BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
CORPORATE LEASE-BACKED CERTIFICATES, SERIES 1999-CLF1
UNDERWRITING AGREEMENT
August 10, 1999
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introduction. Bear Xxxxxxx Commercial Mortgage Securities Inc., a
Delaware corporation (the "Company"), proposes to issue and sell its Corporate
Lease-Backed Certificates, Series 1999-CLF1 (the "Certificates") pursuant to a
pooling and servicing agreement to be dated as of August 15, 1999 (the "Pooling
and Servicing Agreement") among the Company, as depositor, Midland Loan
Services, Inc., (" Midland") as servicer (the "Master Servicer"), and as special
servicer (the "Special Servicer"), LaSalle Bank National Association, as trustee
(the "Trustee"), ABN AMRO Bank N.V., as fiscal agent. Upon issuance, the
Certificates will evidence undivided interests in the Trust Fund (as defined in
the Pooling and Servicing Agreement) established for such series containing
mortgage loans secured by (a) first liens on commercial properties and United
States postal service properties, including the related insurance policies and
Credit Leases, (b) a related assignment of lease and rents, and (c) security
interests in funds on deposit in certain rent escrow and reserve accounts (the
"Loans"), all as described in the Prospectus Supplement (as defined below). The
Loans will be purchased by the Company from Capital Lease Funding, L.P. ("CLF")
and Prudential Securities Credit Corp. ("PSCC") (together with CLF, the
"Mortgage Loan Sellers") pursuant to a Mortgage Loan Purchase and Sale Agreement
among CLF, PSCC, the Company and Bedford Capital Funding Corp., as warranting
party ("Bedford"). The Trust Fund, or a portion thereof, may make one or more
elections to qualify as a real estate mortgage investment conduit ("REMIC")
under the Internal Revenue Code, all as described in the Prospectus (as defined
below). Terms not defined herein which are defined in the Pooling and Servicing
Agreement shall have the meanings ascribed to them in the Pooling and Servicing
Agreement.
The terms providing for the sale of the Certificates to, and the
purchase and offering thereof by, you, will be governed by a terms agreement
substantially in the form of Exhibit 1 hereto (a "Terms Agreement"). The Company
may from time to time make an offering of another series (each a "Series") of
certificates (an "Offering") through you or an underwriting syndicate managed or
co-managed by you, in which case it will offer to enter into a Terms Agreement
with respect thereto. In such case references herein to the "Certificates" shall
be to the certificates described in such Terms Agreement, which shall provide
for the sale of such Certificates to, and the purchase and offering thereof by,
you and such other co-managers and underwriters, if any, which have been
selected by you and either (i) have authorized you to enter into such Terms
Agreement and other related documentation on their behalf, or (ii) have directly
entered into the Terms Agreement (the "Underwriters," which terms shall include
you whether acting alone in the sale of Certificates or you and other
co-managers and underwriters as co-managers or as members of an underwriting
syndicate).
The Terms Agreement relating to each Offering shall specify the
principal amount of Certificates to be issued and their terms not otherwise
specified in the Pooling and Servicing Agreement, the price at which the
Certificates are to be purchased by each of the Underwriters from the Company
and the initial public offering price or the method by which the price at which
the Certificates are to be sold will be determined, and any variation of terms
and parties from that described in this Underwriting Agreement. The Terms
Agreement may take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each Offering governed by this
Agreement, as supplemented by the applicable Terms Agreement, shall inure to the
benefit of and be binding upon the Company and each of the Underwriters
participating in the Offering of such Certificates, as of the date stated in the
relevant Terms Agreement.
The Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to you as of the date hereof, and to the Underwriters
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) a registration statement, including a prospectus, and such
amendments thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "Act"), have been filed
with the Securities and Exchange Commission ("Commission") (copies of which have
been provided to you) and such registration statement as amended has become
effective. Such registration statement as amended and the prospectus relating to
the sale of Certificates constituting a part thereof as from time to time
amended or supplemented, including any prospectus filed with the Commission
pursuant to Rule 424 of the rules and regulations of the Commission ("Rules and
Regulations") under the Act, and including any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act which were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or
before the Effective Date of the Registration Statement or the date of the
Prospectus Supplement, are respectively referred to herein as the "Registration
Statement" and the "Prospectus"; provided, however, that a supplement to the
Prospectus (a "Prospectus Supplement") prepared pursuant to Section 5(a) hereof
shall be deemed to have supplemented the Prospectus only with respect to the
Offering of the Series of Certificates to which it relates. The conditions of
Rule 415 under the Act have been satisfied with respect to the Company and the
Registration Statement, no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such purpose are
pending or, to the Company's knowledge, threatened by the Commission.
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(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material respects to
the requirements of the Act and the Rules and Regulations, and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement, the Registration Statement,
the Prospectus and the Prospectus Supplement will conform in all material
respects to the requirements of the Act and the Rules and Regulations, and the
Prospectus and the Prospectus Supplement will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading; provided, however, that
the foregoing does not apply to (i) statements or omissions in such documents
based upon written information furnished to the Company by any Underwriter
specifically for use therein or (ii) any Current Report (as defined in Section
5(b) below) or in any amendment thereof or supplement thereto, incorporated by
reference in such Registration Statement or such Prospectus or Prospectus
Supplement (or any amendment thereof or supplement thereto); and provided,
further, that the Company makes no representations or warranties with respect to
any information provided by CLF, Bedford, MBIA, or the Underwriters, as
applicable, for inclusion into the Prospectus Supplement, Computational
Materials or ABS Term Sheets, the Approved Electronic Roadshow (as defined in
the Mortgage Loan Purchase and Sale Agreement) or any Approved Additional
Materials (as defined in the Mortgage Loan Purchase and Sale Agreement).
(c) This Agreement has been, and the Pooling and Servicing Agreement,
when executed and delivered as contemplated hereby and thereby will have been,
duly authorized, executed and delivered by the Company and each constitutes, or
will constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms, except
as enforceability may be limited by (A) bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally, (B)
general principles of equity and the discretion of the court (regardless of
whether enforceability of such remedies is considered 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.
(d) At the applicable Closing Date, each applicable Terms Agreement
will have been duly authorized, executed and delivered by the Company and will
be a legal, valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforceability may be limited by (A)
bankruptcy, reorganization, insolvency, moratorium and other laws affecting the
rights of creditors generally, (B) general principles of equity and the
discretion of the court (regardless of whether enforceability of such remedies
is considered 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.
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(e) The issuance of the Certificates has been duly authorized by the
Company and, when such Certificates are executed and authenticated in accordance
with the Pooling and Servicing Agreement and delivered against payment pursuant
to this Agreement, such Certificates will be validly issued and outstanding; and
the Certificates will be entitled to the benefits provided by the Pooling and
Servicing Agreement. The Certificates are in all material respects in the form
contemplated by the Pooling and Servicing Agreement.
(f) Neither the Company nor the Trust Fund is or, as a result of the
offer and sale of the Certificates as contemplated in this Agreement will
become, an "investment company" as defined in the Investment Company Act of
1940, as amended (the "Investment Company Act"), or an "affiliated person" of
any such "investment company" that is registered or is required to be registered
under the Investment Company Act (or an "affiliated person" of any such
"affiliated person"), as such terms are defined in the Investment Company Act.
(g) The following representations and warranties made by the Company in
the Pooling and Servicing Agreement and representations and warranties made in
any Officer's Certificate of the Company delivered pursuant to the Pooling and
Servicing Agreement will be true and correct at the time made and/or on the
Closing Date, as applicable:
(i) The Company is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under the
Pooling and Servicing Agreement and to create the trust pursuant hereto;
(ii) The execution and delivery by the Company of the Pooling and
Servicing Agreement has been duly authorized by all necessary corporate action
on the part of the Company; neither the execution and delivery of the Pooling
and Servicing Agreement, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, (i) any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
the Company or its properties; (ii) the certificate of incorporation or bylaws
of the Company; or (iii) the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound; neither the
Company nor any of its Affiliates is a party to, bound by, or in breach of or
violation of any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects or to the best knowledge of the Company may in
the future materially and adversely affect (i) the ability of the Company to
perform its obligations under the Pooling and Servicing Agreement or (ii) the
business, operations, financial condition, properties or assets of the Company;
(iii) The execution, delivery and performance by the Company of
the Pooling and Servicing Agreement and the consummation of the transactions
contemplated thereby
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do not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof;
(iv) The Pooling and Servicing Agreement has been duly executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee and other parties thereto (other than the Company),
constitutes a valid and binding obligation of the Company enforceable against it
in accordance with its terms;
(v) There are no actions, suits or proceedings pending or, to the
best of the Company's knowledge, threatened or likely to be asserted against or
affecting the Company, before or by any court, administrative agency, arbitrator
or governmental body (A) with respect to any of the transactions contemplated by
the Pooling and Servicing Agreement or (B) with respect to any other matter
which in the judgment of the Company will be determined adversely to the Company
and will, if determined adversely to the Company, materially and adversely
affect it or its business, assets, operations or condition, financial or
otherwise, or adversely affect its ability to perform its obligations under the
Pooling and Servicing Agreement; and
(vi) Immediately prior to the consummation of the transactions
contemplated in the Pooling and Servicing Agreement, the Company had good title
to and was the sole owner of each Loan free and clear of any and all adverse
claims, charges or security interests (including liens arising under the federal
tax laws or the Employee Retirement Income Security Act of 1974, as amended).
(h) On the Closing Date, the Company (i) will have good and marketable
title to the Loans being transferred by it to the Trust Fund pursuant thereto,
free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim
or other security interest placed thereon by the Company (collectively,
"Liens"), to the extent good and marketable title to the Loans is transferred to
the Company, and (ii) will have the power and authority to transfer such Loans
to the Trust Fund, and upon execution and delivery of the Pooling and Servicing
Agreement by the Trust Fund, the Trust Fund will have acquired ownership of all
of the Company's right, title and interest in and to the related Loans. 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.
3. Purchase, Sale and Delivery of Certificates. Delivery of and payment
for the Certificates shall be made at your office or at such other location as
you shall make known at such time as shall be specified in the applicable Terms
Agreement, each such time being herein referred to as a "Closing Date." Delivery
of the Certificates shall be made by the Company to the Underwriters against
payment of the purchase price specified in the applicable Terms Agreement in
Federal Funds by wire or check. Unless delivery is made through the facilities
of the Depository Trust Company, the Certificates to be so delivered will be in
definitive, fully registered form, in such denominations and registered in such
names as you request, and will be made available for
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inspection and packaging at your office at least twenty-four hours prior to the
applicable Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Certificates for sale to the public as set forth in the
Prospectus. Each Underwriter shall provide written information to the Company
expressly for use in the Prospectus, and in connection with the offering of the
Certificates, each Underwriter may prepare and provide to prospective investors
Computational Materials and Structural Terms Sheets (each as defined herein).
5. Covenants of the Company. The Company covenants and agrees with you
and the several Underwriters participating in the Offering of any Series of
Certificates that:
(a) In connection with the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement to be filed under the Act setting
forth the principal amount of Certificates covered thereby and their terms not
otherwise specified in the Prospectus, the aggregate price at which the
Certificates are to be purchased by the Underwriters from the Company, either
the initial public offering price or the method by which the price at which the
Certificates are to be sold will be determined, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such other
information as you and the Company deem appropriate in connection with the
Offering, but the Company will not file any amendments to the Registration
Statement or any amendments or supplements to the Prospectus or Prospectus
Supplement, unless it shall first have delivered copies of such amendments or
supplements to you, and you shall not have reasonably objected thereto promptly
after receipt thereof. The Company will advise you and your counsel promptly (i)
when notice is received from the Commission that any post-effective amendment to
the Registration Statement has become or will become effective, and (ii) of any
order or communication suspending or preventing, or threatening to suspend or
prevent, the offer and sale of the Certificates, or of any proceedings or
examinations that may lead to such an order or communication, whether by or of
the Commission or any authority administering any state securities or Blue Sky
law, as soon as the Company is advised thereof, and will use its best efforts to
prevent the issuance of any such order or communication and to obtain as soon as
possible its lifting, if issued.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect to each
Series of Certificates that are delivered by the Underwriters to the Company
pursuant to Section 8 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Exchange Act on
the business day immediately following the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company by
any of the Underwriters prior to 10:30 a.m. (and will use its best efforts to
cause such Computational Materials and Structural Term Sheets to be so filed
prior to 2:00 p.m., New York time, on the following business day), and will
promptly advise you and your counsel when such Current Report has been so filed.
The Company will cause one Collateral Term Sheet (as defined in Section 9 below)
with respect to an Offering of a Series that is delivered by any of the
Underwriters to the Company in accordance with the provisions of Section 9 to be
filed with the Commission on a Current Report pursuant to Rule
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13a-11 under the Exchange Act on the business day immediately following the day
on which such Collateral Term Sheet is delivered to counsel for the company by
any of the Underwriters prior to 10:30 a.m. In addition, if at any time prior to
the availability of the related Prospectus Supplement, any of the Underwriters
has delivered to any prospective investor a subsequent Collateral Term Sheet
that reflects, in the reasonable judgment of such Underwriter and the Company, a
material change in the characteristics of the Loans for the related Series from
those on which a Collateral Term Sheet with respect to the related Series
previously filed with the Commission was based, the Company will cause any such
Collateral Term Sheet that is delivered by such Underwriter to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on a
Current Report on the second business day immediately following the day on which
such Collateral Term Sheet is delivered to counsel for the Company by such
Underwriter prior to 2:00 p.m. In each case, the Company will promptly advise
you when such Current Report has been so filed. Notwithstanding the four
preceding sentences, the Company shall have no obligation to file any materials
provided by any of the Underwriters pursuant to Sections 8 and 9 which (i) in
the reasonable determination of the Company are not required to be filed
pursuant to the Xxxxxx Letters or the PSA Letter (each as defined in Section 8
below), or (ii) contain erroneous information or contain any untrue statement of
a material fact or, when read in conjunction with the Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being understood,
however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials or ABS Term
Sheets (as defined in Section 9 below) provided by such Underwriter to the
Company pursuant to Section 8 or Section 9 hereof. The Company shall give notice
to you and such Underwriter of its determination not to file any materials
pursuant to clause (i) of the preceding sentence and agrees to file such
materials if such Underwriter or you reasonably object to such determination
within one business day after receipt of such notice.
(c) If at any time when a prospectus relating to the Certificates is
required to be delivered under the Act any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company promptly will prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance; provided, however,
that the Company will not be required to file any such amendment or supplement
with respect to any Computational Materials, Structural Term Sheets or
Collateral Term Sheets incorporated by reference in the Prospectus other than
any amendments or supplements of such Computational Materials or Structural Term
Sheets that are furnished to the Company by the Underwriters pursuant to Section
8(e) hereof or any amendments or supplements of such Collateral Term Sheets that
are furnished to the Company by the Underwriters pursuant to Section 9(d) hereof
which are required to be filed in accordance therewith.
(d) With respect to each Series of Certificates, the Company will make
generally available to the holders of the Certificates and will deliver to you,
in each case as soon as practicable,
7
an earnings statement covering the twelve-month period beginning after the date
of the Terms Agreement in respect of such series of Certificates, which will
satisfy the provisions of Section 11(a) of the Act with respect to the
Certificates.
(e) The Company will furnish to you a copy of the Registration
Statement as originally filed (together with all documents and exhibits thereto
or incorporated by reference therein), each related preliminary prospectus, the
Prospectus, and all amendments and supplements to such documents, in each case
as soon as available and in such quantities as you reasonably request.
(f) The Company will endeavor to arrange for the qualification of the
Certificates for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as you reasonably designate and will
continue such qualifications in effect so long as reasonably required for the
initial distribution of Certificates; provided, however, that the Company shall
not be required to qualify to do business in any jurisdiction where it is not
qualified on the date of the related Terms Agreement or to take any action which
would subject it to general or unlimited service of process in any jurisdiction
in which it is not, on the date of the related Terms Agreement, subject to such
service of process.
(g) The Company will pay or cause to be paid all expenses incidental to
the performance of its obligations under this Agreement and any Terms Agreement
and any expenses (including fees and disbursements of O'Melveny & Xxxxx LLP and
accountants) incurred by them in connection with the printing of memoranda
relating thereto, for any fees charged by the nationally recognized statistical
rating agencies for the rating of the Certificates, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Certificates,
if applicable, and for expenses incurred in distributing preliminary
prospectuses to the Underwriters.
(h) During the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Company will file or cause to be filed, on a timely and complete
basis, all documents that are required to be filed by the Company with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(i) The Company will file with the Commission within 15 days of the
issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Loan Pool to the extent that
such information is not set forth in the Prospectus.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters named in any Terms Agreement to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Company as of the date hereof, the date of the
applicable Terms Agreement and the applicable Closing Date, to the accuracy of
the statements made in any officers' certificates (each an "Officer's
Certificate") pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
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(a) (i) At the time the applicable Terms Agreement is executed, Ernst &
Young LLP and/or any other firm of certified independent public accountants
acceptable to you shall have furnished to you a letter, addressed to you, and in
form and substance satisfactory to you in all respects, stating in effect that
using the assumptions and methodology used by the Company, all of which shall be
described in such letter or the Prospectus Supplement, they have recalculated
such numbers, percentages and weighted average lives set forth in the prospectus
as you may reasonably request, compared the results of their calculations to the
corresponding items in the Prospectus, and found each such number, percentage,
and weighted average life set forth in the Prospectus to be in agreement with
the results of such calculations. To the extent historical financial delinquency
or related information is included with respect to one or more master servicers,
such letter or letters shall also relate to such information.
(ii) At the Closing Date, Ernst & Young LLP and/or any other firm
of certified independent public accountants acceptable to you shall have
furnished to you a letter, addressed to you, and in form and substance
satisfactory to you in all respects, relating to the extent such information is
not covered in the letter or letters provided pursuant to clause (a)(i), to a
portion of the information set forth on the Loan Schedule attached to the
Pooling and Servicing Agreement and the characteristics of the Loans, as
presented in the Prospectus Supplement or the Form 8-K relating thereto, or if a
letter relating to the same information is provided to the Trustee, indicating
that you are entitled to rely upon its letter to the Trustee.
(b) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have been any
change, or any development involving a prospective change, in or affecting the
business or properties of the Company or any of its affiliates the effect of
which, in any case, is, in your judgment, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering or the delivery of the
Certificates as contemplated by the Registration Statement and the Prospectus.
All actions required to be taken and all filings required to be made by the
Company under the Act and the Exchange Act prior to the sale of the Certificates
shall have been duly taken or made; and prior to the applicable Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted, or
to the knowledge of the Company or you, shall be contemplated by the Commission
or by any authority administering any state securities or Blue Sky law.
(c) Unless otherwise specified in any applicable Terms Agreement for a
Series, the Certificates shall have received the rating or ratings from the
rating agencies specified in said Terms Agreement.
(d) You shall have received the opinion of counsel for the Company,
dated the applicable Closing Date, to the effect that:
(i) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
corporate power and
9
authority to own its assets and conduct its business as described in the
Prospectus, and the Company is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of the State of New
York. The Company has no subsidiaries.
(ii) Each of this Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company and assuming
due and valid authorization and execution by the other parties thereto,
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance with its terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally and court decisions with respect thereto
and to the application of equitable principles in any proceeding, whether at law
or in equity. Such counsel's opinion may be qualified, in the case of the
indemnity provisions in this Agreement, to applicable law or judicial policy.
(iii) The Pooling and Servicing Agreement has been duly and
validly authorized, executed and delivered by the Company and assuming due and
valid authorization and execution by the other parties thereto, constitutes the
valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto and to the application of
equitable principles in any proceeding, whether at law or in equity.
(iv) The Certificates are in a form authorized by the Pooling and
Servicing Agreement, have been duly and validly authorized by all necessary
corporate action and, when executed and authenticated as specified in the
Pooling and Servicing Agreement and delivered against payment pursuant to this
Agreement and the related Terms Agreement, will be validly issued and
outstanding; and the Certificates will be entitled to the benefits of the
Pooling and Servicing Agreement.
(v) The Registration Statement has become effective under the Act,
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
Act, and the Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the Act and the Rules
and Regulations thereunder; such counsel has no reason to believe that either
the Registration Statement as of its effective date contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or the Prospectus as of the date of any Terms Agreement contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion as to
the financial statements or other
10
financial data or notes thereto or any statistical or tabular data contained or
incorporated by reference in the Registration Statement or the Prospectus).
(vi) The statements in the Prospectus and Prospectus Supplement
under the heading "Certain Federal Income Tax Consequences," and "ERISA" to the
extent that they constitute matters of law or legal conclusions, have been
prepared or reviewed by such counsel and provide a fair summary of such law or
conclusions; the statements in the Prospectus to the extent modified by the
statements in the Prospectus Supplement under the headings "Summary of
Prospectus Supplement," "Description of the Certificates" and "Servicing of the
Loan" and such other headings as you may request, insofar as such statements
constitute a summary of the proposed transaction and of the provisions of the
Certificates or the Pooling and Servicing Agreement, constitute a fair and
accurate summary of such transaction and provisions.
(vii) Neither the Company nor the Trust Fund is, or as a result of
the offer and sale of the Certificates as contemplated in the Prospectus and in
this Agreement will become, an "investment company" as defined in the Investment
Company Act, or an "affiliated person" of any such "investment company" that is
registered or is required to be registered under the Investment Company Act (or
an "affiliated person" of any such "affiliated person"), as such terms are
defined in the Investment Company Act.
(viii) None of the Series 1999-CLF Certificates will be mortgage
related securities, as defined in Section 3(a)(41) of the Exchange Act. The
Prospectus Supplement related to other Certificates will specify if such
Certificates are mortgage related securities as defined in Section 3(a)(41) of
the Exchange Act.
(ix) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(x) To such counsel's knowledge, there is no action, suit,
proceeding or investigation pending or threatened in writing against the Company
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the ability of the Company to
perform its obligations under the Underwriting Agreement or the Pooling and
Servicing Agreement.
(xi) To such counsel's knowledge, there is no franchise, contract
or other document required to be filed as an exhibit to the Registration
Statement which has not been filed as required.
(xii) No consent, permit, approval or order of any New York or
federal court or governmental agency that such counsel has, in the exercise of
customary professional due diligence, recognized as applicable to the Company or
to transactions of the type contemplated by the Pooling and Servicing Agreement,
the Mortgage Loan Purchase and Sale Agreement and the Underwriting Agreement
(collectively, the "Agreements") is required on the part of the Company
11
for the execution and delivery of the Agreements, and performance of the
obligations thereunder on the date of the opinion, except such as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Certificates and any recordation of the
assignments of the Mortgage Loans to the Company and the Trustee pursuant to the
Mortgage Loan Purchase and Sale Agreement and the Pooling and Servicing
Agreement, respectively, that have not yet been completed, and such other
approvals as have been obtained.
Each opinion also shall relate to such other matters as may be
specified in the related Terms Agreement or as to which you reasonably may
request. In rendering any such opinion, counsel for the Company may rely on
certificates of responsible officers of the Company, the Trustee, and public
officials or, as to matters of law other than New York or Federal law, on
opinions of other counsel (copies of which opinions shall be delivered to you),
provided that, in cases of opinions of other counsel, counsel for the Company
shall include in its opinion a statement of its belief that both it and you are
justified in relying on such opinions.
(e) You shall have received from counsel for the Company a letter,
dated as of the Closing Date, stating that you may rely on the opinions
delivered by such firm under the Pooling and Servicing Agreement and to the
rating agency or agencies rating the Certificates as if such opinions were
addressed directly to you (copies of which opinions shall be delivered to you).
(f) You shall have received from counsel for the Underwriters, if such
counsel is different from counsel to the Company, such opinion or opinions,
dated as of the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may require, and the
Company shall have furnished to such counsel such documents as they may have
requested from it for the purpose of enabling them to pass upon such matters,
and you shall have received a copy of the MBIA Policy and an opinion of counsel
to MBIA regarding the MBIA Policy.
(g) You shall have received Officer's Certificates signed by such of
the principal executive, financial and accounting officers of the Company as you
may request, dated as of the Closing Date, in which such officers, to the best
of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct; that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date; that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated; that, subsequent to the respective dates as of
which information is given in the Prospectus, and except as set forth or
contemplated in the Prospectus, there has not been any material adverse change
in the general affairs, business, key personnel, capitalization, financial
condition or results of operations of the Company; that except as otherwise
stated in the Prospectus, there are no material actions, suits or proceedings
pending before any court or governmental agency, authority or body or, to their
knowledge, threatened, affecting the Company or the transactions contemplated by
this Agreement; and that attached thereto are true and correct copies of a
letter or letters from the one or more nationally recognized statistical rating
agencies
12
specified in the applicable Terms Agreement confirming that, unless otherwise
specified in said Terms Agreement, the Certificates have received the rating or
ratings from each of such agencies specified in the Terms Agreement and that
such rating has not been lowered since the date of such letter.
The Company will furnish you with such conformed copies of such
opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to a particular Offering
when and as provided in this Agreement and the related Terms Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement and the related Terms Agreement shall not be in all material respects
reasonably satisfactory in form and substance to you, this Agreement (with
respect to the related Offering) and the related Terms Agreement and all
obligations of the Underwriters hereunder (with respect to the related Offering)
and thereunder may be canceled at, or at any time prior to, the related Closing
Date by the Underwriter. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act against any and all
losses, claims, damages, liabilities and expenses whatsoever (including but not
limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the applicable Registration Statement, as originally
filed or as amended, in any related preliminary prospectus or the Prospectus, or
any amendment thereof or supplement thereto, or in the Prospectus Supplement,
or, insofar as they are required to be filed as part of the Registration
Statement pursuant to the No-Action Letters, any Computational Materials or ABS
Term Sheets, the Approved Electronic Roadshow or any Approved Additional
Materials or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that (i) the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein (A) in
reliance upon and in conformity with written information furnished to the
Company as herein stated by or on behalf of the Underwriters specifically for
use in connection with the preparation thereof, (B) regarding the Loans
purchased by the Company pursuant to the Mortgage Loan Purchase and Sale
Agreement or information provided by CLF and/or Bedford and/or PSCC or MBIA, as
applicable, for inclusion therein, or (C)
13
in any Current Report or any amendment or supplement thereof, or (x) any
Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) included in such Current Report (or amendment or supplement thereof) or
(y) any written or electronic materials furnished to prospective investors on
which the Computational Materials (or amendments or supplements) were based, and
(ii) such indemnity with respect to any Corrected Statement (as defined below)
in such Prospectus (or Prospectus Supplement thereto) shall not inure to the
benefit of the Underwriters (or any person controlling any Underwriter) from
whom the person asserting any loss, claim, damage or liability purchased the
Certificates of the related Series that are the subject thereof if such person
did not receive a copy of a Prospectus Supplement to such Prospectus at or prior
to the confirmation of the sale of such Certificates and the untrue statement or
omission of a material act contained in such Prospectus (or Prospectus
Supplement thereto) was corrected (a "Corrected Statement") in such other
supplement and such supplement was furnished by the Company to the Underwriters
prior to the delivery of such confirmation.
(b) The Underwriters severally, and not jointly, agree to indemnify and
hold harmless the Company and each of the Mortgage Loan Sellers, each of the
directors and officers of the Company and the Mortgage Loan Sellers, and each
other person, if any, who controls the Company or a Mortgage Loan Seller within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any losses, claims, damages, liabilities and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses for
actions in respect thereof arise out of or are based upon (A) any untrue
statement or alleged untrue statement of a material fact contained in the
applicable Registration Statement, as originally filed or any amendment thereof,
or any related preliminary prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, claim, damage, liability or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company, by or on
behalf of such Underwriter expressly for use therein; or (B) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof), other than
the ABS Term Sheet filed with the final Prospectus, furnished to the Company by
such Underwriter pursuant to Section 8 and incorporated by reference in such
Registration Statement or the related Prospectus, Prospectus Supplement or any
amendment or supplement thereof (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in respect
thereof resulting from information furnished by or on behalf of MBIA, the
Company or the Mortgage Loan Sellers, other than as expressly provided herein).
The Company acknowledges that, unless otherwise set forth in the applicable
Terms Agreement, the statements set forth in the last paragraph of the cover
page and in paragraphs one and seven, and in the first two sentences of the
fifth paragraph under the caption "Method of Distribution" included in the
Prospectus Supplement
14
relating to a Series of Certificates constitute the only information furnished
in writing by or on behalf of any Underwriter expressly for use in the
applicable Registration Statement or the Prospectus or in any amendment thereof
or supplement thereto, as the case may be (other than any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof furnished to
the Company by such Underwriter), and each Underwriter confirms, on its behalf,
that such statements are correct. The Mortgage Loan Sellers, their directors,
officers and persons who control the Mortgage Loan Sellers, are intended third
party beneficiaries of this indemnification and such parties may enforce their
indemnification rights hereunder to the same extent as if they were parties
hereto.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify each party against whom indemnification is to be
sought in writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 7 except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in Section 7 hereof is for any reason held to be
unavailable, on grounds of public policy or otherwise, from the Company or the
Underwriters or is insufficient to hold harmless a party indemnified thereunder,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting in the case of
losses, claims, damages, liabilities and expenses suffered
15
by the Company any contribution received by the Company from persons, other than
the Underwriters, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the applicable
Registration Statement and directors of the Company) to which the Company and
the Underwriters may be subject in such proportions as is appropriate to reflect
the relative benefits received by the Company on one hand and the Underwriters
on the other from the Offering of the Certificates as to which such loss,
liability, claim, damage or expense is claimed to arise or, if such allocation
is not permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 7(c) hereof, in such proportion as is appropriate to reflect not only
the relative benefits referred to above but also the relative fault of the
Company on one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on one hand and the
Underwriters on the other shall be deemed to be in the same proportion as (x)
the total proceeds from the Offering received by the Company bear to (y) the
profit the Underwriters receive on resale of the Certificates, after taking into
account gains and losses from related hedging costs. The relative fault of the
Company on one hand and the Underwriters on the other shall be determined by
reference to, among other things, (A) 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 Company on one hand or the
Underwriters on the other and (B) the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7(d), (x) in no case shall the Underwriters be liable
or responsible for any amount in excess of the underwriting discount, if any,
set forth in the Terms Agreement relating to the Certificates as to which such
losses, claims, damages, liabilities or expenses are claimed to arise, and (y)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7(d),
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the applicable
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to this Section
7(d). Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this Section 7(d), notify such party or parties from whom contribution may
be sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7(d) or otherwise. No party shall be liable
for contribution with respect to any
16
action or claim settled without its consent; provided, however, that such
consent was not unreasonably withheld.
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 Company, any
Underwriter, any of their respective directors or officers, or any person
controlling the Company or such Underwriter, and (iii) acceptance of and payment
for any of the Certificates.
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.
Each Underwriter will indemnify and hold harmless any 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 Materials or ABS Term Sheets
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 and the indemnities provided herein will be
in addition to any liability that any Underwriter may otherwise have.
8. Computational Materials and Structural Term Sheets. (a) Not later
than 10:30 a.m., New York time, on the business day before the date on which the
Current Report relating to the Certificates of a Series is required to be filed
by the Company with the Commission pursuant to Section 5(b) hereof, you and any
other applicable Underwriter shall deliver to the Company, and unless otherwise
agreed to by the Company, in a form reasonably convertible to an XXXXX filing
format, a copy of all materials provided by the Underwriters to prospective
investors in such Certificates which constitute (i) "Computational Materials,"
within the meaning of the no-action letter dated May 20, 1994, issued by the
Division of Corporation Finance of the Commission to Xxxxxx, Peabody Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset
Corporation and the no-action Letter dated May 27, 1994, issued by the Division
of Corporation Finance of the Commission to the public Securities Association
(together, the "Xxxxxx Letters") and the filing of such material is a condition
of the relief granted in such letter (such materials being the "Computational
Materials"), and (ii) "Structural Term Sheets" within the meaning of the
no-action letter dated February 17, 1995, issued by the Division of Corporation
17
Finance of the Commission to the Public Securities Association (the "PSA
Letter") and the filing of such material is a condition of the relief granted in
such letter (such materials being the "Structural Term Sheets"). Each delivery
of Computational Materials and Structural Term Sheets to the Company by you and
any other applicable Underwriter pursuant to this paragraph (a) shall be
effected by delivering a copy of such materials to counsel for the Company on
behalf of the Company at the address specified by the Company and one copy of
such materials to the Company.
(b) You and each other Underwriter, by virtue of its having executed
and delivered the related Terms Agreement, which shall incorporate this Section
8(b) by reference, represents and warrants to and agrees with the Company, as of
the date of the related Terms Agreement and as of the Closing Date, that:
(i) the Computational Materials furnished to the Company pursuant
to Section 8(a) constitute (either in original, aggregated or consolidated form)
all of the materials finished to prospective investors by such Underwriter prior
to the time of delivery thereof to the Company that are required to be filed
with the Commission with respect to the Offering of the Certificates in
accordance with the Xxxxxx Letters, and such Computational Materials comply with
the requirements of the Xxxxxx Letters;
(ii) the Structural Term Sheets furnished to the Company pursuant
to Section 8(a) constitute all of the materials furnished to prospective
investors by such Underwriter prior to the time of delivery thereof to the
Company that are required to be filed with the Commission as "Structural Term
Sheets" with respect to the related Offering of the Certificates in accordance
with the PSA Letter, and such Structural Term Sheets comply with the
requirements of the PSA Letter;
(iii) on the date any such Computational Materials or Structural
Term Sheets with respect to the Offering of the Certificates (or any written or
electronic materials furnished to prospective investors on which the
Computational Materials are based) were last furnished to each prospective
investor and on the date of delivery thereof to the Company pursuant to Section
8(a) and on the related Closing Date, such Computational Materials (or such
other materials) or Structural Term Sheets did not and will not include any
untrue statement of a material fact or, when read in conjunction with the
related Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and
(iv) all Computational Materials (or underlying materials
distributed to prospective investors on which the Computational Materials were
based) or Structural Term Sheets furnished to prospective investors contained
and will contain a legend, prominently displayed on the first page thereof, to
the effect that the Company has not prepared, reviewed or participated in the
preparation of such materials and is not responsible for the accuracy thereof.
18
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Computational Materials or
Structural Term Sheets (or any written or electronic materials on which the
Computational Materials are based) included or will include any untrue statement
resulting directly from information regarding the characteristics of the Loans
(except any information correcting such untrue information, with respect to
materials prepared after the receipt by the Underwriters from the Company of
notice of such corrected information or materials superseding or correcting such
information).
(c) Each Underwriter delivering Computational Materials shall cause a
firm of public accountants to furnish to the Company a letter, dated as of the
date on which such Underwriter delivers any Computational Materials (which term
shall be deemed to include, for purposes of this paragraph (c), calculated
statistical information delivered to prospective investors in the form of a
Structural Term Sheet) to the Company pursuant to Section 8(a), in form and
substance satisfactory to the Company, stating in effect that they have verified
the mathematical accuracy of any calculations performed by such Underwriter and
set forth in such Computational Materials.
(d) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or Structural Term Sheets to any particular prospective
investor, and agrees that any Computational Materials or Structural Term Sheets
with respect to any Series of Certificates furnished to prospective investors
shall include a disclaimer in the form described in paragraph (b)(iv) above. The
Underwriters agree that they will not represent to prospective investors that
any Computational Materials or Structural Term Sheets were prepared or
disseminated on behalf of the Company.
(e) If, at any time when a prospectus relating to the Certificates of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related Prospectus or Prospectus Supplement as a result of an
untrue statement of a material fact contained in any Computational Materials or
Structural Term Sheets provided by an Underwriter pursuant to this Section 8 or
the omission to state therein a material fact required, when considered in
conjunction with the related Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
rules thereunder, such Underwriter promptly will prepare and furnish to the
Company for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance, such Underwriter will deliver an Officer's Certificate to the
Company representing and warranting to the Company that, as of the date of
delivery of such amendment or supplement to the Company, such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the related Prospectus and Prospectus Supplement, omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that such Underwriter will
make no
19
representation or warranty as to whether any such amendment or supplement will
include any untrue statement resulting directly from any Loan Pool Error (except
any Corrected Loan Pool Error, with respect to any such amendment or supplement
prepared after the receipt by such Underwriter from the Company of notice of
such Corrected Loan Pool Error or materials superseding or correcting such
Corrected Loan Pool Error). The Company shall have no obligation to file such
amendment or supplement if (i) the Company determines that such amendment or
supplement contains any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by such Underwriter
to the Company pursuant to this paragraph (e) or (ii) the Company reasonably
determines that such filing is not required under the Act and such Underwriter
does not object as provided below. The Company shall give notice to such
Underwriter of its determination not to file an amendment or supplement pursuant
to clause (ii) of the preceding sentence and agrees to file such amendment or
supplement if such Underwriter reasonably objects to such determination within
one business day after receipt of such notice.
9. Collateral Term Sheets. (a) Prior to the delivery of any "Collateral
Term Sheet" within the meaning of the PSA Letter, the filing of which material
is a condition of the relief granted in such letter (such material being the
"Collateral Term Sheets"), to a prospective investor in the Certificates, the
applicable Underwriter shall notify the Company and its counsel by telephone of
its intention to deliver such materials and the approximate date on which the
first such delivery of such materials is expected to occur. Not later than 10:30
a.m., New York time, on the business day immediately following the date on which
any Collateral Term Sheet was first delivered to a prospective investor in the
Certificates of an offered series, such applicable Underwriter shall deliver to
the Company, and unless otherwise agreed to by the Company, in a form reasonably
convertible to an XXXXX format, a complete copy of all materials provided by
such Underwriter to prospective investors in such Certificates which constitute
"Collateral Term Sheets." Each delivery of a Collateral Term Sheet to the
Company pursuant to this paragraph (a) shall be effected by delivering a copy of
such materials to counsel for the Company on behalf of the Company at the
address specified by the Company and one copy of such materials to the Company.
(Collateral Term Sheets and Structural Term Sheets are, together, referred to
herein as "ABS Term Sheets.") At the time of each such delivery, such
Underwriter shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets, and, if there has been any prior such
delivery with respect to the related Series, shall indicate whether such
materials differ in any material respect from any Collateral Term Sheets
previously delivered to the Company with respect to such Series pursuant to this
Section 9(a) as a result of the occurrence of a material change in the
characteristics of the related Loans.
(b) You and each other Underwriter, by virtue of its having executed
and delivered the related Terms Agreement, which shall incorporate this Section
9(b) by reference, represents and warrants to and agrees with the Company as of
the date of the related Terms Agreement and as of the Closing Date, that:
20
(i) The Collateral Term Sheets furnished to the Company pursuant
to Section 9(a) constitute all of the materials furnished to prospective
investors by such Underwriter prior to time of delivery thereof to the Company
that are required to be filed with the Commission as "Collateral Term Sheets"
with respect to the related Offering of the Certificates in accordance with the
PSA Letter, and such Collateral Term Sheets comply with the requirements of the
PSA Letter;
(ii) On the date any such Collateral Term Sheets with respect to
the Offering of the Certificates were last furnished to each prospective
investor and on the date of delivery thereof to the Company pursuant to Section
9(a) and on the related Closing Date, such Collateral Term Sheets did not and
will not include any untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and
(iii) such Underwriter has not represented to any prospective
investor that any Collateral Term Sheets with respect to any Series were
prepared or disseminated on behalf of the Company, and, except as otherwise
disclosed by such Underwriter to the Company in writing prior to the date
hereof, all Collateral Term Sheets previously furnished to prospective investors
included a disclaimer to the effect set forth in Section 8(b)(iv).
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Collateral Term Sheet included or
will include any untrue statement or material omission resulting directly from
any Loan Pool Error (except any Corrected Loan Pool Error, with respect to
materials prepared after the receipt by such Underwriter from the Company of
notice of such Corrected Loan Pool Error or materials superseding or correcting
such Corrected Loan Pool Error).
(c) Each Underwriter delivering Collateral Term Sheets acknowledges and
agrees that any Collateral Term Sheets with respect to any Series of
Certificates furnished to prospective inventors from and after the date hereof
shall include a disclaimer to the effect set forth in Section 8(d) hereof, and
to the effect that the information contained in such materials supersedes the
information contained in any prior Collateral Term Sheet with respect to such
series of Certificates being offered and will be superseded by the description
of the related Loans in the related Prospectus Supplement. The Underwriters
agree that they will not represent to any prospective investors that any
Collateral Term Sheets were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Certificates of a
Series is required to be delivered under the Act, it shall be necessary to amend
or supplement the related prospectus as a result of an untrue statement of a
material fact contained in any Collateral Term Sheets provided by an Underwriter
pursuant to this Section 9 or the omission to state therein a material fact
required, when considered in conjunction with the related Prospectus and
Prospectus Supplement, to be stated therein or necessary to make the statements
therein, when read in conjunction with the related Prospectus and Prospectus
Supplement, not misleading, or if it shall be necessary to amend or supplement
any Current Report relating to any Collateral Term Sheets to
21
comply with the Act or the rules thereunder, such Underwriter promptly will
prepare and furnish to the Company for filing with the Commission an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Such Underwriter will deliver an Officer's
Certificate to the Company representing and warranting to the Company that, as
of the date of delivery of such amendment or supplement to the Company, such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the related Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, such
Underwriter will make no representation or warranty as to whether any such
amendment or supplement will include any untrue statement resulting directly
from any Loan Pool Error (except, any Corrected Loan Pool Error, with respect to
any such amendment or supplement prepared after the receipt by such Underwriter
from the Company of notice of such Corrected Loan Pool Error or materials
superseding or correcting such Corrected Loan Pool Error). The Company shall
have no obligation to file such amendment or supplement if the Company
determines that (i) such amendment or supplement contains any untrue statement
of a material fact or, when read in conjunction with the related Prospectus and
Prospectus Supplement, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by such Underwriter to the Company pursuant to this
paragraph (d) or (ii) such filing is not required under the Act. The Company
shall give notice to such Underwriter of its determination not to file an
amendment or supplement pursuant to clause (ii) of the preceding sentence and
agrees to file such amendment or supplement if such Underwriter reasonably
objects to such determination within one business day after receipt of such
notice.
10. Default of Underwriters. If any Underwriter or Underwriters
participating in an Offering of Certificates default in their obligations to
purchase Certificates hereunder and under the Terms Agreement and the aggregate
purchase price of Certificates which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the aggregate purchase
price of the Certificates then being purchased, you may make arrangements
satisfactory to the Company for the purchase of such Certificates by other
persons, including any of the Underwriters, but if no such arrangements are made
by the Closing Date the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective total commitments as set forth in
the applicable Terms Agreement (for all classes of Certificates), to purchase
the Certificates which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate purchase price of Certificates with respect to which such default or
defaults occur is more than 10% of the aggregate purchase price of Certificates
then being purchased, and arrangements satisfactory to you and the Company for
the purchase of such Certificates by other persons are not made within 36 hours
after such default, the Terms Agreement as to which such offering relates will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 11. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve defaulting Underwriter from liability for
its default.
22
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the result thereof, made by or on behalf
of any Underwriter or the Company or any of its officers or directors or any
controlling person, and will survive delivery of and payment for the
Certificates and any termination of this Agreement or any Terms Agreement,
including any termination pursuant to Section 10.
12. Termination.
(a) Any Underwriter may terminate its obligations under this Agreement,
by notice to the Company, 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 Company to comply with the terms or to
fulfill any of the conditions of this Agreement or if for any reason the Company
shall be unable to perform its obligations under this Agreement, other than by
reason of a failure by such Underwriter to purchase Certificates as required
hereunder.
(b) You shall have the right to terminate any Terms Agreement at any
time prior to the applicable Closing Date if any domestic or international event
or act or occurrence has materially disrupted, or in your opinion will in the
immediate future materially disrupt, securities markets; or if trading on the
New York or American Stock Exchanges shall have been suspended, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required on the New York or American Stock
Exchanges by the New York or American Stock Exchanges or by order of the
Commission or any other governmental authority having jurisdiction; or if the
United States shall have become involved in a war or major hostilities; or if a
banking moratorium has been declared by a state or Federal authority, or if a
banking moratorium in foreign exchange trading by major international banks or
persons has been declared; or if any new restriction materially and adversely
affecting the distribution of the series of Certificates as to which such Terms
Agreement relates shall have become effective; or legislation shall be
introduced in, or enacted by the Congress of, the United States or adopted by
either House thereof or introduced in, or enacted by, a state legislature, or a
decision by a federal or state court shall be rendered, or a ruling, regulation
(proposed, temporary or final) or official statement by or on behalf of the
Treasury Department of the United States, the Internal Revenue Service or other
governmental agency or state political subdivision is made which would have the
effect of changing directly or indirectly the tax consequences of the
Certificates in the hands of the holders thereof, or which would materially or
adversely affect the market price of the Certificates; or there shall exist or
you shall learn that there has existed any event which, in the Underwriters'
reasonable judgment, constitutes a material change which requires or has
required a supplement to or an amendment of the Prospectus or Prospectus
Supplement; or the rating assigned by the Rating Agencies to any of the
Certificates shall have been reduced or withdrawn; or if there shall have been
such change in the market for securities in general or in political, financial
or economic conditions as in your judgment would be so materially adverse as to
make it inadvisable to proceed with the Offering, sale and delivery of the
series of Certificates as to which such Terms Agreement relates on the terms
23
contemplated in such Terms Agreement. Any notice or termination pursuant to this
Section 12 shall be by telephone, telex, or telegraph, confirmed in writing by
letter.
(c) If any Underwriter terminates its obligations under this Agreement
in accordance with Section 12(a), the Company 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.
13. Notices. All communications hereunder will be in writing, and, if
sent to the Underwriters, in the case of Bear Xxxxxxx & Co. Inc. will be mailed,
delivered or telegraphed and confirmed to you at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: General Counsel or if to Banc of America Securities, Bank
of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Xxx Xxxxxx, or if to Prudential Securities Incorporated, Xxx
Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxx Xxxxxx, or if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed to such Underwriter at the address furnished
by it.
14. Successors. This Agreement and the Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and thereto, and their
respective successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder or thereunder.
15. Representation of Underwriters. You will act for the several
Underwriters in connection with each Offering of Certificates governed by this
Agreement, and any action under this Agreement and any Terms Agreement taken by
you will be binding upon all the Underwriters identified in such Terms
Agreement.
16. Construction. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
17. Counterparts. 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.
[Signatures to Follow on Next Page]
24
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By:
---------------------------------
Name:
Title:
The foregoing Underwriting Agreement
hereby is confirmed and accepted
as of the date first above written.
BEAR, XXXXXXX & CO. INC.
By:
----------------------------------
Name:
Title:
25
EXHIBIT A
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Corporate Lease-Backed Certificates, Series 1999-CLF
FORM OF TERMS AGREEMENT
Dated: ____, 199_
To: BEAR XXXXXXX [AND ____________]
Re: Underwriting Agreement dated ___________, 199_
Underwriters:
-------------
Pooling and Servicing Agreement:
-------------------------------
Mortgage Loan Purchase and Sale Agreement:
-----------------------------------------
Series Designation: Series 19 __-__
-------------------
Class Designation of the Certificates:
-------------------------------------
Terms of the Certificates to be purchased by the Underwriters:
-------------------------------------------------------------
Original Pass-
Principal Through
Class Amount Rate
----- --------- -------
Defined Terms:
-------------
Form of Certificates being purchased by the Underwriters:
--------------------------------------------------------
Distribution Dates: The __th day of each month or, if such __th day is not a
business day, the next succeeding business day commencing
______________________.
Certificate Rating for the Certificates being purchased by the Underwriters:
---------------------------------------------------------------------------
Loan Assets: The initial amounts to be included in any Reserve Account and other
accounts are as set forth, and the Loans to be included in the Trust Fund are as
described, in Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriter for each
Class of Certificates covered by this Agreement will be as set forth below,
[which amount includes/plus accrued interest, if any), from the Cut-off Date to,
but excluding, the Closing Date, at the applicable pass-through rate:
Purchase Price as Percentage
of Original Certificate Balance
Class: Purchase Price or Notional Amount
------ -------------- -------------------------------
Class [ ] [ ] [ ]%
Class [ ] [ ] [ ]%
Class [ ] [ ] [ ]%
Class [ ] [ ] [ ]%
Credit Enhancement:
------------------
[describe]
Closing Date: [ ], 1999, [time ], N.Y. Time
------------
[Signatures follow on next page]
2
The undersigned, agrees, subject to the terms and provisions of the
above-referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the respective principal amounts of
the Classes of the above referenced Series of Certificates set forth on Schedule
I attached hereto.
BEAR, XXXXXXX & CO. INC.
By:
-----------------------------
Name:
Title:
[UNDERWRITER]
By:
-----------------------------
Name:
Title:
[UNDERWRITER]
By:
-----------------------------
Name:
Title:
Accepted:
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
By:
-----------------------------
Name:
Title:
3
Schedule I (for multiple Underwriters)
Underwriters
Name Class [ ] Class [ ] Class [ ] Class [ ] Class [ ] Class [ ] Class [ ] Class [ ] Class [ ] Class [ ]
---- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Bear, Stearns [__]% [__]% [__]% 100% [__]% [__]% [__]% [__]% [__]% [__]%
& Co. Inc. [--]% [--]% [--]% [--]% [--]% [--]% [--]% [--]% [--]% [--]%
[--]% [--]% [--]% [--]% [--]% [--]% [--]% [--]% [--]% [--]%
----- ----- ----- ----- ----- ----- ----- ----- ----- -----
Total: 100% 100% 100% 100% 100% 100% 100% 100% 100% 100%
4
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Corporate Lease-Backed Certificates
TERMS AGREEMENT
Dated: August 10, 1999
To: BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
Re: Underwriting Agreement dated August 10, 1999
Underwriters:
-------------
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Pooling and Servicing Agreement: Dated as of August 15, 1999, among the Bear
Xxxxxxx Commercial Mortgage Securities, Inc., as depositor, Midland Loan
Services, Inc. as servicer (the "Master Servicer"), and as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee"), ABN AMRO Bank N.V., as fiscal agent.
Mortgage Loan Purchase Agreement: Dated as of August 10, 1999, among Bear
Xxxxxxx
Commercial Mortgage Securities, Inc., Capital Lease Funding, L.P. ("CLF"),
Prudential Securities Credit Corp. ("PSCC") and Bedford Capital Funding Corp.
("Bedford").
Series Designation: Series 1999-CLF-1
Class Designation of the Certificates: Class A-1, Class A-2, Class A-3 and Class
A-4
Terms of the Certificates to be Purchased by the Underwriters:
Class Original Certificate Balance (1) Initial Pass-Through Rate(2)
----- -------------------------------- ----------------------------
A-1 $29,132,000 6.7300%
A-2 $25,481,000 7.0000%
A-3 $110,676,000 7.0000%
A-4 $154,811,000 7.0000%
(1) Subject to a variance of plus or minus 5%.
(2) The pass-through rate shall be the indicated fixed rate per annum; provided
that such pass-through rate will not exceed the weighted average of the Net
Mortgage Rates of the Loans (such Net Mortgages Rates determined without
taking into account and reductions thereto resulting from modifications of
the Loans or otherwise following the Cut-Off Date), net of the Master
Servicer Fee Rate, the Trustee Fee Rate and rate used to calculate the
Insurance Premium.
Defined Terms: Terms not otherwise defined herein shall have the meanings given
to such terms in the Pooling and Servicing Agreement.
Form of Certificates being purchased by the Underwriters: Book Entry.
Distribution Dates: The 20th day of each month, or the next succeeding Business
Day if the 20th day of such month is not a Business Day, but not less than four
Business Days after the Determination Date.
Certificate Rating for the Certificates Being Purchased by the Underwriters: For
all Classes, "AAA" from Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., and "Aaa" from Xxxxx'x Investors Service, Inc.
Loan Assets: The Loans to be included in the Trust Fund are as described in
Annex A hereto.
Purchase Price: The aggregate purchase price payable by the Underwriters for
each Class of Certificates covered by this Agreement will be as set forth below,
which amount includes accrued interest, if any, from the Cut-off Date to, but
excluding, the Closing Date, at the applicable pass-through rate:
2
Purchase Price as Percentage of
Class Purchase Price Original Certificate Balance
----- -------------- --------------------------------
A-1 $29,122,850 99.96859%
A-2 $25,266,860 99.15961%
A-3 $105,940,938 95.72169%
A-4 $141,978,360 91.71077%
Credit Enhancement: MBIA Insurance Corporation financial guaranty insurance
policy issued to Trust for the benefit of the Class A Certificates.
Closing Date: August 31, 1999, 10:00 a.m., New York time at the offices of
Cadwalader, Xxxxxxxxxx & Xxxx, New York, New York.
[Signatures Follow on Next Page]
3
The undersigned, as the Underwriters, agree, subject to the terms and
provisions of the above-referenced Underwriting Agreement, which is incorporated
herein in its entirety and made a part hereof, to purchase the respective
principal amounts of the Classes of the above-referenced Series of Certificates
as set forth on Schedule I attached hereto.
BEAR, XXXXXXX & CO. INC.
By:
-----------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
-----------------------------
Name:
Title:
PRUDENTIAL SECURITIES INCORPORATED
By:
-----------------------------
Name:
Title:
Accepted:
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
By:
-----------------------------
Name:
Title:
4
Annex A
Loan Schedule
SEE EXHIBIT B OF THE POOLING AND SERVICING AGREEMENT
Schedule I
Underwriters
Underwriter Class A-1 Class A-2 Class A-3 Class A-4
----------- --------- --------- --------- ---------
Bear, Xxxxxxx & Co. Inc. $9,710,667 $8,493,667 $36,892,000 $51,603,667
Banc of America
Securities LLC $9,710,666 $8,493,666 $36,892,000 $51,603,666
Prudential Securities
Incorporated $9,710,666 $8,493,666 $36,892,000 $51,603,666
---------- ---------- ------------ ------------
Total $29,132,000 $25,481,000 $110,676,000 $154,811,000
