below)
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") that
are deemed to be incorporated by reference therein.
When used in this Agreement, "Basic Documents" shall mean (i) the
Pooling and Servicing Agreement, (ii) the Certificates, (iii) the mortgage loan
purchase agreement, dated as of ______ 1, ____, between Xxxxxx Guaranty Trust
Company of New York ("MGT") and the Depositor (the "MGT Mortgage Loan Purchase
Agreement"), (iv) the mortgage loan purchase agreement, dated as of ______ 1,
____, between _______________ and the Depositor (the "_______ Mortgage Loan
Purchase Agreement", and, together with the MGT Mortgage Loan Purchase
Agreement, the "Mortgage Loan Purchase Agreements") and (vi) any other contract,
agreement or instrument which is or is to be entered into by the Depositor on
the Closing Date or otherwise in connection with any of the foregoing or this
Agreement. MGT and _______ are collectively referred to herein as the "Sellers".
To the extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Pooling and Servicing Agreement.
2. Purchase of the Offered Certificates by the Underwriters. (a) The
Depositor agrees to sell the Offered Certificates to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees to purchase from the Depositor, severally
and not jointly, the respective principal amount of each class of the Offered
Certificates set forth opposite such Underwriter's name in Schedule I hereto at
the Purchase Price set forth in Schedule I, plus accrued interest on the actual
principal amount thereof at the applicable Pass-Through Rate from
______________, 200__ to the date of payment and delivery. The Depositor will
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not be obligated to deliver any of the Offered Certificates except upon payment
for all the Offered Certificates to be purchased as provided herein.
(b) The Depositor understands that the Underwriters intend to make a
public offering of their respective portions of the Offered Certificates as soon
after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Offered Certificates on
the terms set forth in the Prospectus. The Depositor acknowledges and agrees
that the Underwriters may offer and sell Offered Certificates to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Offered Certificates purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Offered Certificates will be made
at the offices of [Sidley Xxxxxx Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000] at 10:00 A.M., New York City time, on _____________,
200__, or at such other time on the same or such other date, not later than the
fifth business day thereafter, as the Representative and the Depositor may agree
upon in writing. The time and date of such payment and delivery is referred to
herein as the "Closing Date".
(d) Payment for the Offered Certificates shall be made by wire transfer
in immediately available funds to the account(s) specified by the Depositor to
the Representative against delivery to the nominee of The Depository Trust
Company, for the account of the Underwriters, of one or more global notes
representing the Offered Certificates (collectively, the "Global Note"), with
any transfer taxes payable in connection with the sale of the Offered
Certificates duly paid by the Depositor. The Global Note will be made available
for inspection by the Representative not later than 1:00 P.M., New York City
time, on the business day prior to the Closing Date.
3. (I) Representations and Warranties of the Depositor. The Depositor
represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement
has been declared effective by the Commission under the Securities Act; no order
suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose has been instituted or, to the
best knowledge of the Depositor, threatened by the Commission; and, the
Registration Statement and the Prospectus and any amendment thereto, at the time
the Registration Statement became effective, and as of the date of the
Prospectus Supplement will comply in all material respects with the Securities
Act, and did not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and on the Closing Date, the
Prospectus will not contain any 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 under which they were made, not misleading; provided
that the Depositor makes no representation and warranty with respect to (i) any
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statements or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Depositor in writing by such
Underwriter through the Representative expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto or (ii) the
Seller's Information (as defined in Section 6(a)) or (iii) the 8-K Information
(as defined in Section 7(a)); the conditions to the use by the Depositor of a
registration statement on Form S-3 under the Securities Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus;
(b) No Material Adverse Change. Other than as set forth or contemplated
in the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Depositor or CMB, taken as
a whole.
(c) Organization and Good Standing. The Depositor has been duly
organized and is a validly existing organization in good standing under the laws
of its jurisdiction of organization, is duly qualified to do business and is in
good standing as a foreign entity in each jurisdiction in which the conduct of
its business requires such qualification, and has all power and authority
necessary to enter into and perform its obligations under this Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements and to
own or hold its properties and to conduct the business in which it is engaged,
except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, have a material adverse effect on
the transactions contemplated herein or in the Basic Documents (a "Material
Adverse Effect").
(d) Due Authorization. The Depositor has full right, power and
authority to execute and deliver this Agreement, the Certificates, the Pooling
and Servicing Agreement and the Basic Documents and to perform its obligations
hereunder and thereunder; and all action (corporate and other) required to be
taken for the due and proper authorization, execution and delivery of each of
the Basic Documents and the consummation of the transactions contemplated
thereby have been duly and validly taken.
(e) The Pooling and Servicing Agreement. The Pooling and Servicing
Agreement has been duly authorized by the Depositor and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Depositor enforceable
against the Depositor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability (collectively, the "Enforceability Exceptions").
(f) The Certificates. The Certificates have been duly authorized and,
when duly executed, authenticated, issued and delivered as provided in the
Pooling and Servicing Agreement and paid for as provided herein, will be duly
and validly issued and outstanding and will be entitled to the benefits and
security afforded by the Pooling and Servicing Agreement.
(g) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Depositor.
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(h) Basic Documents. Each of the Basic Documents to which the Depositor
is a party has been duly authorized and when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Depositor enforceable against the
Depositor in accordance with its terms, subject to the Enforceability
Exceptions.
(i) Descriptions of Basic Documents. Each Basic Document conforms in
all material respects to the description thereof contained in the Registration
Statement and the Prospectus.
(j) No Violation or Default. The Depositor is not (i) in violation of
its charter, by-laws or similar organizational documents; (ii) in default in any
material respect, and no event has occurred that, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Depositor is
a party or by which the Depositor is bound or to which any of the property or
assets of the Depositor is subject; or (iii) in violation in any material
respect of any law or statute or any judgment, order or regulation of any any
court or governmental agency or body having jurisdiction over the Depositor, or
any of its properties ("Governmental Authority"), except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(k) No Conflicts with Existing Instruments. The execution, delivery and
performance by the Depositor of each of the Basic Documents, the issuance and
sale of the Certificates and compliance by the Depositor with the terms thereof
and the consummation of the transactions contemplated by the Basic Documents
will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a 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 indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party or
by which the Depositor is bound or to which any of the property or assets of the
Depositor is subject, (ii) result in any violation of the provisions of the
charter, by-laws or similar organizational documents of the Depositor or (iii)
result in the violation of any law or statute or any judgment, order or
regulation of any Governmental Authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(l) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any Governmental Authority is required
for the execution, delivery and performance by the Depositor of each of the
Basic Documents, the issuance and sale of the Certificates and compliance by the
Depositor with the terms thereof and the consummation of the transactions
contemplated by the Basic Documents, except for the registration of the Offered
Certificates under the Securities Act, and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required
under applicable state securities laws in connection with the purchase and
distribution of the Offered Certificates by the Underwriters.
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(m) Legal Proceedings. Except as described in the Prospectus, there are
no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Depositor is or may be a party or to which any
property of the Depositor is or may be the subject that, individually or in the
aggregate, if determined adversely to the Depositor, could reasonably be
expected to have a Material Adverse Effect; to the best knowledge of the
Depositor, no such investigations, actions, suits or proceedings are threatened
or contemplated by any Governmental Authority or threatened by others; and there
are no statutes, regulations or contracts or other documents that are required
under the Securities Act to be filed as exhibits to the Registration Statement
or described in the Registration Statement or the Prospectus and that are not so
filed or described.
(n) Independent Accountants. [Accountants], are independent public
accountants with respect to the Depositor as required by the Securities Act.
(o) Title to Mortgage Loans. The Depositor has good and marketable
title in fee simple to the Mortgage Loans free and clear of all liens,
encumbrances, claims and defects and imperfections of title except those that
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(p) Investment Company Act. The Depositor is not and, after giving
effect to the offering and sale of the Certificates and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" or an entity "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (collectively, "Investment Company Act").
(q) Representations in Basic Documents. The representations and
warranties of the Depositor contained in the Basic Documents are true and
correct in all material respects.
(II) The Chase Manhattan Bank. ("CMB") represents and warrants to each
Underwriter that:
(a) Organization and Good Standing. CMB has been duly organized and is
a validly existing organization in good standing under the laws of its
jurisdiction of organization, and has all power and authority necessary to enter
into and perform its obligations under this Agreement.
(b) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by CMB.
(c) No Conflicts with Existing Instruments. The execution, delivery and
performance by CMB of this Agreement and compliance by CMB with the terms hereof
and the consummation of the transactions contemplated hereby will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of CMB
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which CMB is a party or by which CMB is bound or to
which any of the property or assets of CMB is subject, (ii) result in any
6
violation of the provisions of the charter, by-laws or similar organizational
documents of CMB or (iii) result in the violation of any law or statute or any
judgment, order or regulation of any Governmental Authority, except, in the case
of clauses (i) and (iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(d) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any Governmental Authority is required
for the execution, delivery and performance by CMB of this Agreement.
(e) Legal Proceedings. There are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which CMB is or may be
a party or to which any property of CMB is or may be the subject that,
individually or in the aggregate, if determined adversely to CMB, could
reasonably be expected to have a materially and adverse affect on CMB's
performance of its obligations under, or the validity of, this Agreement; to the
best knowledge of CMB, no such investigations, actions, suits or proceedings are
threatened or contemplated by any Governmental Authority or threatened by
others.
4. Further Agreements of the Depositor. The Depositor covenants and
agrees with each Underwriter that:
(a) Filing of Prospectus. The Depositor will file the final Prospectus
with the Commission within the time periods specified by Rule 424(b) under the
Securities Act; and the Depositor will furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as
the Representative may reasonably request.
(b) Delivery of Copies. The Depositor will deliver (i) to the
Representative, one copy of the Registration Statement as originally filed and
each amendment thereto, in each case including all exhibits and consents filed
therewith; and (ii) to each Underwriter (A) a conformed copy of the Registration
Statement as originally filed and each amendment thereto, in each case including
all exhibits and consents filed therewith and (B) during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto) as the Representative may reasonably request. As used
herein, the term "Prospectus Delivery Period" means such period of time after
the first date of the public offering of the Offered Certificates as in the
opinion of counsel for the Underwriters a prospectus relating to the Offered
Certificates is required by law to be delivered in connection with sales of the
Offered Certificates by any Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, whether before or
after the time that the Registration Statement becomes effective, the Depositor
will furnish to the Representative and counsel for the Underwriters a copy of
the proposed amendment or supplement for review and will not file any such
proposed amendment or supplement to which the Representative reasonably objects.
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(d) Notice to the Representative. The Depositor will advise the
Representative promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information;
(iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose; (v) of the occurrence of any event within the
Prospectus Delivery Period 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 a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading; and (vi) of the receipt by the Depositor of any
notice with respect to any suspension of the qualification of the Offered
Certificates for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Depositor will use its
reasonable best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Offered Certificates and, if issued, will obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Prospectus to comply with law, the Depositor will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to paragraph (c) above, file with the Commission and furnish to the Underwriters
and to such dealers as the Representative may designate, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(f) Blue Sky Compliance. The Depositor will cooperate with the
Underwriters to qualify the Offered Certificates for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall
reasonably request and will continue such qualifications in effect so long as
may be reasonably required for distribution of the Offered Certificates;
provided that the Depositor shall not be required to file a general consent to
service of process or to qualify as a foreign entity in any jurisdiction in
which it is not so qualified.
(g) Earning Statement. The Depositor will make generally available to
its security holders as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the
8
Commission promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Depositor occurring after the
"effective date" (as defined in Rule 158) of the Registration Statement.
(h) Copies of Reports. So long as the Offered Certificates are
outstanding, to furnish each Underwriter (i) copies of each certificate, the
annual statements of compliance and the annual independent certified public
accountant's servicing reports furnished to the Trustee pursuant to the Pooling
and Servicing Agreement by first class mail as soon as practicable after such
statements and reports are furnished to the Trustee, (ii) copies of each
amendment to any of the Basic Documents, and (iii) copies of all reports or
other communications (financial or other) furnished to holders of the Offered
Certificates, and copies of any reports and financial statements furnished to or
filed with the Commission, any governmental or regulatory authority or any
national securities exchange.
(i) Use of Proceeds. The Depositor will apply the net proceeds from the
sale of the Offered Certificates as described in the Registration Statement and
the Prospectus.
(j) Rating Agencies. To the extent, if any, that the ratings provided
with respect to the Offered Certificates by the Rating Agencies are conditional
upon the furnishing of documents or the taking of any other action by the
Depositor, the Depositor shall use its best efforts to furnish such documents
and take any other such action.
(k) Exchange Act Filings. The Depositor will file or cause to be filed
all documents required to be filed by the Commission pursuant to the Exchange
Act within the time periods required by the Exchange Act and the rules and
regulations thereunder.
5. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Offered Certificates on the Closing Date as provided
herein is subject to the performance by the Depositor of its obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective
amendment to the Registration Statement is required to be filed under the
Securities Act, such post-effective amendment shall have become effective, and
the Representative shall have received notice thereof, not later than 5:00 P.M.,
New York City time, on the date hereof; no order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such
purpose shall be pending before or threatened by the Commission; the Prospectus
shall have been timely filed with the Commission under the Securities Act and in
accordance with Section 4(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable
satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties
of the Depositor contained herein shall be true and correct on the date hereof
and on and as of the Closing Date; the statements of the Depositor and its
officers made in any certificates delivered pursuant to this Agreement shall be
true and correct on and as of the Closing Date; and the Depositor shall have
9
complied with all agreements and all conditions to be performed or satisfied on
its part hereunder at or prior to the Closing Date.
(c) Officer's Certificate. The Representative shall have received on
and as of the Closing Date a certificate of an executive officer of the
Depositor satisfactory to the Representative to the effect set forth in
paragraphs (a) and (b) above.
(d) Indemnification Agreements. Each of (i) the Indemnification
Agreement dated ______, ____, by and among MGT, CMB, the Depositor and the
Underwriters (the "MGT Indemnification Agreement") and (ii) the Indemnification
Agreement dated _________, ____, by and among ________, CMB, the Depositor and
the Underwriters (the "________ Indemnification Agreement", and, together with
the MGT Indemnification Agreement, the "Indemnification Agreements") shall have
been executed and delivered.
(e) Comfort Letters. On the date of this Agreement and on the Closing
Date, [Accountant] shall have furnished to the Representative, at the request of
the Depositor, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representative.
(f) Opinion of Counsel for the Depositor. [Counsel], counsel for the
Depositor, shall have furnished to the Representative, at the request of the
Depositor, their written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Annex A hereto.
(g) Opinion of Counsel for the Underwriters. The Representative shall
have received on and as of the Closing Date an opinion of [counsel], counsel for
the Underwriters, with respect to such matters as the Representative may
reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters.
(h) Opinion of Counsel for the Master Servicer. Counsel to the Master
Servicer shall have furnished to the Underwriters its opinion, dated the Closing
Date, in form and substance satisfactory to each Underwriter, substantially to
the effect that:
(i) the Master Servicer is validly existing and in good
standing as a corporation under the laws of the state of
___________ with full power and authority to enter into and perform
its obligations under the Pooling and Servicing Agreement, and is
qualified to do business as a foreign corporation in all other
jurisdictions in which it owns or leases property or where the
conduct of its business requires such qualification;
(ii) there are no legal or governmental proceedings pending
to which the Master Servicer is a party or of which any property of
the Master Servicer is the subject which, if determined adversely
to the Master Servicer, might interfere with or adversely affect
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the consummation of the transactions contemplated in the Pooling
and Servicing Agreement; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by and constitutes a valid and
binding agreement of the Master Servicer enforceable in accordance
with its terms, except that the enforceability thereof may be
subject to (A) bankruptcy, insolvency, reorganization, moratorium,
or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (B) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by the Master Servicer with all
applicable provisions of the Certificates and the Pooling and
Servicing Agreement and the consummation of the transactions
therein contemplated will not (A) conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any liens
pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Master Servicer is a
party or by which the Master Servicer is bound or to which any of
the property or assets of the Master Servicer is subject or (B)
result in any violation of the provisions of the Certificate of
Incorporation or the By-laws of the Master Servicer or any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Master Service or any
of its properties; and
(v) no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency
or body is required for the consummation by the Master Servicer of
the transactions contemplated by the Pooling and Servicing
Agreement.
(i) Opinion of Counsel for the Special Servicer. Counsel to the Special
Servicer shall have furnished to the Underwriters its opinion, dated the Closing
Date, in form and substance satisfactory to each Underwriter, substantially to
the effect that:
(i) the Special Servicer is validly existing and in good
standing as a limited liability company under the laws of the state
of ___________ with full power and authority to enter into and
perform its obligations under the Pooling and Servicing Agreement,
and is qualified to do business as a foreign corporation in all
other jurisdictions in which it owns or leases property or where
the conduct of its business requires such qualification;
(ii) there are no legal or governmental proceedings pending
to which the Special Servicer is a party or of which any property
of the Special Servicer is the subject which, if determined
adversely to the Special Servicer, might interfere with or
11
adversely affect the consummation of the transactions contemplated
in the Pooling and Servicing Agreement; to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by and constitutes a valid and
binding agreement of the Special Servicer enforceable in accordance
with its terms, except that the enforceability thereof may be
subject to (A) bankruptcy, insolvency, reorganization, moratorium,
or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (B) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by the Special Servicer with all
applicable provisions of the Certificates and the Pooling and
Servicing Agreement and the consummation of the transactions
therein contemplated will not (A) conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any liens
pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Special Servicer is a
party or by which the Special Servicer is bound or to which any of
the property or assets of the Special Servicer is subject or (B)
result in any violation of the provisions of the Certificate of
Incorporation or the By-laws of the Special Servicer or any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Special Servicer or any
of its properties; and
(v) no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency
or body is required for the consummation by the Special Servicer of
the transactions contemplated by the Pooling and Servicing
Agreement.
(j) Opinion of Counsel for the Trustee. Counsel to the Trustee shall
have furnished to the Underwriters its opinion, dated the Closing Date, in form
and substance satisfactory to each Underwriter, to the effect that:
(i) the Trustee is validly existing in good standing under
the laws of its jurisdiction of organization with full power and
authority to enter into and perform its obligations under the
Pooling and Servicing Agreement;
(ii) there are no legal or governmental proceedings pending
to which the Trustee is a party or of which any property of the
Trustee is the subject which, if determined adversely to the
Trustee, might interfere with or adversely affect the consummation
of the transactions contemplated in the Pooling and Servicing
12
Agreement; to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by and constitutes a valid and
binding agreement of the Trustee enforceable in accordance with its
terms, except that the enforceability thereof may be subject to (A)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or thereafter in effect relating to creditors' rights
generally and (B) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law);
(iv) the Trustee has duly executed, authenticated and
delivered the Certificates as provided in the Pooling and Servicing
Agreement;
(v) the compliance by the Trustee with all applicable
provisions of the Pooling and Servicing Agreement will not (A)
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any liens pursuant to any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Trustee is a party or by which the Trustee
is bound or to which any of the property or assets of the Trustee
is subject or (B) result in any violation of the provisions of the
certificate of incorporation or by-laws of the Trustee or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trustee or
any of its properties;
(vi) no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency
or body is required for the consummation by the Trustee of the
transactions contemplated by the Pooling and Servicing Agreement;
and
(vii) in the event that the Master Servicer defaults in its
obligation to make Advances pursuant to the Pooling and Servicing
Agreement, the Trustee is not, as of the date hereof, prohibited by
any provision of its organizational documents or by any provision
of the banking and trust laws of the state of its organization from
assuming, pursuant to the Pooling and Servicing Agreement, the
obligation to make such Advances.
(k) Opinions of Counsel to Sellers. Counsel for each Seller shall have
furnished to the Underwriters its opinion, dated the Closing Date, in form and
substance satisfactory to each Underwriter.
(l) Rating Agency Opinions. Each Underwriter shall be addressed in any
opinion from any counsel delivering any written opinion to the Rating Agencies
in connection with the transaction described herein which is not otherwise
described in this Agreement.
13
(m) Rating Agency Letters. Each Underwriter shall have received copies
of letters from [Standard & Poor's Ratings Services] and [Fitch, Inc.]
(together, the "Rating Agencies") stating that the Offered Certificates are
rated as set forth on Schedule II hereto by the Rating Agencies.
(n) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any Governmental Authority that would, as of the Closing Date, prevent
the issuance or sale of the Certificates; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Certificates.
(o) Good Standing. The Representative shall have received on and as of
the Closing Date satisfactory evidence of the good standing of the Depositor in
its jurisdiction of organization and its good standing as a foreign entity in
such other jurisdictions as the Representative may reasonably request, in each
case in writing or any standard form of telecommunication from the appropriate
Governmental Authorities of such jurisdictions.
(p) Additional Documents. On or prior to the Closing Date, the
Depositor shall have furnished to the Representative such further certificates
and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution. (a) Indemnification of the
Underwriters. The Depositor and CMB agree to jointly and severally indemnify and
hold harmless each Underwriter, its affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted), joint or several, caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, or the attached diskette to the Preliminary Prospectus or the
Prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with (i)
information with respect to which each Underwriter has agreed to indemnify the
Depositor pursuant to Section 6(b) or (ii) information with respect to which
each Seller has agreed to indemnify the Underwriters pursuant to the
Indemnification Agreements (such information referred to herein as the "Seller's
Information"); provided, that with respect to any such untrue statement in or
omission from any Preliminary Prospectus, the indemnity agreement contained in
this paragraph (a) shall not inure to the benefit of any Underwriter to the
extent that the sale to the person asserting any such loss,
14
claim, damage or liability was an initial resale by such Underwriter and any
such loss, claim, damage or liability of or with respect to such Underwriter
results from the fact that both (i) to the extent required by applicable law, a
copy of the Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Offered Certificates to such person and
(ii) the untrue statement in or omission from such Preliminary Prospectus was
corrected in the Prospectus unless, in either case, such failure to deliver the
Prospectus was a result of non-compliance by the Depositor with the provisions
of Section 4 hereof.
(b) Indemnification of the Depositor. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Depositor, its
directors, its officers who signed the Registration Statement, CMB and each
person, if any, who controls the Depositor within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities caused by any untrue statement or omission or
alleged untrue statement or omission (i) made in reliance upon and in conformity
with any information relating to such Underwriter furnished to the Depositor in
writing by such Underwriter through the Representative expressly for use in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) or any Preliminary Prospectus (such information set forth in Section 14
hereof) or (ii) in the 8-K Information (as defined in Section 7(a)) distributed
by such Underwriter, except to the extent that the Depositor and CMB are
indemnified therefor under the indemnity of the Sellers set forth in the
Indemnification Agreements.
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 6 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 6. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 6 that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
15
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for any Underwriter,
its affiliates and any control persons of such Underwriter shall be designated
in writing by X.X. Xxxxxx Securities Inc. and any such separate firm for the
Depositor, its directors, its officers who signed the Registration Statement,
CMB and any control persons of the Depositor shall be designated in writing by
CMB. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person
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 the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (i) includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding and (ii) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 and CMB on the one hand and the Underwriters
on the other from the offering of the Offered Certificates or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Depositor and CMB on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Depositor and CMB on the one hand and the Underwriters on the other shall
16
be deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Depositor from the sale of the Offered
Certificates and the total underwriting discounts and commissions received by
the Underwriters in connection therewith, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate offering price of the
Offered Certificates. The relative fault of the Depositor and CMB on the one
hand and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Limitation on Liability. The Depositor, CMB and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Offered Certificates exceeds the
amount of any 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 6 are several
in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any Indemnified Person at law or in equity.
7. 8-K Information and Derived Information. (a) Each Underwriter may
prepare and provide to prospective investors "Computational Materials," "ABS
Term Sheets" and "Collateral Term Sheets" (collectively, the "8-K Information")
in connection with its offering of the Offered Certificates described in the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx, Peabody
Acceptance Corporation I and certain affiliates, 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 (collectively, the "Xxxxxx/PSA
Letter"), and in accordance with the requirements of the No-Action Letter of
February 17, 1995 issued by the Commission to the Public Securities Association
(the "PSA Letter" and, together with the Xxxxxx/PSA Letter, the "No-Action
Letters"); subject to the following conditions: (i) such Underwriter shall
comply with the requirements of the No-Action Letters; (ii) for purposes hereof,
"Computational Materials" shall have the meaning given such term in the
No-Action Letters, but with respect to any Underwriter shall include only those
Computational Materials that have been prepared by such Underwriter for
prospective investors and for purposes hereof, "ABS Term Sheets" and "Collateral
Term Sheets" shall have the meanings given such terms in the PSA Letter but with
respect to any Underwriter shall include only those ABS Term Sheets or
17
Collateral Term Sheets that have been prepared by such Underwriter for
prospective investors; (iii) each Underwriter shall provide to the Depositor any
8-K Information which is provided to investors no later than the second Business
Day preceding the date such 8-K Information is required to be filed pursuant to
the applicable No-Action Letters and each Underwriter may provide copies of the
foregoing in a consolidated or aggregated form including all information
required to be filed; and (iv) in the event that the Depositor or any
Underwriter discovers an error in the 8-K Information, the Underwriter that
prepared such material shall prepare corrected 8-K Information and deliver it to
the Depositor for filing.
(b) The Depositor will cause to be filed with the Commission one or
more current reports on Form 8-K with respect to the 8-K Information within the
time period required in the No Action Letters.
(c) Each Underwriter shall cause [Accountants] to furnish the Depositor
with a letter dated no later than the Closing Date, in form and substance
satisfactory to the Depositor, with respect to any 8-K Information prepared by
such Underwriter.
(d) Each Underwriter represents and warrants to, and covenants with,
the Depositor that the 8-K Information distributed by such Underwriter, when
read in conjunction with the Prospectus, is not misleading and not inaccurate in
any material respect.
8. Effectiveness of Agreement. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Depositor, if 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 any
of the New York Stock Exchange or the over-the-counter market; (ii) a general
moratorium on commercial banking activities shall have been declared by federal
or New York State authorities; or (iii) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity
or crisis, either within or outside the United States, that in the judgment of
the Representative is material and adverse and makes it impracticable or
inadvisable to market the Offered Certificates on the terms and in the manner
contemplated by this Agreement and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date, any
Underwriter defaults on its obligation to purchase the Offered Certificates that
it has agreed to purchase hereunder, the non-defaulting Underwriters may in
their discretion arrange for the purchase of such Offered Certificates by other
persons satisfactory to the Depositor on the terms contained in this Agreement.
If, within 36 hours after any such default by any Underwriter, the
non-defaulting Underwriters do not arrange for the purchase of such Offered
Certificates, then the Depositor shall be entitled to a further period of 36
hours within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Offered Certificates on such terms. If other
persons become obligated or agree to purchase the Offered Certificates of a
defaulting Underwriter, either the non-defaulting Underwriters or the Depositor
may postpone the Closing Date for up to five full business days in order to
18
effect any changes that in the opinion of counsel for the Depositor or counsel
for the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Depositor agrees to
promptly prepare any amendment or supplement to the Registration Statement and
the Prospectus that effects any such changes. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule I hereto that,
pursuant to this Section 10, purchases Offered Certificates that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Offered Certificates, then the Depositor shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Offered
Certificates that such Underwriter agreed to purchase hereunder plus such
Underwriter's pro rata share (based on the principal amount of Offered
Certificates that such Underwriter agreed to purchase hereunder) of the Offered
Certificates of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Offered Certificates, or if the Depositor shall not exercise the right described
in paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Underwriters or the Depositor, except that the
Depositor will continue to be liable for the payment of expenses as set forth in
Section 11 hereof and except that the provisions of Section 6 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Depositor or any non-defaulting Underwriter for
damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Depositor will pay or cause to be paid all costs and expenses incident to
the performance of its obligations hereunder, including without limitation, (i)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Certificates and any taxes payable in that connection; (ii) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement, the Preliminary Prospectus and the Prospectus
(including all exhibits, amendments and supplements thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing each of
the Basic Documents; (iv) the fees and expenses of the Depositor's counsel and
independent accountants; (v) the fees and expenses incurred in connection with
the registration or qualification and determination of eligibility for
investment of the Offered Certificates under the laws of such jurisdictions as
the Representative may designate and the preparation, printing and distribution
19
of a Blue Sky Memorandum (including the related fees and expenses of counsel for
the Underwriters); (vi) any fees charged by rating agencies for rating the
Certificates; (vii) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (viii) all
expenses and application fees incurred in connection with any filing with
National Association of Securities Dealers, Inc.; (ix) all expenses incurred by
the Depositor in connection with any "road show" presentation to potential
investors ; and (x) the costs and expenses of the Depositor in connection with
the purchase of the Mortgage Loans.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the
Depositor for any reason fails to tender the Offered Certificates for delivery
to the Underwriters or (iii) the Underwriters decline to purchase the Offered
Certificates for any reason permitted under this Agreement, the Depositor agrees
to reimburse the Underwriters for all out-of-pocket costs and expenses
(including the fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement and the offering contemplated
hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Depositor, its officers and
directors and any controlling persons referred to herein, CMB, the Underwriters,
their respective affiliates and any controlling persons referred to herein, and
their respective successors. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein. No
purchaser of Offered Certificates from any Underwriter shall be deemed to be a
successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Depositor and the Underwriters
contained in this Agreement or made by or on behalf of the Depositor or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Offered Certificates
and shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Depositor or the
Underwriters.
14. Underwriters' Information. The Depositor and the Underwriters
acknowledge and agree that the only information relating to any Underwriter that
has been furnished to the Depositor in writing by any Underwriter through the
Representative expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) and any Preliminary
Prospectus consists of the following: the [first and second sentences in the
last paragraph of the cover page and the second paragraph, the table entitled
"Allocation Table", the first sentence of the fifth paragraph and the sixth
paragraph under the heading "Plan of Distribution" in the Prospectus
Supplement].
15. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
20
16. Miscellaneous. (a) Authority of the Representative. Any action by
the Underwriters hereunder may be taken by X.X. Xxxxxx Securities Inc. on behalf
of the Underwriters, and any such action taken by X.X. Xxxxxx Securities Inc.
shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
shall be given to the Representative c/o X.X. Xxxxxx Securities Inc., 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (fax: 000-000-0000);
Attention: Real Estate Structured Finance. Notices to the Depositor shall be
given to it at X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (fax: 000-000-0000);
Attention: Real Estate Structured Finance. Notices to CMB shall be given to it
at The Chase Manhattan Bank: 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, (Facsimile No.: (000) 000-0000), Attention: Real Estate Structured
Finance.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
21
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP.
By __________________________
Title:
THE CHASE MANHATTAN BANK
By: __________________________
Title:
Accepted: __________, 200__
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Underwriters listed
in Schedule I hereto.
By___________________________
Authorized Signatory
22
SCHEDULE I
----------
AGGREGATE INITIAL PRINCIPAL AMOUNT
OF CERTIFICATES TO BE PURCHASED
Principal Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of Amount of
Class A1 Class A2 Class A3 Class B Class C Class D
Underwriter Certificates Certificates Certificates Certificates Certificates Certificates
----------- ------------ ------------ ------------ ------------ ------------ ------------
X.X.
Xxxxxx $ $ $ $ $ $
Securities
Inc.
23
SCHEDULE II
-----------
CERTIFICATE RATING
Fitch, Inc. Standard & Poor's
Designation Rating Services
Class A1 [AAA] [AAA]
Class A2 [AAA] [AAA]
Class A3 [AAA] [AAA]
Class B [AA] [AA]
Class C [A] [A]
Class D [A-] [A-]
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Annex A
[Form of Opinion of Counsel for the Depositor]
(-) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion; the Prospectus
was filed with the Commission pursuant to the subparagraph of Rule 424(b) under
the Securities Act specified in such opinion on the date specified therein; and
no order suspending the effectiveness of the Registration Statement has been
issued and, to the best knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission.
(-) The Registration Statement and the Prospectus (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) comply as to form in all material respects with the
requirements of the Securities Act; and the Indenture complies as to form in all
material respects with the requirements of the Trust Indenture Act.
(-) The Depositor has been duly organized and is validly existing as an
organization in good standing under the laws of its jurisdiction of
organization, is duly qualified to do business and is in good standing as a
foreign entity in each jurisdiction in which the ownership or lease of property
or the conduct of its business requires such qualification, and has all power
and authority necessary to own or hold its properties and to conduct the
business in which it is engaged, except where the failure to be so qualified or
have such power or authority would not, individually or in the aggregate, have a
Material Adverse Effect.
(-) The Depositor has full right, power and authority to execute and
deliver each of the Basic Documents and to perform its obligations thereunder;
and all action (corporate and other) required to be taken for the due and proper
authorization, execution and delivery of each of the Basic Documents and the
consummation of the transactions contemplated thereby have been duly and validly
taken.
(-) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Depositor and, assuming due execution and delivery
thereof by the Trustee, constitutes a valid and legally binding agreement of the
Depositor enforceable against the Depositor in accordance with its terms,
subject to the Enforceability Exceptions.
(-) The Offered Certificates have been duly authorized and, when such
Certificates are duly and validly executed and authenticated by the Trustee and
delivered in accordance with the Pooling and Servicing Agreement and delivered
and paid for pursuant to this Agreement will be validly issued and outstanding
and entitled to the benefits and security afforded by the Pooling and Servicing
Agreement.
(-) This Agreement has been duly authorized, executed and delivered by
the Depositor.
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(-) The [insert reference to any other Basic Document] has been duly
authorized, executed and delivered by the Depositor and constitutes a valid and
legally binding agreement of the Depositor enforceable against the Depositor in
accordance with its terms, subject to the Enforceability Exceptions.
(-) Each Basic Document conforms in all material respects to the
description thereof contained in the Registration Statement and the Prospectus.
(-) Neither the Depositor nor any of its subsidiaries is (i) in
violation of its charter, by-laws or similar organizational documents; (ii) in
default in any material respect, and no event has occurred that, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject; or (iii) in violation in any material respect of any law or
statute or any judgment, order or regulation of any Governmental Authority,
except, in the case of clauses (ii) and (iii), for any such default or violation
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(-) The execution, delivery and performance by the Depositor of each of
the Basic Documents, the issuance and sale of the Certificates and compliance by
the Depositor with the terms thereof and the consummation of the transactions
contemplated by the Basic Documents will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Depositor or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which the Depositor or any of its subsidiaries is
bound or to which any of the property or assets of the Depositor or any of its
subsidiaries is subject, (ii) result in any violation of the provisions of the
charter, by-laws or similar organizational documents of the Depositor or any of
its subsidiaries or (iii) result in the violation of any law or statute or any
judgment, order or regulation of any Governmental Authority, except, in the case
of clauses (i) and (iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(-) No consent, approval, authorization, order, registration or
qualification of or with any Governmental Authority is required for the
execution, delivery and performance by the Depositor of each of the Basic
Documents, the issuance and sale of the Certificates and compliance by the
Depositor with the terms thereof and the consummation of the transactions
contemplated by the Basic Documents, except for the registration of the Offered
Certificates under the Securities Act, the qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of the Offered
Certificates by the Underwriters.
(-) To the best knowledge of such counsel, except as described in the
Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Depositor or any of its
26
subsidiaries is or may be a party or to which any property of the Depositor or
any of its subsidiaries is or may be the subject which, individually or in the
aggregate, if determined adversely to the Depositor or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect; and to the best
knowledge of such counsel, no such investigations, actions, suits or proceedings
are threatened or contemplated by any Governmental Authority or threatened by
others.
(-) The descriptions in the Prospectus of statutes, legal, governmental
and regulatory proceedings and contracts and other documents are accurate in all
material respects; [the statements in the Prospectus under the heading "Certain
Federal Income Tax Considerations", to the extent that they constitute summaries
of matters of law or regulation or legal conclusions, fairly summarize the
matters described therein in all material respects;] and, to the best knowledge
of such counsel, (A) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities
Act to be described in the Prospectus and that are not so described and (B)
there are no statutes, regulations or contracts and other documents that are
required under the Securities Act to be filed as exhibits to the Registration
Statement or described in the Prospectus and that have not been so filed or
described.
(-) The Depositor is not and, after giving effect to the offering and
sale of the Certificates and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act.
Such counsel shall also state that they have participated in
conferences with representatives of the Depositor and with representatives of
its independent accountants and counsel at which conferences the contents of the
Registration Statement and the Prospectus and any amendment and supplement
thereto and related matters were discussed and, although such counsel assume no
responsibility for the accuracy, completeness or fairness of the Registration
Statement, the Prospectus and any amendment or supplement thereto (except as
expressly provided above), nothing has come to the attention of such counsel to
cause such counsel to believe that the Registration Statement, at the time of
its effective date, contained any 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 or any amendment or
supplement thereto as of its date and the Closing Date contains any untrue
statement of a material fact 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 the financial statements and other financial
information contained therein, as to which such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Depositor and public officials
that are furnished to the Underwriters.
The opinion of [counsel] described above shall be rendered to the
Underwriters at the request of the Depositor and shall so state therein.
27
