EXECUTION COPY
PNC MORTGAGE ACCEPTANCE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-C1
UNDERWRITING AGREEMENT
----------------------
March 29, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PNC Capital Markets, Inc.
One PNC Plaza, 19th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
ABN AMRO Incorporated
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Deutsche Banc Xxxx. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
PNC Mortgage Acceptance Corp., a Missouri corporation (the
"Depositor"), proposes to sell to Xxxxxx Xxxxxxx & Co. Incorporated, PNC Capital
Markets, Inc., ABN AMRO Incorporated and Deutsche Banc Xxxx. Xxxxx Inc.
(together, the "Underwriters") the Commercial Mortgage Pass-Through Certificates
identified in Schedule I hereto (the "Certificates") pursuant to this
Underwriting Agreement, dated March 29, 2001 (this "Agreement"), between the
Depositor, PNC Bank, National Association ("PNC") and the Underwriters. The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Depositor and consisting primarily of a pool
(the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans").
The Mortgage Loans will be acquired by the Depositor as follows:
(1) Certain of the Mortgage Loans (the "Xxxxxx Xxxxxxx Loans")
will be acquired by the Depositor from Xxxxxx Xxxxxxx Xxxx Xxxxxx
Mortgage Capital Inc.
("MSDWMC") pursuant to a mortgage loan purchase agreement dated March
26, 2001 (the "MSDWMC Purchase Agreement") between the Depositor and
MSDWMC.
(2) Certain of the Mortgage Loans (the "PNC Loans") will be
acquired by the Depositor from PNC pursuant to a mortgage loan
purchase agreement dated March 26, 2001 (the "PNC Purchase Agreement")
between the Depositor and PNC.
(3) On the Closing Date MSDWMC will acquire the certificates
representing all of the ownership interests in the PNC Bank Commercial
Mortgage Owner Trust NS I and the PNC Bank Commercial Mortgage Owner
Trust NS II (the "Owner Trusts") from Midland Loan Services, Inc.
("MLS") and Anthracite Capital, Inc. ("Anthracite") pursuant to an
Owner Trust Certificate Purchase Agreement dated March 26, 2001
between MSDWMC, Anthracite and MLS (the "Owner Trust Purchase
Agreement"). MSDWMC will subsequently exercise its right as owner of a
majority of the Owner Trust certificates to purchase all of the
mortgage loans owned by the Owner Trusts (the "Owner Trust Loans").
Under the Owner Trust Purchase Agreement, MLS made the representations
and warranties regarding the Owner Trust Loans and has the obligation
to effect a cure with respect to, repurchase or substitute an Owner
Trust Loan in the event of a material breach of a representation or
warranty. On the Closing Date, the Owner Trust Loans will be acquired
by the Depositor from MSDWMC pursuant to a separate mortgage loan
purchase agreement, dated March 26, 2001 (the "MS/OT Purchase
Agreement") between the Depositor and MSDWMC.
(4) Certain Mortgage Loans (the "LaSalle Loans") will be acquired
by the Depositor from LaSalle Bank National Association ("LaSalle")
pursuant to a mortgage loan purchase agreement, dated March 26, 2001
(the "LaSalle Purchase Agreement"), between the Depositor and LaSalle.
PNC, MLS, LaSalle and MSDWMC collectively constitute the "Mortgage Loan
Sellers". Since MLS (and not MSDWMC) is responsible to the Trust Fund in respect
of the representations and warranties that relate to the Owner Trust Loans, MLS
is referred to as the Mortgage Loan Seller for purposes of the MS/OT Purchase
Agreement. The MSDWMC Purchase Agreement, the PNC Purchase Agreement, the Owner
Trust Purchase Agreement, the MS/OT Purchase Agreement and the LaSalle Purchase
Agreement, are individually referred to as a "Mortgage Loan Purchase Agreement"
and are collectively referred to as the "Mortgage Loan Purchase Agreements".
Capitalized terms used herein but not otherwise defined herein shall have the
meanings set forth in the Mortgage Loan Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-52506) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective and copies
of which have heretofore been delivered to each Underwriter. The Depositor
proposes to file with the Commission pursuant to Rule 424(b) under the 1933 Act
a supplement to the form of prospectus included in such registration statement
relating to the Certificates and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as amended at the date
hereof, is hereinafter called the
"Registration Statement"; the prospectus included in the Registration Statement,
at the time the Registration Statement became effective, or as subsequently
filed with the Commission pursuant to Rule 424(b) under the 1933 Act, is
hereinafter called the "Base Prospectus"; any supplement to the form of
prospectus relating to the Certificates, in the form in which it shall be filed
with the Commission pursuant to Rule 424 (including the Base Prospectus as so
supplemented) is hereinafter called the "Prospectus Supplement"; and the Base
Prospectus and the Prospectus Supplement, together, are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus that has heretofore been
filed pursuant to Rule 424(b) is hereinafter called a "Preliminary Prospectus."
Section 1 REPRESENTATIONS AND WARRANTIES.
(a) The Depositor represents and warrants to each Underwriter as
follows:
(i) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement has been issued
or is in effect, and no proceedings for such purpose are pending or, to the
Depositor's knowledge, threatened by the Commission; the Registration Statement
as of the effective date thereof (the "Effective Date"), and the Prospectus, as
of the date of the Prospectus Supplement, complied in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder (the "1933 Act Regulations"); all conditions to the use of Form S-3
and Rule 415 under the 1933 Act have been satisfied with respect to the
Registration Statement as of the Effective Date thereof; and the information in
the Registration Statement, as of the Effective Date, did not contain any untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and the information in the Prospectus, as of the date of the
Prospectus Supplement, did not, and as of the Closing Date (as hereinafter
defined) will not, contain an untrue statement of a material fact and did not
and will not omit to state a material fact necessary in order to make the
information therein, in the light of the circumstances under which they were
made, not misleading, provided, however, that the Depositor makes no
representations, warranties or agreements as to (A) the information contained in
the Prospectus or any revision or amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Depositor by Xxxxxx Xxxxxxx & Co. Incorporated on behalf of itself or any other
Underwriter specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto (the
"Underwriter Information"), or (B) any information contained in or omitted from
any Computational Materials or ABS Term Sheets (each as hereinafter defined)
required to be provided by any Underwriter to the Depositor pursuant to Section
4 (c) hereof. The Depositor acknowledges that Underwriter Information means only
the statements set forth in the Plan of Distribution, except for the last
paragraph thereof, and the first three sentences of the last paragraph on the
cover page of the Prospectus.
(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 the requisite corporate power and authority to enter into and
perform all of its obligations under this Agreement and the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated March 1,
2001, between the Depositor, MLS, as master servicer and special servicer, Xxxxx
Fargo Bank Minnesota, N.A., as trustee and LaSalle, as certificate
administrator.
(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 and will not (A) contravene any provision
of the articles of incorporation or by-laws of the Depositor or (B) conflict
with or constitute a breach of or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Depositor pursuant to, any provision of applicable law or contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Depositor
is a party or by which it may be bound or to which any of the property or assets
of the Depositor is subject, which conflict, breach, default, lien, charge or
encumbrance is reasonably likely to materially and adversely affect the
Depositor's ability to perform its obligations under this Agreement or the
Pooling and Servicing Agreement.
(v) The Certificates have been duly authorized for issuance
and sale (or will have been so authorized prior to the issuance thereof)
pursuant to this Agreement and the Pooling and Servicing Agreement. When issued,
authenticated and delivered pursuant to the provisions of this Agreement and 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 to or are construed to provide
indemnification from securities law liabilities.
(viii) At the time of the execution and delivery of the Pooling
and Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause
to be conveyed to the Trustee, all of the Depositor's right, title and interest
in and to the Mortgage Loans free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest (collectively
"Liens") granted by or imposed upon the Depositor, (B) will not have assigned to
any person any of its right, title or interest in the Mortgage Loans or in the
Pooling and Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer or cause to be transferred the Mortgage Loans to the
Trustee and to sell the Certificates to the Underwriters. Upon execution and
delivery of the Pooling and Servicing Agreement by the Trustee, the Trustee will
have acquired ownership of all of the Depositor's right, title and interest in
and to the Mortgage Loans, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor.
(ix) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause the
Depositor or the Trust Fund to be subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(x) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Depositor will report the transfer of
the Mortgage Loans to the Trustee 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 and not as a
pledge of assets to secure debt. 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 its creditors.
(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) PNC represents and warrants to each Underwriter as follows:
(i) PNC is a national banking association with the requisite
power and authority to enter into and perform all of its obligations under this
Agreement.
(ii) The execution, delivery and performance of this
Agreement by PNC and the consummation of the transactions contemplated herein
and therein by PNC and compliance by PNC 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 association or by-laws of
PNC 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 PNC pursuant to, any provision of applicable law or
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which PNC is a party or by which it may be bound or to which any of the
property or assets of PNC is subject, which conflict, breach, default, lien,
charge or encumbrance is reasonably likely to materially and adversely affect
PNC's ability to perform its obligations under this Agreement.
(iii) This Agreement has been duly authorized, executed and
delivered by PNC.
(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 set forth herein and in reliance
upon the representations and warranties contained herein 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, as set
forth on Schedule I hereto, Certificates of each class having an actual 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 March 30, 2001,
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 by wire
transfer of immediately available funds to the Depositor by the Underwriters of
the purchase prices of the Certificates as set forth in Schedule I to such bank
as may be designated by the Depositor, against delivery of the Certificates.
Delivery of the Certificates will be made in book-entry form through the
facilities of The Depository Trust Company ("DTC"). Each class of Certificates
will be represented by one or more definitive global Certificates to be
deposited by or on behalf of the Depositor with DTC or the Trustee. The
Certificates will be made available for examination by the Underwriters not
later than 10:00 a.m. New York City time on the last business day prior to the
Closing Date. The closing of the transactions contemplated hereby shall be made
at the offices of Xxxxxxxx & Xxxxxx L.L.P., 0000 Xxxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000, or at such other place as shall be agreed upon by the
Underwriters and the Depositor.
Section 4 OFFERING BY UNDERWRITER.
(a) The Underwriters shall provide written information in respect of
the plan of distribution to the Depositor expressly for use in the Preliminary
Prospectus and the Prospectus.
(b) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Depositor, in reliance upon Policy Statement 105, has not, and will
not, file an offering statement pursuant to Section 352-e 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, Xxxxxxx Acceptance Corporation I,
Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation, as
made applicable to other issuers and underwriters by the Commission in response
to the request of the Public Securities Association dated May 24, 1994, as well
as the PSA Letter referred to below and (y) ABS term sheets ("ABS Term Sheets"),
each as defined in the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the "PSA Letter", and, together
with the No-Action Letters described in clause (x) above, collectively, the
"No-Action Letters"), subject to the following conditions (to which such
conditions each Underwriter agrees, severally and not jointly, with respect to
those Computational Materials, and ABS Term Sheets prepared by such
Underwriter):
(i) All Computational Materials and ABS Term Sheets provided
to prospective investors that are required to be filed pursuant to the No-Action
Letters shall bear a legend substantially in the form attached hereto as Exhibit
A. The Depositor shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing, this
subsection (i) will be satisfied if all Computational Materials and ABS Term
Sheets referred to herein bear a legend in a form previously approved in writing
by the Depositor.
(ii) Each Underwriter shall provide the Depositor with
representative forms of all Computational Materials and ABS Term Sheets prior to
their first use, to the extent such forms have not previously been approved by
the Depositor for use by such Underwriter. Each Underwriter shall provide to the
Depositor, for filing on Form 8-K as provided in Section 5(k), copies (in such
format as required by the Depositor) of all Computational Materials and ABS Term
Sheets that are required to be filed with the Commission pursuant to the
No-Action Letters. Such Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be filed
if filing in such format is permitted by the No-Action Letters. All
Computational Materials and ABS Term Sheets described in this subsection (ii)
must be provided to the Depositor not later than 10:00 a.m. New York City time
one business day before filing thereof is required pursuant to the terms of this
Agreement and in accordance with the No-Action Letters. No Underwriter shall
provide to any investor or prospective investor in the Certificates any
Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials or ABS Term Sheets are required to be provided to the
Depositor pursuant to this subsection (ii) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the Depositor in accordance
with this subsection (ii) for filing pursuant to Section 5(k)), unless such
Computational Materials or ABS Term Sheets are preceded or accompanied by the
delivery of a Prospectus to such investor or prospective investor.
(iii) All information included in the Computational Materials
and ABS Term Sheets shall be generated based on substantially the same
methodology and assumptions that are used to generate the information in the
Prospectus Supplement as set forth therein; provided that the Computational
Materials and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets that are required to be filed were based on
assumptions with respect to the mortgage pool that differ from the mortgage pool
information as reflected in the Final Offering Document Information (as defined
in the Indemnification Certificates, as amended or supplemented, between the
respective Mortgage Loan Seller and the Depositor (collectively, the
"Indemnification Certificates")) in any material respect, or on Certificate
structuring terms that were revised in any material respect prior to the
printing of the Prospectus, the Underwriter shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the Final Offering
Document Information, (as defined in the Indemnification Certificates) and
structuring assumptions used in the Prospectus, circulate such revised
Computational Materials and ABS Term Sheets to all recipients of the preliminary
versions thereof that indicated orally to the Underwriter they would purchase
all or any portion of the Certificates, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials delivered
to the Depositor pursuant to subsection (ii) above.
(iv) The Depositor shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to contain
any material error or omission, provided that, at the request of the related
Underwriter, the Depositor will file Computational Materials or ABS Term Sheets
that contain a material error or omission if clearly marked "superseded by
materials dated ____________" and accompanied by corrected Computational
Materials or ABS Term Sheets that are marked, "material previously dated
___________ as corrected." If, within the period during which the Prospectus
relating to the Certificates is required to be delivered under the 1933 Act, any
Computational Materials or ABS Term Sheets are determined, in the reasonable
judgment of the Depositor or the related Underwriter, to contain a material
error or omission, the Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such corrected
Computational Materials or ABS Term Sheets to all recipients of the prior
versions thereof that either indicated orally to the Underwriter they would
purchase all or any portion of the Certificates, or actually purchased all or
any portion thereof, and shall deliver copies of such corrected Computational
Materials or ABS Term Sheets (marked, "as corrected") to the Depositor for
filing with the Commission in a subsequent Form 8-K submission (subject to the
Depositor's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and ABS Term Sheets, which the parties
acknowledge shall be at the expense of the Mortgage Loan Sellers under each of
the Mortgage Loan Purchase Agreements between the related Mortgage Loan Seller
and the Depositor, (including the Owner Trust Loans, under the Owner Trust
Purchase Agreement)). As of the date that any Underwriter disseminates any
Computational Materials or ABS Term Sheets, such Underwriter shall not have any
knowledge or reason to believe that such Computational Materials or ABS Term
Sheets contained any material error or omission and each Underwriter agrees to
promptly notify the Depositor of any such material error or omission of which
such Underwriter becomes aware. Notwithstanding the foregoing, the Underwriters
make no representation or warranty as to whether any Computational Materials or
ABS Term Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials or ABS Term Sheets are based)
included or will include any inaccurate statement resulting directly from any
error contained in the Final Offering Document Information, Preliminary Offering
Document Information and Computational Information, each as defined in the
Indemnification Certificates.
(v) Each Underwriter shall be deemed to have represented, as
of the Closing Date, that, except for Computational Materials and ABS Term
Sheets provided to the Depositor pursuant to subsection (ii) above, such
Underwriter did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Certificates
that is required to be filed with the Commission in accordance with the
No-Action Letters, and each Underwriter shall provide the Depositor with a
certification to that effect on the Closing Date.
(vi) In the event of any delay in the delivery by any
Underwriter to the Depositor of Computational Materials and ABS Term Sheets
required to be delivered in accordance with subsection (ii) above, or in the
delivery of the accountant's letter in respect thereof pursuant to Section 5(l),
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(l) to file the Computational
Materials and ABS Term Sheets by the time specified therein.
(d) Each Underwriter further represents and warrants that, if and to
the extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior
to the date hereof in connection with the offering of the Certificates, all of
the conditions set forth in subsection (c) above have been satisfied with
respect thereto.
Section 5 COVENANTS OF THE DEPOSITOR.
The Depositor covenants with each Underwriter as follows:
(a) The Depositor will give the Underwriters notice of its intention
to file or prepare (i) any amendment to the Registration Statement at any time
prior to the Closing Date or (ii) any amendment or supplement to the Prospectus
(including any revised prospectus that the Depositor proposes for use by the
Underwriters in connection with the offering of the Certificates and that
differs from the prospectus on file at the Commission at the time the
Registration Statement became effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations) at
any time during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, and the Depositor will furnish the
Underwriters with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which the
Underwriters shall reasonably object.
(b) The Depositor will promptly give each Underwriter notice of
(i) any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information relating to the
Certificates, (ii) any written notification received by the Depositor of
suspension of qualification of the Certificates for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and (iii) the
issuance by the 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) Upon request, the Depositor will deliver to each Underwriter and
counsel to each Underwriter, without charge, a copy of the Registration
Statement as originally filed and of each amendment thereto prior to the date
hereof (including exhibits filed therewith or incorporated by reference
therein).
(e) The Depositor will furnish to each Underwriter, from time to
time during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter
may reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act or the respective applicable rules and regulations of the Commission
thereunder.
(f) If, during the period after the first date of the public
offering of the Certificates in which a Prospectus relating to the Certificates
is required to be delivered under the 1933 Act, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the Prospectus not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, the Depositor will forthwith amend
or supplement the Prospectus so that, as so amended or supplemented, the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a purchaser,
not misleading, and the Depositor will furnish to each Underwriter a reasonable
number of copies of such amendment or supplement.
(g) The Depositor will endeavor to arrange for the qualification of
the Certificates for sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Underwriters may reasonably
designate and will maintain such qualification in effect so long as required for
the initial distribution of Certificates; provided, however, that the Depositor
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or to file a general consent to service of
process in any jurisdiction.
(h) The Depositor will use the net proceeds received by it from the
sale of the Certificates in the manner specified in the Prospectus under "Use of
Proceeds".
(i) Whether or not the transactions contemplated in the Pooling and
Servicing 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.
(j) 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.
(k) So long as any Certificates are outstanding, upon request of an
Underwriter, the Depositor will, or will cause the Master Servicer or Special
Servicer to, furnish to such Underwriter a copy of (i) the annual statement of
compliance delivered by the Master Servicer or the Special Servicer to the
Trustee under the Pooling and Servicing Agreement, (ii) the annual independent
public accountants' servicing report furnished to the Trustee pursuant to the
Pooling and Servicing Agreement, (iii) each report of the Depositor regarding
the Certificates filed with the Commission under the 1934 Act or mailed to the
holders of the Certificates and (iv) from time to time, such other information
concerning the Certificates which may be furnished by the Depositor, the Master
Servicer or the Special Servicer without undue expense and without violation of
applicable law or the Pooling and Servicing Agreement.
(l) The Depositor will file with the Commission within fifteen days
of the issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Prospectus. The Depositor will also
file with the Commission a report on Form 8-K setting forth all Computational
Materials and ABS Term Sheets (as such terms are defined herein) provided to the
Depositor by any Underwriter and identified by it as such within the time period
allotted for such filing pursuant to the No-Action Letters; provided, however,
that prior to such filing of the Computational Materials and ABS Term Sheets by
the Depositor, such Underwriter must comply with its obligations pursuant to
Section 4 and the Depositor must receive a letter from Deloitte & Touche LLP,
certified public accountants, satisfactory in form and substance to the
Depositor, to the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Depositor, as a result of
which they have determined that the information included in the Computational
Materials and ABS Term Sheets (if any), provided by such Underwriter to the
Depositor for filing on Form 8-K pursuant to Section 4 and this subsection (l),
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) (i) 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.
(ii) The Depositor is not aware of (A) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information or (B) any notification with
respect to the suspension of the qualification of the Certificates for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(b) On the Closing Date, such Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel
to the Depositor, in form and substance satisfactory to such Underwriter,
substantially to the effect that:
(A) The Depositor is a corporation in good standing under the
laws of the State of Missouri.
(B) The Depositor has the 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, and delivered in
accordance with the Pooling and Servicing Agreement and paid for in
accordance with this Agreement and the certificate purchase agreement
of even date herewith between the Depositor and the Underwriters with
respect to the sale of the privately offered certificates to the
Underwriters and the Pooling and Servicing Agreement, the Certificates
will be validly issued and outstanding and entitled to the benefits of
the Pooling and Servicing Agreement.
(E) The Registration Statement and any amendments thereto have
become effective under the 1933 Act and, to such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act, and no proceedings for
that purpose have been initiated or threatened by the Commission.
(F) At the time it became effective, the Registration Statement
and each amendment thereto (other than any financial or statistical
information included or incorporated by reference therein, as to which
no opinion need be rendered), and at the time filed with the
Commission, the Prospectus and each supplement thereto (other than any
financial or statistical information included or incorporated by
reference therein as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(G) To such counsel's knowledge, there are no material contracts,
indentures, or other documents of the Depositor required to be
described or referred to in the Registration Statement or to be filed
as exhibits thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto and other
than any documents required to be filed on Form 8-K within 15 days of
the closing.
(H) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
issuance and sale of the Certificates in the manner contemplated by
the Prospectus will not cause the Depositor or the Trust Fund to be
subject to registration or regulation as an "investment company" under
the Investment Company Act of 1940, as amended.
(I) No consent, approval, authorization, or order of any New
York, Missouri or federal court or governmental agency or body is
required for the consummation by the Depositor of the transactions
contemplated herein, except (1) such as have been obtained, (2) such
as may be required under the blue sky or real estate syndication laws
of any jurisdiction in connection with the purchase and sale of the
Certificates by the Underwriters, as to which no opinion need be
expressed and (3) any recordation of the assignments of the Mortgage
Loans to the Trustee pursuant to the Pooling and Servicing Agreement
that has not yet been completed.
(J) Neither the sale of the Certificates to the Underwriters
pursuant to this Agreement, nor the consummation by the Depositor of
any other of the transactions contemplated by, or the fulfillment by
the Depositor of the terms of, this Agreement or the Pooling and
Servicing Agreement, will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or an
event which with the passing of time or notification or both, would
constitute a default) under, (1) the articles of incorporation or
by-laws of the Depositor or, (2) to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Depositor is a
party or by which it is bound, or (3) any New York, Missouri or
federal statute or regulation applicable to the Depositor or, (4) to
the knowledge of such counsel, any order of any New York, Missouri or
federal court, regulatory body, administrative agency or governmental
body having jurisdiction over the Depositor except, in the case of any
of (2), (3) or (4), for any conflict, breach, violation or default
that, in the judgment of such counsel, is not reasonably likely to
materially and adversely affect the Depositor's ability to perform its
obligations under this Agreement or the Pooling and Servicing
Agreement.
(K) The statements set forth in the Prospectus Supplement under
the headings "DESCRIPTION OF THE CERTIFICATES" AND "THE POOLING AND
SERVICING AGREEMENT", insofar as such statements purport to summarize
certain provisions of the Certificates and the Pooling and Servicing
Agreement, provide a fair summary of such provisions.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriters, reasonably acceptable to the Underwriters.
(iii) In giving their opinions required by the foregoing
subsections (i) and (ii) of this Section, counsel to the Depositor and the
Underwriters, respectively, shall in each case additionally state that nothing
has come to such counsel's attention that would lead it to believe that the
Prospectus (other than any financial statements and supporting schedules and
statistical and/or accounting information included therein, as to which such
counsel need not comment), as of the date thereof or as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such statement shall be based upon,
among other things, conferences and telephone conversations with representatives
of the parties hereto, the Mortgage Loan Sellers, the Master Servicer, the
Special Servicer, the Trustee and the Certificate Administrator 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 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 heading "ERISA Considerations", in the Base Prospectus under the
heading "Federal Income Tax Consequences" and in the Prospectus Supplement under
the heading "Material Federal Income Tax Consequences" to the extent that they
constitute matters of state or federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences of investment
in the Certificates, are correct in all material respects with respect to those
consequences or matters that are discussed therein. Such opinion(s) may
express its (their) reliance as to factual matters on the representations and
warranties made by, and on certificates or other documents furnished by officers
and/or authorized representatives of, the parties to this Agreement and the
Pooling and Servicing Agreement and on certificates furnished by public
officials. Such opinion(s) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the party on behalf of which such opinion is being rendered.
Such opinion(s) may be qualified as an opinion only on the federal tax and ERISA
law of the United States. Such opinion(s) may contain such other assumptions and
qualifications reasonably satisfactory to the Underwriters as such counsel
customarily makes in similar types of opinions relating to similar transactions.
(d) The Depositor shall have delivered to each Underwriter a
certificate, dated the Closing Date, of the President, an Executive Vice
President or other Vice President on behalf of the Depositor to the effect that
the signer of such certificate has examined, or has relied upon an examination
conducted by appropriate persons authorized by him or her of, this Agreement,
the Prospectus, the Pooling and Servicing Agreement and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(i) the representations and warranties of the Depositor in
this Agreement and the Pooling and Servicing Agreement are true and correct in
all material respects;
(ii) the Depositor has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(iii) since the date of this Agreement, there has been no
material adverse change in the financial condition of the Depositor;
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission; and
(v) nothing has come to the attention of such person that
would lead the signer to believe that the Prospectus (other than any
Computational Materials or ABS Term Sheets incorporated therein by reference, as
to which no opinion need be expressed) contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) Each Mortgage Loan Seller shall have delivered to each
Underwriter a certificate, dated the Closing Date, of the President, a Senior or
Executive Vice President or other Vice President on its behalf to the effect
that the signer of such certificate has examined, or has relied upon an
examination conducted by appropriate persons authorized by him or her of, the
Prospectus, the Pooling and Servicing Agreement, the respective Mortgage Loan
Purchase Agreement, and various other closing documents, and that, to the best
of his or her knowledge after reasonable investigation:
(i) the representations and warranties of Mortgage Loan
Seller in the respective Mortgage Loan Purchase Agreement are true and correct
in all material respects;
(ii) Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied under the respective Mortgage Loan Purchase Agreement
at or prior to the Closing Date; and
(iii) since the date of its respective Mortgage Loan Purchase
Agreement, there has been no material adverse change in the financial condition
of Mortgage Loan Seller.
(f) The Depositor and each Underwriter shall have received from
Deloitte & Touche LLP, certified public accountants, a letter dated the Closing
Date, in form and substance satisfactory to the Depositor and each Underwriter,
stating in effect that:
(i) they have performed certain specified procedures, as a
result of which they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement agrees
with the data sheet or computer tape prepared by or on behalf of each Mortgage
Loan Seller, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet
or computer tape of MSDWMC and LaSalle referred to in the immediately preceding
clause (i) to information contained in the Mortgage Loan files of MSDWMC and
LaSalle 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 Xxxxx
and Young, certified public accountants, a letter dated the Closing Date, in
form and substance satisfactory to the Depositor and each Underwriter, stating
in effect that they have compared the data contained in the data sheet or
computer tape of PNC and MLS to information contained in the Mortgage Loan files
of PNC and MLS and in such other sources as shall be specified by them, and
found such data and information to be in agreement unless otherwise noted in
such letter.
(h) Each Underwriter shall have received, with respect to each of
the Master Servicer, the Special Servicer, the Certificate Administrator and the
Trustee, a favorable opinion of counsel, dated the Closing Date, addressing the
valid existence of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party, (subject to the same limitations as set forth
in Section 6(b)(i)(C)) the enforceability of the Pooling and Servicing Agreement
against such party and such other opinions as shall be reasonably requested by
such Underwriter. Such opinion may express its reliance as to factual matters on
representations and warranties made by, and on certificates or other documents
furnished by, officers and/or authorized representatives of parties to, the
Pooling and Servicing Agreement and on certificates furnished by public
officials. Such opinion may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered. Such
opinion may contain such other assumptions and qualifications
reasonably satisfactory to the Underwriters as counsel to such party customarily
makes in similar types of opinions relating to similar transactions.
(i) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Depositor or a Mortgage Loan Seller which such
Underwriter concludes, in the reasonable judgment of such Underwriter,
materially impairs the investment quality of the Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Certificates as contemplated by the Prospectus.
(j) The Mortgage Loan Sellers shall have sold the Mortgage Loans to
the Depositor pursuant to the Mortgage Loan Purchase Agreements.
(k) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been withdrawn,
suspended or qualified.
(l) The Depositor shall have furnished to the Underwriters any
opinions delivered to the Rating Agencies, and such opinions shall also be
addressed to the Underwriters.
(m) 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) PNC 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), PNC 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 PNC, their respective directors and officers who
sign the Registration Statement and each person, if any, who controls the
Depositor within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all Liabilities, but only with respect to (i)
untrue statements or alleged untrue statements, or omissions or alleged
omissions to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in the Underwriter
Information, (ii) any Liabilities arising out of or relating to claims asserted
by any person who purchased Certificates that are the subject thereof if such
person did not receive a copy of the Prospectus with the confirmation of the
sale of such Certificates to such person in any case where the untrue statement
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact contained in the Preliminary Prospectus was
corrected in the Prospectus and the Prospectus was furnished to such
Underwriter, and (iii) untrue statements or alleged untrue statements, or
omissions or alleged omissions to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, in the Computational Materials or ABS Term Sheets delivered to
purchasers of the Certificates by such Underwriter, to the extent that such
Computational Materials and ABS Term Sheets were prepared by such Underwriter
and incorporated by reference into the Registration Statement or the Prospectus
as a result of any filing pursuant to Section 5(k); provided, however, that such
Computational Materials shall not include any Computational Information (as
defined in the Indemnification Certificates) or any errors in the mathematical
calculations reflected in such Computational Materials to the extent such errors
result from such Computational Information; and provided, further, that any such
omission or alleged omission relating to the Computational Materials shall be
determined by reading such Computational Materials in conjunction with the
Prospectus as an integral document and in light of the circumstances under which
such statements in the Computational Materials and the Prospectus were made.
(c) Each indemnified party shall give notice in writing as promptly
as reasonably practicable to each party against whom such indemnity may be
sought (the "indemnifying party") of any action commenced against it in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve the indemnifying party, except to the
extent that the indemnifying party was prejudiced by such failure. However, the
failure to so notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have otherwise than on account of this
Agreement. Upon request of the indemnified party, the indemnifying party shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding as incurred. If any action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party may participate at its own expense in the defense of any such
action. To the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, the indemnifying party may elect to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party. In any
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the indemnifying party shall have
failed to designate within a reasonable period of time counsel reasonably
satisfactory to the
indemnified party (in which case the fees and expenses shall be paid as incurred
by the indemnifying party). In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. An indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent. However, if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party shall indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the prior written consent of the indemnified party or, if such settlement
provides for an unconditional release of the indemnified party in connection
with all matters relating to the proceeding that have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party under subsection (a) or (b) on grounds of
public policy or otherwise, then the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Depositor on the one hand and the Underwriters on the other from the
offer and sale of the Certificates pursuant hereto or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Depositor on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or other liabilities,
as well as any other relevant equitable considerations. The relative benefits
received by the Depositor on the one hand, and the Underwriters on the other, in
connection with the offering of the Certificates shall be deemed to be in the
same respective proportions that the total net proceeds from the sale of the
Certificates (before deducting expenses) received by the Depositor and the total
underwriting discounts and commissions received by the Underwriters in
connection with the offering of the Certificates, bear to the aggregate offering
price of the Certificates. The relative fault of the Depositor on the one hand
and of such Underwriter on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by such Underwriter, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The parties hereto agree that it would not be just and equitable
if contribution, as determined by subsection (d) above, were determined by pro
rata allocation or by any other method of allocation that does not take account
of the considerations referred to in subsection (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
other liabilities referred to in this Section 7 shall be deemed to include any
legal fees and disbursements or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim.
In the event that any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying party
hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. Notwithstanding the
provisions of this Section 7, such Underwriter shall not be required to
contribute any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter in connection with the
offering of the Certificates exceeds the amount of damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Depositor,
any Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
(g) The Underwriters' respective obligations to contribute pursuant
to this Section 7 are several in proportion to the respective amount of
Certificates they have purchased hereunder, and not joint.
(h) Each Underwriter will indemnify and hold harmless any other
Underwriter and each person, if any, who controls such other Underwriter within
the meaning of either the 1933 Act or the 1934 Act (the "Non-Indemnifying
Underwriter") from and against any and all losses, claims, damages or
liabilities, joint or several, to which the Non-Indemnifying Underwriter becomes
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement of material fact contained in any computational or
other written materials developed by, mailed or otherwise transmitted by such
indemnifying Underwriter, or any member of its selling group, in connection with
the Certificates or in any revision or amendment thereof or supplement thereto
or (ii) the failure of such indemnifying Underwriter, or any member of its
selling group, to comply with any provision of Section 9, and agrees to
reimburse such Non-Indemnifying Underwriter, as incurred for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This agreement will
be in addition to any liability that any indemnifying Underwriter may otherwise
have.
Section 8 REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of any
Underwriter or any controlling person in respect of such Underwriter, and shall
survive delivery of the Certificates to the Underwriters.
Section 9 DEFAULTING UNDERWRITER
(a) If, on the Closing Date, any of the Underwriters shall fail or
refuse to purchase Certificates that it has agreed to purchase hereunder on such
date, and the aggregate principal amount of Certificates which such defaulting
Underwriter agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of Certificates to be purchased on such date,
the other Underwriter(s) shall be obligated to purchase additional Certificates
of each class such Underwriter was otherwise obligated to purchase hereunder and
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.
(b) If, on the Closing Date, any of the Underwriters shall fail or
refuse to purchase Certificates that it has agreed to purchase hereunder on such
date and the aggregate principal amount of Certificates with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date and arrangements satisfactory to the
non-defaulting Underwriter(s) and the Depositor for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or of the Depositor. In any such case any such non-defaulting Underwriter or the
Depositor shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
Section 10 TERMINATION OF AGREEMENT.
(a) Any Underwriter may terminate its obligations under this
Agreement, by notice to the Depositor, at any time at or prior to the Closing
Date if the sale of the Certificates provided for herein is not consummated
because of any failure or refusal on the part of the Depositor to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Depositor shall be unable to perform its obligations under this
Agreement.
(b) Any Underwriter may terminate its obligations under this
Agreement in the absolute discretion of such Underwriter, by notice given to the
Depositor, if (A) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Depositor or Mortgage Loan Sellers or their respective
affiliates shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or State of New York authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
such Underwriter, is material and adverse and (B) in the case of any of the
events specified in clauses (A)(i) through (iv) above, such event singly or
together with any other such event, makes it, in the judgment of such
Underwriter, impracticable to market the Certificates on the terms and in the
manner contemplated in the Prospectus.
(c) If any Underwriter terminates its obligations under this
Agreement in accordance with Section 10(a), the Depositor shall reimburse such
Underwriter for all reasonable out-of pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by such Underwriter
in connection with this Agreement or the proposed purchase and sale of the
Certificates.
Section 11 NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to Xxxxxx Xxxxxxx
& Co. Incorporated shall be directed to Xxxxxx Xxxxxxx & Co. Incorporated, 1585
Broadway, New York, New York 10036, Attention: Xxxxxx Xxxxxx, with a copy to
Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxx, Esq.; notices to PNC Capital Markets,
Inc. shall be directed to One PNC Plaza, 26th Floor, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Xxxxx Xxxxxx; notices to ABN
AMRO Incorporated shall be directed to 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Legal Department; notices to Deutsche Banc Xxxx.
Xxxxx Inc. shall be directed to 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxx; notices to the Depositor shall be directed to PNC
Mortgage Acceptance Corp., 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000; notices to PNC shall be directed to PNC Bank, National
Association, 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, XX 00000, Attention:
Xxxxx Xxxxxxx; 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 and assigns.
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 assigns and the controlling
persons and officers and directors referred to in Sections 7 and 8 and their
respective successors, assigns, 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 assigns
and said controlling persons and officers and directors and their respective
successors and assigns heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
Section 13 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State.
Section 14 MISCELLANEOUS.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such amendment, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of duplicate originals, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
[Signature Pages Follow]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Depositor a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Depositor in accordance with its terms.
Very truly yours,
PNC MORTGAGE ACCEPTANCE CORP.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Senior Vice President
---------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------
Title: Senior Vice President
---------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------
Title: Managing Director
--------------------------
PNC CAPITAL MARKETS, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------
Title: Senior Managing Director
--------------------------
ABN AMRO INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------
Title: Managing Director
--------------------------
DEUTSCHE BANC ALEX. BROWN INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------
Title: Director
--------------------------
EXHIBIT A
---------
FORM OF LEGEND TO
COMPUTATIONAL MATERIALS AND ABS TERM SHEETS
This information is being delivered to a specific number of prospective
sophisticated investors in order to assist them in determining whether they have
an interest in the type of security described herein. It has been prepared
solely for informational purposes and is not an offer to buy or sell or a
solicitation of an offer to buy or sell any security or instrument or to
participate in any trading strategy. No representation or warranty can be given
with respect to the accuracy or completeness of the information, or with respect
to the terms of any future offer of securities conforming to the terms hereof.
Any such offer of securities would be made pursuant to a definitive Prospectus
or Private Placement Memorandum, as the case may be, prepared by the issuer
which could contain material information not contained herein and to which the
prospective purchasers are referred. In the event of any such offering, this
information shall be deemed superseded, amended and supplemented in its entirety
by such Prospectus or Private Placement Memorandum. Such Prospectus or Private
Placement Memorandum will contain all material information in respect of any
securities offered thereby and any decision to invest in such securities should
be made solely in reliance upon such Prospectus or Private Placement Memorandum.
Certain assumptions may have been made in this analysis which have resulted in
any returns detailed herein. No representation is made that any returns
indicated will be achieved. Changes to the assumptions may have a material
impact on any returns detailed. Xxxxxx Xxxxxxx & Co. Incorporated, PNC Capital
Markets, Inc., ABN AMRO Incorporated and Deutsche Banc Xxxx. Xxxxx Inc.
(collectively the "Underwriters") disclaim any and all liability relating to
this information, including without limitation any express or implied
representations and warranties for, statements contained in, and omissions from,
this information. Additional information is available upon request. The
Underwriters and others associated with them may have positions in, and may
effect transactions in, securities and instruments of issuers mentioned herein
and may also perform or seek to perform investment banking services for the
issuers of such securities and instruments. Past performance is not necessarily
indicative of future results. Price and availability are subject to change
without notice. This material may be filed with the Securities and Exchange
Commission (the "SEC") and incorporated by reference into an effective
registration statement previously filed with the SEC under Rule 415 of the
Securities Act of 1933, including in cases where the material does not pertain
to securities that are ultimately offered for sale pursuant to such registration
statement. To Xxxxxx Xxxxxxx'x readers worldwide: In addition, please note that
this publication has been issued by Xxxxxx Xxxxxxx & Co. Incorporated, approved
by Xxxxxx Xxxxxxx International Limited, a member of The Securities and Futures
Authority, and by Xxxxxx Xxxxxxx Japan Ltd. Xxxxxx Xxxxxxx recommends that such
readers obtain the advice of their Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx
Xxxxxxx International or Xxxxxx Xxxxxxx Japan Ltd. representative about the
investments concerned.
SCHEDULE 1
----------
PNC Mortgage Acceptance Corp. Commercial Mortgage Pass-Through Certificates, Series 2001-C1
================================ ================ ================ =============== ===============
Underwriter Class A-1 Class A-2 Class B Class C-1
----------- --------- --------- ------- ---------
-------------------------------- ---------------- ---------------- --------------- ---------------
Xxxxxx Xxxxxxx & Co. $ 65,201,000 $ 228,180,000 $ 14,060,000 $ 18,856,000
Incorporated
-------------------------------- ---------------- ---------------- --------------- ---------------
PNC Capital Markets, Inc. $ 64,500,000 $ 226,969,000 $ 14,000,000 $ 0
-------------------------------- ---------------- ---------------- --------------- ---------------
ABN AMRO Incorporated $ 5,000,000 $ 10,000,000 $ 0 $ 0
-------------------------------- ---------------- ---------------- --------------- ---------------
Deutsche Banc Xxxx. Xxxxx Inc. $ 12,000,000 $ 95,632,000 $ 5,000,000 $ 0
-------------------------------- ---------------- ---------------- --------------- ---------------
Total $ 146,701,000 $ 560,781,000 $ 33,856,000 $ 18,856,000
================================ ================ ================ =============== ===============
================================ ==================== ====================
Underwriter Class C-2 Class C-2X
-------------------------------- -------------------- --------------------
Xxxxxx Xxxxxxx & Co. $ 12,000,000 $ 12,000,000
Incorporated
-------------------------------- -------------------- --------------------
PNC Capital Markets, Inc. $ 0 $ 0
-------------------------------- -------------------- --------------------
ABN AMRO Incorporated $ 0 $ 0
-------------------------------- -------------------- --------------------
Deutsche Banc Xxxx. Xxxxx Inc. $ 0 $ 0
-------------------------------- -------------------- --------------------
Total $ 12,000,000 $ 12,000,000
================================ ==================== ====================
SCHEDULE 1
----------
============== ================================= ================== ============== =============
Initial
Class Initial Aggregate Pass-Through Purchase
Designation Principal Amount of Class 1 Rate Price Rating 3
----------- --------------------------- ------------ -------- --------
-------------- --------------------------------- ------------------ -------------- -------------
A-1 $146,701,000 5.91% 100.489% AAA/Aaa
-------------- --------------------------------- ------------------ -------------- -------------
A-2 $560,781,000 6.36% 101.007% AAA/Aaa
-------------- --------------------------------- ------------------ -------------- -------------
B $33,060,000 6.58% 101.051% AA/Aa2
-------------- --------------------------------- ------------------ -------------- -------------
C-1 $18,856,000 6.80% 101.027% A/A2
-------------- --------------------------------- ------------------ -------------- -------------
C-2 $12,000,000 2.57% 71.325% A/A2
-------------- --------------------------------- ------------------ -------------- -------------
C-2X $12,000,000 4.23% 29.702% A/A2
============== ================================= ================== ============== =============
--------
1 Subject to a variance of plus or minus 5.0% per class
2 Expressed as a percentage of the aggregate stated amount 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 amount thereof to be
purchased from the Cut-Off Date to but not including the Closing Date.
3 By each of Xxxxx'x and Standard & Poor's.
