COMMERCIAL MORTGAGE ACCEPTANCE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1998-C1
UNDERWRITING AGREEMENT
as of July 15, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 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,
1998 (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").
Certain Mortgage Loans (the "Midland Mortgage Loans") will be
acquired by the Depositor from Midland Loan Services, Inc. ("Midland") pursuant
to the mortgage loan purchase agreement, dated July 15, 1998 (the "Midland
Mortgage Loan Purchase Agreement"), between the Depositor and Midland; certain
Mortgage Loans (the "PNC Mortgage Loans") will be acquired by the Depositor from
PNC Bank, N.A. ("PNC") pursuant to the mortgage loan purchase agreement, dated
July 15, 1998 (the "PNC Mortgage Loan Purchase Agreement"), between the
Depositor and PNC; certain Mortgage Loans (the "MSMC Mortgage Loans") will be
acquired by the Depositor from Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMC")
pursuant to the mortgage loan purchase agreement, dated July 15, 1998 (the "MSMC
Mortgage Loan Purchase Agreement"), between the Depositor and MSMC, and certain
other Mortgage Loans (the "RFC Mortgage Loans") will be acquired by the
Depositor from MSMC (which acquired the RFC Mortgage Loans from Residential
Funding Corporation ("RFC") pursuant to a mortgage
loan purchase agreement dated June 30, 1998 (the "RFC Mortgage Loan Purchase
Agreement")) pursuant to a separate mortgage loan purchase agreement, dated July
15, 1998 (the "MS/RFC Mortgage Loan Purchase Agreement"), between the Depositor
and MSMC. Midland, MSMC, RFC and PNC collectively constitute the "Mortgage Loan
Sellers" and the Midland Mortgage Loan Purchase Agreement, MSMC Mortgage Loan
Purchase Agreement, MS/RFC Mortgage Loan Purchase Agreement, PNC Mortgage Loan
Purchase Agreement and RFC Mortgage Loan Purchase Agreement collectively
constitute 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. Although RFC is described as a Mortgage Loan
Seller in this Agreement, it sold its respective Mortgage Loans to MSMC prior to
the date hereof. MSMC intends to sell the RFC Mortgage Loans and the MSMC
Mortgage Loans to the Depositor on the Closing Date. Nevertheless, RFC (and not
MSMC) is responsible to the Trust Fund in respect of the representations and
warranties that relate to the RFC Loans to the same extent as the other Mortgage
Loan Sellers are with respect to their Mortgage Loans.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-51817) 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 4(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 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"); 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
2
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
reliance upon and in conformity with information furnished in writing to the
Depositor by Xxxxxx Xxxxxxx & Co. Incorporated on behalf of itself or the 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 either 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, 1998, between the Depositor, Midland
Loan Services, Inc. as master servicer and special servicer, LaSalle National
Bank, 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.
3
(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 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
4
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 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) Midland Loan Services, Inc. ("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
5
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.
(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 29, 1998,
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 and Xxxxxx, 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.
6
(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.
(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, Peabody 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. Neither 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
7
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
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
Agreements, as amended or supplemented, between the respective Mortgage Loan
Seller and the Depositor (collectively, the "Indemnification Agreements")) 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 Agreements) 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 the RFC Mortgage Loans, under the RFC Mortgage Loan Purchase Agreement).
As of the date that either Underwriter disseminates any
8
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 contained in the final offering document information, preliminary offering
document information and computational information, each as defined in the
Indemnification Agreement.
(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 either 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
9
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
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.
10
(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 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 other
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
11
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 either 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 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 KPMG Peat
Marwick, 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:
12
(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.
(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 not withdrawn, 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.
13
(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 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
14
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 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
15
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 its respective Mortgage Loan Purchase
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 incorporated therein by reference) 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 their part to be
performed or satisfied under the Mortgage Loan Purchase Agreement at or prior to
the Closing Date; and
(iii) since the date of this Agreement, there has been no material
adverse change in the financial condition of Mortgage Loan Seller.
16
(f) The Depositor and each Underwriter shall have received from KPMG Peat
Marwick, 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 MSMC and RFC referred to in the immediately preceding clause
(i) to information contained in the Mortgage Loan files 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:
(i) they have compared the data contained in the data sheet or
computer tape of Midland and PNC to information contained in the Mortgage Loan
files of Midland and PNC 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 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 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
17
impractical or inadvisable to proceed with the public offering or the delivery
of the Certificates as contemplated by the Prospectus.
(j) The 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 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
18
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
Agreements) 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 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 such 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 expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have 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) separate from their own 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
19
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 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 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 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
20
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 0000 Xxx) 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,
either 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 the other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either the 1933 Act or the 1934 Act (the "Non-Indemnifying
Underwriter") from and against any and all losses, claims, damages 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 failure of such Indemnifying Underwriter, or any member of its
selling group, to comply with any provision of Section 9, and agrees to
reimburse such Non-Indemnifying Underwriter, as incurred for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This agreement will
be in addition to any liability that any Underwriter may otherwise have.
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
either Underwriter or any controlling person in respect of such Underwriter, and
shall survive delivery of the Certificates to the Underwriters.
21
SECTION 9. Defaulting Underwriter. If, on the Closing Date, one 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 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, one 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 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 either 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) Either 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) Either Underwriter may terminate its obligations under this Agreement
in the 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 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
22
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 either 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; to Residential
Funding Securities Corporation shall be directed to Residential Funding
Securities Corporation, 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000; to the Depositor shall be directed to Commercial Mortgage
Acceptance Corp., 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000;
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 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.
23
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 Underwriter and the Depositor in accordance with its
terms.
Very truly yours,
COMMERCIAL MORTGAGE
ACCEPTANCE CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Executive Vice President
MIDLAND LOAN SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
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
RESIDENTIAL FUNDING SECURITIES CORPORATION
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Director
25
EXHIBIT A
FORM OF LEGEND TO
COMPUTATIONAL MATERIALS AND ABS TERM SHEETS
THE SECURITIES DESCRIBED HEREIN ARE OFFERED ONLY PURSUANT TO A DEFINITIVE
PROSPECTUS SUPPLEMENT AND PROSPECTUS AND PROSPECTIVE INVESTORS WHO CONSIDER
PURCHASING ANY SUCH SECURITIES SHOULD MAKE THEIR INVESTMENT DECISION BASED ONLY
UPON THE INFORMATION PROVIDED THEREIN. CAPITALIZED TERMS USED BUT NOT DEFINED
HEREIN HAVE THE MEANINGS GIVEN TO SUCH TERMS IN THE PROSPECTUS SUPPLEMENT.
26
SCHEDULE 1
Commercial Mortgage Acceptance Corp. Commercial Mortgage Pass-Through Certificates, Series 1998-C1,
Class A1, Class A2, Class X, Class B, Class C, Class D and Class E
--------------------------------------------------------------------------------------------------------------
Underwriter Amount of Certificates to be Class of Certificates to be
Purchased Purchased
--------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $252,000,000 Class A1
--------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $506,412,000 Class A2
--------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $1,192,237,749.07 Class X
--------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $59,611,000 Class B
--------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $59,612,000 Class C
--------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $62,593,000 Class D
--------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $20,862,000 Class E
--------------------------------------------------------------------------------------------------------------
Residential Funding Securities $25,000,000 Class A1
Corporation
--------------------------------------------------------------------------------------------------------------
Residential Funding Securities $75,000,000 Class A2
Corporation
--------------------------------------------------------------------------------------------------------------
Total $1,061,090,000
--------------------------------------------------------------------------------------------------------------
SCHEDULE 1 (CONTINUED)
--------------------------------------------------------------------------------------------------------------
Initial Aggregate
Principal (or, in the case of
Class Class X Initial
Designation Certificates, Notional Pass-Through Purchase
Amount of Class) Rate Price Rating
--------------------------------------------------------------------------------------------------------------
A1 $277,000,000 6.23% 100.4882% AAA/Aaa
--------------------------------------------------------------------------------------------------------------
A2 $581,412,000 6.49% 101.4926% AAA/Aaa
--------------------------------------------------------------------------------------------------------------
X $1,192,237,749.07 1.10227% 5.9668% AAAr/Aaa
--------------------------------------------------------------------------------------------------------------
B $59,611,000 6.60% 101.4606% AA/Aa2
--------------------------------------------------------------------------------------------------------------
C $59,612,000 6.76% 101.4755% A/A2
--------------------------------------------------------------------------------------------------------------
D $62,593,000 7.15% 101.4648% BBB/Baa2
--------------------------------------------------------------------------------------------------------------
E $20,862,000 7.49317% 100.5025% 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 Standard & Poor's and Xxxxx'x.
